Bir Singh Vs. Delhi Jal Board & Ors.

[Civil Appeal No.1085 of 2013]

[Civil Appeal No(S) 99359937 of 2014]

[Civil Appeal No(S).10081 of 2014]

[Civil Appeal No(S). 8141 of 2014]

[Civil Appeal No(S). 8802 of 2012]

[Civil Appeal No(S).1086 of 2013]

[Civil Appeal No.9048 of 2018 arising out of S.L.P(C) No.36324 of 2017]

RANJAN GOGOI, J

1. Leave granted in Special Leave Petition (Civil) No.36324 of 2017

2. In State of Uttaranchal vs. Sandeep Kumar Singh and others1 [Civil Appeal No.4494 of 2006) the following question arose for consideration of this Court: "Whether a person belonging to a Scheduled Caste in relation to a particular State would be entitled or not, to the benefits or concessions allowed to Scheduled Caste candidate in the matter of employment, in any other State?"

3. In the course of the deliberations that took place this Court noticed the Constitution Bench judgments of this Court in Marri Chandra Shekhar Rao vs. Dean, Seth G.S. Medical College and others2 and Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and another vs. Union of India and another3.

The view of a three Judge Bench of this Court in S. Pushpa and others vs. Sivachanmugavelu and others4 was also noticed and the same was perceived to be somewhat contrary to the view expressed by the Constitution Bench in the above two cases. This Court also took note of the fact that a two judge Bench of this Court in Subhash Chandra and another vs. Delhi Subordinate Services Selection Board and others5 held that the dicta in S. Pushpa (supra) is an obiter and does not lay down any binding ratio.

The Bench hearing the case i.e. State of Uttaranchal vs. Sandeep Kumar Singh and others (supra) took the view that "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". In this regard, the canons of judicial discipline carved out by this Court in Central Board of Dawoodi Bohra Community and another vs. State of Maharashtra and another6 were recalled and eventually in paragraph 13 of the opinion rendered in State of Uttaranchal vs. Sandeep Kumar Singh and others (supra) the reference of the question noted below was made to a larger Bench:

"13. A very important question of law as to interpretation of Articles 16(4), 341 and 342 arises for consideration in this appeal. Whether the 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."

4. The said Civil Appeal No.4494 of 2006 (State of Uttaranchal vs. Sandeep Kumar Singh and others) was disposed of by the larger Bench of this Court by order dated 6th August, 2014, in the light of the findings of the High Court recorded in paragraph 4 of the High Court order to the effect that the order impugned suffers from an apparent illegality as the appointing authority of the petitioner therein is the University and the University had acted at the dictate of the State Government, which has no power to ask for cancellation of an appointment made in accordance with the advertisement. In the aforesaid order dated 6th August, 2014 this Court took the view that the conclusions recorded in paragraph 4 of 4 the High Court order cannot be said to be legally flawed and accordingly closed the said Civil Appeal (No. 4494 of 2006) on the aforesaid basis. The question referred was not answered.

5. However, the question arising and referred to in the State of Uttaranchal vs. Sandeep Kumar Singh and others (supra) was felt to be surviving and subsisting in the present appeals also. Accordingly, by an order of the Court dated 7th August, 2014, the very same question as formulated in paragraph 13 of the judgment in State of Uttaranchal vs. Sandeep Kumar Singh and others (supra), as extracted above, has been referred for an answer by a five judge Bench of this Court. That is how we are in seisin of the matters.

6. The factual matrix need not detain us and a brief resume will suffice. The question as to whether a policy in furtherance of the enabling provision contained in Article 16(4) of the Constitution of 5 India could extend to giving of benefits beyond the Scheduled Castes and Scheduled Tribes of a State/Union Territory enumerated in the Presidential Orders framed/issued under Articles 341 and 342 of the Constitution of India had arisen in the bunch of writ petitions filed before the High Court of Delhi against the order/orders of the Central Administrative Tribunal.

The learned Tribunal following Marri Chandra Shekhar Rao (supra) and Action Committee (supra), in preference to the view expressed in S. Pushpa (supra) (three judge Bench) held that insofar as the Union Territory of Delhi is concerned, a migrant Scheduled Caste person would not be entitled to the benefits conferred on members of the Scheduled Castes enumerated in the list for the Union Territory of Delhi by the Presidential Order (i.e. the Scheduled Castes and Scheduled Tribes Lists (Modification) Order, 1956) in question.

The Delhi High Court sitting in a Full Bench (perhaps in view of the importance of the question) found the decision in S. Pushpa (supra) to be more directly relatable to the issue at hand i.e. being one of services in the Union Territory and, therefore, felt to be bound by the decision of the three judge Bench of this Court in S. Pushpa (supra). While doing so, the Delhi High court in paragraph 66 of the judgment emphasised on the necessity of an authoritative pronouncement on the issue(s) arising. Accordingly, certificate to appeal under Article 134A of the Constitution was granted by the High Court. Paragraph 66 of the judgment of the Full Bench of the Delhi High Court will require a specific notice and is, therefore, reproduced below:

"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 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 overclassification 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 8 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 9 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 visÃ 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 10 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."

7. Civil Appeal Nos.99359937 of 2014 from the decision of the Calcutta High court pertain to claims made by persons belonging to Uraons and Mundas members of the Scheduled Tribes 11 communities who have migrated to the Union Territory of Andaman & Nicobar Island. The High Court rejected the claim of reservation made by the aforesaid migrants Scheduled Tribes communities confining such benefits to the Scheduled Castes communities enumerated in the list appearing in the Presidential Order pertaining to the Union Territory of Andaman & Nicobar Island.

8. Before delving into the constitutional provisions which would be necessary to be dealt with for answering the reference a brief look at the preconstitutional position on the issue would throw considerable light and provide a sound insight to the multifaceted questions that the reference has given rise to.

9. The caste system in India, which is the bane of a just social order, has a long history which can be traced to the earliest times. Ancient Hindu religious scriptures refer to the practice. Division of Society based on birth and the calling/profession of a person has continued to dominate Hindu thinking and way of life and is perhaps one of the thorny problems inherited by the British Administration which had tried to resolve the same by giving legal recognition to what came to be termed as the "depressed classes". Such recognition was in the form of a protective regime which extended to representation in the Legislature and in the services under the State.

Exercises in finding out the numerical strength of the depressed class in the early 20th Century (By Southborough Committee) revealed a grim picture indicating such number to be as high as 20 per cent of the majority population (Hindu) in eight (08) Indian Provinces of Madras, Bombay, Bengal, United Provinces, Punjab, Bihar and Orissa, Central Provinces and Assam. The above figure did not include primitive or aboriginal tribes who later came to be known as the Scheduled Tribes and included in the list of Scheduled Tribes under the different Presidential Orders issued from time to time.

10. The Government of India Act, 1935 (hereinafter referred to as "1935 Act") (also referred to as "the Constitution Act") brought into force the expression "Scheduled Castes" for the first time in Indian Constitutional history. Entry 26 Part I of the First Schedule to the 1935 Act stipulates that "the Scheduled Castes mean such castes, races or tribes or parts of or groups within the castes, races or tribes, being castes, races, tribes, parts or groups, which appear to His Majesty in Council to correspond to the classes of persons formerly known as 'the depressed classes', as His Majesty in Council may specify".

11. Thereafter a Gazette Notification was published on 6th June, 1936 promulgating the Government of India (Scheduled Castes) Order, 1936 notifying the list of castes that are to be considered as "the Scheduled Castes" across the territory of India. A look at the Schedule which consisted of nine (09) parts i.e. Madras, Bombay, Bengal, United Provinces, Punjab, Bihar, Central Provinces, Assam, Orissa would indicate that identification of the different castes for inclusion as Scheduled Castes in the Schedule to the 1935 Act was based on an elaborate exercise conducted for each of the Provinces so much so that while some castes have been identified as Scheduled Castes throughout a Province, others have been so identified to limited areas within a province.

The post constitutional exercise by the Constitution (Scheduled Castes) Order, 1950 and the Constitution (Scheduled Tribes) Order, 1950, as originally enacted under Articles 341 and 342 of the Constitution, was basically an exercise in recasting the Schedule to the 1935 Act. The subsequent amendments to the aforesaid two Orders, from time to time, have been necessitated to bring the position in tune with the amendments to the First Schedule to the Constitution made at different points of time by creation of new States and alterations in the area and boundaries of existing States.

12. Article 366 of the Constitution which defines expressions appearing in the Constitution specifically defines 'Scheduled Castes' [clause (24)] to mean "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". Similarly, clause (25) of Article 366 defines "Scheduled Tribes" to mean "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".

13. Part XVI of the Constitution of India deals with special provisions relating to certain classes. Article 330 provides for reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People (Lok Sabha) whereas Article 332 contains similar provisions so far as the Legislative Assemblies of the States are concerned. Article 335 of the Constitution provides that "the claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State".

By the Constitution (Eighty Second) Amendment Act, 2000 a proviso to Article 335 was added to provide that the members of the Scheduled Castes and Scheduled Tribes may be granted relaxation in qualifying marks in any examination or standards of evaluation can be lowered in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State. Article 338 of the Constitution provides for a National Commission for Scheduled Cates which is invested with the following duties:

"(a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;

(b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes;

(c) to participate and advise on the planning process of socioeconomic development of the Scheduled Castes and to evaluate the progress of their development under the Union and any State; the Scheduled Castes and to evaluate the progress of their development under the Union and any State;

(d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards; deem fit, reports upon the working of those safeguards;

(e) to make in such reports recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socioeconomic development of the Scheduled Castes; and

(f) to discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Castes as the President may, subject to the provisions of any law made by Parliament, by the rule specify."

14. Similarly, Article 338A provides for a National Commission for Scheduled Tribes which is vested with similar duties as in the case of the Commission for the Scheduled Castes.

15. Article 341(1) of the Constitution empowers the President with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification, to specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of the Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory, as the case may be.

16. In case of Scheduled Tribes the President has been similarly empowered under Article 342(1) of the Constitution. Subclause (2) of Article 341 and Article 342 empowers the Parliament by law to include in or exclude from the list of Scheduled Castes/Scheduled Tribes specified in the Notification issued under clause (1) thereof any caste, race or tribe/tribal community or part of or group within any caste, race or tribe/tribal community. It is further provided that except as provided i.e. by Parliament by law(s) made, the notification issued under Article 341(1) or Article 342(1) shall not be varied by any subsequent notification. The constitutional mandate, therefore, appears to be that any caste, race or tribe/tribal community or part of or group within any caste, race or tribe/tribal community as has been specified in the Presidential Order under clause (1) of Article 341 or Article 342 can be altered only by Parliament by law(s) made.

17. Article 341 and Article 342 also makes it clear that the caste, race or tribe or part of or group within any caste, race or tribe as specified in the Presidential Order under Article 341(1) or a tribe or tribal community as may be specified in the Presidential Order under Article 342(1) shall be deemed to be Scheduled Castes/Scheduled Tribes for the purposes of the Constitution in relation to that State or Union Territory, as the case may be. The above position is further made clear by clause (2) of the two Presidential Orders which are in the following terms.

"Clause 2 of the Constitution (Scheduled Castes) Order, 1950

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 I to XXV 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.

Clause 2 of the Constitution (Scheduled Tribes) Order, 1950

2. The Tribes or tribal communities, or parts of, or groups within, tribes or tribal communities, specified in Parts I to XXII of the Schedule to this Order shall, in relation to the States to which those Parts respectively relate, be deemed to be Scheduled Tribes so far as regards members thereof residents in the localities specified in relation to them respectively in those Parts of that Schedule."

18. There are various parameters by which a caste/race is recognized as 'Scheduled Caste/Scheduled Tribe' in a State/Union Territory or a particular part thereof. There is no doubt that before the Presidential Orders were issued under Article 341(1) or under Article 342(1), elaborate enquiries were made and only after such enquiries that the Presidential Orders were issued. While doing so, the Presidential Orders not only provided that even specified parts or groups of castes, races or tribes/tribal community could be Scheduled Castes/Tribes in a particular State/Union Territory but also made it clear that certain castes or tribes or parts/groups thereof could be Scheduled Castes/Tribes only in specified/particular areas/districts of a State/Union Territory.

The reason for such an exercise by reference to specific areas of a State is that judged by standards of educational, social backwardness, etc. races or tribes may not stand on the same footing throughout the State. The consideration for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes and Scheduled Tribes or Backward Classes in any given State depends on the nature and extent of the disadvantages and social hardships 22 suffered by the concerned members of the class in that State. These may be absent in another State to which the persons belonging to some other State may migrate.

19. The Presidential Orders which enumerate lists of castes/races, tribes recognized as 'Scheduled Caste/Scheduled Tribe' cannot be challenged or agitated in a court of law except, perhaps, on the limited ground as held in M. Nagaraj and others vs. Union of India and others7. A few illustrations may clarify the position. The question whether Dohar caste is a subcaste of Chamar caste which is recognized as a scheduled caste came up for consideration in Bhaiya Lal vs. Harikishan Singh8. This Court held that the court cannot enquire into whether Dohar caste is a subcaste of Chamar caste and whether the same must be deemed to have been included in the Presidential Order.

In Bhaiya Lal (supra), this Court held that before issuing notifications under Articles 341 and 342, an elaborate enquiry is made and as a result of the enquiry social justice is sought to be done to the castes, races or tribes as may appear to be necessary. It was further held that 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. In Bhaiya Lal (supra), this Court held as under:"

10...The object of Article 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 them 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 educational are backwardness of the race, caste or tribe justifies such specification.

In fact, it is well known that before a notification is issued under Article 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 in regard to these castes, races or tribes may not be uniform or of the same intensity in the whole of the State; 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 for the purpose of issuing the public notification in question..."

[Underlining added]

20. Whenever States' reorganization had taken place in the past, Parliament had exercised its powers under Article 341(2) and Article 342(2) and provided for specific Castes/Tribes that were entitled to be recognised as Scheduled Castes and Scheduled Tribes in relation to the reorganized States/Union Territories. The Scheme of the Constitution (Scheduled Castes) and (Scheduled Tribes) Orders makes it clear that Parliament's intention was to extend the benefits of reservation in relation to the States/Union Territories only to the castes, races or tribes as mentioned in the Presidential Orders.

21. The Orders of 1950 was amended by the Constitution (Scheduled Castes and Scheduled Tribes Order), by the 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 Reorganisation Acts, which led to large scale modification of the Presidential Orders.

Illustratively, when new States/Union Territories were formed such as, Nagaland, Pondicherry, or Sikkim, the Scheduled Castes or Scheduled Tribes Orders were made in relation to the new States/Union Territories, for instance, the Constitution (Nagaland) Scheduled Tribes Order, 1970after the reorganisation of Assam; the Constitution (Sikkim) Scheduled Castes Order, 1978; the Constitution (Sikkim) Scheduled Tribes Order, 1978) upon creation of the State of Sikkim; the recent ones being upon creation of the States of Uttarakhand, Chhattisgarh, and Jharkhand. Likewise, when previous Union Territories (such as Goa, Mizoram and Arunachal Pradesh) were constituted into States, consequential amendments were made to the Scheduled Castes and Tribes Orders. All such amendments/enactments were made by Parliament.

22. Though in a different context i.e. in relation to Backward Classes this Court in M.C.D. v. Veena and Ors.9, has specifically held that migrants are not entitled for reservation as Other Backward Classes (OBCs) in the States/Union Territories where they have migrated. The relevant portion of the judgment that may be noticed is as hereunder:"

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 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 28 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."

23. A Constitution Bench of this Court in Marri Chandra Shekhar Rao (supra) had the occasion to consider the question as to whether a member of the Gouda community which is recognised as "Scheduled Tribe" in the Constitution (Scheduled Tribes) Order, 1950 for the State of Andhra Pradesh would be entitled to admission in a medical institution situated in the State of Maharashtra. This Court noticed the fact that the father of the petitioner in Marri Chandra Shekhar Rao (supra) was an employee in Fertilizer Corporation of India, a public sector undertaking and thereafter in Rashtriya Chemicals and Fertilizers Limited, a Government of India undertaking. He belonged to the Gouda community, a recognized Scheduled Tribe of Andhra Pradesh.

On his appointment he was stationed at Bombay. The petitioner came to Bombay at the age of nine years. He completed his studies in Bombay; he submitted an application for his admission in the medical institutions run by Bombay Municipal Corporation which was denied. This denial of admission was based on the Government of India circular dated 22nd February, 1985, according to which a person who migrates from one State to another is entitled to the benefit of being Scheduled Castes/Scheduled Tribes in the State of origin and not in the State to which he or she migrates. The appellant was held not entitled to be admitted to the Medical College on the basis that he belonged to a Scheduled Tribe in his original State i.e. Andhra Pradesh.

24. After referring to various provisions of the Constitution of India, the background in which the Presidential Orders were issued and several earlier judgments of this Court, it was held as under:

"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 underdevelopment 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 or 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 wellbeing of the Scheduled Castes and Scheduled Tribes in the country as a whole."

[underlining is ours]

25. In Marri Chandra Shekhar Rao (supra), rejecting the contention that a member of Scheduled Castes/Scheduled Tribes should get the benefit of the status 'for the purpose of the Constitution throughout the territory of India', it was observed that if such contention is to be accepted the expression "In relation of that State" would become nugatory.

26. Marri Chandra Shekhar Rao (supra) was followed by another Constitution Bench of this Court in Action Committee (supra). After referring to Articles 14, 15(1), 15(4), 16(4) and 19 and Part XVI of the Constitution of India and the decisions governing the field and also Articles 341 and 342, it was held as under:"

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 32 Constitution, be deemed to be Scheduled Castes or Scheduled Tribes in relation to a State or a Union Territory, as the case may be. Once a notification is issued under clause (1) of Articles 341 and 342 of the Constitution, Parliament can by law include in or exclude from the list of Scheduled Castes or Scheduled Tribes, specified in the notification, any caste or tribe but save for that limited purpose the notification issued under clause (1), shall not be varied by any subsequent notification.

What is important to notice is that the castes or tribes have to be specified in relation to a given State or Union Territory. That means a given caste or tribe can be a Scheduled Caste or a Scheduled Tribe in relation to the State or Union Territory for which it is specified. These are the relevant provisions with which we shall be concerned while dealing with the grievance made in this petition.

.... 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 33 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 Constitutionmakers as is evident from the choice of language of Articles 341 and 342 of the Constitution...."

[underlining is ours]

27. Marri Chandra Shekhar Rao (supra) and Action Committee (supra) were followed in Subhash Chandra and another (supra). After referring to various judgments on the point and also the various circulars, this Court in Subhash Chandra and another (supra) held as under:34

"69. Both the Central Government and the State Government indisputably may lay down a policy decision in regard to reservation having regard to Articles 15 and 16 of the Constitution of India but such a policy cannot violate other constitutional provisions. A policy cannot have primacy over the constitutional scheme. If for the purposes of Articles 341 and 342 of the Constitution of India, State and the Union Territory are on a par on the ground of administrative exigibility (sic) or in exercise of the administrative power, the constitutional interdict contained in clause (2) of Article 341 or clause (2) of Article 342 of the Constitution of India cannot be got rid of. .......

75. If a caste or tribe is notified in terms of the Scheduled Castes Order or the Scheduled Tribes Order, the same must be done in terms of clause (1) of Article 341 as also that of Article 342 of the Constitution of India, as the case may be. No deviation from the procedure laid down therein is permissible in law. If any amendment/alteration thereto is required to be made, recourse to the procedure laid down under clause (2) thereof must be resorted to."

28. In Marri Chandra Shekhar Rao (supra), the Constitution Bench observed that the expression "in relation to that State" must be read meaningfully and harmoniously. 35 It was observed that if a member of Scheduled Castes/Scheduled Tribes gets the benefit of that status throughout the territory of India, the expression "in relation to that State" would become nugatory. If the special privileges or the rights granted to scheduled castes or scheduled tribes in a particular State are to be made available in all the States and if such benefits are to be carried from State 'A' to State 'B' on migration, the mandate of Article 341/342 would get compromised. Such a consequence must be avoided for it is a fundamental rule of interpretation, be it of a statutory enactment or of the Constitution, that wherever and whenever there is a conflict between two provisions, the same should be so interpreted as to give effect to both. ".......Nothing is surplus in a Constitution and no part should be made nugatory.....". [Marri Chandra Shekhar Rao (supra)]

29. The issue has to be viewed from another perspective. If a member of a Scheduled Caste/ Scheduled Tribe of Andhra Pradesh who had migrated to Maharashtra is to be given the benefit of reservation it will amount to depriving a member of a Scheduled Caste/Scheduled Tribe of Maharashtra by reducing the reservation earmarked for them. It is in this context, in Marri Chandra Shekhar Rao (supra), that the Constitution Bench observed as under:"

14. ....But having regard to the purpose, it appears to us that harmonious construction enjoins that we should give to each expression - "in relation to that State" or "for the purposes of this Constitution" - its full meaning and give their full effect. This must be so construed that one must not negate the other. The construction that reservation made in respect of the Scheduled Caste or Tribe of that State is so determined to be entitled to all the privileges and rights under the Constitution in that State would be the most correct way of reading, consistent with the language, purpose and scheme of the Constitution.

Otherwise, one has to bear in mind that if reservations to those who are treated as Scheduled Caste or Tribe in Andhra Pradesh are also given to a boy or a girl who migrates and gets deducted (sic inducted) in the State of Maharashtra or other States where that caste or tribe is not treated as Scheduled Caste or Scheduled Tribe then either reservation will have the effect of depriving the percentage to the member of that caste or tribe in Maharashtra who would be entitled to protection or it would denude the other nonScheduled Castes or nonScheduled Tribes in Maharashtra to the proportion that they are entitled to. This cannot be logical or correct result designed by the Constitution."

30. Unhesitatingly, therefore, it can be said that a person belonging to a Scheduled Caste in one State cannot be deemed to be a Scheduled Caste person in relation to any other State to which he migrates for the purpose of employment or education. The expressions "in relation to that State or Union Territory" and "for the purpose of this Constitution" used in Articles 341 and 342 of the Constitution of India would mean that the benefits of reservation provided for by the Constitution would stand 38 confined to the geographical territories of a State/Union Territory in respect of which the lists of Scheduled Castes/Scheduled Tribes have been notified by the Presidential Orders issued from time to time. A person notified as a Scheduled Caste in State 'A' cannot claim the same status in another State on the basis that he is declared as a Scheduled Caste in State 'A'.

31. In S. Pushpa (supra), the Pondicherry Government had appointed Selection Grade Teachers in 1995 under the Scheduled Castes quota from amongst the scheduled castes candidates registered in the employment exchange in Pondicherry but also extended the benefit of reservation to scheduled castes candidates of other States and Union Territories. The Chennai Bench of Central Administrative Tribunal ("CAT" for short) quashed the selection process holding that migrant Scheduled Castes/Scheduled Tribes 39 candidates could not be considered for appointment for posts within the union territory of Pondicherry. In S. Pushpa (supra) the issue was with regard to the extent of benefit that Scheduled Castes candidates of other States/Union Territories would be entitled to in Pondicherry. This Court held that in the matter of providing reservation, it was open to the Pondicherry Government to apply or adopt a policy to give the benefit of reservation to migrant Scheduled Castes and Scheduled Tribes. In paragraphs 17 and 21 in S. Pushpa (supra), it was held as under:

"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. In New Delhi Municipal Council v. State of Punjab 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.

(underlining is ours)

*** *** ***

21. ....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 ascribed to such a policy and the same cannot be held to be contrary to any provision of law."

32. The upshot of the aforesaid discussion would lead us to the conclusion that the Presidential Orders issued under Article 341 in regard to Scheduled Castes and under Article 342 in regard to Scheduled Tribes cannot be varied or altered by any authority including the Court. It is the Parliament alone which has been vested with the power to so act, that too, by laws made. Scheduled Castes and Scheduled Tribes thus specified in relation to a State or a Union Territory does not carry the same status in another State or Union Territory. Any expansion/deletion of the list of Scheduled Castes/Scheduled Tribes by any authority except Parliament would be against the constitutional mandate under Articles 341 and 342 of the Constitution of India.

33. Article 16(4) is an enabling provision. It enables the State to provide to backward classes including Scheduled Castes and Scheduled Tribes reservation in appointments to public services. Such reservation is to be provided on the basis of quantifiable data indicating the adequacy or inadequacy, as may be, of the representation of such classes in Government service. The data which is the basis of the satisfaction of the State being verifiable, is open to judicial scrutiny on the limited ground of relevance of the circumstances on which the satisfaction is moulded. The policy decision to provide 43 reservation, of course, is beyond the pale of judicial review.

34. It is an unquestionable principle of interpretation that interrelated statutory as well as constitutional provisions have to be harmoniously construed and understood so as to avoid making any provision nugatory and redundant. If the list of Scheduled Castes/Scheduled Tribes in the Presidential Orders under Article 341/342 is subject to alteration only by laws made by Parliament, operation of the lists of Scheduled Castes and Scheduled Tribes beyond the classes or categories enumerated under the Presidential Order for a particular State/Union Territory by exercise of the enabling power vested by Article 16(4) would have the obvious effect of circumventing the specific constitutional provisions in Articles 341/342.

In this regard, it must also be noted that the power under Article 16(4) is not only capable of being exercised by a legislative provision/enactment but also by an Executive Order issued under Article 166 of the Constitution. It will, therefore, be in consonance with the constitutional scheme to understand the enabling provision under Article 16(4) to be available to provide reservation only to the classes or categories of Scheduled Castes/Scheduled Tribes enumerated in the Presidential orders for a particular State/Union Territory within the geographical area of that State and not beyond.

If in the opinion of a State it is necessary to extend the benefit of reservation to a class/category of Scheduled Castes/Scheduled Tribes beyond those specified in the Lists for that particular State, constitutional discipline would require the State to make its views in the matter prevail with the central authority so as to enable an appropriate parliamentary exercise to be made by an amendment of the Lists of Scheduled Castes/Scheduled Tribes for that particular State. Unilateral action by States on the touchstone of Article 16(4) of the Constitution could be a possible trigger point of constitutional anarchy and therefore must be held to be impermissible under the Constitution.

35. The decision in S. Pushpa (supra) may now be taken up to understand the basis on which the conclusion recorded therein was recorded. In S. Pushpa (supra) a distinction was found by this Court in the constitutional status of a Union Territory and a State in relation to the Union/Central Government. The provisions of Article 239 and 239A of the Constitution; Section 3(8) of the General Clauses Act, 1897 defining 'Central Government' and the provisions of the Government of Union Territories Act, 1963 were considered to arrive at the following conclusion:

"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."

36. It is on the aforesaid basis that the concerned Notification/Government Order dated 16th February, 1974 by which it was provided that Scheduled Castes/Scheduled Tribes candidates from outside the Union Territory of Pondicherry should also be considered for appointment to posts reserved for Scheduled Castes/Scheduled Tribes in the Union Territory Administration and the communication of the Government of India dated 6th October, 1995 to the same effect were upheld.

37. The First Schedule to the Constitution, as original enacted, provided for three (03) categories of States i.e. Part 'A', Part 'B' and Part 'C' States to comprise the territory of India.

The States Reorganization Act, 1956 and the consequential Constitution (Seventh Amendment) Act, 1956 drastically altered the provisions of the First Schedule to the 47 Constitution by establishment of new States; alteration in the area and boundaries of existing States and also by abolition of the three (03) categories of States; and by classification of certain areas as Union Territories. Pursuant thereto the Government of Union Territories Act, 1963 was enacted to provide for Legislative Assemblies and Councils of Ministers for certain Union Territories and for certain other incidental matters.

It will not be necessary to specifically deal with the provisions of the aforesaid Act in any great detail except to say that in course of time most of the Union Territories (except for Pondicherry), which had been provided with their own Legislatures and Councils of Ministers have graduated to become fullfledged States on the basis of enactment of several State Reorganisation Acts details of which have been mentioned (para 21). The Union Territory of Pondicherry, as on date, stands out as sole Union Territory which has a Legislature and Council of Ministers, apart from Delhi.

38. Delhi, which was one of the original Union Territories, came to be called as

"National Capital Territory of Delhi".

This change was introduced by the Constitution (SixtyNinth Amendment) Act, 1991 with effect from 1st February, 1992 by insertion of Article 239AA in Part VIII of the Constitution (i.e. Special provisions with respect to Delhi). Article 239AA( 3)(a) empower the Legislative Assembly of the National Capital Territory of Delhi to make laws with respect to any matters enumerated in the State List or in the Concurrent List (i.e. List II and List III of the Seventh Schedule to the Constitution of India) subject to certain exceptions.

It is here that the Union Territory of Delhi i.e. National Capital Territory of Delhi is enjoined a special status inasmuch as power to enact laws on any of the subjects in List II and List III is a constitutional conferment as opposed to the position in the erstwhile Union Territories and the present day Union Territory of Pondicherry where the power to frame/make laws has been conferred on the Union Territory Legislatures by a Parliamentary enactment i.e. Section 18 of the Government of Union Territories Act, 1963. The above narration has been considered necessary only to make the discussion complete. We make it clear that we are not entering into any discussion as to the special position/status of Delhi, if any, by virtue of the provisions contained in Article 239AA as the said issue does not arise for consideration in the present reference.

39. The above view coupled with the scope and ambit of the present reference may also not require us to go into the correctness of the view expressed by this Court in paragraph 14 of the decision in S. Pushpa (supra) (as already extracted). The resolution of the question formulated for an answer is capable of being reached by adopting an entirely different perspective which we intend to do hereinafter.

40. The federal nature of the Constitution finds broad manifestation in two principal areas i.e. division of legislative power and exercise thereof by the Union and the constituent States and secondly, which is more relevant and important to the subject in hand, is the constitutional provisions relating to services under the Union and the States as dealt with in Part XIV of the Constitution.

41. The subject finds an elaborate study by Dr. D.D. Basu in "Commentary on the Constitution of India"10. According to Dr. D.D. Basu, "In India though the Union and the States have their own public services, (vide Entry 70 of List I and Entry of List II) there is no clearcut bifurcation in the administration of the Union and the State laws as in the U.S.A. The State officials administer the State laws as well the Union laws applicable within that Sate whereas the members of the Union Services while working within a State, also carry out State laws, insofar as they may be applicable.

The second peculiarity of the Indian federal system of administration is that though the federal and State Governments have civil services of their own to manage their own households, there are certain services known as the AllIndia Services, which are common to both the federal and State Governments. The organisation of the Civil services in the Indian federal system may be demonstrated as thus:

All India Services

Central Civil Services

State Civil Services

Central Secretariat Services"

Subordinate Services

42. At the State Level, as Dr. D.D. Basu points out, "the State Civil Services administer the subject solely belonging to the State Governments, according to the federal distribution of subjects thus including the Judicial, Executive, Medical, Engineering, Police, Education branches. Their members are under the exclusive control of the respective State Governments and their duties are confined to the territories of the State by which they have been appointed, unless sent on deputation to the Union Government".11 These State Civil Services may be Administrative Services, Forest Services etc. [illustratively, in case of Himachal Pradesh, Himachal Pradesh Administrative Service (HPAS) is a type of service, so is, Himachal Pradesh Forest Service (HPFS). The recruitment to these services is conducted by way of Civil Services.

Examinations organised by the Statespecific Public Service Commission e.g. in case of Himachal Pradesh, it is Himachal Pradesh Public Service Commission. As stated earlier, persons inducted into the State Service of a particular State cannot be transferred to any other State. These officers are concerned with only the affairs of the state in which they are appointed. These services (like HPAS, HPFS) may, for convenience, be called as Superior Services/Higher Services with reference to a State. But in addition to these higher services, there are also services that may, again for convenience, be called as Subordinate Services/Lower Level Jobs. The posts in these services are like those of Clerks, School Teachers; Drivers, Attendants, Safai Workers, etc. For the purpose of recruitment of Subordinate Servants, states have in place Statespecific Selection Commissions.

43. At the Federal Level, civil administration is carried out by the members of -

(1) All India Services (specifically provided for in Article 312);

(2) Central Civil Services (although, not specifically provided for in the Constitution but are regulated by creation of statutory Rules framed under the proviso to Article 309). These are again Superior Services and the selection/recruitment is by the Union Public Service Commission.

ALL INDIA SERVICES

There are three All India Services (AIS) -

(a) Indian Administrative Service (IAS);

(b) Indian Forest Service (IFoS);

(c) Indian Police Service (IPS). As regards AIS, Dr. D.D. Basu12 says that, "the peculiarity of the AIS from the federal standpoint is that -

(a) Though they are recruited and their conditions of service are determined by the Union Government, they have to administer both Union and the State subjects, accordingly as their services are placed at the disposal of the Union or a State Government, in connection with the affairs of the Union or the State, as the case may be.

(b) While serving in a State, they are controlled by the State Government, except as regards the imposition of the penalty of dismissal, removal or compulsory retirement, which can be awarded only by the Union Government.

(c) In a sense, this system is an exception to the usual federal precedent inasmuch as it is intended to fill up the strategic posts both under the Union and State Governments by men of superior calibre, recruited on a uniform basis, through the UPSC. Thus, while a Deputy 56 Collector may be a member of the State Civil Service, the Additional Collector and the Collector may be members of the Indian Administrative Service. The category of AIS thus breaks through the federal division so far as the administrative services in India are concerned. In fact, the principal agents of a Sate administration are members of the AIS and it would be a mistake to suppose that the AIS exist for the administration of the Union subjects. Broadly, speaking, the administration of a State is run both by the members of the AIS and State Services, the latter supplying only the intermediate and subordinate tiers.

(d) Though the bulk of recruitment to the AIS is by competitive examination, a certain proportion is selected by promotion from amongst members of the State Civil Services.

(e) Though a member of AIS may be required to serve anywhere in India, on recruitment, he is usually assigned to a State or States jointly, or, in a technical language, is included in a State cadre or Joint cadre and continues to serve there until or unless he is called upon to serve the Union Government, in any of its Departments.

(f) While employed under a State, again, the members of the AIS do not have to work only in the Secretariat of the State but also in the Districts as already stated and members of these services are expected to acquire experience of the business in the district as well as Secretariat administration and there is a constant interchange of officers between the Secretariat and the Districts, just as there is such an 58 interchange between the States and the Union Secretariats on the other hand."

44. Therefore, the members of the All India Services are common to the Union and the States and they serve, by turn, both the Union and State Governments. The members of these services although recruited by the Centre their services are placed under various State cadres. "It is evident from Article 312(1) that the members of the AIS are common to the Union and the States. Curiously, however, there is a cadre for the Indian Administrative Service only in the States, according to the Indian Administrative Service (Cadre) Rules, 1954 and there is no separate cadre for members of this service in the Government of India. Each members of the Indian Administrative Service therefore, belongs to the cadre of one State or the other."

45. There are many State Cadres e.g. Bihar Cadre, Rajasthan Cadre and Joint Cadres like AGMUT (for Arunachal Pradesh + Goa + Mizoram + the 7 Union Territories). These officers remain in the allotted Cadres till they retire. They are not normally to be transferred from one State Cadre to another State Cadre though they have the accountability to serve both under the State and the Centre.

46. At this juncture, the Union of India's Affidavit may also be referred to, which states with reference to AIS that, "the conditions of service of these services (AIS) are regulated by the DoPT by way of executive and statutory instructions, statutory rules formulated under Article 309 of the Constitution and Act of Parliament etc. The functional control of some of the services rests with other.

Ministries and Departments also.

The Ministry of Home Affairs exercises functional control on IPS and the Ministry of Environment & Forest & Climate Change exercises functional control on IFoS. Members of these services are allocated a cadre under a State or Union Territory and they serve the Union as well as the State, whichever is allotted to them. Thus their services are All India Services. Their recruitment is by the Union Public Service Commission and as they serve the Union as well as the States, their recruitment is on pan India basis. Every citizen of this country having the required qualification is eligible to be considered for the appointment.

It is pertinent to note that before selection in the AIS, there is no specification or indication of the cadre in Union, Union Territory or State, which they may serve. Upon selection alone, they would be allocated cadre depe