ORDER
C. Mookerjee, C. J.
1. The petitioners in these writ petitions have claimed that they
are entitled to the benefits of special provisions for Scheduled Castes in the State of Maharashtra in matters of admission to education institutions or employment promotion to the posts under the said State. According to the respondents each of these petitioners must be deemed to have migrated to the State of Maharashtra after the date of the issue of the Constitution (Scheduled Castes) Order, 1950 and therefore they are not entitled to enjoy the said benefits/protections for Scheduled Tribes in this State notwithstanding the fact that in the Constitution (Scheduled Castes) Order, 1950, the castes to which the petitioners belong have been specified as a Scheduled Castes both in relation to the State of Maharashtra as also the State from which they had migrated. The petitioners have been granted caste certificates by the appropriate authorities to the effect that they belong to acaste which is recognised as a Scheduled Caste. But each one of their certificates contain endorsements to the effect that the holder of the certificate is not entitled to any concession, facility of any nature whatsoever extended to the Scheduled Castes by the Government of Maharashtra. The said endorsements in the caste certificates granted to the petitioners have been purported to have
been made according to the instructions issued pursuant to the Government of Maharashtra Resolution No. CBC-1084/54577/
(1813)/BCW-V dated the 1st November 1985. The said resolution in its turn is based on certain letters issued by the Government of India on the subject of issue of Scheduled Caste certificates to persons who had migrated from one State to another for the purpose of employment, education, etc., vide Letter No. BC 16014/82-SC & BCD-I, Government of India, Ministry of Home Affairs, New Delhi dated 22nd February 1985. The revised Instructions 19(a), (b), (c) and (d) read as follows :–
“19(a) Where a person migrates from one place to another, he can claim to belong to Backward Class only in relation to the Slate to which he originally belonged and not in respect of the State to which he has migrated.
(b) The persons covered under the following two categories should be treated as “migrants” for the purpose of issuing Caste Certificates as belonging to Backward Classes :–
(i) A person whose caste is scheduled as Backward Class (i.e. Scheduled Caste, Vimukta Jatis, Nomadic Tribes or Other Backward Class as the case may be) in any other Stale Union Territories of India, but not in Maharashtra State and
(ii) A person whose caste is scheduled as Backward Class (i.e. Scheduled Caste, Vimukta Jatis, Nomadic Tribes or Other Backward Class as the case may be) in Maharashtra State as well as in other State, but the ordinary residence (permanent abode) of the person and his father/forefathers on the date of Notification of the Presidential order or Government order scheduling his caste had been in the State/Union Territory other than Maharashtra.
(c) In the case of persons born after the date of the said Notification or Government order under which his caste has been declared as Scheduled Caste/Vimukta Jatis/Nomadic Tribes or Other Backward Classes the place of ordinary residence for the purpose of acquiring Backward Class status will be the place of permanent abode of their parents at the lime of the Notification Government order.
(d) Whether the person ordinary belongs to the State of Maharashtra or he is migrant should be decided with reference to the date of Constitution Order or Government order applicable to his caste. The date of Notification of the Presidential order i.e. the Constitution (Scheduled Castes) Order, 1950 is 10th August, 1950 whereas the list of Vimukta Jatis; Nomadic Tribes and Other Backward Classes have been declared by the Government of Maharashtra under Government Resolution dated 21st November 1961 and 13th October, 1967, respectively, as amended from time to time.”
The main point in these Writ Petitions is whether the said revised instructions No. 19 were valid insofar as the same directed that in case of a person migrating from one State to another, his ordinary residence (permanent abode) for the purpose of grant of caste certificate shall be always determined with reference to his ‘permanent abode’ or ‘permanent abode’ of his father or forefathers at the time of the issue of the Notification and the Presidential Order under Article 341(1) i.e.
10th August, 1950. According to the aforesaid Instructions, caste certificates shall be denied to those whose caste is specified as a Scheduled Caste in relation to the State of Maharashtra only on the ground that they or their forefathers had migrated after the issue of the Presidential Order i.e. 10th August, 1950.
2. In our view the impugned Instructions issued pursuant to the Government of Maharashtra Resolution dated 1st November, 1985 were clearly ultra vires and therefore ought to be struck down. We have already mentioned that the said Instructions were purported to be based upon the letter of the Government of India dated 22nd February, 1985 with the object of removal of difficulties in the way of issue of Scheduled Caste and Scheduled Tribe certificates to migrants from one State to another for the purpose of employment, education, etc., from the State from which they had migrated. The first paragraph of the said letter had therefore instructed that the prescribed authority of the State or the Union Territory to which a person migrated from another State may issue caste certificate on production of a genuine certificate issued to the applicant’s father by the prescribed authority of the State of origin of his father. The said certificate shall be issued irrespective of whether the caste or tribe in question is a Scheduled one or not in relation to the State or Union Territory to which the person had migrated. But these instructions regarding issue of a certificate mentioning that the caste of a person was a Scheduled one only in the State of his origin could not be made applicable in case after migration the person concerned had become permanent resident in the State to which he had migrated. Paragraph 2 of the Government of India letter dated 22nd February 1985 purported to suggest that when for seeking education, employment, etc., a person comes from one State to another, he would not be considered to be a permanent resident therein. In other words, when merely for obtaining education or for the purposes of employment without any intention to permanently reside, person resides in a State other than the State of his origin, he would be considered to be a temporary resident and not a permanent resident. Neither the Government of India letter dated 22nd February, 1985 nor the Instructions of
the Government of Maharashtra regarding issue of caste certificates can affect a right to claim the benefits of protection afforded to Scheduled Castes to a person whose caste has been specified as a Scheduled Caste in the Constitition (Scheduled Castes) Order, 1950 in relation to Maharashtra on the ground that he had migrated and taken up permanent residence in the State of Maharashtra after the date of the issue of the said Presidential Order. In case an application is made by a person for grant of a caste certificate by the prescribed authority in the State of Maharashtra, it would be a question of fact in each case, whether he is a permanent resident within the State of Maharashtra and secondly whether his caste in relation to the State of Maharashtra has been specified by the Constitution (Scheduled Castes) Order, 1950. For the purposes of the Constitution, the prescribed authority may satisfy itself whether the applicant’s presence within Maharashtra was temporary or whether his permanent abode is within the State of Maharashtra. The relevant facts are : animus or the intention of a person who originally belonged to a place which now does not form the part of the State of. Maharashtra and also whether in fact the applicant has his permanent residence. In case on the date of the making of the application for grant of a caste certificate a person establishes both his intention or animus to reside permanently in the State and also the factum of his permanent residence within the State of Maharashtra, he would be entitled to enjoy benefits for Scheduled Tribes in this State, The prescribed authority would be transgressing the provisions of Article 341 of the Constitution by making endorsement in the caste certificate issued to such persons that the holder will not be entitled to benefits facilities in the State of Maharashtra in spite of the fact that the caste of the holder had been specified as a Scheduled Caste in relation to Maharashtra in the Constitution (Scheduled Castes) Order, 1950. The position might be otherwise in cases where for the purpose of education or employment, a person migrates from another State to the State of Maharashtra without taking up permanent residence and where his caste is specified as a Scheduled Caste only in relation to the State of his origin and not in relation to the State of Maharashtra. In such a case a person whose
caste is not specified in relation to Maharashtra as a Scheduled Caste, the impugned Instructions may be applicable. But in relation to persons whose caste is specified as a Scheduled Caste both in relation to the State of his origin and the State of Maharashtra, upon taking up his permanent residence in the State of Maharashtra, the benefits for Scheduled Caste cannot be denied to him on the ground that his migration must be denied to have taken place after a particular date. Clause (1) of Article 341 of the Constitution vested the President with the power to issue by public notification orders specifying the caste or races or tribes or parts of or groups within the caste, races or tribes which shall for the purpose of the Constitution be deemed to be Scheduled Caste in relation to that State or Union Territory as the case may be. Clause (2) of Article 341 has given exclusive authority to the Parliament to enact law for inclusion or exclusion from the list of Scheduled Caste specified in the Presidential Order under Article 341(1). The said powers cannot be usurped by any other authority by issuing directions that a member of a caste specified in the Constitution (Scheduled Castes) order, 1950, in relation to a particular State shall not be deemed to be a Scheduled Caste in that State only on the ground that he or his forefathers had become permanent residents in that State after the date of the issue of the Presidential Order under Article 341 of the Constitution. In other words, the identification under Article 341(1) of the Scheduled Castes for the purposes of the Constitution was to be initially made by the President of India and thereafter inclusion or exclusion from the Presidential Order issued under clause (1) of Article 341 of the Constitution is to be done by the Parliament. No other authority or body has the power to modify and/or alter the specification of the castes, races, tribes or other parts of or groups as Scheduled Castes for the purpose of Constitution in relation to a particular State or Union Territory.
3. The impugned revised Instructions for the issue of caste certificates to persons belonging to Scheduled Castes, etc., contained in the appendix to the aforesaid Government of Maharashtra Resolution dated 1st November, 1985 may be examined.
We have already mentioned that the said Instructions were primarily for removal of difficulty and hardship in the way of obtaining caste certificates by those who had migrated for the purpose of education, service from one State in India to another. According to the said Instructions, the migrants have been classified into several categories. The first class comprises of migrants from one State to another, a State in which they are not specified as a Scheduled Caste. Therefore in respect of such persons, instructions might be given that their claim to belong to Backward Class shall be related only to the State of their origin and where they have their permanent abode. Clause (b)(i) of Instruction No. 19 does not apply to the present cases because the castes of the petitioners have been specified as a Scheduled Castes both in relation to the State from which their forefathers or their father might have migrated to this State and also in relation to the State of Maharashtra where they now ordinarily reside. In respect of them, the Instructions 19(b) (ii) is to the following effect:
“A person whose caste is scheduled as Backward Class (i.e. Scheduled Caste, Vimukta Jatis, Nomadic Tribes or Other Backward Class as the case may be) in Maharashtra State as well as in other State, but the ordinary residence (permanent abode) of the person and his father/forefathers on the date of Notification of the Presidential order or Government order scheduling his caste had been in the State/Union Territory other than Maharashtra”.
Similarly in cases of persons born after the date of Notification or Government order under which the caste has been declared as Scheduled Caste, according to Instruction No. 19(c) the place of ordinary residence for the purpose of acquiring Backward Class status will be the place of permanent abode of their parents at the time of the Notification/Government order. Instruction No. 19(d) was bad when it prescribed that whether a person ordinarily belongs to State of Maharashtra or he is migrant shall be decided with reference to the two dates mentioned therein.
4. There may not be any serious objection to the requirement that in order to claim benefit of his caste, person who had migrated
to State of Maharashtra must have permanent abode i.e. must be ordinarily residing in the State of Maharashtra. But fixation of /cut off date’ for enjoying the said advantages for Scheduled Castes in the State of Maharashtra was clearly bad in law for the reasons hereinafter indicated. The learned counsel appearing on behalf of the petitioners themselves did not dispute that in order that a person may claim that he is to be treated as a Scheduled Caste in the State of Maharashtra, he is required to establish that his caste was specified as a Scheduled Caste in relation to the State of Maharashtra. Secondly, such person must have his ordinary residence within the State. All the petitioners, however, have claimed, and in fact the same is not disputed before us, that their ordinary residences are within the State of Maharashtra. A person whose presence within the State is transient or merely fortuitous cannot certainly claim that in relation to the State of Maharashtra he is to be considered as a Scheduled Caste. The persons who in fact have their ordinary abode in this State cannot be disqualified or adversely treated merely because they might have taken up permanent residence in this State after 10th August 1950. We have already observed that so far as the fact of permanent residences of the petitioners within the State of Maharashtra is concerned, it is not in dispute. But their claims to obtain caste certificates for the purpose of enjoying benefits extended to Scheduled Castes within the State of Maharashtra have been purported to be rejected according to the aforesaid instructions contained in the Government Resolution dated 1st November, 1985 on the ground that they or their father or their forefathers, as the case might be, did not ordinarily reside in this State on the date of the issue of the Constitution (Scheduled Castes) Order, 1950. In other words, their permanent abode was not within the State of Maharashtra at the time of making the Notification/Government order. On the face of it, the said instructions are not only contrary to the provisions of Article 341 read with the Constitution (Scheduled Castes) Order, 1950, but also discriminatory and arbitrary. In view of the clear language of Article 341 of the Constitution read with the Constitution (Scheduled Castes) Order, 1950, members of the caste who have been specified as Scheduled Caste
in respect of any State or Union Territory and are resident therein, are to be treated for the purpose of the Constitution to be Scheduled Castes in relation to that State. Purporting to rely upon the instructions issued by the Government of India, the State of Maharashtra cannot illegally stipulate an additional requirement of having permanent residence in case of migrants in this State not at the time of making their claims for obtaining benefits as Scheduled Castes but on a date which is already passed i.e. the date of the issue of the Notification or Government order under which a particular caste has been declared as a Scheduled Caste, etc. It was not within the power of the Stale of Maharashtra to impose any disqualification upon a member of a Scheduled Caste specified as a Scheduled Caste in the State on the ground that he had began to permanently reside in this State after the date of the said Notification or the Government order declaring a particular caste as a Scheduled Caste.
5. There could be no intelligible basis for differentiation of treatment between members of a caste which is specified as a Scheduled Caste in relation to the State of Maharashtra, according to the dates when they begin to ordinarily reside within the Slate of Maharashtra. The said fixation of the date was arbitrary and had no nexus with the object of specifying particular caste or tribe in relation to a State or Union Territory as Scheduled Caste or tribe for the purposes of the Constitution.
6. In the Full Bench decision of this Court in Writ Petn. No. 5164 of 1988 (), Ku. M. S. Malathi v. The Commissioner, _Nagpur Division, Nagpur, it was observed that, “the rationale behind such identifying castes or tribes as Scheduled Castes or Scheduled Tribes is their socio economic and educational backwardness in a particular State or Union Territory. Therefore the benefits of constitutional protection for castes and tribes which are to be deemed as Scheduled Castes and Scheduled Tribes are to be given in relation to that State or Union Territory in which the particular caste or tribe suffer from these disabilities and need protection”. We are unable to find any intelligible reason for discriminating against those members of a specified Scheduled Caste
in this State only on the ground that they had begun to ordinarily reside after the date of the Presidential Order and therefore they should forfeit the constitutional protection and denied the benefits thereof.
7. The point as to whether the differentiation could be made between these members of the Scheduled Caste who have migrated in this State for permanent residence and those who have all along lived in the State have been already considered in a number of decisions of this Court. Our attention has been drawn to the decision of Kanade and Deshpande, JJ. in the case of Bhiwaji Eknath Kawle v. State of Maharashtra, (Writ Petn. No. 1572 of 1980) decided on 3rd February, 1982. Petitioner in the said case previously belonged to Bidar in the State of Karnataka but had been ordinarily residing in the State of Maharashtra. The Division Bench held that in the matter of employment he is to be considered as member of Scheduled Caste in the State in view of the fact that the community to which he belonged was specified as a Scheduled Caste in this State. Reference was also made to the decision of Pendse, J., dated 19th September 1984, in the case of Rajesh Khusalbhai Patel v. The State of Maharashtra. (Writ Petition No. 2499 of 1983). In the said case before Pendse, J., questions similar to those which have raised before us had come up for consideration. The community to which the petitioner belonged was specified as a Scheduled Caste both in the State of Maharashtra and in the State of Gujrat from which the petitioner had migrated. Pendse, J., came to the conclusion that it was difficult to understand on what basis the Director of Social Welfare, Maharashtra, had come to the conclusion that the petitioner was a permanent resident of Gujarat and not of Maharashtra. The records unmistakably showed that the petitioner was born and educated in Bombay and had resided in Bombay all along with his parents. In view of the fact that his father bailed from a village in the State of Gujarat was not a ground to suggest that the peitioner was a permanent resident of Gujarat. Pendse, J., accordingly made the Rule absolute and directed the Director of Social Welfare to act in accordance with the judgment of this Court. Appeal preferred by the State of Maharashtra
against the decision of Pendse, J., had been dismissed by the Division Bench on 6th July 1987.
8. Daud, J., in his recent decision dated 31st July 1989, in the case of Rajesh Arjunbhai Patel v. State of Maharashtra, in Writ Petn. No. 4018 of 1987 (), considered the points which we are required to decide in the present cases. We agree with the reasoning given by the learned single Judge in coming to the conclusion that the instructions which have also come up for consideration in the present case relating to migrants from one State to another were arbitrary and discriminatory. After finding upon the facts that the petitioner of the said case at least since 1969-70 was permanently residing within the State of Maharashtra, Daud, J., held that therefore the test of class and territory having been fulfilled, the petitioner was entitled to enjoy the benefit of status as a Scheduled Caste within the State of Maharashtra. Daud, J., pointed out that in the guise of Government Resolutions, the Government was not entitled to give their own construction as regards to the list of Scheduled Tribes and Scheduled Castes since the power was given only to the Parliament to amend the Constitution (Scheduled Castes) Order, 1950. Daud, J., has also observed that the Government Resolutions made artificial distinction between migrants prior to 6th September, 1950 and those subsequent to that date. It was incomprehensible why the cut off date should be 6th September, 1950 for the progeny of migrants to the State. Daud, J., declared the Instructions 17(a), (b)(ii) and (c) of Exhibit ‘S’ of the said case to be violative of Articles 342, 14 to 16 and 19 and therefore unconstitutional and void. We respectfully agree with the views expressed by Daud, J.
9. Accordingly we declare that the Instructions regarding the grant of caste certificates with impugned endorsements to those who have migrated and have already become permanent residents in the State were invalid and unenforceable in law. The said endorsements pursuant to the said Instructions contained in the caste certificates granted to these petitioners were void ab initio and are quashed. By relying upon these impugned endorsements in the caste certificates, the respondents acted illegally in rejecting the
petitioners’ claims for benefits given to members of Scheduled Castes in Maharashtra State. Since their castes are specified as Scheduled Castes in relation to Maharashtra and at present they have permanent residences in this State, the petitioners ought to be considered as Scheduled Castes candidates. Because of the said impugned Instructions, the Scrutiny Committees, in case of those petitioners who were seeking admission to the educational professional institutions, had illegally refused to treat them as belonging to Scheduled Castes. Their claims ought to be considered afresh. We also make it clear that in the case of those petitioners whose certificates are yet to be processed, the Scrutiny Committee is commanded not to give effect to the endorsements in their caste certificates made according to impugned Instructions regarding the migrants to this State after the date of the Notification and/or Government order.
10. It has been stated before us that the caste certificates of the petitioners in Writ Petition Nos. 4967/1988, 5445/1987, 3876/ 1988, 3678/1988, 3709/1988 and 2776/1989 upon scrutiny had been rejected on the sole ground that their father or forefathers had migrated to this State after the date of the issue of the Constitution (Scheduled Castes) Order, 1950. Since the same was patently illegal, it is unnecessary to direct their cases to go back to the scrutiny Committee. We accordingly direct that the petitioners in Writ Petition Nos. 4967/1988, 5445/1987, 3876/ 1988, 3878/1988, 3709/1988 and 2776/1989 on the basis of their caste certificates be considered as a Scheduled Castes in the State of Maharashtra.
11. The petitioner in Writ Petition
No. 2830 of 1989 produced from the competent authority a caste certificate which contained an endorsement to the effect that the same was valid in the State from which his father had migrated to the State of Maharashtra. His application for admission in the medical college run by the Municipal Corporation has not yet been fully processed. His caste certificate is yet to be placed before the Scrutiny Committee. Although in view of the findings made in the present group of cases, it be a mere formality to now direct that
the case of the Petitioner in Writ Petition No. 2830 of 1989 requires examination of his claim that he by reason of permanent residence is entitled to the benefits of his caste which is specified as Scheduled Caste in the States of Maharashtra and Gujarat. Since the admission rules require, we do not propose to dispense with the said formality of examination by the Scrutiny Committee. In holding the said scrutiny, the Committee would be bound by our decision that the caste certificate produced by the petitioner was not liable to be rejected because of the endorsement made in pursuance of the Government Instructions. The hearing by the Scrutiny Committee is fixed on Friday the 6th October, 1989 at 2.00 p.m. The respondent Corporation is also directed in the mean time to process the petitioner’s application so that in case the same is in order and the petitioner otherwise qualifies, there may not be further loss of his studies.
12. In Writ Petition No. 2915 of 1988 also we direct the Scrutiny Committee to complete its scrutiny of the certificate within six weeks. The Scrutiny Committee will ignore the endorsements in the caste certificate made in pursuance of the impugned Government Instructions regarding migration to the State of Maharashtra. The Committee will give opportunity to the petitioner to establish his claim about his caste.
13. We allow Writ Petition Nos. 4967/ 1988, 5445/1987, 3876/1988, 3678/1988, 3709/1988 and 2776/1989 and make the Rules absolute and direct that the caste certificates produced by these petitioners be accepted as proof of their belonging to castes specified as Scheduled Castes in relation to the State of Maharashtra, and the endorsement made according to the impugned Instructions contained in the Government Resolution dated 1st November, 1985 be treated as expugned and quashed. There will be no order as to costs.
14. Writ Petitions Nos. 3678/1988 and 3709/1988 be placed for further orders within one week.
15. Order accordingly.