# M/S Auto Service v. Indian Oil Corporation & Anr

- **Citation:** (2020) 1 ILRA 1918
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-13
- **Case number:** Writ-C No. 4844 of 2019
- **Bench:** Ramesh Sinha, Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-auto-service-v-indian-oil-corporation-anr-45087
- **Pages:** 19

## Headnote

Sri Tarun Varma, Sri J.S. Pandey

A. Hiring services of transporters to
provide trucks for transporting petroleum
products - Advertisement (11st October,
2018 ) for service providing in the State
of U.P - conjoint reading of the three
clauses 9 (i), 12 (b), 12 (i) (7) and 12
(i)(9) of NIT(Notice Inviting Tender) -
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. - in matters of selection the Tank
Trucks( TTs) registered in the State of
U.P. specific, were given preferential
rights over and above the applicants of
the other State - Circular issued by the
Government of India dated 18th August,
1994 vide clause (iv) - if the quota has
remained unfilled, it will be carried
forward to the next tender - even in that
tender it has remained unfilled then it
will be deserved to be applicable to open
category - No illegality or perversity in
the impugned order - it stands answered
against the petitioner. (Para 3, 13, 28 & 31)

The petitioner has challenged the order 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 rejecting the candidature of the
petitioner for the grant of contract of the
transport trucks for movement of petroleum
products - The petitioner applied under open
category - 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. (Para 2,
6 & 30)

Held: - 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
Tank Trucks (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 Tank Trucks
(TTs). (Para 30)

Writ Petition dismissed. (E-7)

List of cases cited: -

## Text

_Characters 0–39,857 of 66,263. This is a partial read: ask again with offset=39857 for what follows._

1 All. Dharmendra Vs. State of U.P. & Ors.
1919
appointed by the State Government. Subsections (3) and (4) of Section 14A in the
present form were enacted by U.P. Act No. 21
of 1962. Under Sub-section (3) of Section
14A, the Additional Collector exercises all
such powers and discharges such duties of
Collector in such cases or class of cases as the
Collector concerned directs. Sub-section (4) of
Section 14A further provides that the
Additional Collector while exercising power
and discharging duties under Sub-section (3)
under this Act, i.e 1901 Act and under any
other law for the time being applicable to the
Collector, acts as a Collector of the district. In
other words, the Additional Collector exercises
powers and discharges duties under Subsection (3) of Section 14A as Collector of the
district. Therefore, by legal fiction the order
passed and the jurisdiction exercised by the
Additional Collector by virtue of Sub-section
(3) of Section 14A would be deemed to be that
of a Collector of the district because of Subsection (4) of Section 14A of 1901 Act. Thus,
the Additional Collector when acts and
discharges duties and functions or exercises
such powers of a Collector either under 1901
Act or under any other Act for the time being
in force, that would be deemed to have been
exercised by him as Collector of the district
under that Act. Thus, the Additional Collector
has all the powers of a Collector under Subsection (4) of Section 14A when he exercises
power under Sub-section (3) of Section 14A."

6. The aforementioned position with
regard
to
the
Additional
Collector
exercising powers of the Collector has
been considered by this Court in the
context of the provisions of Section 28 of
the U.P. Land Revenue Act, 1901 in a
recent judgment in the case of Seetla Vs.
State of U.P. and others3.

7. It may therefore be reiterated that
Additional Collector when he acts and
discharges the duties and functions or
exercises such powers of a Collector either
under the 1901 Act or under any other Act
for the time being in force, the powers
would be deemed to have been exercised
by him as Collector of the district under
that Act.

8. The argument raised by the
petitioner with regard to the Additional
Collector not having jurisdiction to pass
the order impugned is thus legally not
tenable.

9. No other point has been urged.

10. Counsel for the petitioner has not
been able to point out any material error or
irregularity in the orders which are sought
to be challenged so as to warrant
interference of this Court in exercise of
powers
under
Article
226
of
the
Constitution of India.

11. The writ petition lacks merit and
is accordingly dismissed.
----------
(2020)1ILR 1918

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.11.2019

BEFORE
THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJIT KUMAR, J.

Writ-C No. 4844 of 2019

M/S Auto Service ...Petitioner
Versus
Indian Oil Corporation & Anr.
 ...Respondents

Counsel for the Petitioner:
Sri M.D. Singh Shekhar, Sri Ram Dayal
Tiwari,
Sri
Ashwani
Srivastava
1920 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
Sri Tarun Varma, Sri J.S. Pandey

A. Hiring services of transporters to
provide trucks for transporting petroleum
products - Advertisement (11st October,
2018 ) for service providing in the State
of U.P - conjoint reading of the three
clauses 9 (i), 12 (b), 12 (i) (7) and 12
(i)(9) of NIT(Notice Inviting Tender) -
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. - in matters of selection the Tank
Trucks( TTs) registered in the State of
U.P. specific, were given preferential
rights over and above the applicants of
the other State - Circular issued by the
Government of India dated 18th August,
1994 vide clause (iv) - if the quota has
remained unfilled, it will be carried
forward to the next tender - even in that
tender it has remained unfilled then it
will be deserved to be applicable to open
category - No illegality or perversity in
the impugned order - it stands answered
against the petitioner. (Para 3, 13, 28 & 31)

The petitioner has challenged the order 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 rejecting the candidature of the
petitioner for the grant of contract of the
transport trucks for movement of petroleum
products - The petitioner applied under open
category - 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. (Para 2,
6 & 30)

Held: - 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
Tank Trucks (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 Tank Trucks
(TTs). (Para 30)

Writ Petition dismissed. (E-7)

List of cases cited: -

1. State of Maharashtra and another v. Union
of India and another, (1994) 5 SCC 244

2. Marri Chandra Shekhar Rao v. Dean, Seth G.S.
Medical College and others, (1990) 3 SCC 130

3. Bir Singh v. Delhi Jal Board and others,
(2018) 10 SCC 312

(Delivered by 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 22nd 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 21st 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 11st October, 2018 for hiring services
of transporters to provide trucks for
transporting
petroleum
products,
the
1 All. M/S Auto Service Vs. Indian Oil Corporation & Anr.
1921
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 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
18th 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 18th 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 still considered by the respondents.
However, both the complaints were
considered by the authority of Indian Oil
Corporation and vide order dated 21st
January, 2019 the representation of the
petitioner has been rejected.

6. Assailing the order impugned
dated 21st 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
1922 INDIAN LAW REPORTS ALLAHABAD SERIES
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; 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 22th January, 2018
with its corrigendum dated 9th April,
2018. On the top of the NIT, it has been
provided that the tender applications were
invited for award 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 cooperative 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
1 All. M/S Auto Service Vs. Indian Oil Corporation & Anr.
1923
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 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 subclause 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 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
1924 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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
1 All. M/S Auto Service Vs. Indian Oil Corporation & Anr.
1925
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.

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 subclause 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 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
1926 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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
1 All. M/S Auto Service Vs. Indian Oil Corporation & Anr.
1927
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
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
6th 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 17th 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
12th standard examination, he applied for
three medical colleges which were under
the management of Bombay Municipal
Corporation. 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
1928 INDIAN LAW REPORTS ALLAHABAD SERIES
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, 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
1 All. M/S Auto Service Vs. Indian Oil Corporation & Anr.
1929
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 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 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
1930 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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 22-31977.

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.