Laxmi Hasda Vs the State of Jharkhand through Chief Secretary

IN THE HIGH COURT OF JHARKHAND, RANCHI

W.P.(C) No. 2603 of 2024

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Laxmi Hasda, aged about 33 years, wife of Chandan Hasda, resident of Village Magurda, Post Office Roladih, Police Station Toklo, BlockChakradharpur Village Panchayat, Hatnatodang, District West Singhbhum,

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Jharkhand .... Petitioner

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-- Versus --

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1.The State of Jharkhand through Chief Secretary, Office at MDI Building Dhurwa, PO and PS Dhurwa, District Ranchi, Jharkhand

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2.The Election Commissioner, State Election Commission, Jharkhand having its office at Election Bhawan, New Market Chowk, Ratu Road, Post Office and Police Station Ratu, District Ranchi, Jharkhand

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3.The Divisional Commissioner, Singhbhum (Kolhan) Division Chaibasa, Post Office and Police Station Chaibasa, District Chaibasa, Jharkhand

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4.The Additional Deputy Commissioner, West Singhbhum cum Returning Officer, Chaibasa, Post Office and Police Station Sadar, District West Singhbhum, Jharkhand

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5.Bhumika Munda, aged about 27 years wife of Ram Lal Munda, resident of Village Laujoda Kala, Block Chakradharpur, Post Office Gopinathpur, Police Station Tokla, Village Panchayat Gopinathpur, District West Singhbhum, Jharkhand

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6.Jema Gagrai, aged about 25 years, Daughter of late Gomiya Gagrai, resident of Village Laujoda Kala, Block-Chakradharpur, Post OfficeGopinathpur, PS-Toklo, District-West Singhbhum,Jharkhand .... Respondents

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CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. Arshad Hussain, Advocate For the State :- Mr. Mithilesh Singh, Advocate Mr. Anuj Burman, Advocate ----

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4 /08.08.2024 Heard the learned counsel appearing on behalf of the petitioner as well as the learned counsel appearing on behalf of the respondent State.

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The prayer in this petition has been made for quashing of the order dated 15.02.2024 passed by the learned Divisional Commissioner, Singhbhum (Kolhan) Division, Chaibasa (Respondent no.3) in Election Petition No.04 of 2022 whereby the Divisional Commissioner has allowed the petition of respondent no.5 in part and has come to the conclusion that the petitioner is not eligible to contest the election to the post of Member-XXII West Singhbhum/04, Zila Parishad, Chakradharpur (Part-I), West Singhbhum in Panchayat Election, 2022 as a member of scheduled tribe which is reserved for scheduled tribe women. Further the prayer has been made to allow the petitioner to continue and hold the post of Member of Zila Parishad.

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Mr. Arshad Hussain, the learned counsel appearing on behalf of the petitioner submits that the petitioner has filed her nomination as a candidate of election to the post of Member XXII West Singhbhum/ 04, Zila Parishad, Chakradharpur (Part-I) West Singhbhum in Panchayat Election, 2022 before the returning Officer, at West Singhbhum, Chaibasa. He further submits that other two candidates including -2- [ W.P.(C) No. 2603 of 2024]

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Bhumika Munda (Respondent No.5) have filed their nomination paper before the Returning Officer. He further submits that the nomination papers were taken up for scrutiny and acceptance of the nomination papers of all the three candidates were made. The date of filing of the nomination papers was 16.04.2022; the date of scrutiny of nomination papers was 25.04.2022 and 26.04.2022; the last date of withdrawal of candidature was 28.04.2022; the date of Poll was 14.05.2022; the date of counting of the votes was 17.05.2022 and the date of declaration of the result of the election was 17.05.2022. He submits that the votes were counted on 17.05.2022 and the petitioner namely Laxmi Hasda has secured the highest number of the votes and was declared elected.

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He then submits that another person namely Bhumik Munda (respondent no.5) filed Election Petition being Election Petition No.4 of 2022 in the court of learned Divisional Commissioner, Singhbhum (Kolhan) Division, Chaibasa for declaration that the election of the petitioner is void on the ground that the Member of reserved category is directly attributable to birth and a person can claim the benefit of reservation only in the State in which she is born and not to the State to which such person may migrate after marriage. He further submits that the Divisional Commissioner (Kolhan) has allowed the said petition by order dated 15.02.2024 holding that the petitioner is not entitled to contest the election being the member of scheduled tribe and in view of that it was held that the petitioner is not entitled to be declared as elected. The said order is under challenge.

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He further submits that the petitioner before marriage she belonged to scheduled tribe community by sub-caste ‘HO’ and after marriage with Chandan Hasda who also belongs to scheduled tribe -3- [ W.P.(C) No. 2603 of 2024]

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community of sub-caste ‘HO’ she was fully accepted by the society of her husband as scheduled tribe. He submits that the petitioner has not filed any forged document at the time of filing of the nomination papers before the competent authority nor she played any fraud in the said election whatsoever. He then submits that the petitioner belongs to the scheduled tribe community by sub-caste ‘HO’ and presently resident of Village Magurda, Post Office Roladih Ppolice Station -Toklo, Block Chakradharpur, Village Panchayat, Hatnatodang, District West Singhbhum, Jharkhand. He further submits that Local Residential Certificate of the petitioner was issued from the Office of the Sub Divisional Officer, Chakradharpur District West Singhbhum vide Certificate dated 12.04.2019 which was found to be correct and genuine and the Caste Certificate dated 17.04.2019 issued by the Circle Office, Chakradharpur, District West Singhbhum was also found to be genuine. He submits that the petitioner has narrated all the things at the time of filing of nomination papers and after scrutiny which was found to be correct and that is why the petitioner was allowed to contest the election.

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He submits that the letter no.235 dated 10.01.2019 issued by the State of Jharkhand is meant for appointment and not for the election purpose. In this background, he submits that the finding of the learned Divisional Commissioner is erroneous and the issue framed by him has been answered wrongly. He submits that so far the issue no.1 is concerned, that is answered in favour of the respondent no.5, however, the issue nos.2 and 3 has been decided in favour of the petitioner. He submits that in view of section 52 of the Panchayat Raj Act, 2001, the petitioner fulfilled all the eligibility criteria and as such, the said order is -4- [ W.P.(C) No. 2603 of 2024]

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wrong. He submits that in view of section 53 of the said Act, the petitioner is not coming under any of the criteria for disqualification and in view of that, the order of the learned Divisional Commissioner (Kolhan) Division, Chaibasa, West Singhbhum is bad and to buttress his such argument, he relied in the case of Amla Murmu v. The State of Jharkhand and Others [W.P.(C) No.3363 of 2023] which was decided on 22.11.2023. Relying on this judgment, he submits that the case of the petitioner is fully covered and in view of that, the order of learned Divisional Commissioner (Kolhan) Division, Chaibasa, West Singhbhum may kindly be quashed. He further submits that the said order is also affirmed by the Hon’ble Division Bench in case of Gurupada Hasda v. Amala Murmu and Others in L.P.A. No.50 of 2024, reported in 2024 SCC OnLine Jhar 1674 . Relying on the above judgment, he submits that the case of the petitioner may kindly be allowed.

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Per contra, Mr. Mithilesh Singh, the learned counsel appearing on behalf of the respondent State submits that there is no illegality in the order of the learned Divisional Commissioner (Kolhan) Division, Chaibasa, West Singhbhum and he has rightly applied the law. He submits that at the time of scrutiny, respondent no.5 namely Bhumika Munda has on the basis of decision of the Hon’ble Supreme Court in the case of Ranjana Kumari v. State of Uttarakhand and the order of the Government of Jharkhand issued by the Department of Personnel, Administrative Reforms and Rajbhasha under letter no.235 dated 10.01.2019 has objected and prayed for rejection of the nomination of the petitioner on the ground that she is resident of Odisha and hence even after her marriage in the State of Jharkhand she is not -5- [ W.P.(C) No. 2603 of 2024]

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entitled to contest the election. The Election Officer has rejected the objection and the petitioner won the election but in the Election Petition No.4 of 2022, learned Divisional Commissioner (Kolhan) Division, Chaibasa, West Singhbhum vide order dated 15.02.2024 declared the election of the petitioner who was respondent in the said Election Petition as void. He submits that in light of the letter No.235 dated 10.01.2019 contained in Annexure-2 and 2/1 which was issued by the Government of Jharkhand and that was issued pursuant to the order of the Hon’ble Supreme Court in light of the Annexure-2 which is the order of the Hon’ble Supreme Court in the case of “ Rajani Kumari v. State Election Commiss., through its Secretary” reported in (2019) SCC Online (Pat.)1715 =2019 (1) PLJR 873 . He submits that the Election Officer has not been able to interpret the judgment of the Hon’ble Supreme Court in the case of “ Rajani Kumari v. State Election Commiss., through its Secretary” (supra) and in view of that, he has allowed the petitioner to contest the case. He further submits that the case of the petitioner is fit to be rejected in view of the majority judgment of this Court passed in the case of “Ranjit Kumar v. State of Jharkhand and Others” & Analogous cases, 2020 (3) JLJR 198 . He then submits that in view of the Full Bench judgment of this Court the case of the petitioner is not fit to be considered as there is no infirmity in the order of the learned Divisional Commissioner (Kolhan) Division, Chaibasa, West Singhbhum. He further submits that recently this aspect is further considered by the Hon’ble Supreme Court in the case of Neetu Sapre v. State of Madhya Pradesh and Another

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[Civil Appeal No.(s) 11405 of 2018- Arising out of Special Leave Petition (Civil) No.20555 of 2017] wherein at paragraph nos.6 and 7 -6- [ W.P.(C) No. 2603 of 2024]

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of the said judgment, this issue has been considered and that judgment is of Hon’ble three-Judges Bench and paragraph nos.6 and 7 of the said judgment are quoted below:

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Be that as it may, the Caste certificate in question clearly recites that it is not valid for service in the government of Madhya Pradesh. That apart, the certificate in question certifies the appellant to be a member of the Scheduled Caste on the basis of her marriage to one Sandeep Sapre, a resident of Kurwai, District Vidisha, Madhya Pradesh. The caste certificate relied upon by the appellant apparently does not conform to the requirement of Rule 15(1) of the Rules so far as the married women are concerned.

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The appellant also relies on a Certificate dated 19th October, 2011 issued by the Tahsildar (Sadar), Agra certifying that one Bhagwan Dass, whom the appellant’s claims to be her father, is a member of the “Khateek” caste which is recognized as a Scheduled Caste in the State of Uttar Pradesh. This certificate has to be viewed in the context of the fact that the appellant admits to have migrated to the State of Madhya Pradesh after her marriage in the year 2007. If that is so, her earlier status as a Scheduled Caste in the State of Uttar Pradesh cannot be carried forward by her on her migration to the State of Madhya Pradesh so as to entitle her to claim the benefit of belonging to the Scheduled Caste of the State of Madhya Pradesh. The High Court, therefore, was right in rejecting the writ petition and in denying the reliefs sought by the appellant.

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Relying on the above judgment, he submits that once the petitioner is found to be resident of Odisha, she is having the Caste Certificate of that State and in view of that the benefit of such caste status cannot be provided in the State of Jharkhand even after marriage

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if she is residing in the State of Jharkhand. On these grounds he submits that the writ petition is fit to be dismissed.

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This Court has considered this aspect of the controversy in the case of Sunil Kumar Paswan v. The State of Jharkhand and Others [W.P.(C) No.3734 of 2019] wherein the notification dated 06.08.1984 and further notification dated 22.02.1985 and letter dated 22.02.2018 issued by the Government of India whereby the Ministry of Home Affairs, Government of India issued directions from time to time how SC/ST persons migrated from the State of his/her origin to another State will be considered. The letter dated 06.08.1984 speaks as under:

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“No. BC-16014/1/82-SC & ECDGoverment of India Bharat Sarkar Ministry of Home Affairs/Grih Mantralaya New Delhi, the 6th August, 1984.

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To

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The Chief Secretaries of All State Goverments and U.T. Administrations.

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Subject: Verification of claim of candidates belonging to Scheduled Castes and Scheduled Tribes and migrants from other states/Union Territories Form of certificate- Amendment to. Sir,

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I am directed to refer to this Ministry's letter of even number dated the 18.11.1982 and the Department of Personnel and Administrative Reforms letter No 36012/6/76/Est. (SCT), dated the 29/10/1977 on the above subject and to say that the form of Scheduled Caste/Scheduled Tribe certificate enclosed with the aforesaid letters has been further revised consequent upon coming into force of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 and keeping in view the difficulty being experienced by the persons belonging to the Scheduled Castes and Scheduled Tribes in obtaining community certificates on migration from their States of origin to another for the purpose of employment, education etc. The revised caste/tribe form of certificate is enclosed herewith. It is requested that a copy of the revised form of certificate may please be brought to the notice of all the competent authorities who have been empowered to issue such certificates. The list of competent authorities who have been empowered to issue the Scheduled Caste/Scheduled Tribe certificates circulated by the Department of Personnel and Administrative Reforms in their letter No. 13/2/74-Est. (SCT), dated, the 05/08/1975 has also been incorporated in the enclosed revised form.

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2. The instructions issued in this Ministry's letter of even number dated the 18.11.1982 will continue. It is, however,

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clarified that the Scheduled Caste/Scheduled Tribe person on migration from the State of his origin to another State will not lose his status as Scheduled Caste/Scheduled Tribes but he will be entitled to the concessions/benefits admissible to the Scheduled Castes Scheduled Tribes from the State of his origin and not from the State where he has migrated. All competent authorities may be advised under intimation to this Ministry to issue the Scheduled Caste/Scheduled Tribe certificates on the revised form of henceforth after satisfying themselves of correctness of the certificate after proper verification based on the revenue records through reliable enquiries. The list of the competent authorities empowered and incorporated in the form may please be followed strictly. No other authority may be authorized to issue the Scheduled Caste/ Schedules Tribe certificates.

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Yours faithfully. Sd/BK Sarkar Joint Secretary to Govt. of India Dated, the 6th August, 1984

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No. BC-16014/1/82-SC & BCD-I,

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1.Secretary, Union Public Service Commission, Dholpur House, New Delhi (with 15 S/cs).

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2.Secretary, Staff Selection Commission, CGO Complex, Block No.12, Lodi Road, New (with 15 S/cs.

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3.All the Ministries/Departments, Government of India.

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4. Secretary, Commission for Scheduled Castes/Scheduled Tribes, Lok Nayak Bhawan,New Delhi

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5. Commissioner for Scheduled Castes & Scheduled Tribes, R.K. Puram, New Delhi. 6. All Directors/Deputy Directors for Scheduled Castes and Scheduled Tribes.

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7.Comptroller and Auditor General of India.

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8.Election Commission of India.

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9. Lok Sabha Secretariat (SC/ST Branch) with spare copies). 10. Lok Sabha Secretariat (Administration Branch). II. Ministry of Defence (D-FS)

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12. Bureau of Public Enterprises (Management Division). 13. Ministry of Home Affairs (Planning Cell) for taking necessary action so far as Union Territories are concerned 14. Department of Personnel and Administrative Reforms. Estt. SCT, Administration L, II AIS(I). (III), (IV), CS(I). (II). (III), Est(B), (C. (D), IFS, ISS, AVD(II), CD(IV), EO(MM), and Welfare Sections.

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15. All attached and subordinate offices of the Department of personnel and Administrative Reforms.

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16. All Sections in SC&BCD Division/T.D. Division, Administration)(A)(I), (D)(II) Sections in the Ministry of Home Affairs.

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17. One copy to be retained in F.No.BC-120202/76-SCT.I

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Sd/(B.K. Sarkar) Joint Secretary to the Govt.of India” 10 . The further Notification dated 22.02.1985 in -9- [ W.P.(C) No. 2603 of 2024]

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paragraph no.2 states as under:

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“ 2. It is also clarified that a Scheduled Caste/tribe persons who has migrated from the State of origin to some other State for the purpose of seeking education, employment, etc. will be deemed to be a Scheduled Caste/tribe of the State of his origin and will be entitled to derive benefits from the State of origin and not from the State to which he has migrated”

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11 . The letter dated 22.02.2018 is as under:

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“ No. 12017/2018 -SCD (R.L.Cell) Government of India

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Ministry of Social Justice and Empowerment Department of Social Justice and Empowerment

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(Scheduled Castes Development Division-Revision of Lists Cell)

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Shastri Bhawan, New Delhi, dated the 22nd February, 2018 To The Chief Secretaries to all State Governments/Union Territory Administrations.

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Subject:--Reiteration of the instruction on issue of Scheduled Caste Certificate to migrants from other States/Union Territories. Sir/Madam,

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I am directed to refer to Ministry of Home Affairs (MHA) letters No. BC-16014/1/82-SC & BCD-I dated 06.08.1984 & 22.02.1985 (copies enclosed) in which Chief Secretaries of all State Governments/Union Territory Administrations were requested that the prescribed authority of a State Government/Union Territory Administration may issue the Scheduled Caste/Tribe certiſicate to a person who was migrated from another State on production of the Genuine Certificate issued to his/her father by the prescribed authority of the State of the father's origin except where the prescribed authority feels that detailed enquiry is necessary through the State of origin before issue of the certificate. The certificate will be issued irrespective of whether the Caste/Tribe in question is scheduled or not in relation to the State/Union Territory to which person has migrated. The revised form of Caste Certificate for the purpose was circulated. It was clarified that the Scheduled Caste/ Scheduled Tribe person on migration from the State of his/her origin to another State not lose his/her status as Scheduled Caste/Scheduled Tribes but he/she will be entitle to the concessions/benefits admissible to the Scheduled Castes/Scheduled Tribes from the State of his/her origin and not from the State where he/she has migrated.

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2. Instances have been brought to the notice of this Ministry that despite the aforesaid instructions, the persons belonging to Scheduled Castes who have migrated from one State/ Union territory (UT) to another for the purpose of employment, education etc. experience great difficulty in obtaining caste certificate or they are denied Scheduled Caste certificate in the migrated State/UT.

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3. It is, therefore, reiterated that the competent authorities who have been empowered to issue social status certificate in a State

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Government/UT Administration may issue the Scheduled Caste certificate to a person who has migrated from another State/UT, on the production of the genuine certificate issued to his/her father by the prescribed authority of the State/UT of the father's origin except where the prescribed authority feels that detailed through the State/UT of origin before issue of the certificate. The certificate will be issued enquiry is necessary irrespective of whether the Caste in question is scheduled or not in relation to the State/UT to which the person has migrated. It is also clarified that inter-State/UT Scheduled Caste migrant will be deemed to be a Scheduled Caste of the State/UT of his/her origin and will be entitled to derive benefits from the State/UT of origin and not from the State UT to which he/she has migrated. However, a member of a Scheduled Casie would be entitled for all benefits/concessions of Central Government irrespective of his/her State/UT of origin.

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4. All the State Government/UT Administrations are requested to bring the contents of this letter to the notice of all the authorities empowered to issue social status certificate in the State/Union Territory.

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Yours faithfully (Aindri Anurag) Joint Secretary to the Govt. of India Tel: 2338353

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No. 12017/1/2018 SCD (R.L.Cell)

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Dated the 22nd February, 2018

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Copy forwarded for information and necessary action to:

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1. Department of Personnel & Training, Estt.(R&S) with the request that necessary amendment to the brochure of the reservation in services for Scheduled Castes and Scheduled Tribes, by incorporating where necessary, the position stated in the foregoing paragraphs may please be made.

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2. The Secretary, Union Public Service Commission, Dholpur House, New Delhi-110069 Staff Selection Commission, Block No.12, CGO Complex, Lodhi Road,

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3.The Chairperson, Staff Selection Commission, Block No.12, CGO Complex, Lodhi Road, New Delhi

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4. The Comptroller & Auditor General of India, Pocket-9, Deen Dayal Upadhyay Marg, New Delhi-110124.

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5. Election Commission of India, Nirvachun Saden, Ashoka Road, New Dolhi-110001

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6.The Joint Secretary, National Commission for Scheduled Castes, Lok Nayak Bhawan, Khan Market, New Delhi - 110003.

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7. The Joint Secretary, National Commission for Scheduled Tribes, Lok Nayak Bhawan, Khan Market, New Delhi - 110003,

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8. All Bureau Heads/ Divisional Heads/ Desks/ Sections of Ministry of Social Justice and Empowerment

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(Aindri Anurg) Joint Secretary to the Govt.of India”

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The letter dated 18.11.1982 speaks of detailed

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enquiry through the State of origin before the issue of the certificate.

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In the light of the above letters, subsequent guidelines have been

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issued by the Government of India on different times as to how the migrated persons will be treated. While considering the Articles 341, 342 and 342(a) of the Constitution of India the Full Bench of this Court in “Ranjit Kumar v. State of Jharkhand” at paragraph no.55 of its judgment held as under:

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“ 55. The line of decisions rendered by the Constitution Bench of the Apex Court in the case of Marri Chandra Shekhar Rao; Action Committee on Issue of Caste Certificate to Scheduled Caste and Scheduled Tribes in the State of Maharashtra and Bir Singh consistently lay down that scheduled castes and scheduled tribes specified in relation to a State or a Union Territory do not carry the same status in another State or Union Territory and any expansion or deletion of the list of scheduled castes/scheduled tribes by any authority except Parliament would be against the constitutional mandate under Article 341 and 342 of the Constitution of India. Since power under Article 16(4) is not only capable of being exercised by legislative provision/enactment, but also by an Executive Order issued under Article 166 of the Constitution, any operation of the lists of scheduled castes and schedules tribes by exercise of enabling power vested by Article 16(4) beyond the clases or categories enumerated under the Presidential Order for a particular State/Union Territory would have the obvious effect of circumventing the specific constitutional provisions in Article 341 and 342. If in the opinion of the State, it is necessary to extend the benefit of reservation to a class/category of SC/ST beyond those specified in the Lists for that particular State, constitutional discipline would require the State to make its view in the matter prevail with the central authority, so as to enable an appropriate parliamentary exercise to be made by an amendment of the Lists of scheduled castes/scheduled tribes for that particular State. Unilateral action by States on the touchstone of Article 16(4) of the Constitution has been held to be impermissible under the Constitution. ”

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13 . In the letter dated 20.02.1985, it has been clarified

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that the prescribed authority of a State Government/ Union Territory Administration may issue SC/ST Certificate to a person who has migrated from another State of the father's origin except, where the prescribed authority feels, that a detailed enquiry is necessary through the State of origin before issue of the certificate. It was further clarified that the person who has migrated from the State of origin to other State for the purpose of seeking education, employment etc. will be deemed to be Scheduled Caste/Scheduled Tribe of the State of his origin and will be entitled to derive benefit from the State of origin and not from the State to which he has migrated. For determining the status of a person in such a situation, the Hon'ble Supreme Court has considered in the case of

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“Sudhar Vithal Kunbhare v. State of Maharashtra and Others”, [supra] and “Sau Kusum” arising out of reorganization of the State and these two judgments have been considered by the Hon'ble Full Bench of this Court at paragraph no.15, which is as under:

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“ 15 . Learned counsels have also placed reliance upon the decision of the Hon'ble Apex Court in Sau Kusum Vs. State of Maharastra & Ors., reported in (2009) 2 SCC 109, wherein where, the appellant who was belonging to the Vidarbha area, the border area of the States of Madhya Pradesh and Maharastra, claimed to be belonging to the carpenter caste, which was recognized as Other Backward Class in both the States, was denied to the right to contest an election for the Member of Panchayat in the State of Maharastra, on the ground that she was not a resident of Maharashtra prior to 1967 and her family had migrated from the State of Madhya Pradesh to the State of Maharastra. In the said case, it was urged on behalf of the appellant that the principles laid down in Sudhakar Vithal Kumbhare's case should have been

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applied. In the said case, the Hon'ble Apex Court laid down the law as follows :-

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"12. In that view of the matter, if it is a fact that the people belonging to the said caste are recognised as OBC, both in Madhya Pradesh and Maharashtra, being badhai in the former and sutar in the latter and keeping in view of the fact that the Caste Scrutiny Committee has found her to be belonging to the sutar caste, we are of the opinion that the matter requires reconsideration.

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13. It may be noticed that the Bombay High Court also in Hitesh Dasiram Murkute v. State of Maharashtra opined:

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“(iv) Date too is equally relevant in order to identify the person as belonging to caste included in the Schedule on the date of such inclusion with reference to locality identified in the Schedule. Therefore, a person claiming benefit would have to show that his ancestors hailed on the date of inclusion of caste in Schedule from a place identified in the Schedule. In other words, the relevant date is not the date of migration but date of inclusion of caste or tribe in the Schedule.”

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14. There is nothing on record to show as to when she had migrated to the State of Maharashtra. If admittedly she had migrated to the State of Maharashtra before 1967, she would be considered to be a permanent resident of Maharashtra.

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16. It is one thing to say that she, being not a permanent resident of the State, would not be entitled to contest any election. If she is to be conferred the said status, she will be entitled to all the benefits to which members of the said caste are entitled to but would also be entitled to other benefits i.e. not the benefit to contest in the reserved categories of the election of the Panchayat alone but other benefits as well."

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Hon’ble the Supreme Court in the case of “Action

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Committee on Issue of Caste Certificate to Scheduled

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Castes and Scheduled Tribes in the State of Maharashtra and Another v. Union of India and Another” reported in (1994) 5 SCC 244 has considered the communication dated

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22.03.1977 of the Government of India considering Articles 341 and 342 of the Constitution of India and discussed at paragraph no.8 and 16, as under:

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“8. In course of time persons belonging to Scheduled Castes/Scheduled Tribes who had migrated from one State to another in search of employment or for education purposes and the like, experienced great difficulty in obtaining Caste/Tribe Certificates from the State from which they had migrated. To remove this difficulty experienced by them the earlier instructions contained in the letter of 22-3-1977, and the subsequent letter of 29-3-1982, were modified, in that, the prescribed authority of a State/Union Territory was permitted to issue the Scheduled Caste/Scheduled Tribe Certificate to a person who had migrated from another State on production of a genuine certificate issued to his father by the prescribed authority of the State of the father’s origin except where the prescribed authority considered a detailed enquiry necessary through the State of origin before issue of certificate. It was further stated that the certificate will be issued irrespective of whether the Caste/Tribe in question is scheduled or not in relation to the State/Union Territory to which the person has migrated. Of course, this facility did not alter the Scheduled Caste/Tribe status of the person in relation to the one or the other State. The revised form of the certificate was circulated. Further, it was clarified that a Scheduled Caste/Tribe person who has migrated from the State of origin to some other State for the purpose of education, employment, etc., will be deemed to be Scheduled Caste/Tribe of the State of his origin only and will be entitled to derive benefits from that State and not from the State to which he had migrated. By this clarificatory order forwarded to Chief Secretaries of all States/Union Territories, the only facility extended was that the prescribed authority of the State/Union Territory to which a person had migrated was permitted to issue the certificate to the migrant on production of the genuine certificate issued to his father by the prescribed authority of the State of the father’s origin provided that the prescribed authority could always enquire into the matter through the State of origin if he entertained any doubt. The certificate to

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be so issued would be in relation to the State/Union Territory from which the person concerned had migrated and not in relation to the State/Union Territory to which he had migrated. Therefore, the migrant would not be entitled to derive benefits in the State to which he had migrated on the strength of such a certificate. This was reiterated in a subsequent letter dated 15-10-1987 addressed to Smt Shashi Misra, Secretary, Social Welfare, etc., in the State of Maharashtra. In paragraph 4 of that letter it was specifically stated:

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“Further, a Scheduled Caste person, who has migrated from the State of his origin, which is considered to be his ordinary place of residence after the issue of the first Presidential Order, 1950, can get benefit from the State of his origin and not from the State to which he has migrated.”

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So stating the proposal regarding reduction in the period of cut-off point of 1950 for migration was spurned. It was stated that the proposal could have been taken care of only if the lists of Scheduled Castes and Scheduled Tribes were made on all-India basis which, it was said, was not feasible in view of the provisions of Articles 341 and 342 of the Constitution. It will thus, be seen that so far as the Government of India is concerned, since the date of issuance of the communication dated 22-3-1977, it has firmly held the view that a Scheduled Caste/Scheduled Tribe person who migrates from the State of his origin to another State in search of employment or for educational purposes or the like, cannot be treated as a person belonging to the Scheduled Caste/Scheduled Tribe of the State to which he migrates and hence he cannot claim benefit as such in the latter State.

¶116

16. We may add that considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/Schedule Tribes or backward classes in a given State would depend on the nature and extent of disadvantages and social hardships suffered by that caste, tribe or class in that State which may be totally non est in another State to which persons belonging thereto may migrate. Coincidentally it may be that a caste or tribe bearing the same nomenclature is specified in two States but the

¶117

-16- [ W.P.(C) No. 2603 of 2024]

¶118

considerations on the basis of which they have been specified may be totally different. So also the degree of disadvantages of various elements which constitute the input for specification may also be totally different. Therefore, merely because a given caste is specified in State A as a Scheduled Caste does not necessarily mean that if there be another caste bearing the same nomenclature in another State the person belonging to the former would be entitled to the rights, privileges and benefits admissible to a member of the Scheduled Caste of the latter State “for the purposes of this Constitution”. This is an aspect which has to be kept in mind and which was very much in the minds of the Constitution-makers as is evident from the choice of language of Articles 341 and 342 of the Constitution. That is why in answer to a question by Mr Jaipal Singh, Dr Ambedkar answered as under:

¶119

“He asked me another question and it was this. Supposing a member of a Scheduled Tribe living in a tribal area migrates to another part of the territory of India, which is outside both the scheduled area and the tribal area, will he be able to claim from the local Government, within whose jurisdiction he may be residing the same privileges which he would be entitled to when he is residing within the scheduled area or within the tribal area? It is a difficult question for me to answer. If that matter is agitated in quarters where a decision on a matter like this would lie, we would certainly be able to give some answer to the question in the form of some clause in this Constitution. But so far as the present Constitution stands, a member of a Scheduled Tribe going outside the scheduled area or tribal area would certainly not be entitled to carry with him the privileges that he is entitled to when he is residing in a scheduled area or a tribal area. So far as I can see, it will be practicably impossible to enforce the provisions that apply to tribal areas or scheduled areas, in areas other than those which are covered by them….”

¶120

Relying on this statement the Constitution Bench ruled that the petitioner was not entitled to admission to the medical college on the basis that he belonged to a Scheduled Tribe in the State of his origin.”

¶121

-17- [ W.P.(C) No. 2603 of 2024]

¶122

Further, in the case of “ Sanjeev Kumar and Another v. State of Bihar and Others” reported in (2016) 13 SCC 105 , the Hon’ble Supreme Court has held that the person who was originally from the State of U.P was not entitled to the benefit of SC candidate in the State of Bihar. Reference in this regard may be made to paragraph nos.13 to 15 of the said judgment, which are quoted below:

¶123

“13. It is true that the initial appointment of the appellants has been found to be legally bad on account of the reasons set out earlier, yet the prolonged litigation on the subject has indeed deprived the appellants of the opportunity to seek employment elsewhere and even to appear in the successive examinations that have been offered by the Public Service Commission to eligible candidates for recruitment in the Bihar State Judicial Service not only in the reserved category but for the general category candidate like the appellants. The appellants appear to have laboured under the impression that since they have already been appointed they would be entitled to defend their appointments and continue in service. That expectation has not come true in the light of the Constitution Bench decisions. Be that as it may, we see no impediment in the appellants being given a last opportunity to appear in the next examination for recruitment of officers in the State Judicial Service to be notified by the Bihar Public Service Commission hereafter in relaxation of the age bar, if any prescribed. We make it clear that the appellants shall appear in the said examination and shall be treated as general category candidates only. In case they qualify and get selected for appointment as fresh candidates, their appointments already made in the year 2006 would continue uninterrupted with all consequential benefits of seniority, etc. In case, however, the appellants fail to qualify for appointment in the next examination, as indicated above, they shall cease to hold the posts currently held by them.

¶124

14. On the same analogy, we do not see any reason to deny to Respondents 4 and 5, writ petitioner and intervener, a similar opportunity whose position is no different. They too appear to have neglected the subsequent examinations hoping that the impugned

¶125

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¶126

judgment would entitle them to enter the judicial service. Now that we find it too late for the said respondents to be appointed on the basis of examination held in the year 2006, the only option for them too is to try their luck in the next examination along with the appellants in relaxation of the age bar in the general/reserved category for Scheduled Caste candidates as the case may be.

¶127

15. In the result, we dismiss this appeal insofar as the impugned judgment declares that the appellants are not entitled to the benefit of reservation. The remainder of the impugned order is however modified to the effect that the appellants herein and Respondents 4 and 5 (original writ petitioner and intervener) shall have an opportunity to appear in the next examination for selection of the Civil Judge, Junior Division (Munsif Magistrates) in the Bihar Judicial Service, to be notified by the Bihar Public Service Commission. We make it clear that this opportunity shall be the last and final opportunity to both sides to appear in the examination and compete for a fresh appointment. In case the appellants fail to qualify for appointment in the open merit category on the basis of their inter se merit with other candidates in that category, their appointments shall stand terminated with effect from the date the Public Service Commission declares the final result of the examination. In case however they qualify their appointment made in the year 2006 shall continue with all consequential benefits. The appellants shall not however be entitled to any benefit of reservation at any stage of their service in future. We further make it clear that this order has been passed in the peculiar facts and circumstances of the case and is limited to the appellants and Respondents 4 and 5 alone. No other candidate placed anywhere in the merit list of 2006 shall be entitled to claim any such benefit either from this Court or from the Public Service Commission or by the State of Bihar for that matter. ”

¶128

For requirement of caste certificate, the original documents or the caste certificate of the father of the petitioner was required which has not been done in the case of the petitioner.

¶129

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¶130

17. In letter dated 02.05.1975, the cases of migration has

¶131

been dealt as under:

¶132

“2. Cases of migration:

¶133

(i) Where a person migrates from the portion of the State in respect of which his community is scheduled to another part of the same State in respect of which his community is not scheduled, he will continue to be deemed to be a member of the Scheduled Caste or the Scheduled Tribe, as the case may be, in relatin to that State.”

¶134

(ii) Where a person migrates from one State to another, he can claim to belong to a Scheduled Caste or a Scheduled Tribe only in relation to the State to which he originally belonged and not in respect of the State to which he has migrated.”

¶135

In view of above notifications/ letters, it is crystal

¶136

clear that the person migrates from one State to another is entitled for such reservation to the State to which he is originally belongs to and not in respect to which he has migrated. This aspect of the matter has been considered by the Hon'ble Supreme Court in the

¶137

case of “Marri Chandra v. Dean, SGS Medical College”

¶138

(1990) 3 SCC 130. In paragraph no.6 of the said judgment the point was formulated which is as under:

¶139

“6. The question, therefore that arises in this case, is whether the petitioner can claim the benefit of being a Scheduled Tribe in the State of Maharashtra though he had, as he states, a Scheduled Tribe certificate in the State of Andhra Pradesh? Inasmuch as we are not concerned in this application with the controversy as to whether the petitioner correctly or appropriately belongs to the Gouda community or not, or whether the petitioner had a proper certificate, it is desirable to confine the controversy to the basis question, namely, whether one who is recognised as a Scheduled Tribe in the State of his origin and birth continues to have the benefits or privileges or rights in the state of migration or where he later goes. ”

¶140

All these aspects including those letters have been

¶141

-20- [ W.P.(C) No. 2603 of 2024]

¶142

considered by this Court in the case of Sunil Kumar Paswan v. The State of Jharkhand (supra) in W.P.(C) No.3734 of 2019 decided on 08.04.2021.

¶143

20 In paragraph nos. 20, 21 and 22, the Hon'ble Supreme Court in the case of “Marri Chandra v. Dean, SGS Medical College” reported in (1990) 3 SCC 130 (supra) answered the same and held that the petitioner of that case was not entitled to be admitted to the medical college on the basis of scheduled caste certificate in Maharashtra. The judgments relied by the learned counsel for the respondent State in the case of Neetu Sapre v. State of Madhya Pradesh and Another [Civil Appeal No.(s) 11405 of 2018 (supra) further taken the same view and Full Bench of this Court has also answered this aspect of the matter in the case of “Ranjit Kumar v. State of Jharkhand and Others” & Analogous cases, [supra].

¶144

So far the judgment relied by Mr. Arshad Hussain in the case of Amla Murmu v. The State of Jharkhand and Others (supra) is concerned in that judgment aforesaid judgments have not been considered including the Full Bench judgment of this Court and as such, that judgment is not coming to the help of the petitioner. Affirmation of the said order by the Division Bench this aspect of the matter has not been considered and all these judgments have now been considered and only the Division Bench has considered the meaning of resident and based on that, the said order is passed. As such, this is also not helping the petitioner.

¶145

22 . In course of argument, it has been pointed out by the learned counsel for the petitioner as well as the respondent State that so

¶146

far the case of Ranjana Kumari v. State of Uttarakhand (supra) is -21- [ W.P.(C) No. 2603 of 2024]

¶147

concerned that has been referred by the Larger Bench of the Hon’ble Supreme Court. It is well settled that the High Court is required to take decision on the existing law. The High Court cannot defer the decision to a particular place awaiting the judgment of the Larger Bench and this aspect has been considered by the Hon’ble Supreme Court in the case of Union Territory of India and Others v. Jammu and Kashmir National Conference and Others, 2023 SCC OnLine SC 1140.

¶148

As such, in view of that, merely the case of Ranjana Kumari v. State of Uttarakhand (supra) is referred to the Larger Bench, this case cannot be adjourned awaiting the judgment of Larger Bench.

¶149

In view of above facts, reasons and analysis, the Court finds that there is no illegality in the order of the learned Divisional Commissioner (Kolhan) Division, Chaisaba, West Singhbhum in Election Petition No.04 of 2022 and as such, W.P.(C) No.2603 of 2024 is hereby, dismissed.

¶150

Pending petition if any also stands disposed of accordingly.

¶151

( Sanjay Kumar Dwivedi, J.)

¶152

SI/, A.F.R.

¶153

-22- [ W.P.(C) No. 2603 of 2024]

Laxmi Hasda v. the State of Jharkhand through Chief Secretary

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Laxmi Hasda v. the State of Jharkhand through Chief Secretary

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