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Single Bench !"#$%&!#'!"( ) (% ****************************************************************************************! !!!!!!!!!)+,-./!0/,123!4,57./!)28+!9:;<+1/!)=,>=?!@A(-8=B=. ***************************************************************************************** ! !!!!C%&!DE &#F!!F4!!A!GHIH!4J!KHHG DE&&#FE% !"#$%&"'()*)+ L/8;:; %E)D#FMEF&) ,--../!0&-"'..+" 12+3.&/3/.4"5(&6" 7"(.-+&!8" C%&!DE &#F!$FME%!(%&"NE--+1--2!#'!&E!"#F)& $ #F! #'!FM(! ******************************************************************************************* (33=8=,1/;!4,!<2/!14:,;/.3 9&8 " :8;8 " :.)<& " 7 " 9&8 " =.!> " 9-+!-*&/"" 3($)!+2 " @(& " .-+" +././()+ 8 9&8 " AB-/!-+< " '/)- " 7 " 9&8 " '$B-/04 " A*!.-4"" 3($)!+2 " @(& " .-+" &+! ()6+).!8"" ****************************************************************************************** !! #!%!M!E!% RD=;;/S!4,!!TTATTA-*678 CDE!!-+ " !+%/)2 " F$+!./() ".-. " @22! " .( " B+ " 6+.+&%/)+6 " /) " .-/! 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He was invited for the interview against such post. It is the case of the petitioner that when he appeared in the office of respondent- authorities for his interview, he was required to fill up the form Annexure- R/3, in order to verify his caste. Upon verification, petitioner’s caste certificate was not accepted and he was not allowed to participate in the interview on the ground that he is not a Scheduled Tribe duly notified in the State of Chhattisgarh vide Annexure P-7. (5) Petitioner, being grieved against the said order rejecting his candidature for the post of Assistant Engineer (Trainee), has filed this writ petition stating inter alia that he is born and brought up in the State of Chhattisgarh and got his primary and higher education in the State of Chhattisgarh, it was further pleaded that his forefathers were the resident of District Balaghat (M.P.); It was also pleaded that “Binghwar” is duly notified by the Constitution (Scheduled Tribe), order 1950 in the State of Chhattisgarh as well as State of Madhya Pradesh as scheduled tribe and, therefore, he is entitled to be considered as a Scheduled Tribe in relation to the State of Chhattisgarh and refusal by the respondent-Board to accept him as a Scheduled Tribe candidate in the State of Chhattisgarh is absolutely illegal and bad in law and, as such, appropriate writ/writs be issued commanding the respondent authorities to consider him against the post of Assistant Engineer (Trainee) in the State of Chhattisgarh. 3 (6) The petitioner has produced the copy of caste certificate before this Court on 17.9.2014, which is duly issued by Sub Divisional Officer (Revenue), Lanji, District Balagaht (M.P.) along with application for taking documents on record. A plain perusal of that certificate would show that petitioner- Tapas Kumar is a resident of village Paldongi, Tahsil Lanji, District Balaghat, which is notified as Binghwar caste (Scheduled Tribe) under the notification issued in exercise of power conferred under Article 342 of the Constitution in relation to the State of Madhya Pradesh at serial No. 11 of the list, which has been taken on record by this Court on 17.09.2014. (7) On rule being issued, counter affidavit has been filed by respondent-Board/Company stating inter alia that petitioner does not qualify to be Scheduled Tribe for the said post as he is Scheduled Tribe in relation to the State of Madhya Pradesh only and he cannot be considered to be Scheduled Tribe in relation to the State of Chhattisgarh, even if ‘Binghwar’ caste of petitioner is notified in the Scheduled Tribe in the constitution (Scheduled Tribe) order to be a Scheduled Tribe in the State of Chhattisgarh. Respondent has also pleaded that in the advertisement issued, it has been made clear that SC/ST/OBC candidates of Chhattisgarh domicile only will be considered for the reserved post in respective categories. It was also made clear that SC/ST/OBC candidates of other State will be considered against vacancies of unreserved categories for the post of Assistant Engineer (trainee), but the petitioner could not be considered as against the unreserved category as he had secured less than 60% marks prescribed for unreserved category in the written examination for the said post. 4 Respondents also pleaded that petitioner has also failed to produce caste certificate duly issued by Competent Authority declaring him to the Scheduled Tribe candidate in relation to the State of Chhattisgarh. (8) Appearing for the petitioner, Mr. P.R. Patankar, learned counsel would submit that petitioner is born and brought up in the State of Chhattisgarh and he is a Binghwar, by caste who is duly notified Scheduled Tribe in relation to the State of Madhya Pradesh as well as State of Chhattisgarh and, therefore, the respondent-Board is absolutely unjustified in refusing his candidature for the post of Junior Engineer (Trainee). He would further submit that merely because the caste certificate has been issued by the State of Madhya Pradesh, his claim for the said post cannot be rejected and, as such, action of the respondents in refusing his candidature against the said post be struck down by appropriate writ; and the petitioner be allowed to participate in the interview and the respondents-Board be further directed to hold interview for the said post as this Court by order dated 03.11.2003 directed to keep one post vacant till the final disposal of this writ petition. (9) Appearing for the respondents-Board, Shri Abhishek Sinha, learned counsel would submit that the petitioner’s caste is duly notified as Scheduled Tribe by the Constitution (ST), order 1950 only in relation to State of Madhya Pradesh, therefore, by no stretch of imagination, he can be considered to be Scheduled Tribe in relation to the State of Chhattisgarh. He would further submit that even the petitioner has failed to produce caste certificate duly granted by the State of Chhattisgarh and his case for recruitment on the said post against the unreserved category was considered but he failed to get minimum marks i.e. 60% in the written 5 examination as required and, therefore, the writ petition filed by the petitioner is liable to be dismissed. (10) I have heard learned counsel appearing for the parties and considered the rival submissions made therein and perused the material available on record with utmost circumspection. (11) In order to judge the correctness of the submissions raised at the bar, it would be proper to take notice of Article 342 of the Constitution of India. 342. Scheduled Tribes.—(1) 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.” (12) A fair and close reading of Article 342 of the Constitution of India would show that President after consultation with the Governor, where the States are concerned, by public notification, may specify the tribes or tribal communities or parts of or groups of tribes or tribal communities, which shall be deemed to be “Scheduled Tribes” in relation to that State under Article 342. (13) In exercise of power conferred by Clause I of the Article 342 of the Constitution of India, after consultation with the Governor and Rajya Pramukh of the State concerned Constitution (Scheduled Tribe) Order, 6 1950 has been made. Para VIII of the said order deals with the Scheduled Tribe of State of Madhya Pradesh. THE FOURTH SCHEDULE (See Section 20) Amendment of the Constitution (Scheduled Tribes) Order, 1950 In the Constitution (Scheduled Tribes) Order, 1950,- (a) in paragraph 2, for the figures “XIX” the figures “XX” shall be substituted; (b) in the Schedule,- (i) for Part VIII, the following part shall be substituted, namely:- “PART VIII – MADHYA PRADESH 1. XXXX 2. XXXX 3. XXXX 4. XXXX 5. XXXX 6. XXXX 7. XXXX 8. XXXX 9. XXXX 10. XXXX 11. Binjhwar 12. XXXX (14) Now, State of Chhattisgarh is carved out upon organization of State of Madhya Pradesh with effect from 1.11.2000 and by Section 20 of the M.P. Reorganization Act, 2000, Constitution
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