TMI Blog1990 (5) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... the State of Andhra Pradesh. He belongs to the Gouda community also known as Goudu , it is stated in the petition. This community is recognised as scheduled tribe in the Constitution (Scheduled Tribes) Order, 1950, as amended upto date. We are not concerned with the correctness or otherwise of the factual position on this aspect in this application. The father of the petitioner had been issued a Scheduled Tribe Certificate by the Tasildar, Tenali, Andhra Pradesh on 3rd August, 1977. On the basis of the said certificate, the father of the petitioner was appointed in the Fertilizer Corporation of India, a public sector undertaking, on 17th October, 1977 in the Scheduled Tribes quota. On the 19th June, 1978, the petitioner s father joined the Rashtriya Chemicals and Fertilizers Ltd., a Government of India undertaking, under the quota reserved for Scheduled Tribes and he has been stationed in Bombay since then. The petitioner, therefore, came to live in Bombay, in the state of Maharashtra, since the age of nine years. The petitioner completed his secondary and higher education in Bombay. In March, 1989, the petitioner passed the 12th standard examination of the Maharashtra State B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution and there was no contention raised on the question of domicile. It is, therefore, necessary to refer to Article 342. Article 342 of the Constitution reads as follows: 342. Scheduled Tribes: (i) The President may with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be. (2) Parliament may by law include 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. In this connection, it may also be relevant to refer to Article 341 as it deals with the Scheduled Castes: 341. Scheduled Castes (1)The President may with respect to any State or Union Territory, and where it is a State after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eligion, race, caste, sex or place of birth. Article 15(4), however, enjoins that nothing in that article or in clause (2) of Article 29 of the Constitution shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. Therefore, reservation in favour of Sched- uled Tribes or Scheduled Castes for the purpose of advance- ment of socially or educationally backward citizens to make them equal with other segments of community in educational or job facilities is the mandate of the Constitution. Equal- ity is the dictate of our Constitution. Article 14 ensures equality in its fullness to all our citizens. State is enjoined not to deny to any person equality before law and equal protection of the law within the territory of India. Where, it is necessary, however, for the purpose of bringing about real equality of opportunity between those who are unequals, certain reservations are necessary and these should be ensured. Equality under the Constitution is a dynamic concept which must cover every process of equalisa- tion. Equality must become a living reality ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Scheduled Caste for the whole country. This, however, is a different problem whether a member of the Scheduled Caste in one part of the country who migrates to another State or any other Union Territory should continue to be treated as a Scheduled Caste or Scheduled Tribe in which he has migrated. That question has to be judged taking into consideration the interest and well-being of the Sched- uled Castes and Scheduled Tribes in the country as a whole. It has, however, to be borne in mind that a man does not cease to belong to his caste by migration to a better or more socially free and liberal atmosphere. But if suffi- ciently long time is spent in socially advanced area then the inhibitions and handicaps suffered by belonging to a socially disadvantageous community do not continue and the natural talent of a man or a woman or a boy or girl gets full scope to flourish. These, however, are problems of social adjustment i.e. how far protection has to be given to a certain segment of socially disadvantaged community and for how long to become equal with others is a matter of delicate social adjustment. These must be so balanced in the mosaic of the country s integrity that no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ups within tribes or tribal communities which shall for purposes of this Constitution be deemed to be scheduled tribes in relation to that State. (2) Parliament may by law include in or exclude from the list of scheduled tribes specified in a notification issued by the President under clause (1) of this article 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. The object of these two articles, as I stated, was to eliminate the necessity of burdening the Constitution with long lists of Scheduled Castes and Scheduled Tribes. It is now proposed that the President, in consultation with the Governor or Ruler of a State should have the power to issue a general notification in the Gazette specifying all the Castes and tribes or groups thereof deemed to be Scheduled Castes and Scheduled Tribes for the purposes of the privi- leges which have been defined for them in the Constitution. The only limitation that has been imposed is this: that once a notification has been issued by the President, which, undoubtedly, he will be issuin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating the basic principles of equality for all classes of citizens in the country. They need and must be given, for some time to come at any rate, special treatment in regard to education, in regard to opportunity for employment, and in many other cases where their present inequality, their present backwardness is only a hindrance to the rapid development of the country. Any section of the community which is backward must neces- sarily impede the progress of the rest; and it is only in the interest of the community itself, therefore, that it is but right and proper we should provide facilities so that they may be brought up-to-date so to say and the uniform progress of all be forwarded. I have, of course, not included in my amendment the length of years, the term of years for which some such special treatment may be given. That may be determined by the circumstances of the day. I only want to draw your attention to the fact that there are classes of our citizens who may need, through no fault of theirs, some special treatment if equality is not to be equality of name only or on paper only, but equality of fact. I trust this will commend itself to the House and the amendme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be reconciled with each other, these should be so interpreted that, if possible, effect could be given to both. It, however, appears to us that the expres- sion for the purposes of this Constitution in Articles 341 as well as in Article 342 do imply that the Scheduled Castes and the Scheduled Tribes so specified would be entitled to enjoy all the constitutional rights that are enjoyable by all the citizens as such. Constitutional right, e.g., it has been argued that right to migration or right to move from one part to another is a right given to all--to scheduled castes or tribes and to non-scheduled castes or tribes. But when a Scheduled Caste or tribe migrates, there is no inhi- bition in migrating but when he migrates, he does not and cannot carry any special rights or privileges attributed to him or granted to him in the original State specified for that State or area or part thereof. If that right is not given in the migrated state it does not interfere with his constitutional right of equality or of migration or of carrying on his trade, business or profession. Neither Article 14, 16, 19 nor Article 21 is denuded by migration but he must enjoy those rights in accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on under Articles 341 and 342 of the Constitution to be valid for all over the country would be in negation to the very purpose and scheme and language of Articles 341 read with Article 15(4) of the Constitution. Our attention was drawn to certain observations in Elizabeth Warburton v. James Loveland, [1832] House of Lords 499. It is true that all provisions should be read harmoni- ously. It is also true that no provision should be so read as to make other provisions nugatory or restricted. But having regard to the purpose, it appears to us that harmoni- ous construction enjoins that we should give to each expres- sion-- in relation to that state or for the purposes of this Constitution --its full meaning and give their full effect. This must be so construed that one must not negate the other. The construction that reservation made in respect of the Scheduled Caste or tribe of that State is so deter- mined to be entitled to all the privileges and rights under the Constitution in that State would be the most correct way of reading, consistent with the language, purpose and scheme of the Constitution. Otherwise, one has to bear in mind that if reservations to those who are treat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Once a caste is included in the Sched- uled Castes Order, that would be for purposes of the Consti- tution. It was submitted on the basis of the decision of this Court in Pradeep Jain s case (supra) that the residence requirement of 15 years in order to be eligible for admis- sion to medical colleges in Maharashtra is wholly arbitrary, unreasonable and hence violative of Article 14 of the Con- stitution. Our attention was drawn to the decisions of this Court in D.P. Joshi v. The State of Madhya Bharat Anr., [1955] 1 SCR 12 15 and Minor P. Rajendra v. State of Madras Ors., [1968] 2 SCR 786 on the question of residence quali- fication. In the view we have taken and in the context of the controversy in the instant case, we are of the opinion that this question will not be relevant. We have heard learned Attorney General of India and he has drawn our attention to the policy followed by the Gov- ernment of India for the Scheduled Castes and Scheduled Tribes. The policy seems to be as under: I. Scheduled Castes and Scheduled Tribes are entitled to derive benefits of the All India Services or admissions in the educational institutions controlled/administered by the Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant provisions. In this connection, it may not be inappropriate to refer to the views of Dr. B.R. Ambedkar as to the prospects of the problem that might arise, who stated in the Constituent Assembly Debates in reply to the question which was raised by Mr. Jai Pal Singh ( Safeguards for Scheduled Caste and Tribes-Founding Fa- ther s view by H.S. Saksena, at p. 60) which are to the following effect: 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 o/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 jurisdic- tion 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 sched ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, the petitioner is not entitled to be admitted to the Medical College on the basis that he belongs to scheduled tribe in his original State. The petitioner has, however, been admit- ted. He has progressed in his studies. But he had given an undertaking that he will not insist on the basis of the admission. If we allow him to continue with his studies in Maharashtra s College where he has been admitted on the undertaking given after he has not succeeded in this appli- cation, it would be.a bad precedent. We must, however, do justice. The boy s educational prospects should not be jeopardised since he has progressed to a certain extent and disqualifying him at this stage or this year on the ground that he is not entitled to the protection of Scheduled Caste or Scheduled Tribe, would not confer any commensurate bene- fit to scheduled castes or scheduled tribes in Maharashtra or for that matter on anybody else. It is, therefore, de- sirable that the question whether he is genuinely belonging to Gouda community and whether this community is a scheduled caste or scheduled tribe, should be first properly and appropriately determined. As mentioned hereinbefore, we have not examined this q ..... X X X X Extracts X X X X X X X X Extracts X X X X
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