Delhi High Court
Deepak Kumar And Ors. vs District And Sessions Judge, ... on 12 September, 2012
Author: S.Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 16.03.2012
DECIDED ON : 12.09.2012
+ W.P.(C) 5390/2010, C.M. NO. 20815/2010
DEEPAK KUMAR AND ORS. ....... Petitioners
Versus
DISTRICT AND SESSIONS JUDGE, DELHI AND ORS.
.......Respondents
+ W.P.(C) 7717/2010, C.M. NO. 20050/2010
MS. MONIKA MEENA ....... Petitioner
Versus
DISTRICT JUDGE ..... Respondent
+ W.P.(C) 7878/2010
SARV RURAL AND URBAN WELFARE SOCIETY
....... Petitioner
Versus
UOI AND ORS. ..... Respondents
+ W.P.(C) 8368/2010, C.M. NO. 21487/2010
VEENA YADAV ....... Petitioner
Versus
DISTRICT AND SESSIONS JUDGE, DELHI..... Respondent
+ W.P.(C) 816/2011, C.M. NO. 1711/2011
NEETU VERMA ....... Petitioner
Versus
DISTRICT AND SESSIONS JUDGE, DELHI
..... Respondent
+ W.P.(C) 1205/2011, C.M. NO. 2545/2011 & 20001/2011
DEVENDER ROY AND ORS. ....... Petitioners
Versus
DISTRICT AND SESSIONS JUDGE, DELHI AND ORS.
..... Respondents
W.P.(C) 5390/10, 7717/10, 7878/10, 8368/10, 816/11, 1205/11, 1513/2011, 1713/11, 3278/11,
& 3223/11 Page 1
+ W.P.(C) 1513/2011, C.M. NO. 18158/2011 (for early hearing)
DELHI JAL BOARD AND ANR. ....... Petitioners
Versus
A.K. AWASTHI AND ORS.. ..... Respondents
+ W.P.(C) 3223/2011, C.M. NO. 6812/2011
SH. CHANDER SINGH ....... Petitioner
Versus
THE DISTRICT AND SESSIONS JUDGE AND ANR.
..... Respondents
+ W.P.(C) 1713/2011, C.M. NO. 3636/2011
NEETU VERMA ....... Petitioner
Versus
DISTRICT AND SESSIONS JUDGE, DELHI..... Respondent
+ W.P.(C) 3278/2011, C.M. NO. 6900/2011
SANDEEP SONI ....... Petitioner
Versus
UNION OF INDIA AND ANR. ..... Respondents
.....Petitioners:
Through: Mr. Mahabir Singh, Sr. Advocate with
Dr. Vijendra Mahndiyan, Ms. Pallavi Awasthi, Mr.
Rakesh Dahiya, Advocates, in W.P.(C) 5390/2010
Ms. Geeta Luthra, Sr. Advocate with Mr. Sanjeev
Sahay, Mr. Harish Malik, Advocates, in W.P.(C)
7878/2010.
Mr. Akshat Goel, Mr. Aditya Singh, Mr. Rajiv
Dalal, Mr. Varun Nishchal and Ms. Neha Gupta,
Advocates, in W.P.(C) 816/2011 and 1713/2011.
Dr. Vijendra Mahndiyan and Ms. Pallavi Awasthi,
Advocates, in W.P.(C) 1205/2011.
Mr. Suresh Tripathy, Advocate, in W.P.(C)
1513/2011.
Mr. Manoj Kumar, Advocate, in W.P.(C)
3278/2011.
Mr. Mithilesh Kumar Singh and Mr. Tarun Verma,
Advocates, in W.P.(C) 7717/2010.
W.P.(C) 5390/10, 7717/10, 7878/10, 8368/10, 816/11, 1205/11, 1513/2011, 1713/11, 3278/11,
& 3223/11 Page 2
Ms. Deepali Gupta, Advocate, in W.P.(C)
3223/2011.
.....Respondents
Through: Ms. Avnish Ahlawat with Ms. Latika
Choudhary, Ms. Urvashi Malhotra and Ms.
Subham Mahajan, Advocates, for District and
Sessions Judge, Delhi.
Mr. Sachin Datta, CGSC, for UOI, in W.P.(C)
7878/2010.
Mr. Dhanesh Relan and Ms. Sweta, Advocates, for
DDA in W.P.(C) 7878/2010.
Mr. Viraj. R. Datar, Advocate, for DHC in
W.P.(C) 7878/2010.
Mr. B.V. Niren, CGSC, Mr. Utkarsh Sharma and
Mr. Prasouk Jain, Advocates, for UOI in W.P.(C)
1205/2011.
Mr. Rakesh Khanna, Sr. Advocate with Ms.
Gunjan Sharma, Advocate, for Resp. No.1 in
W.P.(C) 1513/2011.
Ms. Geeta Luthra, Sr. Advocate with Mr. Sanjeev
Sahay, Mr. M.K. Bhardwaj, Mr. Harish Malik,
Advocates, for Resp. Nos. 2, 3, 7 and 8 in W.P.(C)
1513/2011.
Mr. Pradeep Kumar, Advocate, for Respondent
No.9 in W.P.(C) 1513/2011.
Ms. Shobhana Takiar, Advocate, for GNCTD.
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE JUSTICE S. RAVINDRA BHAT
HON'BLE JUSTICE RAJIV SAHAI ENDLAW
MR. JUSTICE S.RAVINDRA BHAT
%
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& 3223/11 Page 3
1. The Constitution makers fervently hoped to usher a society committed
to equality, where barriers of race, gender, domicile, descent and the
unforgiving marginalization of a large section of the society as a result of
the ills of the caste system and the practise of untouchability, would
eventually be eliminated. The commitment has remained largely an
unrealized promise. The strategy of the State to bridge the social gulf
through affirmative action has thrown up constant challenges which Courts
are called upon to resolve. This is one such challenge, where the Court has
to grapple with the interpretation of Articles 341 and 342 read with Article
16, in the context of differing standards of what is the permissible
reservation standard applicable on the one hand to residents of states who
take up residence in one state, as opposed to residents of states who take up
residence in Union territories. This judgment seeks to answer a reference
made to the Full Bench, constituted for the purpose of deciding the
appropriate course which this Court should adopt in regard to the
interpretation of Articles 341 and 342 of the Constitution of India, in the
light of conflicting decisions of the Supreme Court, and whether the field is
covered by larger, Constitution Bench judgments of that Court.
2. The Court would discuss the facts of each case later, in the course of
judgment, after considering the legal position, and seek to apply the
principles deducible. At this stage, it would be necessary to state that the
precise question involved is whether castes or tribes which do not find
mention in the relevant Scheduled Castes or Scheduled Tribes orders issued
by the President or the Amendment Acts (by Parliament) in relation to the
Union Territory of Delhi, but are so described in relation to other states or
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& 3223/11 Page 4
Union Territories or such castes who are separately notified as scheduled
castes in relation to other states, can claim the benefit of reservation for the
purpose of employment in the service of the Union Territory of Delhi, or for
the purpose of admission to its educational institutions. The reference arose
in the context of the previous decision of a two judge Bench of this Court, in
Delhi and State Subordinate Selection Board v Mukesh Kumar (decided on
25th July, 2011, in WP 610/2011). It was held there that:
"10. From the aforesaid pronouncement of law, it is vivid that
Scheduled Castes or Scheduled Tribes in one State cannot get
the benefit in another State. The parents of the respondents may
belong to the castes of "Chamar", "Jatva", "Kali" and "Pasi"
and those castes may have been notified in terms of Scheduled
Caste Order or Scheduled Tribe Order issued in terms of
Clause (1) of Article 341 or Article 342 of the Constitution of
India in a particular State but the respondents who have
obtained the certificates in Delhi on the basis of the certificates
of their parents issued by other States and have migrated to
Delhi, cannot avail the benefit. Thus, the view expressed by the
tribunal that they belong to Scheduled Castes in the National
Capital Territory of Delhi because of the said notification and,
hence, what is only required is the authentication and
verification of the same is not in consonance with the decisions
of the Marri Chandra Shekhar Rao (supra), Action Committee
(supra) and Subhash Chandra & Anr. (supra)."
3. During the hearing before the Division Bench (which initially heard
the present cases), it was submitted that the above decision, as it was
premised on the judgment in Subhash Chandra v. Delhi Subordinate
Services Selection Board (2009) 15 SCC 458 is not a binding precedent,
because a larger, three judge decision in S.Pushpa & Ors. v.
Sivachanmugavelu & Ors. 2005 (3) SCC 1 (hereafter "Pushpa") had held
W.P.(C) 5390/10, 7717/10, 7878/10, 8368/10, 816/11, 1205/11, 1513/2011, 1713/11, 3278/11,
& 3223/11 Page 5
that unlike in the case of States, Union Territories are within the
administrative control of the Union Government, in view of the express
provisions of the Constitution. Consequently, any Scheduled Caste or
Scheduled Tribe notified as such by the President, can be classified as such
caste or tribe, under Article 16 (4) of the Constitution, and once that is done,
each member of such caste or tribe, who answers that description would be
entitled to the benefit of reservation in all Union Territories. In the case of
States, however, having regard to separate administrative arrangements
under the Constitution, such a position would not apply and those castes or
tribes, notified in relation to those state(s) as Scheduled Castes or Scheduled
Tribes, alone would be entitled to the benefits, and those migrating from one
state to another, cannot enjoy such benefits. The decision in Pushpa being
rendered by a larger bench of three judges, could not be characterized as
obiter dicta. Counsel for some of the petitioners (who relied on the benefits
of the Pushpa decision) further argued that the Supreme Court itself has
stated that the decision in Subhash Chandra could not have said that Pushpa
was not binding, and the proper course should have been to refer the matter
for decision by a larger Bench. In this context, it was submitted that such
course has been adopted precisely in State of Uttaranchal vs . Sandeep
Kumar Singh and Ors (2010) 12 SCC 794. In the latter decision, it was
observed that:
"Clauses (1) and (2) of Article 16 guarantee equality of
opportunity to all citizens in the matter of appointment to any
office or of any other employment under the State. Clauses (3)
to (5), however, lay down several exceptions to the above rule
of equal opportunity. Article 16(4) is an enabling provision and
confers a discretionary power on the State to make reservation
W.P.(C) 5390/10, 7717/10, 7878/10, 8368/10, 816/11, 1205/11, 1513/2011, 1713/11, 3278/11,
& 3223/11 Page 6
in the matter of appointments in favour of "backward classes of
citizens" which in its opinion are not adequately represented
either numerically or qualitatively in services of the State. But
it confers no constitutional right upon the members of the
backward classes to claim reservation. Article 16(4) is not
controlled by a Presidential Order issued under Article 341(1)
or Article 342(1) of the Constitution in the sense that
reservation in the matter of appointment on posts may be made
in a State or Union Territory only for such Scheduled Castes
and Scheduled Tribes which are mentioned in the Schedule
appended to the Presidential Order for that particular State or
Union Territory. This article does not say that only such
Scheduled Castes and Scheduled Tribes which are mentioned in
the Presidential Order issued for a particular State alone
would be recognised as backward classes of citizens and none
else. If a State or Union Territory makes a provision
whereunder the benefit of reservation is extended only to such
Scheduled Castes or Scheduled Tribes which are recognised as
such in relation to that State or Union Territory then such a
provision would be perfectly valid. However, there would be no
infraction of clause (4) of Article 16 if a Union Territory by
virtue of its peculiar position being governed by the President
as laid down in Article 239 extends the benefit of reservation
even to such migrant Scheduled Castes or Scheduled Tribes
who are not mentioned in the Schedule to the Presidential
Order issued for such Union Territory. The UT of Pondicherry
having adopted a policy of the Central Government where
under all Scheduled Castes or Scheduled Tribes, irrespective of
their State are eligible for posts which are reserved for SC/ST
candidates, no legal infirmity can be ascribed to such a policy
and the same cannot be held to be contrary to any provision of
law.
A two Judge Bench in Subhash Chandra & Anr. vs. Delhi
Subordinate Services Selection Board & Ors. held that the
dicta in S. Pushpa case is an obiter and does not lay down any
binding ratio. We may notice that a three Judge Bench in S.
Pushpa case relied on Marri Chandra Shekhar Rao; Action
Committee. cases and understood the ratio of those judgments
W.P.(C) 5390/10, 7717/10, 7878/10, 8368/10, 816/11, 1205/11, 1513/2011, 1713/11, 3278/11,
& 3223/11 Page 7
in a particular manner. In our considered opinion, it was not
open to a two Judge Bench to say that the decision of a three
Judge Bench rendered following the Constitution Bench
judgments to be per incuriam.
8. In Central Board of Dawoodi Bohra Community & Anr.
vs. State of Maharashtra & Anr. (2005) 2 SCCC 673 a
Constitution Bench of this Court in categorical terms held that
the law laid down by the Supreme Court in a decision delivered
by a Bench of larger strength is binding on any subsequent
Bench of lesser or coequal strength. A Bench of lesser Coram
cannot disagree or dissent from the view of the law taken by a
Bench of larger Coram. In case of doubt all that the Bench of
lesser Coram can do is to invite the attention of the Chief
Justice and request for the matter being placed for hearing
before a Bench of larger Coram than the Bench whose decision
has come up for consideration. It will be open only for a Bench
of coequal strength to express an opinion doubting the
correctness of the view taken by the earlier Bench of coequal
strength, whereupon the matter may be placed for hearing
before a Bench consisting of a Coram larger than the one
which pronounced the decision laying down the law the
correctness of which is doubted.
9. In our view, a two Judge Bench of this Court could not have
held the decision rendered by a three Judge Bench in S. Pushpa
case to be obiter and per incuriam.
10. A very important question of law as to interpretation of
Articles 16 (4), 341 and 342 arises for consideration in this
appeal. Whether Presidential Order issued under Article
341(1) or Article 342(1) of the Constitution has any bearing on
the State's action in making provision for the reservation of
appointments or posts in favour of any backward class of
citizens which, in the opinion of the State, is not adequately
represented in the services under the State? The extent and
nature of interplay and interaction among Articles 16(4),
341(1) and 342(1) of the Constitution is required to be
resolved.
W.P.(C) 5390/10, 7717/10, 7878/10, 8368/10, 816/11, 1205/11, 1513/2011, 1713/11, 3278/11,
& 3223/11 Page 8
11. For the aforesaid reasons, therefore, in our view, it would
be appropriate that this case is placed before the Hon'ble the
Chief Justice of India for constituting a Bench of appropriate
strength. The registry is, accordingly, directed to place the
papers before the Hon'ble the Chief Justice of India for
appropriate directions."
As a result of the above submission, the Division Bench was of the opinion
that it would be appropriate that these writ petitions are considered by a Full
Bench.
Provisions of the Constitution of India
4. The relevant provisions to be considered in this case are Articles 16,
341, 342 and Article 366 of the Constitution of India. They read as under:
"16. Equality of opportunity in matters of public employment.--
(1) There shall be equality of opportunity for all citizens in
matters relating to employment or appointment to any office
under the State.
(2) No citizen shall, on grounds only of religion, race, caste,
sex, descent, place of birth, residence or any of them, be
ineligible for, or discriminated against in respect of, any
employment or office under the State.
(3) Nothing in this article shall prevent Parliament from
making any law prescribing, in regard to a class or classes of
employment or appointment to an office under the Government
of, or any local or other authority within, a State or Union
territory, any requirement as to residence within that State or
Union territory prior to such employment or appointment.
(4) Nothing in this article shall prevent the State from
making any provision for the reservation of appointments or posts
W.P.(C) 5390/10, 7717/10, 7878/10, 8368/10, 816/11, 1205/11, 1513/2011, 1713/11, 3278/11,
& 3223/11 Page 9
in favour of any backward class of citizens which, in the opinion
of the State, is not adequately represented in the services under
the State.
(4A) Nothing in this article shall prevent the State from
making any provision for reservation in matters of promotion,
with consequential seniority, to any class or classes of posts in
the services under the State in favour of the Scheduled Castes and
the Scheduled Tribes which, in the opinion of the State, are not
adequately represented in the services under the State.
(4B) Nothing in this article shall prevent the State from
considering any unfilled vacancies of a year which are reserved
for being filled up in that year in accordance with any provision
for reservation made under clause (4) or clause (4A) as a
separate class of vacancies to be filled up in any succeeding year
or years and such class of vacancies shall not be considered
together with the vacancies of the year in which they are being
filled up for determining the ceiling of fifty per cent. reservation
on total number of vacancies of that year.
(5) Nothing in this article shall affect the operation of any
law which provides that the incumbent of an office in connection
with the affairs of any religious or denominational institution or
any member of the governing body thereof shall be a person
professing a particular religion or belonging to a particular
denomination."
XXXXXX XXXXXX XXXXXX
341. Scheduled Castes
(1) The President [may with respect to any State [or Union
Territory], and where it is a State, after consultation with the
Governor thereof], by public notification, specify the castes,
races or tribes or parts of or groups within castes, races or
tribes which shall for the purposes of this Constitution be
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& 3223/11 Page 10
deemed to be Scheduled Castes in relation to that State [or
Union territory, as the case may be].
(2) Parliament may by law include in or exclude from the
list of Scheduled Castes specified in a notification issued under
Clause (1) any caste, race or tribe or part of or group within
any caste, race or tribe, but save as aforesaid a notification
issued under the said clause shall not be varied by any
subsequent notification.
342 . Scheduled Tribes
(1) The President [may with respect to any State (or Union
territory), and where it is a State, after consultation with the
Governor thereof], by public notification, specify the tribes or
tribal communities or parts of or groups within tribes of tribal
communities which shall for the purposes of this Constitution
be deemed to be Scheduled Tribes in relation to that State [or
Union Territory, as the case may be].
(2) Parliament may by law include in or exclude from the
list of Scheduled Tribes specified in a notification issued under
Clause (1) any tribe or tribal community or part of or group
within any tribe or tribal community, but save as aforesaid a
notification issued under the said clause shall not be varied by
any subsequent notification.
XXXXXX XXXXXX XXXXXX
366. Definitions.--In this Constitution, unless the context
otherwise requires, the following expressions have the
meanings hereby respectively assigned to them, that is to say--
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(24) "Scheduled Castes" means such castes, races or tribes or
parts of or groups within such castes, races or tribes as are
deemed under article 341 to be Scheduled Castes for the
purposes of this Constitution;
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& 3223/11 Page 11
(25) "Scheduled Tribes" means such tribes or tribal
communities or parts of or groups within such tribes or tribal
communities as are deemed under article 342 to be Scheduled
Tribes for the purposes of this Constitution..."
Submissions on behalf of Petitioners in WP No. 5390/2010, WP No.
3223/2011 3278/2011, 7717/2010 and WP 1513/2011 in line with the
decision in Pushpa.
5. The Petitioners, who seek directions of the Court that the judgments
in Pushpa is binding and that the judgment in Subhash Chandra ought not to
be followed, urged that the two previous decisions in Marri
Chandrasekhara Rao Vs. The Dean, Seth GS Medical College, (1990) 3
SCC 130 and Action Committee vs. Union of India, (1994) 5 SCC 244,
while considering the question held that the benefits of reservation to
migrant Scheduled Caste candidates of one State against quotas reserved for
Scheduled Caste candidates in the other states cannot be given reservation
benefit, would not apply in the case of Union Territories. They argued that
Pushpa considered the scheme of the Constitution as well as the said two
judgments (Marri and Action Committee) and held as follows:
"the Government of Pondicherry has throughout been
proceeding on the basis that being a Union Territory, all
orders regarding reservation for SC/ST in respect of
posts/services under the Central Government are applicable to
posts/services under the Pondicherry Administration as well.
Since all SC/ST candidates which have been recognised as such
under the orders issued by the President from time to time
irrespective of the State/Union Territory, in relation to which
particular castes or tribes have been recognised as SCs/STs are
eligible for reserved posts/services under the Central
Government, they are also eligible for reserved posts/services
under the Pondicherry Administration. Consequently, all SC/ST
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& 3223/11 Page 12
candidates from outside the UT of Pondicherry would also be
eligible for posts reserved for SC/ST candidates in the
Pondicherry Administration. Therefore, right from the
inception, this policy is being consistently followed by the
Pondicherry Administration whereunder migrant SC/ST
candidates are held to be eligible for reserved posts in the
Pondicherry Administration.
17. We do not find anything inherently wrong or any
infraction of any constitutional provision in such a policy. The
principle enunciated in Marri Chandra Shekhar Rao cannot
have application here as UT of Pondicherry is not a State. As
shown above, a Union Territory is administered by the
President through an Administrator appointed by him. In the
context of Article 246, Union Territories are excluded from the
ambit of the expression "State" occurring therein. This was
clearly explained by a Constitution Bench in T.M. Kanniyan v.
ITO [AIR 1968 SC 637]. In New Delhi Municipal Council v.
State of Punjab [(1997) 7 SCC 339] the majority has approved
the ratio of T.M. Kanniyan and has held that the Union
Territories are not States for the purpose of Part XI of the
Constitution (para 145). The Tribunal has, therefore, clearly
erred in applying the ratio of Marri Chandra Shekhar Rao in
setting aside the selection and appointment of migrant SC
candidates.;
20. .... A fortiori, for the purpose of identification, it becomes
equally important to know who would be deemed to be
Scheduled Caste in relation to that State or Union Territory.
This exercise has to be done strictly in accordance with the
Presidential Order and a migrant Scheduled Caste of another
State cannot be taken into consideration otherwise it may affect
the number of seats which have to be reserved in the House of
the People or Legislative Assembly. Though, a migrant SC/ST
person of another State may not be deemed to be so within the
meaning of Articles 341 and 342 after migration to another
State but it does not mean that he ceases to be an SC/ST
altogether and becomes a member of a forward caste.
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& 3223/11 Page 13
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21. Clauses (1) and (2) of Article 16 guarantee equality of
opportunity to all citizens in the matter of appointment to any
office or of any other employment under the State. Clauses (3)
to (5), however, lay down several exceptions to the above rule
of equal opportunity. Article 16(4) is an enabling provision and
confers a discretionary power on the State to make reservation
in the matter of appointments in favour of _backward classes of
citizens_ which in its opinion are not adequately represented
either numerically or qualitatively in services of the State. But
it confers no constitutional right upon the members of the
backward classes to claim reservation. Article 16(4) is not
controlled by a Presidential Order issued under Article 341(1)
or Article 342(1) of the Constitution in the sense that
reservation in the matter of appointment on posts may be made
in a State or Union Territory only for such Scheduled Castes
and Scheduled Tribes which are mentioned in the Schedule
appended to the Presidential Order for that particular State or
Union Territory. This article does not say that only such
Scheduled Castes and Scheduled Tribes which are mentioned in
the Presidential Order issued for a particular State alone
would be recognised as backward classes of citizens and none
else. If a State or Union Territory makes a provision
whereunder the benefit of reservation is extended only to such
Scheduled Castes or Scheduled Tribes which are recognised as
such in relation to that State or Union Territory then such a
provision would be perfectly valid. However, there would be no
infraction of clause (4) of Article 16 if a Union Territory by
virtue of its peculiar position being governed by the President
as laid down in Article 239 extends the benefit of reservation
even to such migrant Scheduled Castes or Scheduled Tribes
who are not mentioned in the Schedule to the Presidential
Order issued for such Union Territory. The UT of Pondicherry
having adopted a policy of the Central Government
whereunder all Scheduled Castes or Scheduled Tribes,
irrespective of their State are eligible for posts which are
reserved for SC/ST candidates, no legal infirmity can be
W.P.(C) 5390/10, 7717/10, 7878/10, 8368/10, 816/11, 1205/11, 1513/2011, 1713/11, 3278/11,
& 3223/11 Page 14
ascribed to such a policy and the same cannot be held to be
contrary to any provision of law.."
It is argued that the position of law being clear, this Court is bound by
Pushpa, and cannot, having regard to the imperative of Article 141, follow
Subhash Chandra, which was rendered by a Bench composition of two
judges. Moreover, submitted learned counsel, Subhash Chandra has been
doubted and referred for decision by a larger Bench in Sandeep Kumar
Singh (supra).
6. Counsel argued that unlike States, the Union Territories are not
federating units, and have a position subordinate to the Union Government.
In view of this, it is open to the Union Government, exercising its
independent powers under Article 16 (4), to declare which of the castes are
to be treated as Scheduled Castes for the purpose of recruitment to Union
Territories. Furthermore, the power to classify what castes are Scheduled
Castes is that of the President, as provided under Articles 341 and 342 of the
Constitution. Having regard to this undeniable position, and the
constitutional structure which envisages ultimate administrative control of
the Union Territories by the Union Government, the Pushpa rule is sound,
and has to be accepted. The view of the Division Bench, preferring Subash
Chandra‟s ratio, is unsustainable in law.
7. It was further argued that the Pushpa rule is binding on this Court,
which has no discretion in the matter of interpretation. Counsel argued that
the previous decisions in Marri and Action Committee were considered in
Pushpa; moreover, those previous decisions dealt with migration from states
of scheduled castes and scheduled tribes (some of the castes or tribes being
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& 3223/11 Page 15
mentioned in the Presidential orders in respect of more than one state).
However, the Court in those two cases did not have the occasion to consider
the question from the perspective of the Union Territories.
8. Learned Senior counsel contended that Article 141 and the decisions
reported bind this Court into applying the Pushpa rule which has not been
overruled till date, and continues to be the law on the subject as far as the
Union Territories are concerned.
9. It was argued that in any event, the Subhash Chandra decision had
been given only prospective application or effect by virtue of the Supreme
Court's order dated 13.11.2009. Therefore, wherever vacancies arose, or
selection processes began prior to that decision, Courts were bound to apply
the rule in Pushpa. Any contrary administrative instructions relied on by the
official respondents, i.e the Government of NCT of Delhi, and the Delhi Jal
Board, were invalid.
Contentions on behalf of parties who support the application of Subhash
Chandra judgment, (Petitioners in WP 7878/2010 and Respondents in WP
1513/2011)
10. Ms. Geeta Luthra, Senior counsel for the writ petitioners in cases
where Subhash Chandra is relied on, argued that the decision in Marri and
Action Committee were by larger, five judge Bench formations. They spelt
out the law clearly that irrespective of the identity of a caste or tribe across a
state, a member of such caste or tribe in one state could not claim the benefit
of reservation in another part of the territory of India, as far as State or
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Union Territory service or access to resources was concerned. In other
words, under the scheme of the Constitution, the expressions "for the
purposes of this Constitution" a tribe or caste would "be deemed to be
Scheduled Tribes in relation to that State or Union Territory, as the case
may be" only if that concerned state notified it to be so. Further, the scheme
of the Scheduled Caste Orders and Scheduled Tribe Orders, (which were
inviolate and could not be touched by anyone except Parliament through law
made in that regard), directed that such benefits would accrue to the
residents of the concerned state or Union Territory only. Learned counsel
emphasized that if it were held that an independent power to classify exists
under Article 16 (4), as the decision in Pushpa suggests, the mandate of
Articles 341 (2) and 342 (2) would be negated. Therefore, argued counsel,
the Supreme Court's decision in Subhash correctly deduced that Pushpa
could not be followed, since it was contrary to the decisions in Marri and
Action Committee.
11. It was argued that by virtue of Articles 341 and 342 of the
Constitution of India and the notifications issued under those provisions,
only Delhi listed Scheduled caste candidates could be considered for
admission in the Scheduled Caste categories for the purposes of reservations
under the Constitution. Counsel submitted that by treating SC candidates
from other States at par with SC candidates from Delhi, the Union Territory
would be giving privileges that violate the legitimate rights of Scheduled
caste applicants and candidates under the Constitution. This would be so
because such treatment would equate dissimilar persons as being equally
entitled under law to receive benefits of affirmative action policies in a
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specific State, with others who are given similar status, though in different
States or Union Territories.
12. Placing reliance on the decisions in Marri Chandrasekhara Rao and
Action Committee, learned counsel argued that is it not possible for someone
belonging to an SC category in one State or Union Territory to avail of
reservation in another State if that caste is not categorized as SC in that State
or Union Territory. Nor is it possible for her (or him) to avail of benefits,
even if the caste of the same nomenclature is mentioned as a Scheduled
Caste in state to which she (or he) has migrated. Reliance was also placed on
State of Maharashtra v. Milind, (2001) 1 SCC 4 to say that the order of the
President under Article 341, enlisting castes as beneficiaries of reservations
policies, is specific to geographical regions, i.e. specific States and Union
Territories or even regions within the States. It is only Parliament that can
amend the Presidential order. The Executive cannot extend such benefits to
any class of persons other than those on whom it was intended to be
conferred. This is further borne out from the decision of the Supreme Court
in Shree Surat Valsad Jilla KMG Parishad v. Union of India, (2007) 5 SCC
360, where the Court held that inclusion of a caste as a scheduled one in
respect of a particular area within a state is an exercise for the President and
the Parliament to conduct and cannot be gone into by the Courts.
Historical background
13. Before the advent of the Constitution, the concept of disadvantaged
castes was recognized. Disadvantaged castes were those who suffered
multiple challenges and disabilities in their social acceptance. An attempt
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was made by virtue of provisions of the Government of India Act, 1935 to
enable reservations for the "Depressed classes", as they were then known.
The Government of India (Scheduled Castes) Order, 1936, drawn up under
the First, Fifth and Sixth Schedule to the Government of India Act, (read
with Section 309) was the first notification which conferred and confined
scheduled caste status only to "residents" in "the localities specified in
relation to them respectively in those parts of that Schedule". The Supreme
Court traced this background in Soosai V. Union Of India (1985) Supp. SCC
590, while commenting on the pernicious effect of caste and the practise of
untouchability:
"This social attitude committed those castes to severe social
and economic disabilities and cultural and educational
backwardness. And though most of Indian history the
oppressive nature of the caste structure has denied to those
disadvantaged castes the fundamentals of human dignity,
human self-respect and even some of the attributes of the
human personality. Both history and latter day practice in
Hindu society are heavy with evidence of this oppressive
tyranny, and despite the efforts of several noted social
reformers, especially during the last two centuries, there has
been a crying need for the emancipation of the depressed
classes from the degrading condition of their social and
economic servitude. Dr. J. H. Hutton, a Census Commissioner
of India, framed a list of the depressed classes systematically,
and that list was made the basis of an order promulgated by the
British Government in India called the Government of India
(Scheduled Castes) Order, 1936. The Constitution (Scheduled
Castes) Order, 1950 is substantially modelled on the Order of
1936. The Order of 1936 enumerated several castes, races or
tribes in an attached Schedule and they were, by paragraph 2
of the Order, deemed to be Scheduled Castes..... During the
framing of the Constitution, the Constituent Assembly
recognised ``that the Scheduled Castes were a backward
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section of the Hindu community who were handicapped by the
practice of untouchability'`, and that ``this evil practice of
untouchability was not recognised by any other religion and the
question of any Scheduled Caste belonging to a religion other
than Hinduism did not therefore arise'`. The Sikhs however,
demanded that some of their backward sections, the Mazhabis,
Ramdasis, Kabirpanthis and Sikligars, should be included in
the list of Scheduled Castes. The demand was accepted on the
basis that these sects were originally Scheduled Castes Hindus
who had only recently been converted to the Sikh faith and
``had the same disabilities as the Hindu Scheduled Castes'`.
The depressed classes within the fold of Hindu society and the
four classes of the Sikh community were therefore made the
subject of the original Constitution (Scheduled Castes) Order,
1950. Subsequently in 1956 the Constitution (Scheduled Castes)
Order, 1950 was amended and it was broadened to include all
Sikh untouchables."
The Court went on to describe the process whereby castes were notified as
scheduled castes or tribes, and negated the plea of discrimination of
members of castes (who are scheduled castes) who had converted to another
religion. It was underlined that to continue within the description of
scheduled castes, the concerned individual who converts should be able to
show an identical level of social disadvantage:
"8. It is quite evident that the president had before him all this
material indicating that the depressed classes of the Hindu and
the Sikh communities suffered from economic and social
disabilities and cultural and educational backwardness so
gross in character and degree that the members of those castes
in the two communities called for the protection of the
constitutional provisions relating to the Scheduled Castes. It
was evident that in order to provide for their amelioration and
advancement it was necessary to conceive of intervention by the
State through its legislative and executive powers. It must be
remembered that the declaration incorporated in paragraph 3
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deeming them to be members of the Scheduled Castes was a
declaration made for the purposes of the Constitution. It was a
declaration enjoined by clause (1) of Article 341 of the
Constitution... It is necessary to establish further that the
disabilities and handicaps suffered from such caste membership
in the social order of its origin - Hinduism - continue in their
oppressive severity in the new environment of a different
religious community."
14. Dr. B.R. Ambedkar, while moving Article 300-A of the Draft
Constitution (which ultimately became Article 341) said, in the Constituent
Assembly, on 17.11.1949, that:
"The object of these two articles, as I stated, was to eliminate
the, necessity of burdening the Constitution with long lists of
Scheduled Castes and Scheduled Tribes. It is now proposed that
the President, in consultation with the Governor or Ruler of a
State should have, the power to issue a general notification in
the Gazette specifying all the Castes and tribes or groups
thereof deemed to be Scheduled Castes and Scheduled Tribes
for the purposes of the privileges which have been defined for
them in the Constitution. The only limitation that has been
imposed is this : that once a notification has been issued by the
President, which, undoubtedly, lie will be issuing in
consultation with and on the advice of the Government of each
State, thereafter, if any elimination was to be made from the
List so notified or any addition was to be made, that must be
made by Parliament and not by the President. The object is to
eliminate any kind of political factors having a play in the
matter of the disturbance in the Schedule so published by the
President."
(emphasis supplied)
15. Later, during the debates on 2-12-1948 (Constituent Assembley
Debates, 2nd December, Debates on Article 13, Volume II also quoted in
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Founding Father's view by H. S Saksena), Dr. Ambedkar dealt with
precisely the question which this court has to consider, i.e the status of
scheduled caste or tribe members who migrate to another part of the
country, and whether they can be treated as scheduled castes (or tribes)
there. In reply to a query by another member, he stated the following:
"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 his 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 of 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 .."
16. The issue of how those migrating from one state to another are to be
treated for reservation benefit purposes was first dealt with in 1975, by a
Union Ministry of Home Affairs (MHA) notification (dated 2-5-1975)
declaring the terms and conditions which were applicable for reservation of
seats in case of migration of Scheduled Castes and Scheduled Tribes from
one state to another. Para 2(ii) of the said order stated that:
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"Where a person migrates from one state to another, he can
claim to belong to SC or ST only in relation to the state to
which he originally belongs and not in respect of the state to
which he has migrated."
On 22.02.1977, the MHA issued another notification clarifying the earlier
order of 1975, with regard to residence, which stated that:
"As required under Article 341 and 342 of the Constitution the
President has with respect to every State and Union Territory
and where it is State after consultation with governor of the
concerned state issued orders notifying various castes and
tribes as SC and ST in relation to that State or UT from time to
time. The inter State area restriction have been deliberately
imposed so that the people belonging to the specific community
residing in specific area, which has been assessed to quality for
SC or ST status, only benefit from the facilities provided for
them. Since the people belonging to the same caste but living in
different States/UTs may not necessarily suffer from the same
disabilities, it is possible that two persons belonging to same
caste but residing in different states/UTs may not be treated to
belong to SC/ST or vice versa. Thus the residence of a
particular person in a particular locality assumes a special
significance. This residence has not to be understood in the
literal or ordinary sense of the word. On the other had it
connotes the permanent residence of a person on the date of
notification of the Presidential Order scheduled his caste/tribe
in relation to that locality. Thus a person who is temporarily
away from his permanent place of abode at the time of the
notification of the presidential Order applicable in his case, say
for example, to earn a living or seek education etc., can also be
regarded as scheduled caste or scheduled tribe, as the case may
be, if his caste/tribe has been specified in that order in relation
to his state/UT. But he cannot be treated as such in relation to
place of his temporary residence notwithstanding the fact that
the name of his caste/tribe has been scheduled in respect of that
area in any Presidential Order.
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It is to ensure the veracity of this permanent residence of a
person and that of the caste/tribe to which he claims to belong
that the Government of India has made a special provision in
the proforma prescribed for the issue of such certificate. In
order that the certificates are issued to be deserving person it is
necessary that proper verification based primarily on revenue
record and if need be, through reliable inquires, is made before
such certificates are issued. As it is only Revenue Authorities
who, decide having access to relevant revenue records are in a
position to make reliable inquiries. Government of India insists
upon the production of certificates, from such authorities only.
In order to be competent to issue such certificate therefore
authority mentioned in Appendix 15 of this Brochure should be
the one concerned with the locality in which person applying
for the certificate had his place of permanent abode at the time
of the notification of the relevant order. Thus the Revenue
Authority of one District would not be competent to issue such a
certificate in respect to persons belonging to another District.
No can such an authority of one state/UT issue such certificate
in respect of persons whose place of permanent resident at the
time of the notification of a particular Presidential Order, has
been in a different state/Union Territory. In the case of persons
born after the date of notification of the relevant Presidential
Order, the place of residence for the purpose of acquiring
Scheduled Casts or Scheduled Tribes status, is the place of
permanent abode of their parents at the time of the notification
of Presidential Order under which they claim to belong to such
caste/tribe."
The issue was revisited in another circular of 1982, issued by the Union
Government, which decided that caste certificates could be issued to those
who migrated from one state to another, but clarified that this would not
alter their status as scheduled caste or scheduled tribe members, in one State
or another.
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17. A textual reading of Articles 341 and 342 of the Constitution of India
shows that Presidential Notifications, whether in respect of Scheduled
Castes or in respect of Scheduled Tribes, are "for the purposes of this
Constitution" and "in relation to that State (or Union Territory, as the case
may be)". Also, if there is a Presidential Notification under Article 341(1) or
Article 342(2), Parliament may by law include or exclude caste, race, tribe
or group in the list of Scheduled Caste and Schedules Tribes notified under
the Presidential Notification. The Constitution (Scheduled Castes) Order,
1950, the Constitution (Scheduled Tribes) Order, 1950 and the Constitution
(Scheduled Castes) (Union Territories) Order, 1951, Constitution
(Scheduled Castes) (Union Territories) Order, 1951, Constitution
(Scheduled Tribes) (Union Territories) Order, 1951 were the first
Presidential Notifications issued under Article 341 and Article 342 of the
Constitution of India specifying Scheduled Castes and tribes in relation to
various States and Union Territories. The Order of 1950 was amended by
the Constitution (Scheduled Castes and Scheduled Tribes Order),
Amendment Act, 1956, (Act 63/1956). Another amending Act was enacted
by Parliament in 1976. Earlier, orders had been made for the first time in
relation to certain territories, such as the Constitution (Andaman and
Nicobar Islands) Scheduled Tribes Order, 1959. Further, amendments had
taken place as and when Parliament reorganized states, through separate
Acts, such as the Bombay Reorganization Act, the Punjab Reorganization
Act, Andhra Reorganisation Act, States Reorganization Act (which led to
large scale modification of the 1950 and 1951 Presidential Orders).
Similarly, when new territories were incorporated into India, such as
Pondicherry, or Sikkim, the Scheduled Castes or Scheduled Tribes Orders
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were made in relation to the new territories (for instance, the Constitution
(Dadra and Nagar Haveli) Scheduled Castes Order, 1962, the Constitution
(Dadra and Nagar Haveli) Scheduled Tribes Order, 1962; the Constitution
(Pondicherry) Scheduled Castes Order, 1964, the Constitution (Goa, Daman
and Diu) Scheduled Caste Order, 1968, the Constitution (Goa, Daman and
Diu) Scheduled Tribes Order, 1968; the Constitution (Nagaland) Scheduled
Tribes Order, 1970 - after the reorganization of Assam; the Constitution
(Sikkim) Scheduled Castes Order, 1978; the Constitution (Sikkim)
Scheduled Tribes Order, 1978) the recent ones being upon creation of the
States of Uttarakhand, Chhatisgarh, and Jharkhand. Likewise, when
previous Union Territories (such as Goa and Arunachal Pradesh) were
constituted into States, consequential amendments were made to the
Scheduled Castes and Tribes Orders. In the case of Goa, the Goa, Daman
and Diu Reorganisation Act, 1987 (Act No. 18 of 1987), by Section 19
amended the Scheduled Castes and Scheduled Tribes Orders. Arunachal
Pradesh and Mizoram were constituted as States (from previous status as
Union Territories) by Re-organization enactments in 1986. All these were
Parliamentary enactments. The Presidential Notifications of 1950 and 1951
(as amended) in relation to Scheduled castes and scheduled tribes of various
states, very importantly provided that:
"the castes, races or tribes or parts of, or groups within, castes
or tribes specified in [Parts to [XXIV]] of the Schedule to this
Order shall, in relation to the States to which those Parts
respectively relate, be deemed to be Scheduled Castes so far as
regards member thereof resident in the localities specified in
relation to them in those Parts of that Schedule."
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An identical condition was engrafted in the Scheduled Castes (Union
Territories) Order, 1951:
"Subject to the provisions of this Order, the castes, races or
tribes or parts of, or groups within, castes or tribes, specified in
3
[Parts I to III] of the Schedule to this Order shall, in relation
to the 2[Union territories] to which those parts respectively
relate, be deemed to be Scheduled Castes so far as regards
members thereof resident in the localities specified in relation
to them respectively in those Parts of that Schedule."
18. Part VIII of the Constitution of India deals with Union Territories. It,
inter alia, consists of Articles 239 to 241. Article 239 provides for the
administration of every Union Territory by the President acting through an
Administrator. It reads as follows:
"239. Administration of Union Territories
(1) Save as otherwise provided by Parliament by law, every
Union Territory shall be administered by the President acting,
to such extent as he thinks fit, through an administrator to be
appointed by him with such designation as he may specify.
(2) Notwithstanding anything contained in Part VI, the
President may appoint the Governor of a State as the
administrator of an adjoining Union Territory, and where a
Governor is so appointed, he shall exercise his functions as
such administrator independently of his Council of Ministers."
19. So far as the Union Territory of Delhi is concerned, Article 239AA
was introduced in the Constitution of India by the Constitutional (69th
Amendment) Act, 1991 with effect from 1.1.1992. It provides for a
Legislative Assembly, seats whereof are required to be filled by members
chosen by direct election from territorial constituencies in the National
Capital Territory. Under Article 239AA(3)(a), the Legislative Assembly has
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powers to make laws for the Union Territory of Delhi in respect to the
matters specified under said clause (3)(a) of Article 239AA of the
Constitution of India.
20. The expressions "in relation to that State or Union Territory" and
"for the purposes of this Constitution" used in Articles 341 and 342 of the
Constitution of India are relevant and determinative of the issues in this case
at hand. According to one set of petitioners, since under the constitutional
scheme, the Union Territory NCT of Delhi has to be administered by the
President acting through an Administrator, the Union of India is within its
rights in issuing instructions, either under specific statutes, or generally of
executive nature, requiring reservations to be made for admissions to
institutions in the Union Territory of Delhi. The other set of petitioners, on
the other hand, urged that Article 239 should be read harmoniously with
Articles 341 and 342 of the Constitution of India. It is argued that Article
15(4) and Article 16 (4) are merely enabling provisions, and do not confer
any substantive power to classify or choose castes or tribes. The specific
provision under Article 16 (4) only deals with the State's duty to ensure
"adequate representation" in the services, but under no circumstances does it
enable the exercise of deciding which communities or castes are to be
included or excluded for the purpose of reservation. In other words, the
entitlement of communities and the conditions attached to such entitlement,
to reservations, are exclusively found in the Presidential notifications, or
amendments to it, by Parliament. If therefore, there is no Presidential
Notification under Article 342 of the Constitution of India for the purposes
of reservation for Scheduled Tribes, or only a few castes are notified as
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Scheduled Castes for the Union Territory of Delhi, the sine qua non being
missing, no reservation can be effected for members belonging to Scheduled
Tribes or for those castes which are not notified for the Union Territory.
Furthermore, the nature of Scheduled Castes Orders, made under the
Constitution and as amended from time to time by the Parliament, indicate a
clear intent to limit benefits to only those enlisted in the Constitution
Schedule Caste (Union Territories) Order, 1951, in relation to Delhi, and
subject to residential qualifications spelt out in it.
21. The Union Territories Scheduled Castes Order of 1951, amended by
an Act, in 1956 and later in 1976, and still later, in 1987, reads as follows:
"THE CONSTITUTION (SCHEDULED CASTES) UNION
TERRITORIES) ORDER,1951 C.O. 32, dated the 20th
September, 1951 .
In exercise of the powers conferred by Clause (1) of Article 341
of the Constitution of India, as amended by the Constitution
(First Amendment) Act, 1951, the President is pleased to make
the following order namely:
1. This order may be called the constitution (Scheduled
Castes) (Union Territories) Order, 1951.
2. Subject to the provisions of this order, the castes races or
tribes or parts of, or groups within, castes or tribes, specified in
(parts 1 to III of the Scheduled to this Order shall, in relation to
the (Union Territories) to which those parts respectively relate,
be deemed to be Scheduled Castes so far as regards members
thereof resident in the localities specified in relation to them
respectively in those parts of that schedule.
3. Notwithstanding anything contained in paragraph 2, no
person who professes a religion different from the Hindu (or
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the Sikh or the Buddhist) Religion shall be deemed to be a
member of a Scheduled caste. [4. Any reference in this order to
a Union Territory in part 1 of the Scheduled shall be construed
as a reference to the territory constituted as a Union territory
as from the first day of November, 1956, any reference to a
Union territory in part II of the Schedule shall be construed as
a reference to the territory constituted as a Union territory as
from the first day of November, 1966 and any reference to a
Union territory in part III of the Schedule shall be construed as
a reference to the territory constituted as a Union territory as
from the day appointed under clause (b ) of Section 2 of the
Goa, Daman and Diu Reorganisation Act, 1987].
[THE SCHEDULE
PART 1
DELHI
1. Throughout the Union Territory:
1. Ad Dharmi 2. Aheria 3. Aheria 4. Balal 5. Banjara 6.
Bawaria
7. Bazigar 8. Bhangi 9. Bhil
10. Chamar,l Chanwar Chamanr, Jatya or Jatav Chamar,
Mochi Ramadasia, Ravidasi, Reghgrh or Raigharh
11. Chohra (Sweeper) 12. Chuhar (Balmiki)
13. Dhanak or Dhanuk 14. Dhobi 15. Dom 16. Gharrami
17. Julaha (Weaver) 18. Karbirpanthi 19. Kachhandha 20.
Kanjar or Giarah
21. Khatik 22. Koli 23. Lalbegi 24. Madri 25. Mallah 26.
Mazhabi
27. Meghwal 28. Naribut 29. Nat (Rana), Badi 30. Pasi
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31. Perna 32. Sansi or Bhedkut 33. Sapera 34. Sikligar 35.
Singiwala or Kalbelia 36. Sirkiband \
Part III
CHANDIGARH
[throughout the Union Territory]
1. Ad Dharmi 2. Bangali 3. Barar, Burar or Berar 4. Batwal,
Barwala]
5. Baruia or Bawaria 6. Bazigar 7. Balmiki, Chura or Bhangi
8. Bhanjra
9. Chamar, Jatia, Chamar, 10. Chanal Rehgar, Raigar,
Ramadasi Or Ravidas 11. Dagi 12. Darin. 13. Dhanak 14.
Dhogri, Dhangri or Siggi 15. Dumna, Mahasha or Doom 16.
Ganga 17. Gandhila or Gandil Gondola 18, Kabirpanthi or
Julaha 19. Khatik 20. Kori or Koli 21. Marija or Marecha 22.
Mazhabi 23. Megh 24. Nat 25. Od 26. Pasi 27. Perna 28.
Pherera 29. Sanhai 30. Sanhal 31. Sansoi 32. Sandi, Bhedkut
or Manesh 33. Sapela 34. Sarera 35. Sikligar 36. Sirkibandi
PART III DAMAN AND DIU
III. Throughout the Union Territory :
1. Bhangi (Hadi) 2. Chambhar, Mochi 3. Mahar 4.
Mahyavanshi (Vankar)
5. Mangi"
Thus, in relation to Delhi, there are only 36 castes listed as scheduled castes
in the Order; they have to be "residents of" the concerned territory, i.e of
Delhi, to avail the benefit. Therefore, as regards entitlement of benefit of
reservation "for the purpose of the Constitution", textually, only such
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members of the Scheduled Castes who fulfil the requisites spelt out in the
Presidential Notification for Delhi can legitimately claim it.
22. In Marri, the Supreme Court dealt with the question whether an
individual belonging to a Scheduled Tribe or scheduled caste, in one state
would be entitled to the benefit of reservation in a different state, (whether
he "carried" the tag of disability to be entitled to reservation, upon
migration). It was held that:
"7. In this connection, the provisions of Articles 341 and 342
of the Constitution have been noticed. These Articles enjoin that
the President after consultation with the Governor where the
States are concerned, by public notification, may specify the
tribes or tribal communities or parts of or groups of tribes or
tribal communities, which shall be deemed to be Scheduled
Tribes in relation to that State under Articles 341 or 342
Scheduled Tribes in relation to that State or Union Territory.
The main question, therefore, is the specification by the
President of the Scheduled Castes or Scheduled Tribes, as the
case may be, for the State or Union Territory or part of the
State. But this specification is "for the purposes of this
Constitution". It is, therefore, necessary, as has been
canvassed, to determine what the expression "in relation to that
state" in conjunction with "for the purposes of this
Constitution" seeks to convey.
XXXXXX XXXXXX XXXXXX
12. It is, however, necessary to give proper meaning to the
expressions "for the purpose of this Constitution" and "in
relation to that State" appearing in Articles 341 and 342 of the
Constitution. The High Court of Gujarat has taken the view in
two decisions, namely, Kum. Manju Singh v. The Dean, B.J.
Medical College, AIR 1986 Gujarat 175 and Ghanshyam Kisan
Borikar v. L.D. Engineering College, AIR 1987 Gujarat 83 to
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which our attention was drawn, that the phrase "for the
purposes of this Constitution" cannot be and should not be
made subservient to the phrase "in relation to that State" and,
therefore, it was held in those two decisions that in
consequence, the classification made by one State placing a
particular caste or tribe in the category of Scheduled Castes or
Scheduled Tribes would entitle a member of that caste or tribe
to all the benefits, privileges and protections under the
Constitution of India. A similar view has been taken by the
Karnataka High Court in the case of M. Muni Reddy v.
Karnataka Public Service Commission and Ors., 1981 Lab
I.C.1345. On the other hand, the Orissa High Court in the case
of K. Appa Rao v. Director of Posts and Telegraphs, Orissa and
Ors., AIR 1969 Orissa 220 and the full Bench of the Bombay
High Court in M.S. Malathi v. The Commissioner, Nagpur
Division and Ors., AIR 1989 Bombay 138 have taken the view
that in view of the expression "in relation to that State"
occurring in Articles 341 and 342, the benefit of the status of
Scheduled Castes or Scheduled Tribes would be available only
in the State in respect of which the Caste or Tribe is so
specified. A similar view has been taken by the Punjab and
Haryana High Court in the case of V.B. Singh v. State of
Punjab, ILR 1976 (1) Punj and Har. 769.
13. It is trite knowledge that the statutory and constitutional
provisions should be interpreted broadly and harmoniously. It
is trite saying that where there is conflict between two
provisions, these should be so interpreted as to give effect to
both. Nothing is surplus in a Constitution and no part should be
made nugatory. This is well settled. See the observations of this
Court in Sri Venkatamana Devaru and Ors. v. State of Mysore
and Ors., 1958 SCR 895 at 918, where Venkatarama Aiyar, J.
reiterated that the rule of construction is well settled and where
there are in an enactment two provisions which cannot be
reconciled with each other, these should be so interpreted that,
if possible, effect could be given to both. It, however, appears to
us that the expression "for the purposes of this Constitution" in
Articles 341 as well as in Article 342 do imply that the
Scheduled Castes and the Scheduled Tribes so specified would
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be entitled to enjoy all the constitutional rights that are
enjoyable by all the citizens as such. Constitutional right e.g. it
has been argued that right to migration or right to move from
one pat to another is a right given to all to scheduled castes or
tribes and to non-scheduled castes or tribes. But when a
Scheduled Caste or tribe migrates, there is no inhibition in
migrating but when he migrates, he does not and cannot carry
any special rights or privileges attributed to him or granted to
him in the original State specified for that State or area or part
thereof. If that right is not given in the migrated state it does
not interfere with his constitutional right of equality or of
migration or of carrying on his trade, business or profession.
Neither Articles 14, 16, 19 nor Article 21 are denuded by
migration but he must enjoy those rights in accordance with the
law if they are otherwise followed in the place where he
migrates. There should be harmonious construction,
harmonious in the sense that both parts or all parts of a
constitutional provision should be so read that one part does
not become nugatory to the other or denuded to the other but
all parts must be read in the context in which there are used. It
was contended that the only way in which the fundamental
rights of the petitioner under Articles 14, 19(1)(d), 19(1)(e) and
19(1)(f) could be given effect to is by construing Article 342 in
a manner by which a member of a Scheduled Tribe gets the
benefit of that status for the purposes of the Constitution
throughout the territory of India. It was submitted that the
words "for the purposes of this Constitution" must be given full
effect. There is no dispute about that. The words "for the
purposes of this Constitution" must mean that a Scheduled
Caste so designated must have a right under Articles 14,
19(1)(d), 19(1)(e) and 19(1)(f) inasmuch as these are
applicable to him in its area where he migrates or where he
goes. The expression "in relation to that State" would become
nugatory if in all States the special privileges or the rights
granted to Scheduled Castes or Scheduled Tribes are carried
forward. It will also be inconsistent with the whole purpose of
the scheme of reservation. In Andhra Pradesh, a Scheduled
Caste or a Scheduled Tribe may require protection because a
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boy or a child who grows in that area is inhibited or is at
disadvantage. In Maharashtra that caste or that tribe may not
be so inhibited but other castes or tribes might be. If a boy or a
child goes to that atmosphere of Maharashtra as a young boy
or a child and goes in a comparatively different atmosphere or
Maharashtra where this inhibition or this disadvantage is not
there, then he cannot be said to have that reservation which
will denude the children or the people of Maharashtra
belonging to any segment of that State who may still require
that protection. After all, it has to be borne in mind that the
protection is necessary for the disadvantaged castes or tribes of
Maharashtra as well as disadvantaged castes or tribes of
Andhra Pradesh. Thus, balancing must be done as between
those who need protection and those who need no protection
i.e. who belong to advantaged castes or tribes and who do not.
Treating the determination under Articles 341 and 342 of the
Constitution to be valid for all over the country would be in
negation, to the very purpose and scheme and language of
Article 341 read with Article 14(4) of the Constitution."
23. The rule in Marri was again reiterated by another Constitution Bench
of the Supreme Court in the Action Committee decision, stating:
"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
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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."
Having posed the question, the Court, in Action Committee, read the ratio in
Marri, and commented as follows:
"It must also be realised that before specifying the castes or
tribes under either of the two articles the President is, in the
case of a State, obliged to consult Governor of that State.
Therefore, when a class is specified by the President, after
consulting the Governor of State A, it is difficult to understand
how that specification made "in relation to that State" can be
treated as specification in relation to any other State whose
Governor the President has not consulted. True it is that this
specification is not only in relation to a given State whose
Governor has been consulted but is "for the purposes of this
Constitution" meaning thereby the various provisions of the
Constitution which deal with Scheduled Castes/Scheduled
Tribes. The Constitution Bench has, after referring to the
debates in the Constituent Assembly relating to these articles,
observed that while it is true that a person does not cease to
belong to his caste/tribe by migration he has a better and more
socially free and liberal atmosphere and if sufficiently long time
is spent in socially advanced. areas, the inhibitions and
handicaps suffered by belonging to a socially disadvantageous
community do not truncate his growth and the natural talents of
an individual gets full scope to blossom and flourish. Realising
that these are problems of social adjustment it was observed
that they must be so balanced in the mosaic of the country's
integrity that no section or community should cause detriment
or discontentment to the other community. Therefore, said the
Constitution Bench, the Scheduled Castes and Scheduled Tribes
belonging to a particular area of the country must be given
protection so long as and to the extent they are entitled to in
order to become equals with others but those who go to other
areas should ensure that they make way for the disadvantaged
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and disabled of that part of the community who suffer from
disabilities in those areas....
16. We may add that considerations for specifying a particular
caste or tribe or class for inclusion in the list of Scheduled
Castes/Schedule Tribes or backward classes in a given State
would depend on the nature and extent of disadvantages and
social hardships suffered by that caste, tribe or class in that
State which may be totally non est in another State to which
persons belonging thereto may migrate. Coincidentally it may
be that a caste or tribe bearing the same nomenclature is
specified in two States but the considerations on the basis of
which they have been specified may be totally different. So also
the degree of disadvantages of various elements which
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 rights, privileges and benefits admissible to a
member of the Scheduled Caste of the latter State "for the
purposes of this Constitution".
24. A later Constitution Bench of the Supreme Court, in its decision in
Milind, held that:
"Plain language and clear terms of these Articles show (1) the
President under Clause (1) of the said Articles may with respect
to any State or Union Territory and where it is a State, after
consultation with the Governor, by public notification specify
the castes, races or tribes or parts of or groups within the
castes, races or tribes which shall for the purposes of the
Constitution be deemed to be Scheduled Castes/Scheduled
Tribes in relation to that State or Union Territory as the case
may; (2) under Clause (2) of the said Articles, a notification
issued under Clause (1) cannot be varied by any subsequent
notification except by law made by Parliament. In other words,
Parliament alone is competent by law to include in or exclude a
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caste/tribe from the list of Scheduled Castes and Scheduled
Tribes specified in notifications issued under Clause (1) of the
said Articles. In including castes and tribes in Presidential
Orders, the President is authorised to limit the notification to
parts or groups within the caste or tribe depending on the
educational and social backwardness. It is permissible that only
parts or groups within them be specified and further to specify
castes or tribes thereof in relation to parts of the State and not
to the entire State on being satisfied that it was necessary to do
so having regard to social and educational backwardness. The
States had opportunity to present their views through
Governors when consulted by the President in relation to castes
or tribes, parts or groups within them either in relation to the
entire State or parts of State. It appears that the object of clause
(1) of Articles 341 and 342 was to keep away disputes touching
whether a caste/tribe is a Scheduled Caste/Scheduled Tribe or
not for the purpose of of the Constitution. Whether a particular
caste or a tribe is Scheduled Caste or Scheduled Tribe as the
case may be within the meaning of the entries contained in the
Presidential Orders issued under Clause (1) of Articles 341 and
342, is to be determined looking to them as they are. Clause (2)
of the said articles does not permit any one to seek modification
of the said orders by leading evidence that the caste/Tribe (A)
alone is mentioned in the Order but caste/Tribe (B) is also a
part of caste/Tribe (A) and as such caste/Tribe (B) should be
deemed to be a Scheduled Caste/Scheduled Tribe as the case
may be. It is only Parliament that is competent to amend the
Orders issued under Articles 341 and 342."
25. It would be material here to notice another decision, which is
somewhat relevant. The Supreme Court had to deal with a situation where a
State sought to sub-divide Scheduled Castes (which had been included in the
Presidential notification) into most backward castes. The Supreme Court,
again underlined the conclusiveness of the determination by the President,
and the exclusive jurisdiction of Parliament to amend it, in the Constitution
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Bench judgment, reported as E. V. Chinnaiah v. State of A.P. (2005) 1 SCC
394. In that decision, it was held that:
"13. We will first consider the effect of Article 341 of the
Constitution and examine whether the State could, in the guise
of providing reservation for the weaker of the weakest, tinker
with the Presidential List by subdividing the castes mentioned
in the Presidential List into different groups. Article 341 which
is found in Part XVI of the Constitution refers to special
provisions relating to certain classes which includes the
Scheduled Castes. This article provides that the President may
with respect to any State or Union Territory after consultation
with the Governor thereof by public notification, specify the
castes, races or tribes or parts of or groups within castes, races
or tribes which shall for the purposes of this Constitution be
deemed to be Scheduled Castes in relation to that State or
Union Territory. This indicates that there can be only one list of
Scheduled Castes in regard to a State and that list should
include all specified castes, races or tribes or part or groups
notified in that Presidential List. Any inclusion or exclusion
from the said list can only be done by Parliament under Article
341(2) of the Constitution. In the entire Constitution wherever
reference has been made to 'Scheduled Castes' it refers only to
the list prepared by the President under Article 341."
26. In a Constitution Bench ruling in Bhaiyalal V. Harikishan Singh AIR
1965 SC 1557 the Supreme Court noticed that while framing notifications
under Articles 341 and 342, the President has the necessary materials and
that the executive Government cannot amend it; only Parliament is
empowered to amend the Notification under Articles 341(2) and 342(2) of
the Constitution, as is underlined by the expression "but save as aforesaid a
notification issued under the said clause shall not be varied by any
subsequent notification" occurring in each of the said provisions. It was
held by the Court that:
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"The object of Art. 341(1) plainly is to provide additional protection
to the members of the Scheduled Castes having regard to the
economic and educational backwardness from which they suffer. It is
obvious that in specifying castes, races or tribes, the President has
been expressly authorised to limit the notification to parts of or
groups within the castes, races or tribes, and that must mean that
after examining the educational and social backwardness of a caste,
race or tribe, the President may well come to the conclusion that not
the whole caste, race or tribe but parts of or groups within then
should be specified. Similarly, the President can specify castes, races
or tribes or parts thereof in relation not only to the entire State, but in
relation to parts of the State where he is satisfied that the examination
of the social and education are backwardness of the race, caste or
tribe justifies such specification. In fact, it is well-known that before a
notification is issued under Art. 341(1), an elaborate enquiry is made
and it is as a result of this enquiry that social justice is sought to be
done to the castes, races or tribes as may appear to be necessary, and
in doing justice, it would obviously be expedient not only to specify
parts or groups of castes, races or tribes, but to make the said
specification by reference to different areas in the State. Educational
and social backwardness is regard to these castes, races or tribes
may not be uniform or of the same intensity in the whole of the State;
it may very in degree or in kind in different areas and that my justify
the division of the State into convenient and suitable areas for the
purpose of issuing the public notification in question."
It is, therefore, evident that the co-relationship between the area or region,
and the community concerned, which suffers from social and economic
disabilities caused by untouchability (in that area or region) so as to require
inclusion, for special treatment as a Scheduled Caste, is the paramount
consideration.
27. By virtue of Article 341, the Presidential orders made under Sub-
Article (1) acquire an exclusive status. But for Articles 341(1) and (2) [or
Article 342(1) and (2)], it would have been possible for both the Union and
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States, to legislate upon, or frame policies, concerning the subject of
reservation, vis-a-vis inclusion of Castes/Tribes and the conditions
applicable. The presence of Articles 338, 341 and 342 indicates that :
a) Only the President could, as a one- time measure, notify castes/tribes
as Scheduled Castes/Tribes and also indicate conditions attaching to such
declaration.
b) There is only one constitutionally sanctioned authority, viz. National
Commission enjoined to submit reports in that regard to the President, after
due deliberation;
c) Even the authority that originally notified the SC/ST order (The
President) loses the right to vary such notification [Article 341(2)];
d) Future inclusions, modifications, variations deletions and
amendments to the SC/ST orders can be made only by Parliament.
It is immediately discernible, therefore, that the rationale for migrant
citizens (notified as members of a scheduled caste in one region or state)
moving from one place to another and not being entitled to claim benefit of
reservation (in spite of their belonging to Scheduled Caste in their own State
and a caste of that nomenclature being notified in the State when they
migrate) - is not premised on existence of legislative,
administrative/executive control over Union Territories by the Union, as
opposed to States. Apparently, that is not a relevant factor for deciding who
can enjoy the benefit of reservation. This is because the authority in the case
of both Union Territories and States to make an order, including
communities in the lists for concerned states/Union Territories is the same,
i.e. the President, initially, and later, the Parliament. Also, the President has
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no greater power in respect of modification/alteration of the order, in the
case of Union Territories. He ceases to have any power to vary, amend or
modify the Order. Only Parliament has exclusive power by way of
legislation to amend an SC/ST Order, in the case of States as well as Union
Territories.
28. The Scheme and position of the Constitution (Scheduled Castes)
Orders is that-
1) Originally a common Presidential Order was made in respect of States
in 1950.
2) Another common Presidential Order was made in respect of Union
Territories in 1951. The Union Territories Order continues to be in force. It
comprehends 3 Union Territories including Delhi and Chandigarh.
3) Separate orders have been made in respect of the Union Territories of
Pondicherry and Dadra and Nager Haveli. There is no order in respect of
Andaman Nicobar Islands.
4) Amendments were made to the Scheduled Caste/Tribe Orders of the
States and Union Territories Order of 1951, by an Acts of Parliament in
1956 and later, in 1976.
29. Whenever States' reorganization took place in the past, Parliament
exercised its powers under Article 341(2) and Article 342 (2) and provided
for specific Castes/Tribes that had to be Scheduled Castes and Scheduled
Tribes in relation to the reorganized States/Union Territories. The Scheme
of the Constitution Scheduled Caste Orders, more particularly, the
Constitution Scheduled Castes (Union Territories) Order, also clarify that
Parliamentary intention was to extend benefits of reservation in relation to
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the Union Territories in terms of the conditions mentioned in the Orders
themselves. Therefore, the expansive construction by which Scheduled
Castes for one State are sought to be given benefits in Union Territories,
would be contrary to the express intendment of the Orders in relation to the
Union Territories, and indeed the Constitution. If Parliamentary intention
was that all Scheduled Castes in all States could be considered as Scheduled
Castes in all Union Territories, such intention would have been explicit. By
the same analogy, if Presidential or Parliamentary intention was to extend
the benefit of reservation in Union Territories even to migrants from States
having the same Caste nomenclature (as notified in a Union Territory such
as Delhi), that intention too would have been explicit. Existence of few caste
groupings only "in relation" to Delhi, therefore, rules out the claim of
migrants from other States/Union Territories.
29. The Constitution makers principally had in mind the practice of
untouchability while providing for castes to be known as Scheduled Caste or
Scheduled Tribes (in the latter case, the indicia being backwardness
bordering primitiveness). This is clear from a reading of Articles 17, 46,330,
332, 338, 341 and 342 of the Constitution, as noted by the Supreme Court in
the decision reported as Soosai Vs. Union of India 1985 (Supp) SCC 590.
The underlying principle for including or excluding a Caste from the list of
Scheduled Castes in relation to State or a Union Territory has been and will
remain the same, namely; whether that caste/group suffers from such
disability in that area as to warrant its inclusion in the relevant Scheduled
Caste Order for the concerned State/Union Territory. This awareness is
evident from the decision of the Constitution Bench in the Marri, Action
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Committee, Milind and Chinnaiah cases. Logically the rule of denial of
reservation benefits to persons migrating from one State to another, appear
to equally apply in the case of migrants to Union Territories.
30. A compelling aspect which the court cannot ignore lightly is that a
limited construction of the Rule in Marri's case so as to make a departure in
the case of Union Territories would destroy the integrity of a principle
which has to apply through-out the country. Conferment or denial of a
benefit to a migrant, based on his being a member of Scheduled Caste in the
place of his origin, cannot be made to depend upon the existence or
otherwise of an administrative unit as a Union Territory or a State.
Parliament has the exclusive power to make new States and Union
Territories, alter the boundaries of the States/Union Territories, re-organise
States/Union Territories, create/destroy States/Union Territories. In the
exercise of such power, Parliament does not even have to seek recourse to
Article 368 of the Constitution by virtue of Articles 3 and 4. The law which
creates a State or Union Territory or re-organizes boundaries can be passed
with a simple majority. Such a law can amend the First Schedule of the
Constitution of India. Exercising such power, the Union of India has been
re-organized as many as 16 times. Through its exercise many former Union
Territories namely, Goa, Andhra Pradesh, Mizoram and Himachal Pradesh,
which had been Union Territories at some point or the other, were conferred
State-hood. The existence of State or Union Territory boundaries, therefore
does not alter the reality about their impermanence. Though a Union, India
comprises of destructible states. The latest re-organization in 2000 saw
realignment of boundaries and creation of three new states. Thus, the
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principle that persons of origin in relation to the State/Union Territory
concerned, only, being entitled to the benefit of reservation with respect to
that Union Territory/State (emphasized in Marri and Action Committee) has
to be applied to States as well as Union Territories.
31. The decisions, right from Bhaiyalal, to Chinnaiah, all rendered by
Constitution Benches have affirmed that:
(i) The Presidential Notifications and Acts are conclusive and binding.
They cannot be investigated by the Courts, [Ref. B. Basavingappa vs. D.
Munichinnappa, 1965(1) SCR 315, State of Maharashtra vs. Milind, 2001(1)
SCC 4]
(ii) The SC and ST Orders are to be read as they are, and cannot be varied
or modified by interpretation;
(iii) Every such Presidential Order (or modification thereof through
Parliamentary Act) has consistently insisted that the notified castes or states
"in relation" to that state or Union territory are in respect of residents of that
territory.
(iv) The Presidential notifications are to be construed strictly as regards
matters mentioned therein (Milind);
(v) It is permissible to notify scheduled castes/tribes in parts of a State or
parts of any area. Such restrictions are not discriminatory, having regard to
be purpose of extending benefits to castes that are backward in relation to a
specified area (Bhaiyalal, 1965(2) SCR 877).
(vi) No authority, save Parliament is empowered to modify or amend the
Orders under Articles 341 and 342 (Bhaiyalal, Marri, Milind);
32. Apart from the above, the construction which would result in notified
scheduled castes or tribes, in union territories (such as, for instance
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Andaman and Nicobar, or Daman) having to compete for the limited
number of reserved public employment opportunities along with all
scheduled castes and tribes, notified in all states and Union Territories (and
not in their territories only) would result in over classification. It would also
discriminate between the quality of opportunity or access to reservation
benefits between citizen and citizen. Whereas in States, the competition
would be restricted to those who are members of the notified lists, in Union
Territories, the rule would be different; those members who are considered
to be scheduled castes or tribes "in relation to" that Union territory would
have to compete, per force with a large number of people who are not
scheduled castes or tribes in relation to such territory. Such a consequence
would completely undermine the benefit of reservation, as the result would
be that the castes or tribes so notified in relation to the union territory would
have vastly reduced chances of getting recruited.
33. This Court also notices that in matters of public employment, the
State (within the meaning of Article 12) cannot, by virtue of Article 16 (2)
be discriminated against on ground of inter alia "place of birth" - a
prohibition similar to what is provided under Article 15 (1). However, it is
only Parliament, which can make laws prescribing, in regard to a "class of
employment or appointment to an office under the Government or or any
local or other authority, within a State or Union territory any requirement
as to residence within the State or Union territory" by virtue of Article 16
(3). This aspect was considered by the Supreme Court in State of Sikkim v.
Surendra Prasad Sharma 1994 (5) SCC 282 as follows:
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"However, notwithstanding anything in the Constitution,
Parliament was empowered to make laws inter alia with respect
to any matter referred to in Article 16(3). Thus, Parliament
could prescribe by law the requirement as to residence within a
State or Union Territory and if such a law is made nothing in
Article 16 will stand in the way of such prescription. Since
Article 16(3) is in Part III ofthe Constitution, the law, if made,
would clearly be intra vires the Constitution."
Pradip Tandon v State of U.P. 1975 (1) SCC 267 and State of
Maharashtra v. Raj Kumar AIR 1982 SC 1301 are two cases where the
reservations based on residence, made by State's notifications or orders, in
the absence of Parliamentary enactment, were held unconstitutional. In
Pradeep Jain v Union of India AIR 1984 SC 1420, it was held that:
"Parliament alone is given the right to enact an exception to
the ban on discrimination based on residence and that too only
with respect to positions within the employment of a State
Government."
The provision of Article 16 (3) read with Articles 341 (2) and 342 (2)
invests Parliament, and Parliament only with exclusive jurisdiction to
provide for residential qualifications in relation to public employment, even
in States. This is consistent with the intention of the Constitution to exclude
all other authorities from enacting or providing for residential qualifications.
Thus, State Legislatures and other wings such as the Union Executive,
whether in relation to state employment or local authority employment, or
Union or Union Territory employment, are not competent to make such
residential provisions. Consequently, States or even Union Government
cannot add to, or subtract from the conditions spelt out by the SC/ST orders,
either in relation to states or union territories.
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& 3223/11 Page 47
34. Constitutions are interpreted differently from other statutes. Their
provisions are meant to endure the test of time; at the same time Courts have
to ensure that meaning is given to every term and expression in the
concerned provision. In India Cements Ltd. vs. Union of India , 1990(1)
SCC 12, a seven Judge Constitution Bench of the Supreme Court held that:
"16. Courts of law are enjoined to gather the meaning of the
Constitution from the language used and although one should
interpret the words of the Constitution on the same principles of
interpretation as one applies to an ordinary law but these very
principles of interpretation compel one to take into account the
nature and scope of the Act which requires interpretation. It
has to be remembered that it is a Constitution that requires
interpretation. Constitution is the mechanism under which the
laws are to be made and not merely an Act which declares what
the law is to be...
17. In Re C.P. and Berar Sales of Motor Spirit and
Lubricants Taxation Act, 1938, C.J. of the Federal Court of
India relied on the observations of Lord Wright in James v.
Commonwealth of Australia and observed that a Constitution
must not be construed in any narrow or pedantic sense, and
that construction most beneficial to the widest possible
amplitude of its powers, must be adopted. The learned Chief
Justice emphasised that a broad and liberal spirit should
inspire those whose duty it is to interpret the Constitution, but
they are not fee to stretch or pervert the language of the
enactment in the interest of any legal or constitutional theory,
or even for the purposes of supplying omissions or correcting
supposed errors. A Federal Court will not strengthen, but only
derogate from its position, if it seeks to do anything but declare
the law; but it may rightly reflect that a Constitution of a
country is a living and organic thing, which of all instruments
has the greatest claim to be construed ut res magis valeat quam
pereat--„it is better that it should live than that it should
perish‟."
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& 3223/11 Page 48
This approach was also underlined in Action Committee‟s case in the
following terms:
"The interpretation that the Court must put on the relevant
constitutional provisions in regard to Scheduled
Castes/Scheduled Tribes and other backward classes must be
aimed at achieving the objective of equality promised to all
citizens by the Preamble of our Constitution. At the same time it
must also be realised that the language of clause (1) of both the
Articles 341 and 342 is quite plain and unambiguous. It clearly
states that the President may specify the castes or tribes, as the
case may be, in relation each State or Union Territory for the
purposes of the Constitution."
35. The decision of the Supreme Court in S. Pushpa (supra) was
concerned with the issue of whether the consistent practice of the Govt of
Pondicherry, extending SC/ ST status benefits to all classes of SC/ST
candidates, whether from that Union Territory or not, for the purpose of
public employment in the administration of the Union Territory, was legal.
The court affirmed that practice, holding:
"These documents show that Government of Pondicherry has
throughout been proceeding on the basis that being a Union
territory, all orders regarding reservation for SC/ST in respect
of posts/services under the Central Government are applicable
to posts/services under the Pondicherry administration as well.
Since all SC/ST candidates which have been recognized as such
under the orders issued by the President from time to time
irrespective of the State/Union territory, in relation to which
particular castes or tribes have been recognized as SCs/STs are
eligible for reserved posts/services under the Central
Government, they are also eligible for reserved posts/services
under the Pondicherry administration. Consequently, all SC/ST
candidates from outside the U.T. of Pondicherry would also be
eligible for posts reserved for SC/ST candidates in Pondicherry
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& 3223/11 Page 49
administration. Therefore, right from the inception, this policy
is being consistently followed by the Pondicherry
administration whereunder migrant SC/ST candidates are held
to be eligible for reserved posts in Pondicherry administration.
We do not find anything inherently wrong or any infraction of
any constitutional provision in such a policy. The principle
enunciated in Marri Chandra Shekhar Rao (supra) cannot have
application here as U.T. of Pondicherry is not a State. As
shown above, a Union territory is administered by the
President through an administrator appointed by him. In the
context of Article 246, Union territories are excluded from the
ambit of expression "State" occurring therein. This was clearly
explained by a Constitution Bench in T. M. Kanniyan vs.
Income Tax Officer 1968 (2) SCR 103 (AIR 1968 SC 367). In
New Delhi Municipal Council vs. State of Punjab 1997 (7) SCC
339 the majority has approved the ratio of T. M. Kanniyan and
has held that the Union territories are not States for the
purpose of Part XI of the Constitution (para 145). The Tribunal
has, therefore, clearly erred in applying the ratio of Marri
Chandra Shekhar Rao in setting aside the selection and
appointment of migrant SC candidates.? The above
observations were based on the following opinion of the Court:
?Clauses (1) and (2) of Article 16 guarantee equality of
opportunity to all citizens in the matter of appointment to any
office or of any other employment under the State. Clauses (3)
to (5), however, lay down several exceptions to the above rule
of equal opportunity. Article 16(4) is an enabling provision and
confers a discretionary power on the State to make reservation
in the matter of appointments in favour of ``backward classes of
citizens'` which in its opinion are not adequately represented
either numerically or qualitatively in services of the State. But it
confers no constitutional right upon the members of the
backward classes to claim reservation. Article 16(4) is not
controlled by a Presidential Order issued under Article 341(1)
or Article 342(1) of the Constitution in the sense that
reservation in the matter of appointment on posts may be made
in a State or Union territory only for such Scheduled Castes
and Scheduled Tribes which are mentioned in the schedule
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& 3223/11 Page 50
appended to the Presidential Order for that particular State or
Union territory. This Article does not say that only such
Scheduled Castes and Scheduled Tribes which are mentioned in
the Presidential Order issued for a particular State alone would
be recognized as backward classes of citizens and none else. If
a State or Union territory makes a provision whereunder the
benefit of reservation is extended only to such Scheduled Castes
or Scheduled Tribes which are recognized as such, in relation
to that State or Union territory then such a provision would be
perfectly valid. However, there would be no infraction of clause
(4) of Article 16 if a Union territory by virtue of its peculiar
position being governed by the President as laid down in
Article 239 extends the benefit of reservation even to such
migrant Scheduled Castes or Scheduled Tribes who are not
mentioned in the schedule to the Presidential Order issued for
such Union territory. The U.T. of Pondicherry having adopted
a policy of Central Government whereunder all Scheduled
Castes or Scheduled Tribes, irrespective of their State are
eligible for posts which are reserved for SC/ST candidates, no
legal infirmity can be ascribed to such a policy and the same
cannot be held to be contrary to any provision of law."
36. The above observations make it clear that in Pushpa, the Supreme
Court took a specific view about how scheduled castes notified in a State are
to be treated in relation to employment in Union territories. The judgment
also shows that the structure of the Scheduled Caste and Scheduled Tribes,
requiring residential qualifications in relation to the States or Union
Territories concerned, was not considered. The larger Bench rulings in
Milind and Bhaiyalal clarify conclusiveness of the Presidential Order, and
the ruling in Bhaiyalal evidences the nuanced nature of the exercise
undertaken to determine the extent of backwardness deserving protection. In
Bhaiyalal, it was noted that educational and social backwardness in regard
to the castes, races or tribes may not be uniform or of the same intensity
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& 3223/11 Page 51
everywhere and that "it may vary in degree or in kind in different areas and
that may justify the division of the State into convenient and suitable areas".
These was not brought to the notice of the Court in Pushpa, nor were the
nuances of the text of the Union Territories Scheduled Caste Order of 1951
brought to its notice. Nevertheless, the fact remains that Pushpa is definitive
and categorical on the issue, and constitutes binding precedent for this
Court.
Binding nature of the holding in Pushpa
37. High Courts, and indeed all Courts, are tethered to precedent and the
law declared by the Supreme Court by virtue of Article 141 of the
Constitution. The doctrine of precedent is essential to ensure consistency
and stability in the administration of law or else, if each court is left free to
pursue its views regardless of previous judgments of higher courts, or
Benches of greater composition, in a hierarchal system, the consequence
would be chaos and uncertainty about the law. Here, one recollects the
caution administered in Broom v. Cassell & Co., [1972] 1 AER 801 that:
"it will never be necessary to say so again, that in the
hierarchical system of courts which exists in this country, it is
necessary for each lower tier, including the Court of Appeal, to
accept loyally the decisions of the higher tiers".
The rule was again explained in Davis v. Johnson, (1978) 2 WLR 152 in the
following words:
"Their Lordships regard the use of precedent as an
indispensable foundation upon which to decide what is the law
and its application to individual cases. It provides at least some
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& 3223/11 Page 52
degree of certainty upon which individuals can rely in the
conduct of their affairs, as well as a basis for orderly
development of legal rules."
The Supreme Court, speaking through Krishna Iyer, J, in Ambika Prasad
Misra v. State of U.P. AIR 1980 SC 1762 explained that even though a
decision might be based on faulty reasoning or might be unsatisfactorily
argued, if it is of a higher court and consequently binding, has to be
necessarily followed. The following observations in Salmond's
'Jurisprudence', page 215 (11th edition) was referred to:
"A decision does not lose its authority merely because it was
badly argued, inadequately considered and fallaciously
reasoned."
38. In this context, the Supreme Court held in Shyamaraju Hegde vs U.
Venkatesha Bhat & Ors 1988 SCR (1) 340 that:
"The Full Bench in the impugned judgment clearly went wrong
in holding that the two-Judge Bench of this Court referred to by
it had brought about a total change in the position and on the
basis of those two judgments. Krishnaji's case would be no
more good law. The decision of a Full Bench consisting of three
Judges rendered in Krishnaji's case was binding on a bench of
equal strength unless that decision had directly been overruled
by this Court or by necessary implication became
unsustainable. Admittedly there is no overruling of Krishnaji's
decision by this Court and on the analysis indicated above it
cannot also be said that by necessary implication the ratio
therein supported by the direct authority of this Court stood
superseded. Judicial propriety warrants that decisions of this
Court must be taken as wholly binding on the High Courts.
That is the necessary outcome of the tier system."
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& 3223/11 Page 53
39. In view of the above discussion, this Court holds that whatever
reservations may exist and might have even been voiced in Subhash
Chandra about the holding in S. Pushpa being contrary to earlier
Constitution Bench rulings in Marri, Action Committee, Milind etc, it was
not open to a Division Bench of this court, in Delhi and State Subordinate
Selection Board v Mukesh Kumar (supra) to say that Subhash Chandra
prevailed, particularly since S. Pushpa was by a larger three member Bench.
It is true that the concerns and interpretation placed by Subhash Chandra
flow logically from a reading of the larger Supreme Court Constitution
Bench rulings. Nevertheless, since this Court is bound by the doctrine of
precedent, and by virtue of Article 141 has to follow the decision in Pushpa,
as it deals squarely with the issue concerning status of citizens notified as
scheduled castes from a state to a Union Territory, it was not open, as it is
not open to this court even today, to disregard Pushpa. The Court further
notices that the correctness of Subhash Chandra has been referred for
decision in the State of Uttaranchal case; the matter is therefore at large,
before the Constitution Bench, which will by its judgment show the correct
approach. Till then, however, Pushpa prevails.
40. In view of the above discussion about the applicable law, this Court
proposes to take up each Writ Petition referred to this Bench.
WP.No. 7878/2010: Sarv Rural & Urban Welfare Society
41. The writ petitioner, a society incorporated for the upliftment of
Backward, scheduled castes and others in Delhi, in education, social and
cultural fields, seeks the implementation of the Supreme Court ruling in
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& 3223/11 Page 54
Subhash Chandra and urges that only those castes which are notified as
scheduled castes, under the Constitution (Scheduled Castes) Union
Territories Order, 1951 for the Union Territory of Delhi should be allowed
the benefit of scheduled caste reservations in respect of facilities in Delhi. It
is submitted that allowing the benefit to scheduled castes which are not
notified in relation to Delhi, or granting it to Scheduled Tribes, for whom no
notification exists in Delhi, is contrary to Articles 14 and 16 of the
Constitution of India.
42. This court has previously held that whatever doubts may exist in
respect of the applicability of Pushpa, since that is a larger Bench ruling,
judicial discipline demands that till the five-judge Bench clarifies the law, or
takes a view contrary to Pushpa, this Court is bound by that decision.
However, it would be relevant to notice one aspect, on which clarification
and guidance would be essential. As noticed earlier, there are only 36
notified castes in the list in respect of (in relation to) the Union Territory of
Delhi. If Subhash Chandra were to be applied, members of those scheduled
castes who are "residents of" Delhi can avail the benefit. Therefore, as
regards entitlement of benefit of reservation to posts under the Govt of NCT
of Delhi for the purpose of the Constitution, only such members of the SCs
who fulfil the requisites spelt out in the Presidential Notification for Delhi
can legitimately claim it. As regards Central Government posts and services,
however, the situation necessarily has to be different. The analogy here can
be with All India service, which, conceptually and definitionally is through-
out the territories of India. Thus, a person claiming to be Scheduled Caste
has to specify that he belongs to a caste notified as Scheduled Caste in one
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& 3223/11 Page 55
State or one Union Territory and that he is a resident of that State/Union
Territory. Fulfilment of that criterion is sufficient for the purpose of Union
Government service, since all Scheduled Castes in all States/Union
Territories are part of Union of India (however, the converse is not true of
State Service or service under Union Territory, where territoriality has to be
given effect to). This parity with All India Service, under the Union, is
necessary because the Supreme Court, in Marri, did not invalidate the
policy, though made aware of it. Further, facilities owned or funded by the
Central Government for which admission is on All India basis, can be
located anywhere, either in Union Territories or States. Their mere location
cannot confer greater benefits to residents of those States or Union
Territories.
43. The reliefs which the petitioners seek, is in the nature of a general
direction, which the court cannot give, having regard to the present state of
the law, particularly the binding judgment in Pushpa.
44. The writ petitioners cannot, for the above reasons, be granted any
reliefs.
WP No. 5390/2010; WP No. 3223/2011, 3278/2011 and 7717/2010
45. In this case, the writ petitioners had applied for appointment to the
post of Lower Division Clerk, pursuant to a public advertisement issued by
the Officer of the District and Sessions Judge Delhi, calling for applications
in respect of 412 vacancies to that post. Of these, 94 were reserved for OBC
candidates, 52 for Scheduled caste candidates, and 47 for Scheduled Tribe
candidates. The selection was to be on the basis of performance in the
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& 3223/11 Page 56
written test, a typing test and also an interview. The written test was held on
7-3-2010; the petitioners' applications were processed, and they were
allowed to sit as scheduled caste or scheduled tribe candidates, on the basis
of the certificate furnished by them. Their claims were based on their fathers
being members of scheduled castes, notified in places i.e. States or Union
territories other than Delhi. The writ petitioners qualified in the written test,
and were called for a typing test, which was held on 17-4-2010. All of them
qualified in the typing test, and were all asked to appear in the interview,
which they did, on 13-5-2010. They were offered appointments by separate
letters in June, 2010. The petitioners claim that at this time, they were
medically examined, and even their antecedents verified. It was urged that
they were working at the time they were offered appointment, and were
consequently asked to submit resignation letters, to take up their new
appointment as LDCs, which they did. It was submitted that they were
informed that their applications for joining were withheld, on account of the
judgment of the Supreme Court, in Subhash Chandra. Their counsel
submitted that those scheduled caste candidates, who had applied and whose
castes were notified in the Scheduled Castes and Tribes Union Territories
Order, were, however, allowed to join. It was emphasized that the
petitioners have been treated unequally, and discriminated against, without
any reason. Having accepted the scheduled caste or scheduled tribe
applications, and selected them it was not open to the respondents to deny
them the benefit. In WP 816/2011 it is further averred that though the
petitioner had qualified and was called for interview, yet again, by a circular
dated 13-9-2010 issued by the District Judge, a typing test was called for, in
respect of those who had secured between 20 and 29 marks (out of 30
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& 3223/11 Page 57
marks) in the previous typing test. For the first time, in respect of the same
selection process, after the written test, a typing test and interview was
conducted, and the petitioners were declared successful (in the first round)
and had not joined, were directed to be treated as general category
candidates. This circular (of 13-9-2010) stated, inter alia, that:
"Candidates of SC and OBC candidates who have migrated
from outside Delhi and fulfil all conditions of general category
candidate, will be called for typing test, if they have secured 74
marks in the written test. Those who clear the type test with
speed of 30 words per minute will e considered for appointment
to the post of LDC. Only those candidates will be called for
interview who were not interviewed earlier.
Those who already joined the service in pursuance of the LDC
examination in 2009, shall also have to pass the type test with
speed of 30 words per minutes..."
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.
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,
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& 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 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."
48. There is, however, one more aspect which requires to be borne in
mind. In view of instructions having been made pursuant to Subhash
Chandra‟s judgment, a clarification was sought from the Supreme Court, by
way of an application filed by the Government of National Capital Territory
of Delhi and Delhi Technological University. The Court referred to the
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& 3223/11 Page 59
background facts and the decision rendered in Subhash Chandra & Anr and
stated as follows:
"The present application filed by the Government of N.C.T. of
Delhi is for clarification as to whether the judgment delivered
in the Civil Appeal would also cover those Scheduled Tribes
students who were successful in the written examination and
had been selected for counselling before the judgment was
delivered. Therefore, in the said application, the following
reliefs have been prayed for:
"a) Pass an order clarifying that the observations made
and decision taken by this Hon'ble court in its judgment
dated 04.08.2009 in Civil Appeal No. 5092 of 2009
{Subhash Chandra v Delhi Subordinate Services
Selection Board & Ors.} would not come in way of
hinder the admission process of the Appellant-University
& other Delhi Government run colleges and polytechnics
in filling up seats reserved in favour of Scheduled Tribe
candidates for the academic session 2009-2010 only, and
can be filled up by Scheduled Tribe candidates
immigrating from places outside Delhi; or, in the
alternative;
b) Pass an order directing the manner in which the seats
reserved for Scheduled Tribe candidates in the
Applicant-University be filled up for the academic
session 2009-2010 only."
Learned Additional Solicitor General appearing in
support of the application filed by the Government of
NCT of Delhi, submitted that although a notification had
not been issued in terms of Article 341 of the
Constitution, by way of past practice, students from the
Scheduled Tribes category from other States had also
been considered for admission in Delhi University. The
learned ASG sought further clarification as to whether
the judgment was intended to be prospective or whether
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& 3223/11 Page 60
it intended to cover those candidates who have already
been selected for. Two other applications filed by the
students who were successful and have been selected for
counselling also pray for the same clarification and for a
direction that they be admitted into the institutions for
which they had applied and were successful.
In this situation, we had requested the learned ASG,
Mr.Mohan Parasaran, to take instructions from the
Government of NCT of Delhi in its Department of and
Technical Education as to whether the Scheduled Tribes
students, referred to hereinabove, could be
accommodated although the first semester was to be
completed soon. The learned ASG has produced a copy
of instructions received by him from the OSD, DTU &
Deputy Director(TTE) Mr. O.P. Shukla, wherein it has
been mentioned that if the Delhi Category of Scheduled
Tribes students who were successful and had been
selected for counselling were to be admitted, special
classes would be arranged for them to complete the
mandatory teaching requirements of 13 weeks for one
semester and thereafter they could catch up with the
other students for the second semester in March, 2010. It
has also been indicated that loss of study of these
students in January and February, 2010 of second
semester will be compensated by holding special/extra
classes on Saturdays and Sundays and other vacations. It
was also indicated that while issuing directions, the
Court should not extend the benefit to Scheduled Tribes
candidates who have already taken admission in any
Institute/University in Delhi as that would disturb to the
entire admission process.
Apart from the learned ASG, we have also heard Mr.
Naresh Kaushik, learned counsel, in support of I.A.Nos.9
and 10 and Ms. Lata Krishnamurthy, learned counsel, in
respect of I.A.Nso.11 and 12. In addition, we have also
heard Mr.D.N. Goburdhan, learned counsel, who had
appeared for the appellant in the Civil Appeal. While
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& 3223/11 Page 61
learned counsel for the applicants were all ad idem in
their approach to the matter, Mr.Goburdhan had
reservations and submitted that any order that may be
passed in these applications would amount to violation of
provisions of the Constitution itself.
Having considered the submissions made on behalf of the
parties, it should first be clarified that we are only
considering whether the judgment and order passed in
the Civil Appeal intended to cover even those Scheduled
Tribes candidates who had not only participated in the
selection process but had also been selected for
counselling prior to the delivery of the said judgment. We
are of the view that this does not entail invocation of our
power under Article 142 of the Constitution and,
accordingly, Mr. Goburdhan's submission, has no merit.
We clarify that the judgment delivered in C.A. No.
5092/2009 was intended to take effect prospectively and
it was not the intention of the Court that the students who
had already applied and had been selected for
counselling should also be covered by the same. The
High Court had in its judgment indicated that there were
no materials on record to prove that the S.T. applicants
were migrants. In our view such a consideration is
immaterial for our purpose since despite the fact that the
notification had been issued under Article 341 of the
Constitution, as per past practice, S.T. candidates were
being given admission in Delhi educational institutions.
Unfortunately, although the applications were made soon
after the judgment was delivered, the same could not be
taken up for final disposal before the first semester has
almost come to an end. In such circumstances, we accept
the recommendations of the Department of Training &
Technical Education,
Government of NCT of Delhi, and direct that the
successful students who had been called for counselling
and have not already taken admission in any institution
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or University in Delhi, would be entitled to admission in
the respective institutions for which they had applied for
and also direct that special classes be arranged for the
students to enable them to catch up with those who are in
the process of completing the final semester. Such
admission process should be completed, if possible,
within a week from date."
(emphasis supplied)
49. This Court is of the opinion that the above clarification (about
Subhash Chandra being prospective) was meant to cover the candidates
who had participated in the admission process in Subhash Chandra‟s case.
However, that order of the Supreme Court was meant to tide over the
hardship that was likely to flow from the implementation of the Subhash
Chandra judgment. That clarificatory order of the Supreme Court itself was
by a two judge Bench of the Supreme Court, and did not consider which of
the two decisions, i.e Pushpa, or Subhash Chandra was correct. In these
circumstances, having regard to the decision of the Supreme Court in Ram
Chandra Trivedi‟s case (supra) the law and opinion in Pushpa has to
prevail, since it is by a larger Bench (than Subhash Chandra). This course is
to be followed additionally, on the authority of the decisions of the Supreme
Court in Ganapati Sitaram Balvalkar & Anr. v. Waman Shripad Mage
(Since Dead) Through Lrs., [1981] 4 SCC 143; Mattulal v. Radhe Lal,
[1975] 1 SCR 127; Acharaya Maharajshri Narandrapra- sadji
AnandprasadjiMaharaj etc. v. The State of Gujarat& Ors., [1975] 2 SCR
317 and Union of India v Raghubir Singh AIR 1989 SC 1933. In the last
mentioned decision, by a Constitution Bench, the Supreme Court pertinently
held that (the):
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& 3223/11 Page 63
"pronouncement of law by a Division Bench of this Court is
binding on a Division Bench of the same or a smaller number
of Judges, and in order that such decision be binding, it is not
necessary that it should be a decision rendered by the Full
Court or a Constitution Bench of the Court."
50. Some of the petitioners were asked to appear in the re-typing test on
account of directions in Anupam Garg‟s judgment, by a Division Bench. In
the case of Monika Meena, (the petitioner in W.P. 7717/2010), the
respondent's position is that she secured an overall marks of 123 and had
got 30 marks in the first typing test, and that since she had produced an ST
certificate which showed that her father was a migrant, she could not be
given the benefit of reservation. Though she had secured more marks than
the last general category candidate (which was 117), she was denied
appointment as she was overaged, according to the general category criteria.
In the case of Sandeep Soni (W.P. 3278/2011), the facts are that he was
allowed to compete as a SC candidate but was asked to later appear in the
re-typing test, as the certificate was in relation to a state outside Delhi. He
was consequently treated as a general category candidate; his overall marks
are 114, and the last cut off marks in respect of general category candidates
is 117.5.
51. In all the cases, the writ petitioners' initial claim as Scheduled caste or
scheduled tribe candidates had been accepted and they were allowed to
compete. They were successful in the recruitment test. Later, they were told
about Subhash Chandra‟s judgement. Subsequently, some of them appeared
in the re-typing test, necessitated by the judgment of the Division Bench in
Anupam Garg. This was used as an occasion to treat them as general
W.P.(C) 5390/10, 7717/10, 7878/10, 8368/10, 816/11, 1205/11, 1513/2011, 1713/11, 3278/11,
& 3223/11 Page 64
category candidates. This court is of the opinion that having regard to the
clear judgments of the Supreme Court about the binding nature of the
judgment of larger Bench decisions, the law declared by Pushpa could not
have been disregarded, even if there were a judgment by a two judgment
decision to the contrary. Furthermore, there was no change in the ground
reality between the time when the petitioners initially appeared, and were
asked to appear in the re-typing test again. The only object of the re-typing
test was to see the proficiency of those who had secured between 20 and
29.5 marks. However, that could not have meant that the respondents
unilaterally changed the status of the petitioners - in the middle of the
recruitment process- to general category candidates. In the case of Monika
Meena, the injustice which has ensued is writ large; she has more than the
cut off scored by the last candidate in the general category, and also had
scored 30 marks in the typing test. Yet, she is now denied appointment on
the ground that as general category candidate she was "overage". On the
other hand, she is not overaged, if the original status recognized by the
respondents as a reserved category candidate, is continued.
52. As a result of the above discussion, it is held that the writ petitioners'
claims to be members of scheduled castes and scheduled tribes, having been
accepted on the basis of the prevailing understanding that migrant citizens
who fall within the description of one or more scheduled castes, or tribes,
somewhere in the country (and might not necessarily fit that description in
the list in relation to Delhi), based on Pushpa, have to be considered and
their cases processed for the purpose of appointment. In view of the
authoritative pronouncements of the Supreme Court mentioned above, it
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& 3223/11 Page 65
cannot be said that Subhash Chandra overruled Pushpa. Their cases for
appointment have to be processed, regardless of the circular dated 13-10-
2010 issued by the District Judge, Delhi; they shall be treated as scheduled
caste or tribe candidates, for this purpose. These writ petitioners therefore,
are entitled to relief.
Writ Petitions 816/2011, 1713/2011 and 8368/2010
53. The writ petitioners in these proceedings appeared as Other Backward
Class (OBC) candidates, for the post of Lower Division Clerk (LDC)
advertised by the District Judge. The subject matter of these is similar to
those in the batch writ petitions dealt with above [W.P.(C) 5930/2010,
3223/2011, 3278/2011 and 7717/2010]. However, unlike in the other cases,
the petitioners are OBC candidates. Their grievance is that though they
appeared and were treated as OBC candidates, later, after the decision in
Anupam Garg‟s case, which occasioned a retyping test, their certificates
were not accepted.
54. The respondents' submission in these cases is that after the initial
selection/recruitment process, their results were withheld on account of the
decision in Subhash Chandra‟s case. Even though the writ petitioner in
W.P.(C) 8368/2010 appeared in the second retyping test, the fact remained
that as on the date of her application, the certificate furnished was issued by
some authority in Chandigarh. The petitioner, Veena Yadav was born and
educated outside Delhi and, therefore, could not claim benefit of reservation
as an OBC candidate. Besides these, it is argued that unlike SCs/STs, OBC's
stand on an entirely different footing and there is no change in law. The
respondents' counsel relied upon the Supreme Court decision in MCD v.
W.P.(C) 5390/10, 7717/10, 7878/10, 8368/10, 816/11, 1205/11, 1513/2011, 1713/11, 3278/11,
& 3223/11 Page 66
Veena and Ors. 2001 (6) SCC 571. Learned counsel also relies upon Article
340 of the Constitution of India, which requires the President to appoint a
Commission to investigate conditions of backward classes and make
recommendations. It is submitted that unlike in the case of Articles 341and
342 in respect of SCs/STs, there are no similar presidential notifications
which have sanctity and primacy for OBCs.
55. It can be seen from the above discussion that the writ petitioners in
these cases are not members of the SCs/STs. The certificate issued in their
cases clearly brought out the fact that they were OBCs from outside Delhi;
those certificates were furnished at the time the application was made. In
this context Article 340 reads as follows:
"340. Appointment of a Commission to investigate the
conditions of backward classes -
(1) The President may by order appoint a Commission
consisting of such persons as he thinks fit to investigate
the conditions of socially and educationally backward
classes within the territory of India and the difficulties
under which they labour and to make recommendations
as to the steps that should be taken by the Union or any
State to remove such difficulties and to improve their
condition and as to the grants that should be made for
the purpose by the Union or any State and the conditions
subject to which such grants should be made, and the
order appointing such Commission shall define the
procedure to be followed by the Commission.
(2) A Commission so appointed shall investigate the matters
referred to them and present to the President a report
setting out the facts as found by them and making such
recommendations as they think proper.
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& 3223/11 Page 67
(3) The President shall cause a copy of the report so
presented together with a memorandum explaining the
action taken thereon to be laid before each House of
Parliament."
56. The Supreme Court had occasion to consider the claim of reservation
for OBCs under the Constitution in Veena‟s case. The Court was alive to the
fact that OBCs are notified in respect of each State. The Court had to
consider the facts from an almost identical fact situation where candidates
from one State claimed to be OBCs in another State or in another Union
Territory. Veena (supra) pertained to the Union Territory of Delhi. The
Court held that the OBC certificate issued by one State authority or in
respect of a resident of a State with his origins in that State would be
inadmissible in another State or Union Territory, for purposes of
employment etc., and that the candidate cannot claim be an OBC in the
other State. The Court pertinently held as follows:
"6 . Castes or groups are specified in relation to a given State
or Union Territory, which obviously means that such caste
would include caste belonging to an OBC group in relation to
that State or Union Territory for which it is specified. The
matters that are to be taken into consideration for specifying a
particular caste in a particular group belonging to OBCs would
depend on the nature and extent of disadvantages and social
hardships suffered by that caste or group in that State.
However, it may not be so in another State to which a person
belonging thereto goes by migration. It may also be that a caste
belonging to the same nomenclature is specified in two States
but the considerations on the basis of which they had been
specified may be totally different. So the degree of
disadvantages of various elements which constitute the data for
specification may also be entirely different. Thus, merely
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& 3223/11 Page 68
because a given caste is specified in one State as belonging to
OBCs does not necessarily mean that if there be another group
belonging to the same nomenclature in another State, a person
belonging to that group is entitled to the rights, privileges and
benefits admissible to the members of that caste. These aspects
have to be borne in mind in interpreting the provisions of the
Constitution with reference to application of reservation to
OBCs."
57. It is also clear that in the case of OBCs, the considerations which
weigh with the executive government in issuing notifications are different
than in the case of the Scheduled Castes and Tribes. The power to issue
Notifications is not rigidly conditioned as in the case of Articles 341 and
342; Parliament also does not have exclusive jurisdiction. The degree of
backwardness in the case of OBCs is of an entirely different kind than in the
case of Scheduled Castes and Tribes. In view of the above discussion, this
Court is of the opinion that the above three writ petitions W.P.(C) 816/2011,
1713/2011 and 8368/2010 have to fail.
Writ Petition No. 1205/2011
58. In this case too, the petitioners had applied for appointment to the post
of LDC pursuant to the advertisement issued by the District Judge. The first
two petitioners are members of Other Backward Classes (OBC) but whose
castes are notified in relation to other states and whose fathers had shifted
residence to Delhi. The third and fourth petitioners (Sandeep Kumar and
Alaxender Toppo) belong to Scheduled Tribes, notified as such in other
states such as Haryana and Bihar. The fifth petitioner is a member of a
Schedule Castes notified in Bihar. Their common case is that all of them
claimed that their applications were processed and they were permitted to
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& 3223/11 Page 69
appear in the written examination, subsequently in the typing test and also in
the interview (the latter being held on 13.05.2010). It is also stated that they
were issued with letters of appointment in June, 2010, and they underwent
medical examination. One petitioner i.e. Radhey Shyam even resigned from
his existing service.
59. The petitioners aver that in this background, the respondents
subsequently took the position that they were not entitled to be treated as
reserved category candidates and were, therefore, treated as belonging to the
general category. It is stated that their appointments were consequently
withheld.
60. The position of the respondents during the arguments was similar as
in other cases, namely, that since the petitioners claim the benefit as
reserved candidates, which was inadmissible in view of the Subhash
Chandra‟s judgment, they cannot be appointed to the reserved vacancies.
61. As in the case of WP Nos. 816/2011, 1713/2011 and 8368/2010, the
first two petitioners' claim for appointment cannot be considered. They
belong to OBC not notified as such in Delhi. The petition, as far as they are
concerned, has to consequently fail. So far as the other three petitioners
(Nos. 3 to 5) are concerned, for the reasons mentioned in Paragraph 49 of
this judgment, the respondents have to, on the basis of the ruling in
Pushpa‟s case, continue to treat them as Scheduled Castes or Scheduled
Tribes candidates, as the case may be. Their cases are to be processed
having regard to the last cut off marks obtained by those who were
appointed in such reserved category. This writ petition has to, therefore,
succeed as far as the third, fourth and fifth petitioners are concerned. It has
to fail as regards the first two petitioners.
W.P.(C) 5390/10, 7717/10, 7878/10, 8368/10, 816/11, 1205/11, 1513/2011, 1713/11, 3278/11,
& 3223/11 Page 70
W.P. No.1513/2011
62. In this case, the Delhi Jal Board claims to be aggrieved by an order of
the Central Administrative Tribunal (C.A.T.) dated 7.9.2010 in O.A.
No.2181/2010. The facts are that the applicants before the CAT
(Respondent nos.1-8 in the present appeal and hereafter called the general
category officers), had challenged the final seniority list drawn by the Delhi
Jal Board (hereafter referred to as "the Board"). In that, the Respondent
nos.9-11 (who were originally arrayed before the Tribunal as Respondent
nos.5-7 and are referred to hereafter as the "SC/ST officers") had been
treated as senior to the said general category officers on the basis of their
being members of Scheduled Castes or Scheduled Tribes. These general
category employees had contended that the said SC/ST officers were
ineligible for the benefit of reservations since their castes were not notified
as Scheduled Castes "in relation to" Delhi.
63. Before the Tribunal, the respondents, i.e., the reserved category
employees had relied upon the clarification issued by the Supreme Court in
respect of the prospective application of Subhash Chandra‟s judgment.
However, the Tribunal held that the clarification was not to any avail and
that reasoning in Subhash Chandra‟s case applied retrospectively. The
Tribunal also sought to place reliance upon the ruling in Marri
Chandrashekhar Rao and the Action Committee cases.
64. We have considered the submissions of the parties. In this case, the
reserved category candidates had been appointed to the reserved posts as far
back as in 1989 and 1990. Even though the question of their seniority on
account of their being members of the Scheduled Castes and Scheduled
Tribes did not arise then, nevertheless, the fact remains the Board did not
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& 3223/11 Page 71
have any grievance; indeed it treated their claim to belong to the members of
the Scheduled Castes as valid. If the Tribunal's logic i.e. that such
employees or officials cannot be treated as Scheduled Castes or Scheduled
Tribes members, were to be upheld, logically, they were also not entitled to
hold the post since their appointments were made in the very first instance
on the basis of their being members of such Scheduled Castes. Such an
unreasonable and wholly inequitable result cannot follow. The other result
of the CAT's decision would be that for the purpose of initial appointment,
these SC/ST candidates would be treated as such, but for the purpose of
seniority, and accelerated promotion, they would be denied reservation
benefits. Furthermore, the status of such SC/ST officers could not have
been allowed to be challenged after such a long time, i.e after more than two
decades. The Tribunal erred in entertaining the applications of the first eight
respondents, and ought to have dismissed it, on this short ground, since the
issue of status of such SC/ST officers stood settled more than 20 years ago,
and could not have been questioned. The finalization of seniority might have
arguably led the applicants to approach the Tribunal; however, as to the
status of the SC/ST officers, the issue could not have been gone into, since
their initial appointments had been finalized long ago.
65. These petitions pose a difficult challenge to the High Courts when
they are confronted with differing, and at times conflicting judgments of the
Supreme Court. On the one hand, the decision in Pushpa (by three judges) is
seemingly in conflict with rulings of at least three Constitution Benches of
the Supreme Court. However, there cannot be any doubt as to its binding
nature, since it pointedly and specifically deals with the question of migrant
scheduled tribes and scheduled caste candidates entitlements to reservation
W.P.(C) 5390/10, 7717/10, 7878/10, 8368/10, 816/11, 1205/11, 1513/2011, 1713/11, 3278/11,
& 3223/11 Page 72
benefits under the Constitution, when they move to Union Territories. At the
same time, the reasons outlined in Subhash Chandra about the correctness
of Pushpa‟s views are weighty and powerful; yet the fact remains that the
said decision was by a Bench of two judges, and could not be construed as
having "overruled" Pushpa. In fact, the approach adopted by Subhash
Chandra has been frowned upon, and the conflict between Subhash
Chandra and Pushpa has been referred to a Constitution Bench in the State
of Uttaranchal case. At the same time, the fact that Pushpa remains as a
binding precedent, cannot be ignored by virtue of the overbearing nature of
Article 141 of the Constitution. In this background, the clarification by a
two Bench decision that Subhash Chandra should operate prospectively, has
to be viewed in the context. The two judge Bench was concerned with the
effect of Subhash Chandra, in respect of those who had applied for
admission the process of which had not been completed. The clarification
was meant really to cover their cases, and minimize the adverse impact
which would have flowed on a strict application of Subhash Chandra.
However, if that order itself were to be a normative declaration, further
inequities would arise, because the binding nature of Pushpa has not been
undermined in it. Also, in the context of seniority, as in the case of the
officials of the Board, if it is held that for purposes of initial employment,
scheduled caste and tribe officers who had migrated from states and places
other than Delhi, would continue to be treated as possessing that status, but
would be denied further benefits, such as seniority positions, and
promotions, which they would have otherwise been legitimately entitled to
as members of such scheduled castes or tribes (on account of prospective
application of Subhash Chandra‟s case), the result would be utterly unjust
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& 3223/11 Page 73
and inequitable. It would lead to a highly anomalous situation where
reservation benefit would be admitted at the stage of appointment but denied
for subsequent benefits. This would itself result in violation of Articles 16
(4A) and 16 (4B) of the Constitution. As a result of the above discussion,
the present petition deserves to succeed.
Conclusions
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
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& 3223/11 Page 74
legislation or through policies or circulars. 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
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& 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, flowing out of
Articles 16 (4A) and (4B) of the Constitution, there may be need for clarity,
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& 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.
67. In view of the above discussion WP No. 5390/2010; WP No.
3223/2011 3278/2011, 7717/2010 are allowed. The third, fourth and fifth
Petitioners in W.P. 1205/2010 are entitled to succeed; the said petition is
allowed to that extent. The said petition is dismissed, as far as the first and
second writ petitioners are concerned. For the reasons mentioned earlier,
W.P.(C) 816/2011, 1713/2011 7878/2010 and 8368/2010 are dismissed.
W.P.(C) No. 1513/2011 is allowed, and the impugned order of the Central
Administrative Tribunal is set aside. Consequently, in WP No. 5390/2010;
WP No. 3223/2011 3278/2011, 7717/2010 as well as WP 1205/2010 (as far
as it concerns the third, fourth and fifth Petitioners) the District Judge, and
the Govt. of NCT are hereby directed to ensure that the petitioners' cases for
appointment to LDC are processed, and they are treated as scheduled caste
or schedule tribe candidates, entitled to be considered as such, and
appropriate orders made in that regard. This exercise shall be concluded
within six weeks from today.
68. Having regard to the public importance of the questions which have
arisen and have been dealt with, in relation to the interpretation of Articles
16, 341and 342 of the Constitution of India, the Court hereby grants
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& 3223/11 Page 77
certificate to appeal to the unsuccessful parties, under Article 134A of the
Constitution of India, to appeal to the Supreme Court.
69. There shall be no order on costs.
S. RAVINDRA BHAT
(JUDGE)
ACTING CHIEF JUSTICE
RAJIV SAHAI ENDLAW
(JUDGE)
September 12, 2012
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