A.F.R.

Court No. - 1

Case :- WRIT - C No. - 4844 of 2019

Petitioner :- M/S Auto Service, 13 K.P. Kakkar Road,

Respondent :- Indian Oil Corporation And Another

Counsel for Petitioner :- Ram Dayal Tiwari,Sri M.D. Singh

Shekhar Sr. Advocate

Counsel for Respondent :- Tarun Varma

Hon'ble Ramesh Sinha,J.

Hon'ble Ajit Kumar,J.

1. Heard Sri M.D. Singh Shekhar, learned Senior Advocate

assisted by Sri Ashwani Kumar Srivastava, learned counsel for the

petitioner, Sri J.S. Pandey, learned Advocate holding brief of Sri

Tarun Varma, learned counsel for the respondents and perused the

record.

2. By means of the present writ petition under Article 226

of the Constitution, the petitioner has challenged the order dated

22

nd

December, 2018, whereby the petitioner's objection against

the rejection of his candidature has come to be rejected by the

General Manager of the Indian Oil Corporation as well as the

order dated 21

st

January, 2019 rejecting the candidature of the

petitioner for the grant of contract of the transport trucks for

movement of petroleum products.

3. Briefly stated facts of the case are that pursuant to the

advertisement issued on 11

st

October, 2018 for hiring services of

transporters to provide trucks for transporting petroleum products,

the petitioner applied for the same in the open category. Since the

candidates in SC/ ST category were not available in the state of

U.P. the area of the work, the respondents accepted the

applications of the transporters whose trucks were registered

within the State and also outside the State in the said SC/ ST

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category.

4. The petitioner pleaded before the Corporation that in the

light of the conditions provided in the notice inviting tender

applications issued by the respondent Corporation, in the absence

of candidates being available in the reserved category the quota

should have been diverted to the open category. However, when

nothing was done in the matter, he moved a writ petition before

the Court which was disposed of vide order dated 18

th

December,

2018 that the petitioner shall make comprehensive representation

raising his grievance and in the event such representation is filed,

the same shall be considered. The petitioner, accordingly,

submitted representation on 18

th

January, 2019 before the

competent authority of Indian Oil Corporation making two

complaints:-

(A). For the purposes of the reserved category in the SC/ ST, the

caste that are of the reserved category in the State of U.P. only

should have been considered and respondents were not justified in

accepting caste certificates of the said category from those who

did not belong to the State of U.P.; and

(B). Since the provision was that if requirement of 20% under

MSME is not made from the bidders under the MESE category

then only MESE applicants of the other State having trucks

registered outside of the State of U.P. should have been

considered to fulfill the said requirement, and thus according to

him it amounted to a preference over the applicants of the general

category with the trucks registered in U.P.

5. It was also part of the second complaint that those who

did not fulfill the eligibility criteria under MESE category were

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still considered by the respondents. However, both the complaints

were considered by the authority of Indian Oil Corporation and

vide order dated 21

st

January, 2019 the representation of the

petitioner has been rejected.

6. Assailing the order impugned dated 21

st

January, 2019

in the present writ petition, the basic grounds raised by the

petitioner is that since it was advertisement for service providing

in the State of U.P., under the reservation laws the caste

certificates that were admissible and recognized in State of U.P.

for SC/ ST only should have been considered and those of outside

of the State, may be having their trucks registered in U.P. but

since their caste as SC/ ST is not recognized in the State of U.P.

were not liable to be considered.

7. The logic behind the argument is that scheduled caste of

another State may not be a scheduled caste in this State and since

the business was relating to the State of U.P. and for the State of

U.P., therefore, applying the reservation laws the caste certificate

of SC/ ST candidates of U.P. only should have taken into

consideration. Accordingly, he submits that in case if the

candidates of the reserved category were not available, as per the

clause (9) of the notice inviting tender, the trucks of the said

category should have been allocated to the general category

bidders. In support of his argument learned counsel for the

petitioner has placed reliance upon the judgments of the Supreme

Court in the case of Action Committee On Issue of Caste

Certificate to Scheduled Castes and Scheduled Tribes in the

State of Maharashtra and another v. Union of India and

another (1994) 5 SCC 244; Marri Chandra Shekhar Rao v.

Dean, Seth G.S. Medical College and others (1990) 3 SCC 130;

4

and Bir Singh v. Delhi Jal Board and others (2018) 10 SCC

312.

8. Per contra, the argument advanced by the learned

counsel for the respondent- Corporation is that the advertisement

though was for the work in the State of U.P. but it was open for

the applicants of all over India and any person resident of any

State could have applied. He submits that for the purposes of

Central Government assignments and job, the caste certificate of

every State is recognized as a caste belonging to SC/ ST under the

Central Legislation recognizing the State caste. In support of his

arguments learned counsel for the petitioner has relied upon the

relevant provisions of the clauses of the notice inviting tender

particularly sub-clause (b) of Clause 12 which provides for only

preferential right to the State registered Tank Trucks (for short

'TTs').

9. He has further argued that the authorities cited by the

learned counsel for the respondents are not applicable in the case

in hand. He submits that there is no quarrel about the proposition

placed by the learned counsel for the petitioners before the Court

but says that it is not a case of a particular State sponsored scheme

or tender. He, therefore, argues that the authorities cited by the

learned counsel for the petitioner are quite distinguishable on

facts.

10. In order to appreciate the arguments advanced by the

learned Senior Advocate appearing for the petitioner, it is

necessary to examine the relevant provisions of the Notice

Inviting Tender (for short 'NIT') dated 22

th

January, 2018 with its

corrigendum dated 9

th

April, 2018. On the top of the NIT, it has

been provided that the tender applications were invited for award

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of contract for transport of bulk LPG by road for a period of 5

years from the companies, partnership and proprietorship firm and

even the co-operative society meeting the minimum pre-

qualification criteria. A tender is also prescribed for state-wise

requirement of TTs for three oil marketing companies, namely,

Indian Oil Corporation, Bharat Petroleum Corporation and

Hindustan Petroleum Corporation. However, the applications were

invited from all over India. The earnest money deposit was

required for each tenderer, however, the SC/ ST category bidders,

participating under the stand-up India scheme of Government of

India, were exempted from payment of EMD. Clause 9 of the NIT

provides for reservation. Clause 9 is reproduced hereunder in its

entirety:-

9. RESERVATION:

a. The provision of reservation is 15% (fifteen percent) & 7.5

% (seven and a half percent) for Scheduled Castes and

Scheduled Tribes respectively for this Tender and the

unfulfilled reserved numbers from the previous Tender for

Scheduled castes and scheduled tribes.

b. The members of SC/ST desirous of operating the trucks will

have to participate in the Tenders floated by the Corporation.

The SC/ST bidder/s operating under

i.Proprietorship - The proprietor should be of SC/ST and

caste certificate should be enclosed.

ii.Partnership firm - All partners should be of SC/ST as the

case may be and caste certificate should be enclosed for all the

partners.

iii.Private Ltd. Co. – All Promoters/ Directors of the firm

should be of SC/ST as the case may be and caste certificate

should be enclosed for all the promoters/ directors.

iv.Cooperative Society - Certificate issued by the registrar

of co - operative societies mentioning the registration category

(SC/ST) of the society should be enclosed.

c. In the event of any party failing to submit the caste

certificate as detailed above along with the Technical Bid, the

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bid will be treated as a General Category bid.

d. The registered owner/s of the trucks (owned and attached)

offered by the SC or ST bidder/s must also belong to the same

category, either SC or ST, as the case may be. In other words,

if the bidder offers trucks under SC category, all the

registered owners of the trucks offered against the bid must

also belong to SC.

e. If any of the attached trucks offered do not belong to a

member of the category concerned, i.e. SC or ST, as the case

may be, such trucks will be rejected and EMD against such

trucks will be refunded after finalization of Tender.

f. The SC/ST members should fulfill all Tender conditions, and

will not be eligible for any price preference or relaxation of

standards.

g. SC/ST bidders can offer attached trucks provided such

trucks also belong to same category.

h. SC/ST bidders may offer additional trucks, which will only

be considered in case NIT requirement is not fulfilled as per

evaluation criteria and subject to meeting the criteria/

requirement for SC/ST.

i. If adequate number of trucks offered by SC/ST candidates

are not available in any particular year of Tender, the

unfilled quota may be allotted to the General category in that

year of Tender. However, the unfilled quota may be carried

forward to the next Tender.”

(emphasis added)

11. From the perusal of the sub-clause i of clause 9, it is

clear that if requirements of the trucks by the SC/ ST category

candidates are not fulfilled, then that quota may be allotted to the

general category in that very year of the tender. But the quota if

has remained unfilled, the same may be carried forward to the

next tender as well. Meaning thereby that in the year of tender the

requirement will be fulfilled anyhow may be adjusting unfilled

quota with the open category but that percentage of quota that

remained unfilled on account of some adjustment, will be added to

the next tender. Thus, the unfilled quota is treated to have

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remained unfilled for the purposes of carrying forward the same to

the next tender process.

12. Now, the next important clause is clause 12 of the NIT

which talks about the valuation of bidders under SC/ST. For better

appreciation clause 12 is reproduced in its entirety hereunder:-

12. Evaluation of bidders under SC/ST:

a. As per Govt. guidelines, there is a reservation of 15 % for SC

& 7.5 % for ST category. Requirement of trucks for bidders under

SC/ST category shall be limited to the aforesaid number as per

Govt. guidelines provided such bidders quote at Floor rates/ L1

rates or accept finalized L1 rates.

b. State Registered TTs would be given preference over other

State registered TTs subject to their quoting bids at floor rates.

This preferential induction of State registered TTs would

however be limited to the requirement of particular State for

only those transporters whose bids are received at floor rates.

c. If the no. of Trucks qualified under SC/ST category is less than

the reserved number, then all the qualified trucks will be

considered for allocation.

d. If the number of Trucks qualified under SC/ST category is

more than the reserved number, then allocation of trucks will be

as under:

i. Bidders quoting at Floor rates:

1.All owned and attached trucks registered under same State

will be listed separately as per ascending order of their age.

2.All owned trucks, as listed above, will be considered for

allocation first as per age, i.e. latest model will be considered

first.

3.If the requirement is not fulfilled from owned trucks then

balance requirement will be fulfilled from attached trucks as per

age limiting the ratio of own to attach as 1:1.

4.In case of shortfall based on allocation from State specific

registered trucks, further allocation will be made to the

proposed trucks offered by the respective SC/ST bidders.

5.In case of more number of offered proposed trucks then at

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least one truck will be allocated to bidders offering proposed

trucks followed by allocating trucks on proportionate basis. In

case it is not possible to allocate trucks on proportionate basis

then balance trucks will be allocated through draw of lots.

6.In case it is not possible to allocate even one truck to any

bidder then trucks will be allocated through draw of lots.

7.Further shortfall in trucks will be met from bidders offering

ready trucks registered in other State quoted at floor rate and

the evaluation will be made as per the condition from (1) to (3)

as mentioned above.

8.Further shortfall will be met from the balance SC/ST bidders

in the order of their financial ranking subject to accepting the

Floor price. In case of multiple bidders in the same financial

ranking then further sub- ranking of bidders will be followed as

per “Ranking Procedure” mentioned in clause- 5 above for

fulfilling balance requirement.

9.In case requirement of trucks is not met from the bidders

under SC/ST category, the unfulfilled requirement of trucks

will be allocated to the general category bidders.

ii. Bidders quoting at other than Floor rates :

1.SC/ST bidders quoted at L1 rates, will be further sub-ranked

as per “Ranking Procedure” mentioned in clause- 5 for induction

of trucks subject to accepting finalized L1 rates.

2.2. In case of shortfall, further allocation will be made to the

proposed trucks offered by the respective SC/ST bidders subject

to accepting finalized L1 rates.

3.In case of more number of offered proposed trucks then at

least one truck will be allocated to bidders offering proposed

trucks followed by allocating trucks on proportionate basis. In

case it is not possible to allocate trucks on proportionate basis

then balance trucks will be allocated through draw of lots.

4.In case it is not possible to allocate even one truck to any

bidder then trucks will be allocated through draw of lots.

5.Further shortfall will be met from the balance SC/ST bidders

in the order of their financial ranking subject to accepting the

finalized L1 rates. In case of multiple bidders in the same

financial ranking then further sub- ranking of bidders will be

followed as per “Ranking Procedure” mentioned in clause- 5

above for fulfilling balance requirement.

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6.In case requirement of trucks is not met from the bidders

under SC/ST category, the unfulfilled requirement of trucks will

be allocated to the general category bidders.”

(emphasis added)

13. From the perusal of the various sub-clauses of clause

12, it becomes quite explicit that TTs belonging to the State where

the requirement of TTs is, are given preferential rights for the

purposes of selection. Thus, according to this sub-clause b it

clearly transpires that tender applications were invited from all

over the country with preferential rights to State registered

transporters. Sub-clause i (7) of Clause 12 clearly provides that the

shortfall in trucks will be met from the bidders offering ready

trucks registered in other State quoted at floor rate and the

evaluation will be made as per the condition enumerated in points

1 to 3 of sub-clause d (i). Sub-clause 9 of clause 12 also speaks

about transferring the unfilled requirement of trucks in the SC/ ST

category to the general category bidders. A conjoint reading of the

three clauses 9 (i), 12 (b), 12 (i) (7) and 12 (i)(9) leads to the only

conclusion that tender in all categories was open to the candidates

belonging to all the States of the country and not specific to the

State of U.P. However, in matters of selection the TTs registered

in the State of U.P. specific, were given preferential rights over

and above the applicants of the other State. There is yet another

conclusion that can be drawn is that if the shortfall occurs in TTs

on account of SC/ ST category candidates not available, the same

will be adjusted against the general category so as to fulfill the

shortfall but the unfilled quota, to be statistically assessed, would

stand carried forward to the next tender notice.

14. The argument, therefore, of the learned counsel for the

petitioner that the bidders of the SC/ ST category of other State

10

were not eligible to apply against the NIT because their caste may

not be recognized as SC/ ST in the State, does not have any merit.

It is all India advertisement though for the purposes of

requirement of a particular State but the Corporation is the Central

Government Public Sector Corporation and, therefore, the SC/ ST

castes recognized in all other States will be eligible to apply in the

said category.

15. Now, coming to the authorities cited by the learned

counsel for the petitioner in the case of Marri Chandra Shekhar

Rao (supra), paragraphs 21, 22, 23 and 24 has been heavily relied

upon. These paragraphs are reproduced hereunder:-

“21. We have reached the aforesaid conclusion on the

interpretation of the relevant 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 Father'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 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 practically impossible to

enforce the provisions that apply to tribal areas or scheduled

areas, in areas other than those which are covered by them ..... "

22. In that view of the matter, we are of the opinion that the

petitioner is not entitled to be admitted to the medical college on

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the basis of Scheduled Tribe Certificate in Maharashtra. In the

view we have taken, the question of petitioner's right to be

admitted as being domicile does not fall for consideration.

23. Having construed the provisions of Article 341 and 342 of the

Constitution in the manner we have done, the next question that

falls for consideration, is, the question of the fate of those

scheduled caste and scheduled tribe students who get the

protection of being classed as scheduled caste or scheduled

tribes in 'the States of origin when, because of transfer or

movement of their father or guardian's business or service, they

move to other States as a matter of voluntary 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 other 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 so migrated then some consideration is desirable to

be made on that ground. It would, therefore, be necessary and

perhaps desirable for the legislatures or the 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 the Parliament may appropriately take into

consideration.

24. Having so held, now the question is, as to what is to happen

to the petitioner in this case. As we have held, 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 admitted. 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

application, 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 benefit to scheduled

castes or scheduled tribes in Maharashtra or for that matter on

anybody else. It is, therefore, desirable that the question whether

he is genuinely belonging to Gouda community and whether this

12

community is a scheduled caste or scheduled tribe, should be

first properly and appropriately determined. As mentioned

hereinbefore, we have not examined this question. After

determining that whether after making provisions for the

scheduled castes and scheduled tribes of Maharashtra, if any

facility of admission or continuance of study can be given in the

Medical College in Maharashtra to the petitioner herein, the

authorities incharge of the Institution should consider the same

and if on that considering they find it justified in allowing the

petitioner to continue in his studies, they may do so. The

authorities should consider the same and take action

accordingly, as expeditiously as possible. In considering the

question of the petitioner continuing his medical education, the

appropriate authorities should bear in mind the justice of the

situation.' We, therefore, leave it to the authorities to take

appropriate action about the continuance or discontinuance of

the petitioner in his studies on the basis of the aforesaid

consideration. We order accordingly. We do so only in the

background of the peculiar facts and circumstances of this case.

and the aforesaid observations should not be treated as a

precedent for other situations.”

16. In order to appreciate the ratio of the judgment, it is

necessary to refer the controversy involved in the said case. In the

said case, the petitioner was born on 6

th

October, 1969 in the State

of Andhra Pradesh and belongs to the Gouda community known

as “Goudu”. The said community was recognized as 'Scheduled

Tribe' under the Constitution (Scheduled Tribes) Order, 1950. The

father of the petitioner in that case was issued with the Scheduled

Tribe certificate by the concerned competent authorities of the

State of Andhra Pradesh and it is on the said basis, the father of

the petitioner was appointed in Fertilizer Corporation of India (for

short 'FCI') on 17

th

October, 1977 under the Scheduled Tribes

quota. He joined at Rashtriya Chemicals and Fertilizers Ltd. in the

then known city of Bombay of the State of Maharashtra. The

petitioner in that case became domicile of Maharashtra as he

attained all his education in Bombay and after passing 12

th

standard examination, he applied for three medical colleges which

were under the management of Bombay Municipal Corporation.

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As per the advertisement then issued for the medical seats, the

total number of vacancies were 400 and 7% of those vacancies,

namely, 28 seats were reserved for scheduled caste candidates and

200 colleges were run by the State of Maharashtra and out of that

14 seats accounting to 7% of the total seats were reserved for the

scheduled tribes. The petitioner in the said case applied in the

category of scheduled tribe but was not accorded admission as

S.T. category candidate either in the colleges run by the Bombay

Municipal Corporation or those run by the State of Maharashtra.

The petitioner in the said case raised the issue taking the plea of

discrimination as those who had scored lesser marks were granted

admission in scheduled tribe category. He took the plea that his

community was specified as scheduled tribe in the Constitution

(Scheduled Tribe) Order, 1950. The Government of India as

discussed in the said case and had issued some Circular letter

dated 22nd February, 1985 which provided thus:-

“It is also clarified that a Scheduled Caste/Tribe person 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.”

17. The petitioner took the plea that he had the citizenship

of Maharashtra by domicile as he resided for more than 10 years

since 1978. However, this issue was neither raised nor, discussed

either in the writ petition or before the High Court. The legal and

constitutional issue in the said case centres around the

interpretation of Article 342 of the Constitution. While

interpreting the provisions as contained under Article 341 and 342

of the Constitution, the Apex Court framed the question as to what

the expression “in relation to that state” in conjunction with the

purpose as occurring in the Articles, it seeks to convey. So,

14

virtually the Apex Court was dealing with the rights of the State in

matters of reservation policy, keeping in tune with the principles

enshrined under Article 14 of the Constitution, even while caste

of different states is recognized in the special SC/ ST category

under the presidential order. The Court discussed the principle of

equality and equal protection of laws as prescribed for under

Article 14 of the Constitution in the light of the socio-economic

condition of the people who in a state may be put to

disadvantageous position if the benefit of reservation is not

offered and this would amount to denuding them of the right of

equality. The Court observes that the social condition of a caste,

however, varies from state to state and it will not be proper to

generalize any caste or any tribe as SC/ ST for the whole country.

This, however, is a different problem whether a member of

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 and scheduled tribe in which he has

migrated.

18. The Court, therefore, proceeded to judge the question

from the angle of interest of well being of the SC/ ST in the

country as a whole. The Court further proceeded to discuss the

issue in order to strike a balance in the mosaic of countries

integrity so that one community is not benefited to the undue

disadvantage to the other community. The Court was virtually

proceeding to achieve the aim of minimizing the detrimental effect

of one community gaining advantage over and above the other

community bringing discontentment in the society and it is in this

background the Court proceeded to hold that when a constitutional

provision uses the expression "in relation to that state” it means

that a special privilege was confined to that state alone meant

15

especially for the SC/ ST category". The Court observed that one

community in a State especially recognized and if so socially and

economically backward to have fallen as an entry in the

presidential order as SC/ ST category should not be given

advantage over and above of such category men of the other State.

This above ratio, in our considered opinion, is in relation to the

employment and services that are of the States and sponsored by

the State. For the purposes of services and employment of the

Union of India or sponsored by a public sector company of

Central Government for all India candidates would certainly

include all the SC/ ST category candidates of different States as

special category candidates but then the principles that has been

outlined in the judgment of the Apex Court, in our considered

opinion, have been fully taken care of under the relevant clause 12

of NIT which talks of preferential induction of State registered

TTs. We do not find any quarrel with the principle laid down in

the judgment (supra) by the Apex Court but in so far as the

present case is concerned, the principle laid down while

interpreting the expression “in relation to that State” occurring in

Article 342 (1) of the Constitution would be of no help to the

petitioner.

19. The petitioner has further relied upon a judgment of the

Apex Court in the case of Action Committee (supra) and has put

emphasis on paragraph Nos. 3, 4, 8, 15 and 16 of the judgment

which are reproduced hereunder:-

3. On a plain reading of clause (1) of Articles 341 and 342 it is

manifest that the power of the President is limited to specifying

the castes or tribes which shall, for the purposes of the

Constitution, be deemed to be Scheduled Castes or Scheduled

Tribes in relation to a State or a Union Territory, as the case

may be. Once a notification is issued under clause (1) of Articles

341 and 342 of the Constitution, Parliament can by law include

16

in or exclude from the list of Scheduled Castes or Scheduled

Tribes, specified in the notification, any caste or tribe but save

for that limited purpose the notification issued under clause (1),

shall not be varied by any subsequent notification. What is

important to notice is that the castes or tribes have to be

specified in relation to a given State or Union Territory. That

means a given caste or tribe can be a Scheduled Caste or a

Scheduled Tribe in relation to the State or Union Territory for

which it is specified. These are the relevant provisions with

which we shall be concerned while dealing with the grievance

made in this petition.

4. The petitioners herein are aggrieved because the State of

Maharashtra has denied the benefits and privileges available to

Scheduled Castes and Scheduled Tribes specified in relation to

that State to members of the Scheduled Castes and Scheduled

Tribes belonging to other States who have migrated from other

States to the State of Maharashtra. These benefits and privileges

are denied on the basis of certain circulars and letters issued by

the Government of India and consequential instructions issued

by the State of Maharashtra indicating that members belonging

to the Scheduled Castes and Scheduled Tribes specified in

relation to any other State shall not be entitled to the benefits

and privileges accorded by The State of Maharashtra unless the

person concerned is shown to be a permanent resident of the

State of Maharashtra on 10-8-1950 in the case of Scheduled

Castes and 6-9-1950 in the case of Scheduled Tribes. These are

the dates on which the President first promulgated the

Constitution (Scheduled Castes) Order, 1950 and the

Constitution (Scheduled Tribes) Order, 1950. The petitioners,

therefore, contend that the denial of the benefits and the

privileges by the State of Maharashtra is violative of the

fundamental rights conferred on citizens by Articles 14, 15(1),

16(2) and 19 of the Constitution, besides being contrary to the

letter and spirit of Articles 341 and 342 of the Constitution. The

petitioners contend that a bare perusal of the Constitution

(Scheduled Castes) Order, 1950 and the Constitution

(Scheduled Tribes) Order, 1950 as amended by the Scheduled

Castes and Scheduled Tribes Orders (Amendment) Act, 1976

would show the same castes and tribes specified in respect of

more than one State. Those belonging to the Scheduled Castes

and the Scheduled Tribes, wherever situate, are economically

backward. Besides on account of social and economic

backwardness they have to suffer a host of indignities and

atrocities and are very often compelled to migrate from one

State to another in search of livelihood or to escape the wrath of

their oppressors. Earlier they did not experience any difficulty

in obtaining caste/tribe certificates to secure benefits available

to the Scheduled Castes and Scheduled Tribes in the State of

17

Maharashtra. The situation, however, changed drastically after

the Government of India issued a communication addressed to

Chief Secretaries to all State Governments/Union Territories on

22-3-1977.

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 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 :

18

"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."

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.

15. Marri Chandra was born in Tenali in the State of Andhra

Pradesh and belonged to Gouda community, popularly known

as 'Goudi'. This community was specified as a Scheduled Tribe

in the Constitution (Scheduled Tribes) Order, 1950 as amended

till then. His father had obtained a Scheduled Tribe certificate

from the Tehsildar on the basis whereof he secured employment

in the quota reserved for Scheduled Tribes in a Government of

India Undertaking and was posted in Bombay, State of

Maharashtra. The petitioner was then aged about 9 years. He

prosecuted his studies in Bombay and passed the 12th standard

examination held by the Maharashtra State Secondary and

Higher Secondary Examination Board. Thereafter he sought

admission to the respondent-college claiming benefit of

reservation as one belonging to the Scheduled Tribe. He was,

however, denied admission in that quota though Scheduled

Tribe candidates who had secured lesser marks than him but

whose State of origin was Maharashtra were admitted. The

denial of admission *as based on the circular dated 22-2-1985

issued by the Government of, India which has already been

referred to by us. Having failed to secure admission in any

medical college in the quota reserved for Scheduled Tribe

candidates, he questioned the denial before this Court under

Article 32 of the Constitution. A Constitution Bench headed by

Sabyasachi Mukharji, C.J., as he then was, examined the

question whether one who is recognised as a Scheduled Tribe in

the State of his origin continues to have the benefits or

19

privileges or rights in the State to which he migrates. In

paragraph 6 of the judgment the precise question was

formulated as follows:

"This 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 Caste certificate in the

State of Andhra Pradesh?"

In answering this question the Constitution Bench was called

upon to interpret Articles 341 and 342 of the Constitution and

determine what the expression "in relation to that State" read in

conjunction with "for the purposes of this Constitution" seeks to

convey. After referring to the provisions of Articles 14, 15 and

16 and the decision of this Court in Pradeep Jain (Dr) v. Union

of India9 the Constitution Bench took notice of the fact that

Scheduled Castes and Scheduled Tribes had to suffer social

disadvantages and were denied facilities for development and

growth in certain States. To grant equality in those States where

they suffered and were denied facilities for development and

growth certain protective preferences, facilities and benefits in

the form of reservation, etc., had to be provided to them to

enable them to compete on equal terms with the more

advantageous and developed sections of the community. It is not

necessary to dilate on this point as the Constitution itself

recognises that members belonging to the Scheduled Castes and

Scheduled Tribes and other backward classes have to be given

certain incentives, preferences and benefits to put them on an

even keel with others who have hitherto enjoyed a major share

of the facilities for development and growth offered by the State,

so that the former may, in course of time, be able to overcome

the handicap caused on account of denial of opportunities. The

interpretation that the Court must put on the relevant

constitutional provisions in regard to Scheduled

Castes/Scheduled Tribes and other backward classes must be

aimed at achieving the objective of equality promised to all

citizens by the Preamble of our Constitution. At the same time it

must also be realised that the language of clause (1) of both the

Articles 341 and 342 is quite plain and unambiguous. It clearly

states that the President may specify the castes or tribes, as the

case may be, in relation each State or Union Territory for the

purposes of the Constitution. It must also be realised that before

specifying the castes or tribes under either of the two articles the

President is, in the case of a State, obliged to consult Governor

of that State. Therefore, when a class is specified by the

President, after consulting the Governor of State A, it is difficult

to understand how that specification made "in relation to that

State" can be treated as specification in relation to any other

20

State whose Governor the President has not consulted. True it is

that this specification is not only in relation to a given State

whose Governor has been consulted but is "for the purposes of

this Constitution" meaning thereby the various provisions of the

Constitution which deal with Scheduled Castes/Scheduled

Tribes. The Constitution Bench has, after referring to the

debates in the Constituent Assembly relating to these articles,

observed that while it is true that a person does not cease to

belong to his caste/tribe by migration he has a better and more

socially free and liberal atmosphere and if sufficiently long time

is spent in socially advanced. areas, the inhibitions and

handicaps suffered by belonging to a socially disadvantageous

community do not truncate his growth and the natural talents of

an individual gets full scope to blossom and flourish. Realising

that these are problems of social adjustment it was observed

that they must be so balanced in the mosaic of the country's

integrity that no section or community should cause detriment or

discontentment to the other community. Therefore, said the

Constitution Bench, the Scheduled Castes and Scheduled Tribes

belonging to a particular area of the country must be given

protection so long as and to the extent they are entitled to in

order to 9 (1984) 3 SCC 654 become equals with others but

those who go to other areas should ensure that they make way

for the disadvantaged and disabled of that part of the

community who suffer from disabilities in those areas. The

Constitution Bench summed up as under:

"In other words, Scheduled Castes and Scheduled Tribes

say of Andhra Pradesh do require necessary protection as

balanced between other communities. But equally the

Scheduled Castes and Scheduled Tribes say of

Maharashtra in the instant case, do require protection in

the State of Maharashtra, which will have to be in

balance to other communities. This must be the basic

approach to the problem. If one bears this basic approach

in mind, then the determination of the controversy in the

instant case does not become difficult."

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 considerations on the basis of

which they have been specified may be totally different. So also

the degree of disadvantages of various elements which

21

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 fights, 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:

"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.......”

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.”

20. In the said case we again find that it was State of

Maharashtra which was considering the applications in particular

category qua the reservations of SC/ ST in the House of People in

that particular State. Both the seats of membership as well as the

applicants are special to that State and, therefore, on the principle

as discussed hereinabove in the matter of Marri Chandra

22

Shekhar Rao (supra), was made applicable in this as well. The

said judgment has been discussed in paragraph 10 of the judgment

of the Action Committee (supra). So on facts also this judgment

is distinguishable.

21. The petitioner has relied upon yet another judgment in

the case of Bir Singh (supra) and has emphasised upon paragraph

Nos. 20, 34 and 36 of the judgment. The relevant paragraphs

relied upon are reproduced hereunder:-

“20. There are various parameters by which a caste/race is

recognized as 'Scheduled Caste/Scheduled Tribe' in a

State/Union Territory or a particular part thereof. There is no

doubt that before the Presidential Orders were issued under

Article 341(1) or under Article 342(1), elaborate enquiries

were made and only after such enquiries that the Presidential

Orders were issued. While doing so, the Presidential Orders

not only provided that even specified parts or groups of castes,

races or tribes/tribal community could be Scheduled

Castes/Tribes in a particular State/Union Territory but also

made it clear that certain castes or tribes or parts/groups

thereof could be Scheduled Castes/Tribes only in

specified/particular areas/districts of a State/Union Territory.

The reason for such an exercise by reference to specific areas

of a State is that judged by standards of educational, social

backwardness, etc. races or tribes may not stand on the same

footing throughout the State. The consideration for specifying

a particular caste or tribe or class for inclusion in the list of

Scheduled Castes and Scheduled Tribes or Backward Classes

in any given State depends on the nature and extent of the

disadvantages and social hardships 22 suffered by the

concerned members of the class in that State. These may be

absent in another State to which the persons belonging to some

other State may migrate.

34. Unhesitatingly, therefore, it can be said that a person

belonging to a Scheduled Caste in one State cannot be deemed

to be a Scheduled Caste person in relation to any other State to

which he migrates for the purpose of employment or education.

The expressions "in relation to that State or Union Territory"

and "for the purpose of this Constitution" used in Articles 341

and 342 of the Constitution of India would mean that the

benefits of reservation provided for by the Constitution would

stand 38 confined to the geographical territories of a

23

State/Union Territory in respect of which the lists of Scheduled

Castes/Scheduled Tribes have been notified by the Presidential

Orders issued from time to time. A person notified as a

Scheduled Caste in State 'A' cannot claim the same status in

another State on the basis that he is declared as a Scheduled

Caste in State 'A'.

36. The upshot of the aforesaid discussion would lead us to the

conclusion that the Presidential Orders issued under Article

341 in regard to Scheduled Castes and under Article 342 in

regard to Scheduled Tribes cannot be varied or altered by any

authority including the Court. It is the Parliament alone which

has been vested with the power to so act, that too, by laws

made. Scheduled Castes and Scheduled Tribes thus specified in

relation to a State or a Union Territory does not carry the

same status in another State or Union Territory. Any

expansion/deletion of the list of Scheduled Castes/Scheduled

Tribes by any authority except Parliament would be against

the constitutional mandate under Articles 341 and 342 of the

Constitution of India.”

22. On facts we again find this judgment to be quite

distinguishable as it was considering the reservation in the said

case for the purposes of employment and education of that

particular State by the said State.

23. One must distinguish the employment of the Union

from the employment of State and Union Territories that have

Legislative Assemblies. The schemes that are floated by the

Central Government and whereunder applications are invited on

all India basis, one must remember that for the purposes of Central

Government the caste falling in the category of SC/ ST under the

Presidential Order for different States would fall in the same

category, whereas, in cases of employment or scheme sponsored

by that State and thus 'State specific' in that sense that it should

not recognize the SC/ ST of other State in the said category. Thus,

under that situation/ condition alone those recognized in other

States in the said category will not fall in that special category.

The case in hand is one such case where the Corporation invited

24

applications for providing services of TTs to carry petroleum

products within the State of U.P., but from all over the country.

Since the services to be provided within the territory of the Uttar

Pradesh, preference was given to the State registered TTs.

24. The question whether the State registered TTs are

owned by the SC/ ST people or not will depend upon the entries

of the preferential rights of the different State and there is no

preference in the matter of SC/ ST men of State of U.P. alone. The

law is that one can have all India permit. The question is whether

it is registered in the State of U.P. or outside of the State as a

transport truck. If it is registered in the State of U.P. as a tank

truck, it is enough. A residence of outside U.P. can also have his

truck registered in the State of U.P. and that person may be

belonging to SC/ ST category of another State then in the matter

of such registered TTs the preferential rights will be given to such

transporters who may be resident of another State if he is of SC/

ST of that State. From the interpretation of the relevant clause

12(b) it cannot be inferred that a truck owner has to be resident of

State of U.P.

25. In support of above such view, it is necessary to

examine the relevant provisions of the Motor Vehicles Act, 1988

amended in the year 2016 which is a Central Act as it provides for

registration of the commercial vehicles in the State. The

registration is provided under Section 41 by the owner of motor

vehicle for registration by fulfilling a form and providing

particulars as required. Nowhere under Section 41 it is provided

that a person who wants his vehicle to be registered with the

transport authority which is a Central Authority in a particular

State, is also required to be resident of that State. Then we find

25

that Section 66 of Motor Vehicles Act provide for control of the

transport vehicles. Section 68 defines transport authorities

whereas Section 69 provides for applications for permits. Section

77 provides for goods carriage permit. Section 78 provides for

consideration of application of goods carriage permit and Section

79 authorizes Regional Transport Authority to grant permit or

refuse the same on an application made under Section 77. Section

84 deals with conditions attaching to All India Permit. All these

sections which are referred hereinabove do not lay down any

condition that owner of the vehicle should be resident of that

particular State where the vehicle is registered or the permit is

granted.

26. In view of the above, therefore, we do not see anything

wrong in case if vehicle is registered in a State owned by the

residents of outside the State who are of SC/ ST category of that

other State. There seems to be no justifiable reason as to why their

TTs be not given preferential rights and then again if trucks are

not registered in the State specific, of such residents of outside the

State and if they belong to SC/ ST category of that State, why

their tender applications may not be granted in the category

reserved for SC/ ST in the event the State registered TTs are not

available to meet the requirement, which is State specific.

27. In so far the issue relating to the quota if the number of

trucks of the category is not available why it not be adjusted

against the open category, is concerned, this situation would come

only when no candidate is available in the SC/ ST category on all

India basis. It is in such an event only the open category candidate

will be given opportunity and will be selected against the shortfall.

Even the Circular letter which has been referred to in the

26

impugned order issued by the Government of India dated 18th

August, 1994 vide clause (iv) provides thus:-

“(iv). The adequate number of SC/ST candidates are not

available in any particular year the unfilled quota, may be

allotted to the unreserved categories in that year. However, the

unfilled quota may be carried forward to the next tender also

and offered to SC/ST candidates. If, the quota of the previous

tender is not filled even in the next tender, the unfilled quota of

the previous tender may be deserved and allotted to general

categories.

28. From bare reading of clause (iv) of the Circular issued

by the Central Government (supra), it is clearly revealed that if

the quota has remained unfilled, it will be carried forward to the

next tender and even in that tender it has remained unfilled then it

will be deserved to be applicable to open category.

29. The question whether this contingency is referable to

the very year of tender or the second tender will be dependent

upon the conditions provided for under the Notice Invited Tender

as in the present case it was provided that unfilled quota will be

adjusted against the general open category in that very year of

tender. However, the issue whether the quota will be carried

forward or will get exhausted against the general category is not

an issue before this Court and should not detain us any long for

the simple reason that the legal issue stands already answered that

if applications have been invited on all India basis and only

preference will be given to the TTs registered in U.P. and in the

event if the TTs registered in the State of U.P. do not fulfill the

requirement then those applicants who are of the SC/ ST category

of the other State with their TTs registered in other State will be

considered the unfilled quota will be adjusted with them.

30. Here it is not a case that whether the quota has remained

27

unfilled. The legal point raised is that tender applicants of SC/ ST

category of other State cannot be permitted to apply against the

SC/ ST category if the services are offered for the State of U.P.

and requirement is State specific. Since it is not a State sponsored

scheme or State owned employment by the Central Government

owned Corporation has floated tender inviting applications from

all over the country, all SC and ST category truck owners/

transporters having their registered TTs in State of U.P. thus

registered in other States are all eligible to apply and are to be

considered in that special reserved category, however,

consideration of their applications will be subject to preference in

respect of state registered TTs.

31. In view of the above discussions made herenabove in

this judgment referring to various authorities, the legal argument

raised by the learned counsels for the respective parties and

conclusion drawn, we do not find any illegality or perversity in the

order impugned so far as the first point is concerned and it stands

answered against the petitioner.

32. The second point has not been argued at all but even

otherwise we do not find that the findings of fact that have been

recorded with regard to the second complaint leave any scope of

interference by this Court in exercise of power under Article 226

of the Constitution.

33. The writ petition lacks merit and is, accordingly,

dismissed with no order as to cost.

Order Date :- 13.11.2019

Atmesh

(Ajit Kumar,J.) (Ramesh Sinha,J.)