Bombay High Court
Mr. Abhinav Dipakbhai Patel vs Director, Transport Dept. And Ors on 21 April, 2017
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3889 OF 2017
Mr. Abhinav Dipakbhai Patel
R/o. D-303, Pramukh Gardents,
Near Park City, Opposite Yogi Hospital,
Silvassa, Dadra & Nagar Haveli. ... Petitioner
V/s.
1) Director, Transport Department, Union
Territory, Administration Of Dadra &
Nagar Haveli, Silvassa.
2) Deputy Director, Transport Department,
Union Territory, Administration Of
Dadra & Nagar Haveli, Silvassa.
3) The Administrator, Union Territory,
Administration Of Dadra & Nagar Haveli,
Silvassa.
4) The Development Commissioner/
Appointing Authority-Group 'C', Union
Territory, Administration Of Dadra &
Nagar Haveli, Silvassa.
5) The Union of India, Through its
Secretary, Ministry of Home Affairs,
Government of India. ... Respondents
Mr. A.A. Kumbhakoni, Sr. Advocate, Mr. Akshay P. Shinde for
the Petitioner.
Mr. S.S. Deshmukh for Respondent Nos.1 to 4.
Ms. S.V. Bharucha a/w Mr. Y.S. Bhate and Mr. Upendra
Lokegaonkar for Respondent No.5.
CORAM : ANOOP V. MOHTA AND
RAVINDRA V. GHUGE, JJ.
DATE : 21st APRIL, 2017.
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JUDGMENT (Per Ravindra V. Ghuge, J.) :
1 Rule. Rule made returnable forthwith. Heard
finally by the consent of the parties.
2 We have considered the submissions of the learned
senior Advocate appearing on behalf of the Petitioner and the
learned counsel appearing on behalf of Respondent Nos.1 to 4
Union Territory of Dadra & Nagar Haveli (hereinafter referred to
as U.T.) and the counsel representing Respondent No.5 Union of
India. With their assistance we have gone through the Petition
paper-book and the record available.
3 The Petitioner in this Petition has put forth his
prayers in paragraph 47 in terms of clauses (b) and (c) as
under :-
b) to direct the Respondents to forthwith issue
letter of appointment in favour of the Petitioner
thereby appointing the Petitioner to the post in issue
i.e. Assistant Motor Vehicle Inspector in the Transport
Department of the Union Territory of Dadra & Nagar
Haveli w.e.f. date of result of the Written
Examination i.e. w.e.f. 11/7/2015;
c) to direct the Respondents to disburse to the
Petitioner entire amount towards back wages
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admissible to the post in issue i.e. Assistant Motor
Vehicle Inspector in the Transport Department of the
Union Territory of Dadra & Nagar Haveli w.e.f. the
date of result of Written Examination i.e. w.e.f.
11/7/2015 till the date of issuance of appointment
letter;
4 The first objection raised by the Respondent is to
the maintainability of this Petition on the basis of an alternate
remedy. It is contended that since the petitioner is seeking an
appointment in the service of the Respondent Union Territory,
he would first have to approach the Central Administrative
Tribunal under the Administrative Tribunals Act, 1985 and he is
precluded from approaching this Court directly. Reliance is
placed upon the judgment of the Hon'ble Supreme Court in the
matter of Kendriya Vidyalaya Sangathan and Another vs. Subhas
Sharma1 . The Petitioner submits that after the entire selection
process has been completed, the Respondent U.T. has issued
appointment order to the candidate at Serial No.2 in the
combined merit list. Yet the Petitioner who is at Serial No.1 has
not been appointed.
1 (2002) 4 SCC 145
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5 We have considered the submissions and have gone
through the report cited. There is no dispute that by way of an
alternate remedy, the Petitioner could have approached the
Administrative Tribunal. However, keeping in view that the
High Court is not precluded from taking up a grievance despite
an alternate remedy being available and in the light of the
peculiar facts of this case, we thought it fit to entertain this
Petition. Reasons thereof are found in our conclusions that
follow.
6 After considering the extensive submissions of the
learned counsel, we find that the following factors are
undisputed :-
a) An advertisement was published on 25.10.2014
inviting applications for two posts of Assistant Motor
Vehicle Inspector in the Administration of Dadra and
Nagar Haveli (hereinafter referred to as the Respondent
U.T.).
b) The said posts fall under group 'C'.
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c) One post was available for the candidates from the
open category and one post was reserved for the
Scheduled Tribe category.
d) The advertisement clearly mentions "Any Indian
citizen can apply for the post. However, applicant having
domicile of Dadra & Nagar Haveli shall be given weightage
in accordance with O.M. No.I-12(B-54)/2012-ADM/1261
dated 26.12.2013 subject to him/her producing Domicile
Certificate issued by Mamlatdar, Silvassa/Khanvel".
e) The presidential order placed on record bearing
No.CO 65 mentions as under:-
THE CONSTITUTION (DADRA AND NAGAR HAVELI)
SCHEDULED TRIBES ORDER, 1962
(C.O. 65)
In exercise of the powers conferred by clause (1) of
article 342 of the Constitution of India, the President is
pleased to make the following Order, namely:-
1. This Order may be called the Constitution (Dadra
and Nagar Haveli) Scheduled Tribes Orders, 1962.
2 The tribes or tribal communities, or parts of, or
groups within, tribes or tribal communities, specified in the
Schedule to this Order, shall for the purposes of the
Constitution, be deemed to be Scheduled Tribes in relation
to the Union territory of Dadra and Nagar Haveli so far as
regards members thereof resident in that Union territory.
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THE SCHEDULE
1. Dhodia 5. Koli Dhor including
2. Dubla including Halpati Kolgha
3. Kathodi 6. Naikda or Nayaka
4. Kokna 7. Varli
f) The Petitioner applied pursuant to the said
advertisement since he belongs to the Dhodia tribe which
falls under the Scheduled Tribes in relation to the
Respondent U.T.
g) The Petitioner was invited pursuant to his
application and he has participated in the entire selection
process.
h) Only two candidates inclusive of the Petitioner had
applied from the Scheduled Tribe category, the other
candidate being Shri Ayyappa Jyoti Ramchandran who
hailed from the State of Kerala.
i) The said candidate from Kerala did not appear for
the selection process and the Petitioner was the only
candidate belonging to the Scheduled Tribe category.
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j) Not a single candidate from the respondent U.T.
belonging to the Scheduled Tribe category was given a
call letter by the Respondent.
k) The three candidates who belonged to the open
category had scored 28.4, 26.9 and 21.3 marks.
l) The Petitioner though applied from the Scheduled
Tribe category, scored 29.6 marks which are more than
any of the candidates from the open category.
7 The contention of Shri Kumbhakoni, learned Senior
Advocate is that the Petitioner belongs to the Dhodia tribe which
has been declared and recognized to be S.T. not only in relation
to the State of Gujarat, but also in relation to the Respondent
U.T. It is specifically averred below ground 'A' in the memo of
the Petition that the said S.T. is found in the southern parts of
Gujarat, Surat, Navsari, Dang, Valsad districts, Daman and Diu
and Dadra and Nagar Haveli (presently the Respondent U.T.),
Madhya Pradesh, Maharashtra, Goa, Karnataka and Rajasthan.
The word 'Dhodia' has been derived from the word 'Dhulia' in
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the western part of Khandesh. The customs, festivals, Gods and
Goddesses are identical to the Dhodia tribe from these different
parts of the State of Gujarat, State of Maharashtra and the
Respondent U.T.
8 It is further canvassed on the basis of the record
that the Petitioner was residing in the Respondent U.T. for the
last more than six years, he owns immovable property at Dadra
and Nagar Haveli, is married to a girl belonging to the Dhodia
Tribe from the same Respondent U.T. and is permanently
residing in the said Respondent U.T.
9 It is further pointed out that pursuant to the
selection process, the Respondent U.T. has appointed one
candidate from the open category. The appointment of the
Petitioner has been avoided. This indicates that the Respondent
has accepted the results of the selection process.
10 Consequently, the Petitioner approached the
National Commission for S.T. (N.C.S.T.) which issued notices to
the Respondent U.T. The minutes of the proceedings that were
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held before the N.C.S.T. on 22.04.2016 have been placed on
record. Paragraphs 5 and 6 of the said proceedings read as
under :
"5. The matter has been discussed in the
Commission again today. The Joint Secretary,
Ministry of Home Affairs has categorically stated
that they have already given the clear cut
directions to the U.T. Administration of Dadra &
Nagar Haveli regarding this case and hence
there should not be any delay in the
appointment of Shri Abhinav Patel against the
post of Assistant Motor Vehicle Inspector in the
U.T. Administration as the Scheduled Tribes of
other States are considered eligible for S.T.
benefits in all other Union Territories. The rule
position in this case is very clear and the U.T.
Administration of Dadra and Nagar Haveli
should have given the appointment letter to the
applicant long back, which has been viewed very
seriously by the Ministry of Home Affairs also.
The candidature of Shri Abhinav Patel is all the
more relevant since he is the topper in the merit
list and is the only S.T. candidate and hence he
should be appointed forthwith.
6 Shri Gaurav Singh Rajawat, Collector &
Director (Transport), who attended the
meeting / hearing on behalf of himself and on
behalf of the Administrator of Dadra and Nagar
Haveli U.T. Administration has submitted that
they have received the clarification from
Ministry of Home Affairs recently and they will
be giving the appointment letter within 7 days.
The Commission expects that necessary action
may be taken in this regard and an action taken
report submitted to this Commission."
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11 It is then pointed out that by subsequent
communication by the N.C.S.T. dated 27.07.2016, the
Respondent U.T. was called upon to issue an order of
appointment to the Petitioner. The relevant observations read
as under :-
"After going through the correspondence /
documents / papers laid down before this
Commission and law points in the case the
Commission is of the opinion that there is no
bearing of the decision taken by the Home
Ministry in the meeting held on 11.7.2016, as
the filling up of the post of Assistant Motor
Vehicle inspector will be based on the
advertisement notified by the UT Administration
of Dadra and Nagar Haveli dated 25.10.2014, as
all decisions taken can be taken prospective effect
and cannot be implemented retrospectively. The
advertisement states that any Indian citizen can
apply for the post and accordingly the petitioner
has applied. There was no bar to the outsider ST
candidates to apply for the post. The rules
existing on the date of notification will have to be
followed and the directions as sought from and
as given by the Ministry of Home Affairs is amply
clear. Under these circumstances the Commission
again directs the UT to release the appointment
of Shri Abhinav D. Patel against the post of
Assistant Motor Vehicle Inspector in the
Transport Department of UT of Dadra & Nagar
Haveli, which was held up by them, forthwith
within 7 days of receipt of these proceedings,
failing which the Commission will be constrained
to take action under The Scheduled Castes &
Scheduled Tribes (Prevention of Atrocities) Act
1989 against the officers of UT Administration of
Dadra and Nagar Haveli. "
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12 The Petitioner has placed reliance upon the
following judgments:-
1) S. Pushpa and others vs. Sivachanmugavelu and
others2
2) Subhash Chandra and another vs. Delhi Subordinate
Services Selection Board and others3
3) Deepak Kumar & Ors. vs. District and Sessions Judge,
Delhi & Ors.4
4) State of Gujarat and Anr. vs. R.L. Patel5
5) Puducherry Scheduled Caste People Welfare
Association vs. Chief Secretary to Government Union
Territory of Pondicherry and others6
13 The learned counsel for the Respondent U.T.
submits that since the Petitioner originally belongs to the State
of Gujarat and has his origin in that State, he would be a
migrant insofar as the Respondent U.T. is concerned. The
Respondent U.T. has a population of about 3-1/2 lakhs out of
which 52% belong to the S.T. categories. These members of the
S.T. have to be given preference in order to ensure that the
2 (2005) 3 SCC 1.
3 (2009) 15SCC 458.
4 2012 (132) DRJ 169 (FB).
5 1990 SCC OnLine Guj 183 : (1990) 6 SLR 782.
6 (2014) 9 SCC 236.
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constitutional mandate on the policy of reservation is given a
full effect and the effort to bring the tribals into the main stream
is not defeated.
14 In addition to his oral submissions, he has placed
on record written notes of submissions. He has pointed out the
relevant paragraphs of his written submissions to support his
contention that the Petitioner will have to be treated as a
migrant and his movement from a State to the U.T. would not
entitle him to seek an appointment as is being sought in this
Petition.
15 We find it appropriate to reproduce the portions
indicated from the written submissions canvassed by the learned
counsel for the Respondent U.T. as under :-
....In fact, the adjoining Union Territory of
Daman & Diu has also framed a similar policy
on 17.8.2016 to the effect that the SC/ST
Candidates who are resident of Daman and Diu
as notified in Reorganisation Act, 1987 and OBC
Candidates as notified from time to time, will
alone get the benefit of reservation for Group C
and D posts. ....
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....Though the Union Territories are centrally
administered under the provisions of Article 239
they do not become merged with the Central
Government as has been stated by this Court in
Satya Dev Bushahri v. Padam Dev (AIR 1954 SC
587 : (1955) 1 SCR 549). ....
....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 rights, privileges and benefits
admissible to a member of the Scheduled Caste
of the latter State "for the purposes of 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 tht 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...."
.....Further once a Separate presidential order is
issued declaring ST's in relation to a Union
Territory (DNH in present case) then there
cannot be any difference whether the migration
is from state to another state or to another
Union Territory. Article 342 cannot be
interpreted differently for "State" - where
migrant are not allowed and differently for
"Union Territories" where migrants can be
foisted upon the local Tribal population. This
will frustrate the very Constitutional protection
given to the Scheduled Tribe population in
Union Territory. .....
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.... The Judgment delivered by Hon'ble Full
Bench of Delhi High Court in 2012 (132) DRJ
169 (FB) is also not applicable because basically
in respect of Delhi there is no Presidential Order
issued declaring ST. Therefore, whether even
through this judgment has considered all
previous judgments it is distinguishable on facts
itself. As there is no separate presidential order
for Delhi for Scheduled Tribes, there cannot be
any conflict between local ST candidates and
migrants. Therefore, the position of Delhi is
altogether different compare to the Dadra and
Nagar Haveli where more than half of the
population is Scheduled Tribe. .....
..... The aforesaid observations by Hon'ble
Madras High Court are clear that it is for the
Union Territory to decide whether or not to
allow the migrants to have benefits of
reservation in the Union Territory. ..
.... It is submitted that any decision to allow the
migrants to claim the benefits in the UT of
Dadra and Nagar Haveli would result in
amending the Constitution (Dadra and Nagar
Haveli) Scheduled Tribes Order, 1962 by Courts
which is impermissible. The parliament can
alone modify the said Order considering the
larger interest of Tribals. In the judgment of
Hon'ble Supreme Court in Action Committee on
Issue of Caste Certificate to Scs/STs v. Union of
India, (1994) 5 SCC 244 at page 247 it is
observed that;
"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
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varied by any subsequent notification. What is
important to notice is that the caste 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."
16 The learned counsel has then pointed out an office
memorandum dated 01.09.2006 which lays down the principle
of direct recruitment to the posts falling under Group 'C' and
Group 'D' in the Respondent U.T. We find it apposite to
reproduce the said memorandum for clarity as under :-
Administration of
Dadra and Nagar Haveli, U.T.
(Personnel Section)
Secretariat
Silvassa.
No.I-2(B)(23)/2006-ADM/771 Dated-01/09/2006
OFFICE MEMORANDUM
This Administration has received several representations
from the Public Representatives regarding giving due
consideration to the candidates from local region in the
recruitment process for Government Services under the
Administration of Dadra and Nagar Haveli and after
examination of the same, the following has been decided in
principle for direct recruitment in cases of Group "C" & "D"
posts in the U.T. Administration of Dadra & Nagar Haveli.
(1) The Candidates applying for the direct recruitment
in case of Group "C" & "D" posts will be required to furnish
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the Domicile Certificate of U.T. Of Dadra & Nagar Haveli
issued by the Mamlatdar, DNH alongwith other
requirements for the posts, as prescribed.
(2) For the reserved category of Group "C" and "D" the
candidates belonging to the Castes/Tribes and Other
Backward Classes notified by the U.T. Administration of
Dadra & Nagar Haveli in respect of the SC/ST/OBC are
only to be considered.
Therefore, I am directed to bring the above decision to
the notice of all the Heads of Departments and Heads of
Offices, Dadra & Nagar Haveli that the above decisions
may please be adhered to while processing the direct
recruitment for Group"C" & "D" posts.
This is issued with the approval of the Hon'ble
Administrator of Daman & Diu and Dadra & Nagar
Haveli.
(N.R. Shah)
Deputy Secretary (Personnel).
17 It is then submitted that the abovesaid policy has
undergone a brief change which is evident from the office
memorandum dated 26.12.2013. It is specifically pointed out
through clauses 1 and 2 of the said Office Memorandum that the
policy insofar as direct recruitment is concerned, as it stood by
virtue of the Office Memorandum dated 01.09.2006, has
undergone a partial modification. It is contended that
candidates from the open category are entitled to apply for
various posts in the Group 'B' and Group 'C' categories and those
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candidates falling under the S.T. Category, who do not have
their origin in the Respondent U.T., have been specifically
excluded.
18 To consider the submissions of the learned counsel
in their right perspective, we find it proper to reproduce clauses
1 and 2 of the Office Memorandum dated 26.12.2013 as
under :-
OFFICE MEMORANDUM
Subject: Direct Recruitment in Group 'B' and 'C'
(including Multi Tasking Staff) posts.
1) Ministry of Home Affairs, Government of India,
New Delhi vide letter No.(I-14014/38/2012-CPD dated
14.10.2013 has advised the UT Administration of Daman
& Diu and Dadra & Nagar Haveli to consider giving some
weightage/preference to the local people in direct
recruitment in respect of group 'D', 'C' & 'B' (Non-
Gazetted) posts, instead of making a provision for
exclusive reservation of posts for local people under these
categories.
2) Accordingly in partial modification of the Office
Memorandum No.I-2(B)(23)/2006-ADM/771 dated
01.09.2006 and in supersession of Office Memorandum
No.I-12(B-54)/2012-ADM/138 dated 12.02.2013 the
Administrator of Daman & Diu and Dadra & Nagar
Haveli hereby prescribes the following guidelines for
selection procedure for direct recruitment through
Employment Exchange/Advertisement for all the posts in
Group 'B' (Gazetted). Group 'B' (Non-Gazetted), Group
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'C' (Technical & Non Technical) and Multi Tasking Staff
in the UT of Dadra & Nagar Haveli.
Allocation of Marks:
(a)
Category of post Written Test Educational and Interview Total
Marks other Qualification
Marks
Group 'B' (Gazetted) 75 10 15 100
(b)
Written Educational and Interview Weightage Total
Test other Qualification for local
Marks Marks candidates
Group 'B' (Non- 60 10 10 20 100
Gazetted)-
Teacher
Group 'B' (Non- 70 10 - 20 100
Gazetted)- Other
(c ) For posts where skill test is not required as per the Recruitment Rules:
Written Test Educational and Weightage Total
Marks other Qualification for local
Marks candidate
Group 'C' (including 70 10 20 100
Multi Tasking Staff)
(d) For the posts where Skill test is prescribed in Recruitment Rules:
Written Educational and Skill Weightage Total
Test other Qualification Test for local
Marks Marks Marks candidates
Group 'C' 60 10 10 20 100
(including Muti
Tasking Staff)
* Local candidates will be required to furnish Domicile Certificate of U.T.
of Dadra & Nagar Haveli issued by Mamlatdar (Silvassa/Khanvel) along
with other documents required for the post.
19 While countering the submission of the Petitioner
that he was allowed to appear for the selection process and he
stood first even in the combined list of candidates, learned
counsel for the Respondent U.T. submits that allowing the
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Petitioner to appear for the selection process may have been a
mistake on the part of the Respondent U.T. The said mistake,
however, will not overbear or water down the policy of the U.T.
in giving exclusive right of selection to the S.T. candidates
whose origin is from U.T.
20 It is further submitted that unless a presidential
order indicates that a candidate belonging to the Dhodia tribe
from Gujarat would be entitled for all the benefits even in the
Respondent U.T. as were available in the parent State, by mere
inference or implication, the Petitioner cannot be said to have
acquired those privileges of S.T. even in the Respondent U.T. In
this regard, reliance has been placed upon the judgment of the
Hon'ble Apex Court in the matter of Action Committee On Issue
of Caste Certificate To Scheduled Castes and Scheduled Tribes in
the State of Maharashtra and Another vs. Union of India7 (5
Judges Bench). A specific reliance is placed on the observations
of the Hon'ble Apex Court in paragraph 16 which read as
under:-
"16. We may add that considerations for
specifying a particular caste or tribe or class for
7 (1994) 5 SCC 244
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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 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."
21 Insofar as the issue as to whether the Dhodia tribe
is recognized as S.T. to the extent of the Respondent U.T. is
concerned, the presidential order reproduced above bearing
No.CO 65 clearly indicates that the members of the tribes or
tribal communities or parts or groups within such communities
specified in the schedule would, for the purposes of the
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constitution, be deemed to be belonging to the S.T. in relation to
the Union Territory of Dadra and Nagar Haveli which is
Respondent U.T. It is specifically mentioned in the presidential
order that those members of such tribes or tribal communities
"RESIDENT IN THAT UNION TERRITORY" would be treated to
be members of the S.T. for all purposes.
22 Mr. Deshmukh learned counsel for the Respondent
U.T. has strenuously contended that the word 'RESIDENT'
appearing in the presidential order will necessarily have to be
construed to mean a person whose 'ORIGIN' is from the
Respondent U.T. and/or who is a domicile of the said U.T. He
further submits that unless the petitioner qualifies by being
covered in either of these two types, he would continue to be
deemed to be a migrant.
23 As is rightly pointed out by the learned senior
Advocate for the petitioner, the Hon'ble Supreme Court
(3 Judges Bench) in the matter of Puducherry Scheduled Caste
People Welfare Association (supra) has considered an identical
situation in relation to the Union territory of Pondichery as it
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stood then. It would be apposite to reproduce paragraph Nos.3
to 7, 10 and 11 of the said judgment here under:-
3 Both Government Orders take note of the
Constitution (Pondicherry) Scheduled Castes
Order, 1964 and also the judgment of this Court
in S. Pushpa and others Vs. Sivachanmugavelu
(2005) 3 SCC 1:2005 SCC (L&S) 327 and then
provide for extension of reservation only to the
Scheduled Castes origins of the Union Territory.
4 Para 5 of G.O.M. 11/2005 reads as follows :-
"Having examined the demand made by various
Welfare Associations and Scheduled Castes
(origin) people of the Union Territory of
Pondicherry and taking into account the
observations made by the Hon'ble Supreme
Court at para 21 of the said judgment dated
11.02.2005, the Lieutenant Governor,
Pondicherry is pleased to order that the
reservation benefits in promotion, employment
to Group 'C' and 'D' posts shall henceforth be
extended only to the Scheduled Caste origins of
the Union Territory as notified in the
Constitution (Pondicherry) Scheduled Castes
Order, 1964 read with the Constitution
(Scheduled Castes) Order (Second Amendment)
Act, 2002 (Central Act 61 of 2002)."
5. Similarly, para 5 of G.O.M. 12/2005 reads as
follows :-
"Having examined the demand made by various
Welfare Associations and Scheduled Castes
(origin) people of the Union Territory of
Pondicherry and taking into account the
observations made by the Hon'ble Supreme
Court at para 21 of the said judgment dated
11.02.2005, the Lieutenant Governor,
Pondicherry is pleased to order that the
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reservation benefits in the field of education and
welfare shall henceforth be extended only to the
Scheduled Caste origins of this Union Territory
as notified in the Constitution (Pondicherry)
Scheduled Castes Order, 1964 read with the
Constitution (Scheduled Castes) Order (Second
Amendment) Act, 2002 (Central Act 61 of
2002)."
6. Leave was granted in these matters on
13.12.2010 and it was ordered that these
matters be tagged with Civil Appeal No. 4494 of
2006.
7. It so happened that subsequently by order dated
October 7, 2010, Civil Appeal No. 4494 of
20062, came to be referred to a 3-Judge Bench
as the 2-Judge Bench, inter alia, observed that in
Subhash Chandra Vs. Delhi Subordinate Service
Selection Board, the 2-Judge Bench could not
have held that the decision rendered in S.
Puspha case is obiter and not binding.
10. The Presidential Order, 1964 reads as
follows :-
"THE CONSTITUTION (PONDICHERRY)
SCHEDULED CASTES ORDER, 1964
(C.O. 68)
In exercise of the powers conferred by clause (1)
of article 341 of the Constitution of India, the
President is pleased to make the following Order,
namely:-
1. The Order may be called the Constitution
(Pondicherry) Scheduled Castes Order, 1964.
2. The castes, races or tribes or parts of or
groups within castes, races or tribes specified in
the Schedule to this Order shall, for the purposes
of the Constitution, be deemed to be Scheduled
Castes in relation to the Union Territory of
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Pondicherry so far as regards members thereof
resident in that Union territory.
Provided that no person, who professes a religion
different from the Hindu or the Sikh religion,
shall be deemed to be a member of a Scheduled
Caste.
THE SCHEDULE
1. Adi Andhra 9. Pallan
2. Adi Dravida 10. Parayan, Sambavar
3. Chakkiliyan 11. Samban
4. Jambuvulu 12. Thoti
5. Kuravan 13. Valluvan
6. Madiga 14. Vetan
7. Mala, Mala Masti 15. Vettiyan
8. Paky"
11.It will be seen from para 2 of the above
Presidential Order that the castes, races or tribes
or parts of or groups within castes, races or tribes
(15 in all) specified in the Schedule appended
thereto are deemed to be Scheduled Castes for the
purposes of the Constitution in relation to the
Union Territory of Pondicherry so far as regards
members thereof are resident in the Union
Territory. The Government Orders, however, have
confined reservation benefits to Scheduled Castes
origins of the Union Territory of Pondicherry. It
would be seen that the Presidential Order does not
speak of "origins" of the Union Territory of
Pondicherry, it only speaks of "resident".
24 It is evident from the above judicial pronouncement
in the matter of Puducherry (supra) that an identical situation
had arisen where the term 'RESIDENT' was used in the
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presidential order of 1964 which is reproduced in paragraph 10
above. The contention before the Hon'ble Apex Court was that
the word 'RESIDENT' should be interpreted to mean and
tantamount to 'ORIGIN'. Dealing with the said situation,
the Hon'ble Apex Court has laid down the law in paragraphs 11
and 13 by concluding that when the presidential order speaks of
'ORIGIN' in relation to the Union Territory of Pondichery, it
needs to be accepted as being 'RESIDENT' and the word
RESIDENT would not therefore mean ORIGIN.
25 Keeping this judicial announcement in view, we
find that the submission of the Respondent U.T. with regard to
the presidential order No.CO 65 at issue needs to be rejected.
The term RESIDENT mentioned in the said presidential order
would therefore only mean a resident of the Union Territory and
not a person of origin or who shall be a domicile of the said
Union territory. In this background, the contention of the
Respondent that the Petitioner is not entitled to be covered by
the said presidential order No.CO 65 stands rejected.
Consequentially, the Petitioner would not stand excluded from
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the selection process as is the contention of the Respondent as
he is squarely covered by CO 65.
26 It is trite law that a mere selection of a candidate
would not vest a right in such candidate to seek an appointment.
We would have refrained from entertaining the prayers of the
Petitioner in this background, but for the distinguishing features
and the fallacious stand taken by the respondent U.T., which are
considered in this judgment.
27 It cannot be ignored that the Respondent has not
shelved or discarded the entire selection process on the ground
that the advertisement may be defective or it may run counter to
the policy of the Respondent U.T. The Office Memorandum
dated 26.12.2013 which we have reproduced above, indicates
that the earlier policy dated 01.09.2006 has been subjected to a
change. Paragraph 2 of the 2013 Office Memorandum indicates
that direct recruitment through employment exchange or by
advertisement for all the posts in Group 'B' and Group 'C' for the
Respondent U.T. would be covered by the manner of allocation
of marks mentioned below Clause 2 of the Memorandum which
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we have reproduced above. Learned counsel for the respondent
U.T. has strenuously contended that it would not apply to the
S.T, as the appointment to the post is restricted and limited
exclusively to the S.T. from the U.T. alone. We find that the said
submission is against the record for the reason that the
Memorandum of 2013 does not carve out such an exception and
in fact provides for allocating 20 marks more to those S.T.
candidates belonging to the U.T. in comparison to those
candidates who do not belong to U.T. Clause 2 of the
Memorandum uses the word "FOR ALL THE POSTS IN GROUP
'B' AND GROUP 'C' ". The submission of the Respondent U.T.
that this will have to be understood as excluding the members of
the S.T. Category from outside the U.T., is unsustainable. We
cannot read something that does not meet the eye. We have no
reason to consider such submission of the Respondent U.T.
which is against what is specifically mentioned in the
Memorandum of 2013.
28 Insofar as the contention of the respondent U.T. is
concerned, that the Administration may have committed a
mistake in drafting the advertisement or in allowing the
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Petitioner to apply, we find that such submission is equally
fallacious for reasons more than one. Firstly, the presidential
order indicating that the S.T. resident of the Respondent U.T.
will carry all the benefits and privileges as are available to the
said S.T. and belonging to the particular tribe, has been
interpreted in the judgment of the Hon'ble Apex Court in the
matter of Puducherry (supra). Secondly, the Memorandum of
2013 which modifies the earlier Memorandum of 2006, clearly
indicates that all the posts falling under Group 'B' and Group 'C'
would have a specific selection process and allotment of marks
and candidates belonging to the U.T. will be given weightage
and preference by an additional 20 marks. This evidently
presupposes that those candidates not belonging to the U.T. who
apply for all the posts of Group 'B' and Group 'C' categories,
would not be entitled for such 20 marks which are exclusively to
be allocated to the members of the S.T. from U.T. This legally
leads to the inference that even those persons not belonging to
the U.T. would be entitled to apply. Needless to state, since the
presidential order No.CO 65 and the law laid down by the
Hon'ble Apex Court in Puducherry (supra) indicate that a S.T.
resident of U.T. would be entitled for the benefits and privileges
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of the S.T., clearly indicates that this Petitioner will have to be
treated as being a resident of the Respondent U.T.
29 The contention of the Respondent U.T. that the
Petitioner would not be entitled to appointment is concerned,
we could have entertained these submissions if the Respondent
U.T. would have scrapped the selection process pursuant to the
advertisement dated 25.10.2014. It is categorically submitted
before us that there was no reason to cancel or scrap the
advertisement as the Petitioner would not be entitled to be
treated as being a domicile of Respondent U.T.
30 We have settled the dispute with regard to the
Petitioner being a resident of the Respondent U.T. Keeping in
view that the Respondent U.T. has proceeded with the entire
selection process and has effected the selection of the candidate
from the open category, avoiding the appointment of a tribal
on misplaced assumption or interpretation proves that it has
deprived the Petitioner of an appointment. This is the reason
why we find the facts of this case to be peculiar and
distinguishable and for which purpose we deemed it appropriate
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to entertain the prayers of the Petitioner. When the selection
process has been fully effected and appointment orders have
been issued and only because Respondent U.T. illogically
presumed that the petitioner tribal is a migrant and for which
exclusive reason has specifically stated that it has not issued the
appointment order to the Petitioner, is a good ground to
entertain this Writ Petition. We have concluded on the basis of
the judicial pronouncement of the Hon'ble Apex Court that the
Petitioner will be covered by the presidential order No.CO 65
and would therefore, render the Petitioner a resident of the
Respondent U.T.
31 The learned counsel for the Respondent has
strenuously contended that the judgment of the Hon'ble Apex
Court in the Action Committee case (supra) and the judgment
delivered in the case of Subhash Chandra, would clearly indicate
that the case of the Petitioner as a migrant from a State to a
Union Territory, would deprive him of all the benefits which a
member of the S.T. from the Respondent U.T. would be entitled
to. We find that the judgment of the Hon'ble Apex Court in the
matter of S. Pushpa (3 Judges Bench) (supra) has been
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delivered earlier than the judgment delivered in Subhash
Chandra (supra) (2 Judges Bench).
32 This aspect of purported conflict between the view
of the Hon'ble Apex Court in the matter of S. Pushpa (supra)
and Subhash Chandra (supra) was considered by the learned
Full Bench of the Delhi High Court in the matter of
Deepakkumar and others (supra). A similar argument was
canvased before the learned Full Bench with regard to the Union
Territory of Pondichery that the migration of a person from the
State to the Union Territory of Pondichery would deprive him of
all benefits and privileges which he was entitled to in his parent
State.
33 In fact, this issue would not now crop up before us
since the Hon'ble Apex Court, in the Puducherry case (supra)
has interpreted the word 'RESIDENT' as not meaning origin and
consequentially domicile, and therefore, renders the Petitioner
covered by the Notification No.CO 65. Yet, as the learned
advocates have addressed us on this point, we are dealing with
the said issue. We find it appropriate to reproduce the
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conclusions of the learned Full Bench from paragraph 66(1) to
(6) as under :-
66. This court summarizes its conclusions, as
follows:
(1) The decisions in Marri, Action Committee,
Milind and Channaiah have all ruled that
scheduled caste and tribe citizens moving from
one State to another cannot claim reservation
benefits, whether or not their caste is notified in
the state where they migrate to, since the
exercise of notifying scheduled castes or tribes is
region (state) specific, i.e " in relation" to the
state of their origin. These judgments also took
note of the Presidential Notifications, which had
enjoined such citizens to be "residents" in
relation to the state which provided for such
reservations.
(2) The considerations which apply to Scheduled
Caste and Tribe citizens who migrate from state
to state, apply equally in respect of those who
migrate from a state to a union territory, in view
of the text of Articles 341 (1) and 342 (1), i.e.
only those castes and tribes who are notified in
relation to the concerned Union Territory, are
entitled to such benefits. This is reinforced by the
Presidential Notification in relation to Union
Territories, of 1951. Only Parliament can add to
such notification, and include other castes, or
tribes, in view of Articles 341 (2), Article 342
(2) which is also reinforced by Article 16 (3).
States cannot legislate on this aspect; nor can
the executive - Union or state, add to or alter the
castes, or tribes in any notification in relation to
a state or Union Territory, either through state
W.P.(C) 5390/10, 7717/10, 7878/10,
8368/10, 816/11, 1205/11, 1513/2011,
1713/11, 3278/11, & 3223/11 Page 74
legislation or through policies or circulars.
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Differentiation between residents of states, who
migrate to states, and residents of states who
migrate to Union Territories would result in
invidious discrimination and over-classification
thus denying equal access to reservation benefits,
to those who are residents of Union Territories,
and whose castes or tribes are included in the
Presidential Order in respect of such Union
Territories. The Pushpa interpretation has led to
peculiar consequences, whereby:
(i) The resident of a state, belonging to a
scheduled caste, notified in that state, cannot
claim reservation benefit, if he takes up residence
in another state, whether or not his caste is
included in the latter State's list of scheduled
castes;
(ii) However, the resident of a state who moves
to a Union Territory would be entitled to carry
his reservation benefit, and status as member of
scheduled caste, even if his caste is not included
as a scheduled caste, for that Union Territory;
(iii) The resident of a Union Territory would
however, be denied the benefit of reservation, if
he moves to a State, because he is not a resident
scheduled caste of that State.
(iv) The resident of a Union Territory which
later becomes a State, however, can insist that
after such event, residents of other states, whose
castes may or may not be notified, as scheduled
castes, cannot be treated as such members in
such newly formed states;
(v) Conversely, the scheduled caste resident of a
state which is converted into a Union Territory,
cannot protest against the treatment of
scheduled caste residents of other states as
members of scheduled W.P.(C) 5390/10,
7717/10, 7878/10, 8368/10, 816/11,
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1205/11, 1513/2011, 1713/11, 3278/11, &
3223/11 Page 75 caste of the Union Territory,
even though their castes are not included in the
list of such castes, for the Union Territory.
(3) The ruling in Pushpa is clear that if the
resident of a state, whose caste is notified as
Scheduled caste or scheduled tribe, moves to a
Union Territory, he carries with him the right to
claim that benefit, in relation to the Union
Territory, even though if he moves to another
state, he is denied such benefit (as a result of the
rulings in Marri and Action Committee). The
ruling in Pushpa, being specific about this aspect
vis-à-vis Union Territories, is binding; it was
rendered by a Bench of three judges.
(4) The later ruling in Subhash Chandra
doubted the judgment in Pushpa, holding that it
did not appreciate the earlier larger Bench
judgments in the correct perspective. Yet,
Subhash Chandra cannot be said to have
overruled Pushpa, since it was rendered by a
smaller Bench of two judges. This approach of
Subhash Chandra has been doubted, and the
question as to the correct view has been referred
to a Constitution Bench in the State of
Uttaranchal case.
(5) By virtue of the specific ruling applicable in
the case of Union Territories, in Pushpa,
whatever may be the doubts entertained as to
the soundness of its reasoning, the High Courts
have to apply its ratio, as it is by a formation of
three judges; the said decision did notice the
earlier judgments in Marri and Action
Committee. Article 141 and the discipline
enjoined by the doctrine of precedent compels
this Court to follow the Pushpa ruling.
(6) In matters pertaining to incidence of
employment, such as seniority, promotion and
accelerated seniority or promotional benefits,
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flowing out of Articles 16 (4A) and (4B) of the
Constitution, there may be need for clarity, W.P.
(C) 5390/10, 7717/10, 7878/10, 8368/10,
816/11, 1205/11, 1513/2011, 1713/11,
3278/11, & 3223/11 Page 76 whichever rule is
ultimately preferred - i.e the Pushpa view or the
Marri and Action Committee view. In such event,
it may be necessary for the guidance of decision
makers and High Courts, to spell out whether
the correct view should be applied prospectively.
Furthermore, it may be also necessary to clarify
what would be meant by prospective application
of the correct rule, and whether such
employment benefits flowing after recruitment,
would be altered if the Marri view is to be
preferred.
34 It is thus, concluded in clause (ii) below sub-clause
66 (2) that the resident of a State who moves to a Union
Territory would be entitled to carry his reservation benefit and
status as member of scheduled caste, (to be read as S.T. in the
context of this case) even if his caste is not included as a
scheduled caste, for that Union Territory. In the case in hand
the Petitioner belongs to the Dhodia tribe which is recognized to
be a S.T. in the Respondent U.T. and being a resident of the
Respondent U.T., the Petitioner would stand on a better footing
and the issue of migration from the State to U.T. would not be
an impediment.
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35 It also needs mention that the State of Gujarat and
Respondent U.T. are neighbours and are divided mainly by a
demarcation line. It cannot be disputed that the Dhodia tribe in
the State of Gujarat is the same tribe in the Respondent U.T. for
the purposes of the cultural trades and religious sentiments and
ceremonies. It is probably with this background that the State of
Gujarat as well as the Respondent U.T. have recognized Dhodia
tribe as a S.T. with the presidential order bearing No.CO 65
issued as early as in the year 1962.
36 In so far as the contention of the Respondent U.T.
that the Administration may have committed a mistake in
wrongly wording its advertisement is concerned, we find an
answer in the judgment of the learned Full Bench of Delhi High
Court in the Deepak Kumar case (supra) below paragraphs 45,
46 and 47 which read as under:-
"45. ..... It was submitted that having treated
the petitioners like scheduled caste candidates
eligible to compete as such, after conclusion of
the entire recruitment process, and declaration
of results, of the written test, it was not open to
the District Judge to impose further conditions,
disqualifying them and treating them as
belonging to another, or general category.
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46. The respondents in the writ petition and
the Govt of NCT of Delhi argued that after the
decision in Subhash Chandra, it became
necessary to restrict the benefit of reservation for
scheduled castes in relation to the Union
Territory of Delhi to only members of those
castes who found mention in the Presidential
Notification in relation to Delhi. The
withholding of appointment cannot be
characterized as arbitrary, since no selected
candidate has a vested right in appointment. For
this proposition, W.P.(C) 5390/10, 7717/10,
7878/10, 8368/10, 816/11, 1205/11,
1513/2011, 1713/11, 3278/11, & 3223/11
Page 58 reliance was placed on the decision
reported as Sankersan Dash v. Union of India,
AIR 1991 SC 1612. It was also argued that the
candidates had to be called for re-typing test in
view of the decision of a Division Bench of this
Court in Anupam Garg v District and Sessions
Judge, LPA No. 417/2010. The candidates who
had secured between 22 and 29.5 marks in the
typing test were called for such re-typing test.
The petitioners were not treated as SC/ST but as
General category candidates; they did not get the
necessary cut off marks in that category.
47. The view which this Court expressed,
about the binding nature of the Supreme Court's
ruling in Pushpa prevailing, would apply in this
case. There is no doubt that the advertisement in
the present case was issued in December, 2009.
At that time, the judgment in Subhash Chandra
had already been delivered (it was pronounced
on 4th August, 2009). Yet, the fact remains that
being a larger Bench ruling of three judges,
Pushpa had to prevail. This is highlighted by the
view of the Supreme Court in State Of U.P vs
Ram Chandra Trivedi AIR 1976 SC 2547:
"It is also to be borne in mind that even in
cases where a High Court finds any
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conflict between the views expressed by
larger and smaller benches of this Court,
it cannot disregard or skirt the views
expressed by the larger benches."
37 In the light of the above, the said contention needs
to be rejected as the Respondent U.T., similar to the case before
the learned Full bench of the Delhi High Court, has treated the
Petitioner as belonging to the S.T. category, found him eligible
to apply for the said post, issued him a call letter to participate
in the entire selection process and after declaring the results, the
Petitioner has turned out to be at serial No.1 even in the
combined merit list of the open as well as S .T. categories and
yet is denied an appointment while other appointments are
made. It is in the above background and peculiar facts of this
case that we have entertained the claim of the Petitioner for
seeking an appointment to the post to which he has applied for.
38 In the light of the above, this Petition is partly
allowed. The respondent U.T. is directed to appoint the
Petitioner as an Assistant Motor Vehicle Inspector in the
Transport Department of the said Union Territory on the post
reserved for the S.T. category. Needless to state, in the event of
there being any policy of validation of the claim of S.C. S.T.
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candidates, the same would be applicable to the Petitioner as he
is being appointed to the post reserved for S.T.
39 Learned senior counsel for the Petitioner submits
that the conduct of the Respondent U.T. as is projected as being
an innocent stand or bona-fide approach is concerned, the
Petitioner has been specifically deprived of the appointment only
because his birth/origin was in Gujarat. He was otherwise
eligible for appointment in the light of the conclusion drawn by
this Court in this judgment. A statement was also made before
the N.C.S.T. that he would be appointed within a period of
about seven days which statement is not said to be either
wrongly made or as having never been made before the
N.C.S.T., and has not been withdraw. Therefore, it has rendered
the Petitioner entitled to atleast the deemed date of
appointment from the date on which the candidate from the
open category was so appointed.
40 Learned counsel for the Respondent U.T. has
strenuously opposed the said contention on the ground that it
was a bonafide belief of the Respondent U.T. that the Petitioner
was not eligible. Malafides cannot be attributed to the conduct
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of the Respondent Administration. Without having worked from
the day the open candidate was appointed, disentitles the
Petitioner from any benefits by applying the principle law 'no
work no wages'. At this juncture, the learned senior Advocate
for the Petitioner submits on instructions from the Petitioner
who is present in the Court that the Petitioner is giving up all
monetary benefits from the date the candidate from the open
category was appointed and mainly for the purposes of
reckoning his service and for allowing a deemed date for the
purpose of his seniority, he is willing to give up all monetary
benefits.
41 We are convinced of the said statement made on
instructions and in order to maintain equity and parity in
between the other candidates appointed from the same selection
process, we therefore direct the Respondent U.T. to issue the
appointment order forthwith to the Petitioner by giving him the
same date of appointment as was given to the other candidates
from the same selection process, as the deemed date of
appointment.
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42 Rule is made partly absolute accordingly in the
above terms.
43 At this juncture, learned counsel for the Respondent
U.T. prays for staying of this judgment. We have heard the
counsel for the respective sides on this request. Considering that
the Respondent U.T. has acted against its own policy in the light
of the Office Memorandum of 2013, the advertisement which
has not been withdrawn and in the light of the judgment of the
Hon'ble Apex Court in the S. Pushpa case (supra) and
Puducherry case (supra) by which the Petitioner stands entitled
for the benefits of the presidential order No.CO 65, we find that
the Petitioner has been tired out over the last two years and is
made to run from pillar to post for his employment. In this
background we are rejecting the request made by the learned
counsel for the Respondent.
(RAVINDRA V. GHUGE, J.) (ANOOP V. MOHTA, J.)
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