Delhi High Court
Dsssb vs Vikas Kumar on 27 November, 2013
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: August 12, 2013
Judgment Delivered on: November 27, 2013
+ WP (C) 3049/2012
RAVINDRA DEVI ..... Petitioner
Represented by: Mr.Pradeep Kumar, Advocate
versus
GOVT.OF NCT OF DELHI & ORS. ..... Respondents
Represented by: Ms.Anjana Gosain, Advocate
Judgment Reserved on: November 21, 2013
Judgment Delivered on: November 27, 2013
WP (C) 6485/2011
DSSSB ..... Petitioner
Represented by: Ms.Zubeda Begum, Advocate with
Ms.Sana Ansari, Advocate
versus
VIKAS KUMAR ..... Respondent
Represented by: Mr.S.Gowthaman, Advocate with
Mr.Paari Vendhan and Ms.Arunima
Pal, Advocates
Judgment Reserved on: November 21, 2013
Judgment Delivered on: November 27, 2013
WP (C) 6872/2013
PAPPU RAM MEENA & ORS. ..... Petitioners
Represented by: Ms.Aditi Gupta, Advocate with
Mr.Prateek Sehrawat, Advocate
versus
DSSSB ..... Respondent
WP(C) No.3049/2002 & Ors. Page 1 of 26
Represented by: Ms.Zubeda Begum, Advocate with
Ms.Sana Ansari, Advocate for
GNCTD & DSSSB
Ms.Mini Pushkarna, Advocate for R-3
with Mr.N.K.Ghai, Assistant Director,
Education Department
Judgment Reserved on: November 25, 2013
Judgment Delivered on: November 27, 2013
WP (C) 7146/2013
LEKH RAJ MAHAR & ANR. ..... Petitioners
Represented by: Ms.Amita Kalkal, Advocate with
Ms.Aditi Gupta and Mr.Denning,
Advocates
versus
DSSSB ..... Respondent
Represented by: Ms.Zubeda Begum, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR.JUSTICE V.KAMESWAR RAO
PRADEEP NANDRAJOG, J.
1. The ills in the Indian society of the caste system rightly compelled the
makers of the Constitution to provide for reservations of the backward
classes and thus we have the constitutional provisions pertaining to not only
reservation but even declaration of those who would be entitled to be
declared Scheduled Castes and Scheduled Tribes and hence to avail the
benefit of reservation.
2. Since social discrimination and oppression and hence being a
backward class, is the result of a social practice adopted in an area by the
polity, the declaration of a class of persons being to a Scheduled Caste or a
Scheduled Tribe is confined to an area, and the question with which we are
concerned in the above captioned batch of writ petitions is : Whether a
Member of a Caste or a Tribe notified as a Scheduled Caste or a Tribe in an
area other than the geographical area of Delhi can avail the benefit of
reservation in Delhi for appointment to a post under the Government of NCT
of Delhi or the Municipal Corporation of Delhi.
3. The Constitution (Scheduled Castes) (Union Territories) Order 1951
as amended in the years 1956, 1976 and 1987 notified the Scheduled Castes
in various Union Territories, and pertaining to Delhi we find only 36 castes
notified as Scheduled Castes. They are:- 1. Ad-Dharmi, 2. Agria, 3. Aheria,
4. Balai, 5. Banjara, 6. Bawaria, 7. Bazigar, 8. Bhangi, 9. Bhil, 10. Chamar,
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, 31. Perna, 32. Sansi
or Bhedkut, 33. Sapera, 34. Sikligar, 35. Singiwala or Kalbelia and 36.
Sirkiband.
4. Thus, only Members of aforenoted 36 castes, being the residents of
Delhi when the presidential notification was issued in the year 1951,
including their descendents would be entitled to be treated as Scheduled
Castes in Delhi and entitled as a matter of right to the benefit of reservation.
But, would others also be?
5. We note that there is no presidential notification notifying any
Scheduled Tribe in Delhi.
6. The issue of migrants being entitled to benefit of reservation was
considered by the Constitution Bench of the Supreme Court in the decision
reported as (1990) 3 SCC 130 Marri Chandra Shekhar Rao vs. Dean, Seth
G.S. Medical College & Ors.
7. The petitioner therein, belonging to Gouda/Goudu community, listed
as a Scheduled Tribe in the State of Andhra Pradesh as per the Constitution
(Scheduled Tribe) Order 1950 as amended from time to time, sought benefit
of reservation in the State of Maharashtra on the strength of being a Member
of the Scheduled Tribe. The Supreme Court framed the question : „Whether
one who is recognized as a Scheduled Tribe in the State of his origin and
birth continues to have the benefits or privileges or rights in the State of
migration or wherever he later goes?"
8. The question was answered in the negative. The reasoning being as
under:-
"7. In this connection, the provisions of Articles 341 and 342
of the Constitution have been noticed. These articles enjoin that
that President after consultation with the Governor where
States are concerned, by public notification, may specify the
tribes or tribal communities or parts or groups of tribes or
tribal communities, which shall be deemed to be Scheduled
Tribes in relation to that State under Article 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 pan 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 purpose of this Constitution‟ seeks to
convey.
x x x
9. It appears that Scheduled Castes and Scheduled Tribes in
some States had to suffer the social disadvantages and did not
have the facilities for development and growth. It is, therefore,
necessary in order to make them equal in those areas where
they have so suffered and are in the state of under development
to have reservations or protection in their favour so that they
can compete on equal terms with the more advantageous or
developed sections of the community. Extreme social and
economic backwardness arising out of traditional practices of
untouchability is normally considered as criterion for including
a community in the list of Scheduled Castes and Scheduled
Tribes. The social conditions of a caste, however, varies from
state to state and it will not be proper to generalise any caste or
any tribe as a Scheduled Tribe or Scheduled Caste for the
whole country. This, however, is a different problem whether a
member of the Scheduled Caste in one part of the country who
migrates to another State or any other Union Territory should
continue to be treated as a Scheduled Caste or Scheduled Tribe
in which he has migrated. That question has to be judged taking
into consideration the interest and well-being of the Scheduled
Castes and Scheduled Tribes in the country as a whole.
It has, however, to be borne in mind that a man does not cease
to belong." to his caste by migration to a better or more socially
free and liberal atmosphere. But if sufficiently long time is
spent in socially advanced area then, the inhibitions and
handicaps suffered by belonging to a socially disadvantageous
community do not continue and the natural talent of a man or a
woman or a boy or girl gets full scope to flourish. These,
however, are problems of social adjustment i.e. how far
protection has to be given to a certain segment of socially
disadvantaged community and for how long to become equal
with others is a matter of delicate social adjustment. These must
be so balanced in the mosaic of the country's integrity that no
section or community should cause detriment or discontentment
to other community or part of community or section. 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 in order to become equal with others.
But equally those who go to other areas should also ensure that
they make way for the disadvantaged and disabled of that part
of the community who suffer from inabilities in those areas. In
other words, Scheduled Castes and Scheduled Tribes say of
Andhra Pradesh do require necessary protection as balanced
between other communities. But equally the Scheduled Castes
and Scheduled Tribes say of Maharashtra in the instant case,
do require protection in the State of Maharashtra, which will
have to be in balance to other communities. This must be the
basic approach to the problem. If one bears this basic approach
in mind, then the determination of the controversy in the instant
case does not become difficult....
x x x
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 Guj 83 to 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 Ori 220 and the full Bench of the Bombay High
Court in M.S. Malathi v. The Commissioner, Nagpur Division
and Ors., AIR 1989 Bom 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) P&H 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
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 part 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
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.
x x x
22. In that view of the matter, we are of the opinion that the
petitioner is not entitled to be admitted to the medical college
on the basis of Scheduled Tribe Certificate in Maharashtra. In
the view we have taken, the question of petitioner‟s right to be
admitted as being domicile does not fall for consideration."
(Emphasis Supplied)
9. The same question was re-agitated before another Constitution Bench
of the Supreme Court and the opinion is reported as (1994) 5 SCC 244
Action Committee on Issue of Caste Certificate to scheduled Castes and
Scheduled Tribes in the State of Maharashtra and Anr. v. Union of India
(UOI) and Anr. The following question was posed : „Where a person
belonging to a caste or tribe specified for the purposes of the Constitution to
be a Scheduled Caste or Scheduled Tribe in relation to State A migrates to
State B where a caste or tribe with same nomenclature is specified for the
purposes of the Constitution to be a Scheduled Caste or Scheduled Tribe in
relation to that State B, will that person be entitled to claim the privileges
and benefits admissible to persons belonging to the Scheduled Castes and/or
Scheduled Tribes in State B‟? The question was posed in view of the fact,
self-evident from the question, two or more castes or tribes were notified as
Scheduled Castes or Tribes in two or more States and a member thereof
residing in one State and based on residence in said State had obtained a
certificate certifying him to be a Member of a Scheduled Caste or a
Scheduled Tribe and was claiming benefit of reservation in a State to which
he had migrated.
10. Placing reliance upon its earlier decision in Marri's case (supra), the
Constitution Bench answered the above question in the negative. In so
concluding, the Court observed as under:-
3. On a plain reading of Clause (1) of Articles 341 and 342 it is
a 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, the Parliament can
be law include in or exclude from the list of Scheduled Castes
or Scheduled Tribes, specified in the notification, any caste or
tribe but save for that limited purpose the notification issued
under Clause (1), shall not be varied by any subsequent
notification. What is important to notice is that the castes or
tribes have to be specified in relation to a given State or Union
Territory. That means a given caste or tribe can be a Scheduled
Caste or a Scheduled Tribe in relation to the State or Union
Territory for which it is specified. These are the relevant
provisions with which we shall be concerned while dealing with
the grievance made in this petition.
x x x
15. We may add that considerations for specifying a
particular caste or tribe or class for inclusion in the list of
Scheduled Castes/Scheduled 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. This is an aspect
which has to be kept in mind and which was very much in the
minds of the Constitution makers as is evident from the choice
of language of Articles 341 and 342 of the Constitution.
x x x
17. We are in respectful agreement with the above view
expressed by the Constitution Bench in the aforesaid decision.
All the points which were canvassed before us by Mr.Raju
Ramchandran were also canvassed by him in the said matter.
They were negative by the Constitution Bench. Nothing has
been pointed out to persuade us to think that the view taken by
the Constitution Bench requires reconsideration by a larger
Bench. In fact we are in complete agreement with the
interpretation placed on the various provisions of the
Constitution, in particular Articles 341 and 342 thereof, in the
said judgment. We, therefore, see no merit in this writ petition
and dismiss the same." (Emphasis Supplied)
11. Pertaining to the Union Territory of Delhi, in relation to Members of
Other Backward Classes (OBC), who had migrated to Delhi but were
seeking benefit of OBC reservation in Delhi, in the decision reported as
2001 (6) SCC 571 MCD Vs. Veena, the following question(s) were posed :
„Whether the certificates of candidates belonging to backward classes in
States other than Delhi could hold good for the purpose of recruitment to
the post of primary and nursery teachers in Municipal Corporation of Delhi
in the National Capital Territory of Delhi? Whether the Other Backward
Classes (for short „OBCs‟) of the States other than Delhi can be treated as
OBCs in Delhi and can be extended the benefits related thereto in Delhi‟?
12. Placing reliance upon the decisions of Constitution Bench in Marri
and Action Committee‟s cases (supra) the Supreme Court held as under:-
"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 upon 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
belongs thereto goes by migration. It may also be that a caste
belonging to the same nomenclature is specified in two States
but the consideration on the basis of which they have been
specified may be totally different. So the degree of
disadvantages of various elements which constitute the date for
specification may also be entirely different. Thus, merely
because a given caste is specified in one State belonging to
OBCs does not necessarily mean that if there be another group
belonging to the same nomenclature in other State and 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.
9. A careful reading of this notification would indicate that
the OBCs would be recognized as such in the Government of
National Capital Territory of Delhi as notified in the
Notification dated 20.01.1995 and further for the purpose of
verification of claims for belonging to castes/communities in
Delhi as per the list notified by the National Capital Territory
of Delhi the certificates will have to be issued only by the
specified authorities and certificates issued by any other
authority could not be accepted. The Government of India has
also issued instructions from time to time in this regard which
indicated that a person belonging to OBC on migration from
the State of his origin in another State where his caste was not
in the OBC list was entitled to the benefits or concessions
admissible to the OBCs in his State of origin and Union
Government, but not in the State to which he has migrated.
Thus the High Court lost sight of these aspects of the matter in
taking the impugned order in either ignoring the necessary
notifications issued in regard to classification of OBC
categories or in the matter of verification thereof. Thus the
order made by the High Court in this regard deserves to be
reversed."
13. A discordant note was struck by a three Bench decision of the
Supreme Court reported as (2005) 3 SCC 1 S. Pushpa vs. Sivachanmugavelu
& Ors. The facts of said case were that the Directorate of Education,
Government of Pondicherry, issued an advertisement to effect recruitment
of 350 General Central Service Group 'C' posts of Secondary Grade
Teachers out of which 56 posts were reserved for SC candidates. In response
to the notification, the employment exchange sponsored the names of
candidates in respect of various categories including SC candidates. Besides,
as envisaged and in conformity with the National Employment Service
Manual, the employment exchange also sponsored some names of SC
candidates from neighbouring employment exchanges since sufficient
number of candidates were not available in the Union Territory of
Pondicherry. The final select list of 55 SC candidates included 29 to whom
SC certificates were issued by the Governments of Tamil Nadu, Andhra
Pradesh and Kerela. The proposed appointment of said 29 candidates was
questioned on the ground that only those who were members of Scheduled
Castes notified in the presidential order pertaining to Pondicherry were
entitled to reservation for Scheduled Castes in Pondicherry. The
Constitution Bench decisions in Marri Chandra's case (supra) and Action
Committee's case (supra) were relied upon.
14. After examining the provisions of Articles 230, 231, 239, 239A,
239B, 240, 341 and 342 of the Constitution, Section 3(8) of General Clauses
Act, 1987, Section 3 of Pondicherry (Administration) Act, 1962 and Section
50 of Government of Union Territory Act, 1963 the Court held as under:-
"14. The effect of these provisions is also that the
Administrator (Lt. Governor of Pondicherry) and his Council of
Ministers act under the general control of and are under an
obligation to comply with any particular direction issued by the
President. Further, the administrator (Lt. Governor of
Pondicherry) while acting under the scope of the authority
given to him under Article 239 of the Constitution would be the
Central Government.
x x x
16. 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 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.
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 (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.
18. The contesting respondents (applicants before the
Tribunal, who challenged the selection) can derive no benefit
from the decision in Marri Chandra Shekhar Rao (supra). In
this case the writ petitioner Mari Chandra was born in Gouda
community in the State of Andhra Pradesh, which is recognized
as a Scheduled Tribe in the Presidential Order issued for the
said State. For getting admission in a medical college in the
State of Maharashtra, he claimed benefit of reservation being
an ST. Gouda community was not recognized as Scheduled
Tribe in the Presidential Order issued for the State of
Maharashtra and on this ground he was denied the benefit of
reservation. He then filed the writ petition claiming that he is
entitled for benefit of reservation being a member of ST. It was
in these circumstances that it was held that his community
having not been included as an ST in the Presidential Order
issued for State of Maharashtra, he had no legal right to claim
benefit of reservation in State of Maharashtra. The U.T. of
Pondicherry having consistently followed the practice of the
Central Government where all scheduled caste candidates were
given benefit of reservation, the selection made following the
said policy could not be held to be suffering from any legal
infirmity on the principle laid down in Marri Chandra Shekhar
Rao (supra).
x x x
20. Though, a migrant SC/ST person of another State may
not be deemed to be so within the meaning of Art. 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
forward caste.
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 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.
22. For the reasons discussed above, we are of the opinion
that there has been no violation of any constitutional or any
other legal provision in making selection and appointment of
migrant Scheduled Caste candidates against the quota reserved
for Scheduled Castes on the post of Selection Grade Teachers.
The view to the contrary taken by the Tribunal cannot,
therefore, be sustained and has to be set aside." (Emphasis
Supplied)"
15. The ratio laid down in Pushpa's case can be summarized as under:
„There would be no infraction of any constitutional or legal provision if a
Union Territory by virtue of its peculiar position of being governed by the
President extends the benefit of reservation to all migrant Scheduled
Caste/Scheduled Tribe who are residents of said Union Territory,
irrespective of their nativity‟. In so concluding, one of the factors which
weighed in the mind of the Court was that since inception, the policy which
was followed by the Union Territory of Pondicherry was that all such
migrant SC/ST who are eligible for appointment to reserved posts/services
under the Central Government shall also be eligible for appointment to
reserved posts/services under the Pondicherry Administration, irrespective
of their nativity.
16. But, in the decision of a two Judge Bench of the Supreme Court
reported as 2009 (15) SCC 458 Subhash Chandra & Anr. Vs. DSSSB &
Ors., the correctness of the law declared in S.Pushpa's case was doubted
and the reasoning was opined to be obiter. The same is apparent from the
undernoted paragraphs :-
"63. Can it be said that Marri Chandra Shekhar Rao does not
apply to Union Territory? The answer thereto, in our opinion,
is a big emphatic „no‟. Both Articles 341 and 342 not only refer
to the State but also to the Union Territory.
x x x
65. If the principle applied in S.Pushpa (supra) is to be given
a logical extension, it will lead to an absurdity, that the
Scheduled Caste in a State brought under the control of
President under Article 356 could be altered by virtue of a
notification issued in pursuance under Article 16(4) of the
Constitution.
66. Clause (4) of Article 16 of Constitution, as noticed
hereinbefore, cannot be made applicable for the purposes of
grant of benefit of reservation for Scheduled Castes or
Scheduled Tribes in a State or Union Territory, who have
migrated to another State or Union Territory and they are not
members of the Scheduled Castes and Scheduled Tribes.........
x x x
95. The only question which survives is as to whether
S.Pushpa (supra) constitutes a binding precedent.
96. A decision, as is well known, is an authority for what it
decides and not what can logically be deduced there from......
x x x
106. We have noticed hereinbefore that the premise on which
S.Pushpa (supra) was rendered namely, Marri Chandra
Shekhar Rao (supra), had no application to Union Territories
was not correct......
x x x
110. Should we consider Pushpa to be an obiter following the
said question which arises herein. We think we should. The
decisions referred to hereinbefore clearly suggest that we are
bound by a Constitution Bench decision. We have referred to
two Constitution Bench decisions, namely Marri Chandra
Shekhar Rao and E.V. Chinnaiah. Marri Chandra Shekhar Rao
had been followed by this Court in a large number of decisions
including Three Judge Bench decisions. Pushpa, therefore,
could not have ignored either Marri Chandra Shekhar Rao or
other decisions following the same only on the basis of an
administrative circular issued or otherwise and more so when
the Constitutional scheme as contained in Clause (1) of Articles
341 and 342 of the Constitution of India putting the State and
Union Territory in the same bracket. Following Dayanand
(supra), therefore, we are of the opinion that the dicta in
Pushpa is an obiter and does not lay down any binding ratio."
17. In the decision reported as (2010) 12 SCC 794 State of Uttaranchal
vs. Sandeep Kumar Singh, a two Judge Bench of the Supreme Court noted
the observations aforenoted in Subhash Chandra' case pertaining to the
decision in S.Pushpa's case and referred the matter to a Constitution Bench
in the following words:-
"A two Judge Bench in Subhash Chandra and Anr. v. Delhi
Subordinate Services Selection Board and Ors. (2009) 15 SCC
458 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 these judgments 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 Constitutional Bench judgments to be per incuriam.
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 342(1) of the Constitution has any bearing on the State‟s
action in making provision for the reservation of appointments
or posts in favor 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 and 342 of the
Constitution is required to be resolved.
11. For the aforesaid reasons, therefore, in our view, it
would be appropriate that this case be placed before the
Hon‟ble Chief Justice of India for constituting a Bench of
appropriate strength. The registry is, accordingly, directed to
place the papers before the Hon‟ble Chief Justice for
appropriate directions." (Emphasis Supplied)
18. We find that the question(s) referred to the larger Bench in Sandeep
Kumar's case (supra) are still pending consideration before a larger Bench
of the Supreme Court.
19. Noting conflicting decisions by different Benches, some following the
law declared by the Supreme Court in S.Pushpa's case and some following
the law declared in Marri's and Action Committee's case, the matter was
referred to a Full Bench of this Court and we have the decision of the Full
Bench reported as 2012 (132) DRJ 169 Deepak Kumar & Ors. Vs. District
& Sessions Judge Delhi.
20. After examining the historical background leading to framing of
provisions relating to equality and reservation enshrined in the Constitution;
relevant provisions of the Constitution such as Articles 15, 16, 341 and 342;
decisions rendered by the Supreme Court on the point, more particularly the
decisions in Marri, Action Committee and Pushpa' cases (supra) and
binding nature of decision of 3-Judge Bench in Pushpa's case (supra)
doubted by a two Judge Bench of the Supreme Court in Subhash Chandra's
case as also the matter being referred to a larger Bench in Sandeep Kumar's
case, the Full Bench concluded its opinion as under:-
"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.
x x x
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 because a given case 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.
x x x
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 341(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
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 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, 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."
21. Thus, as far as this Court is concerned, till it holds the field, the
decision of the Full Bench in Deepak Kumar's case would hold the field and
would have to be enforced.
22. We may additionally note that much before the decision of the
Supreme Court in S.Pushpa's case which was pronounced in the year 2005,
on August 27, 2003 the Government of NCT of Delhi issued an Office
Memorandum on the subject of reservation for Scheduled Tribes for
recruitment to civil posts under the Government of NCT of Delhi, which
reads as under:-
"Ministry of Home Affairs, Govt. of India vide letter cited
above have clarified that the instructions contained in the
MHA, O.M. No.7/2/55/SCT dated 14.10.55, in accordance with
which the percentages of reservation prescribed for recruitment
on an All India basis are required to be followed in Delhi
continue to be in force and applicable in respect of civil post
under the Govt. of NCT of Delhi. Accordingly, the Civil posts
under the Govt. of NCT of Delhi reserved for Scheduled Tribes
are required to be filled up from amongst Scheduled Tribes
candidates irrespective of nativity.
Accordingly, it has been decided that Govt. of NCT of Delhi
may continue to reserve the prescribed percentage of Civil
posts under the Govt. for appointment of Scheduled Tribes
candidates as has been the practice in the past.
Therefore, in terms of the aforesaid clarification 7.5% of Civil
posts under the Govt. may be kept reserved for appointment of
Scheduled Tribes candidates irrespective of their nativity and
appropriate action for recruitment may be taken." (Emphasis
Supplied)
23. The position would be that in Delhi it would be a case of a conscious
decision taken, as was taken by the appropriate Government in the Union
Territory of Pondicherry, to extend benefit of reservation to, if we may use
the expression migrant Scheduled Castes and Scheduled Tribes, provided
the holder of the certificate is otherwise an ordinary resident of Delhi.
24. We had repeatedly asked learned counsel for the Government of NCT
Delhi to explain as to what would be the rationale for the Government of
NCT of Delhi to reserve posts for Scheduled Tribes in Delhi in the teeth of
the fact that no presidential order notifies a Scheduled Tribe in Delhi and yet
we find advertisements after advertisements inviting applications to fill up
posts under the Government of NCT Delhi, the Municipal Corporation of
Delhi, the New Delhi Municipal Council reserving 7.5% posts for members
belonging to Scheduled Tribes. There was no answer.
25. We now note the facts of each case.
26. Ravindra Devi, the writ petitioner of WP(C) No.3049/2012 has been
unsuccessful before the Tribunal. She claims benefit of reservation on the
strength of a certificate issued by the competent authority in the State of
Haryana certifying she belonging to the Scheduled Caste „Chamar‟.
27. The reason given by the Tribunal to deny her relief is wrong, being
that the certificate produced by her has been issued by an authority in
Haryana. But she would not be entitled to any relief because admittedly she
resides in Haryana and it had not her case that she is ordinarily a resident of
Delhi. The law declared in S.Pushpa's case (supra) is that a person who is a
member of a Scheduled Caste in a particular State would be entitled to
reservation in a Union Territory provided he is ordinarily a resident of the
Union Territory.
28. WP(C) No.3049/2012 is accordingly dismissed.
29. Challenge in WP(C) 6485/2011 is to the order dated March 23, 2011
allowing TA No.73/2010 filed by Vikas Kumar, the respondent in the writ
petition.
30. It is not in dispute that Vikas Kumar is ordinarily a resident of Delhi.
In fact, his parents migrated to Delhi. He was born in Delhi and has studied
in Delhi all throughout. The Senior Secondary School Examination has
been cleared by him as a student of a Government Senior Secondary School.
He has obtained a Graduate degree at a college at Delhi. He is a member of
a caste which is a Scheduled Caste not only in Delhi but even his parent
State where his ancestors resided before his father migrated to Delhi i.e. the
State of Uttar Pradesh. The Tribunal has correctly opined in his favour of
being entitled to the benefit of reservation in Delhi.
31. We accordingly dismiss WP(C) 6485/2011.
32. As regards WP(C) 6872/2013 the three writ petitioners who have
been denied relief by the Tribunal were a part of original eight. We find that
the reasoning of the Tribunal is a lack of pleading in the Original
Application that the eight petitioners before it were ordinarily residents of
Delhi.
33. We are of the opinion that the writ petition must fail on account of
delay and laches alone for the reason the recruitment relates to a selection
process which culminated in a declaration of results on May 29, 2009 and
OA No.761/2010 filed by the three writ petitioners along with five others
who have not approached this Court was dismissed on January 28, 2011 and
WP(C) 6872/2013 has been filed after one year and nine months i.e. on
October 22, 2013. The recruitment process has been completed in the
meanwhile and hence closed. No justifiable reasons have been given as to
why the writ petitioners waited for one year and ten months.
34. Accordingly, WP(C) 6872/2013 is dismissed.
35. Same is the fate of WP(C) 7146/2013 which lays a challenge to the
order dated October 10, 2011 denying relief to the two writ petitioners.
WP(C) 7146/2013 has been filed after a little over two years on October 21,
2013.
36. WP(C) 7146/2013 is accordingly dismissed.
37. All four writ petitions stand disposed of as above.
38. No costs.
(PRADEEP NANDRAJOG)
JUDGE
(V.KAMESWAR RAO)
JUDGE
NOVEMBER 27, 2013
mamta/skb
