TMI Blog2009 (12) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case are: 3. All the petitioners herein (10 in number) are employees of the North Eastern Electric Power Corporation Limited (hereinafter called "NEEPCO Ltd."). They are working at different places in the State of Arunachal Pradesh. 4. It is undisputed assertion of the petitioners that all of them originally belonged to the State of Assam and in the State of Assam, each of them was recognized as a person belonging to some scheduled tribe or the other specified under article 342 of the Constitution of India. The petitioners also assert that they were employed by the respondent-NEEPCO against the vacancies reserved for scheduled tribes. 5. The petitioners further assert that from the date of their employment, they were exempted from payment of income-tax in view of section 10 sub-section (26) of the Income-tax Act, 1961, till the assessment year 2005-06. However, subsequent to that, i.e., with effect from the assessment year 2005-06 onwards, the employer had been deducting income-tax at source without any prior notice to the petitioners. Hence, the present writ petition with the prayers as follows: "(i) To direct the respondents to give exemption to the petitioners fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In other words, a member of the scheduled tribe, who otherwise satisfied all other terms of sub-section (26) of section 10 of the Income-tax Act, if he happened to be in the service of the Government, was not entitled to claim the benefit of the said section. The said section was challenged in a case reported in S. K. Dutta v. Lawrence Singh Ingty [1968] 68 ITR 272 (SC). The Supreme Court held such a classification excluding the Government servants from the scheme of section 10 sub-section (26) is violative of article 14 and invalid. Consequently, Parliament amended the Income-tax Act (Act 42 of 1970) to bring the law in tune with the abovementioned Supreme Court judgment. 10. For deciding the tenability of the claim of the petitioners, an analysis of section 10 sub-section (26) is required. In our view, section 10 sub-section (26) stipulates that in computing the total income of an assessee, who is a member of a scheduled tribe as defined in clause (25)* of article 366 of the Constitution, (1) any income, which accrues or arises to him from any source in the areas or States mentioned in sub-section (26), should be excluded, and also (2) income, arising by way of a dividend or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d notification came to be issued in exercise of the power conferred by the proviso to subparagraph (3) of paragraph 20 of the Sixth Schedule. It may be mentioned that paragraph 20 of the Sixth Schedule to the Constitution itself stood amended by an Act of Parliament known as the North-Eastern Areas (Reorganisation) Act, 1971 (81 of 1971). We need not examine the purpose of the said notification, but from the tenor of the notification, it appears that the Governor of the then State of Assam was authorized to specify some areas, which are otherwise declared to form part of the tribal areas under paragraph 20 of the Sixth Schedule as it then existed. On such specification, those areas cease to form part of the tribal areas for the purpose of the Sixth Schedule. In exercise of such power, the notification was issued specifying certain areas of the then State of Assam. However, for the purpose of conferring the benefits under section 10 sub-section (26), Parliament thought it fit that notwithstanding the scheme of paragraph 20 of the Sixth Schedule to the Constitution and the authority of the Governor to exclude certain areas and the consequential decision of the Governor to notify by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclude in or exclude from the list of scheduled tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification." 16. It is well settled that the specification of scheduled tribes is with reference to a particular State or Union Territory, i.e., a community or a tribe is specified to be a scheduled tribe only with reference to a particular locality/ State/Union Territory. Such a community/tribe, even if it exists in some other parts of the country, if it is not specified by the President to be a scheduled tribe with reference to such other part of the country, the members of such tribe, inhabiting in such other part of the country, do not get the recognition of belonging to a scheduled tribe. Similarly, members belonging to a tribe recognized to be a scheduled tribe with reference to a particular State, when they migrate to another State, are not entitled as a matter of right for recognition as members of a scheduled tribe in the State of their immigration and claim the benefits offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o other States as a matter of voluntary (sic involuntary) transfer, will they be entitled to some sort of protective treatment so that they may continue or pursue their education. Having considered the facts and circumstances of such situation, it appears to us that where the migration from one State to another is involuntary, by force of circumstances either of employment or of profession, in such cases if students or persons apply in the migrated State where without affecting prejudicially the rights of the scheduled castes or scheduled tribes in those States or areas, any facility or protection for continuance of study or admission can be given to one who has migrated then some consideration is desirable to be made on that ground. It would, therefore, be necessary and perhaps desirable for the Legislatures or Parliament to consider appropriate legislations bearing this aspect in mind so that proper effect is given to the rights given to scheduled castes and scheduled tribes by virtue of the provisions under articles 341 and 342 of the Constitution. This is a matter which the State Legislatures or Parliament may appropriately take into consideration." 19. However, in S. Pushpa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confers no constitutional right upon the members of the backward classes to claim reservation. Article 16(4) is not controlled by a Presidential Order issued under article 341(1) or article 342(1) of the Constitution in the sense that reservation in the matter of appointment on posts may be made in a State or Union Territory only for such scheduled castes and scheduled tribes which are mentioned in the schedule appended to the Presidential Order for that particular State or Union Territory. This article does not say that only such scheduled castes and scheduled tribes which are mentioned in the Presidential Order issued for a particular State alone would be recognised as backward classes of citizens and none else. If a State or Union Territory makes a provision whereunder the benefit of reservation is extended only to such scheduled castes or scheduled tribes which are recognised as such in relation to that State or Union Territory then such a provision would be perfectly valid. However, there would be no infraction of clause (4) of article 16 if a Union Territory by virtue of its peculiar position being governed by the President as laid down in article 239 extends the benefit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nent resident thereof and his income has to accrue from any source located therein. It is only if the above three conditions co-exist that the benefit envisaged under the above provision of the Act would be available. The interpretation provided to section 10(26) of the Act by departmental and other authorities to the contrary as is sought to be relied upon on behalf of the petitioners, in view of the judicial determination made in N. Takin Roy Rymbai [1976] 103 ITR 82 (SC), Dr. Curzon G. Momin [1973] 92 ITR 425 (Gauhati) as well as above is inconsequential and is of no assistance to the petitioners. The petitioners, therefore, cannot be adjudged to be eligible for the exemption under section 10(26) of the Act." 24. Another Division Bench of this court had an occasion to consider the scope of section 10(26), in a case, reported in Smt. Dipti Doley Basumatary v. Union of India [2007] 290 ITR 498 (Gauhati); [2007] (3) GLT 348, and held as follows (page 503 of ITR): "All the writ petitioners are transferred from different areas mentioned in the Table to paragraph 20. Therefore, their residence in the State of Meghalaya and in Bodoland cannot be construed to be 'fleeting . Question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia [2007] 290 ITR 498 (Gauhati); [2007] (3) GLT 348 took a different view. It held that a person, who claims the benefit of section 10(26) of the Income-tax Act must be a member of a scheduled tribe in relation to any one of the areas specified under section 10(26) of the Income-tax Act but, such a person need not reside in that area in relation to which his tribe is notified as a scheduled tribe, but it is enough if he is residing in any one of the other areas specified under section 10(26). 27. The learned counsel for the Department argued that in view of the two Constitution Bench judgments of the Supreme Court reported in Marri Chandra Shekhar Rao v. Dean, Seth G. S. Medical College [1990] 3 SCC 130 and Action Committee on issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra v. Union of India [1994] 5 SCC 244, it is well settled that a member of a scheduled tribe, migrating from the place of his origin, where the tribe to which he belongs is notified by the President to be a scheduled tribe in relation to that particular State within whose territorial limits such person' s place of origin is located, does not carry the status of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Parliament intended to deny the benefit of the exemption in the cases of immigrants. 30. The Division Bench of this court already noticed in Mahendra Kamprai v. State of Assam [2008] (4) GLT 863 (Gauhati) that Parliament, while making the Representation of the People Act, 1951, clearly recognised the rights of migrants from the place of their origin, whether they belong to scheduled castes or scheduled tribes, to contest any seat in the Lok Sabha or the Legislative Assembly of a State, as the case may be, subject of course to certain limitations with regard to the seats reserved in the autonomous district of the State of "Assam". At paragraphs 24, 25 and 26 of the said judgment it was held as follows: "24. Parliament made the Representation of the People Act, 1951. Section 7 read with the Second Schedule declare the total number of seats with respect to the Legislative Assemblies of each State. Section 3 of the said Act read with the First Schedule specifies the number of seats in respect of each of the States to be reserved in favour of either scheduled castes or scheduled tribes in the House of People (Lok Sabha). As to which particular seat in a particular State is to be r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative Assembly reserved either for scheduled castes or scheduled tribes, the person must belong to either scheduled caste or scheduled tribe, as the case may be, recognised to be a scheduled caste or scheduled tribe, as the case may be, vis-a-vis that particular State, but such a person need not be an elector of that particular locality, which is specified in the Presidential order, while recognizing the scheduled castes and scheduled tribes of that particular State. 26. Coming to the question as to who is an elector within the meaning of the said expression occurring in sections 4 and 5 of the Representation of the People Act, 1951, we notice that section 2(e) of the Representation of the People Act, 1951, defines the said expression as follows: ' "elector" in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1951.' Under section 19 of the Representation of the People Act, 1951, a person is entitled to be registered as an elector in the electoral roll prepared for a constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, that is, the areas comprising North East and Jammu and Kashmir of the country, which received a special treatment under the scheme of the Constitution in the various aspects of the application of the Constitution. It may also be worthwhile remembering that even in the matter of reservation of seats either in the Lok Sabha or the various Legislative Assemblies, the scheduled tribes of the State of "Assam" are treated exclusively under article 330(3){Notwithstanding anything contained in clause (2), the number of seats reserved in the House of the People for the scheduled tribes in the autonomous districts of Assam shall bear to the total number of seats allotted to that State a proportion not less than the population of the scheduled tribes in the said autonomous districts bears to the total population of the State.} and 332(1){Seats shall be reserved for the scheduled castes and scheduled tribes, except the scheduled tribes in the tribal areas of Assam, in Nagaland and in Meghalaya, in the Legislative Assembly of every State.} Therefore, in our view, the expression "residing in any area specified", occurring under section 10(26) is used by Parliament synonymously with the expres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecomes a government servant he is lifted out of his social environment and assimilated into the forward sections of the society and, therefore, he needs no more any crutch to lean on. This argument appears to us to be wholly irrelevant. The exemption in question was not given to individuals either on the basis of their social status or economic resources. It was given to a class. Hence, individuals as individuals do not come into the picture. We fail to see in what manner the social status and economic resources of a Government servant can be different from that of another holding a similar position in a corporation or that of a successful medical practitioner, lawyer, architect, etc. To over-paint the picture of a Government servant as the embodiment of all power and prestige would sound ironical. Today his position in the society to put it at the highest is no higher than, that of others who in other walks of life have the same income. For the purpose of valid classification what is required is not some imaginary difference but a reasonable and substantial distinction, having regard to the purpose of the law." 35. Once it is held that such a classification of the Government ser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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