R. BANUMATHI, J.
Reference Order:-
I have gone through the judgment proposed by His Lordship Justice Ranjan Gogoi. I agree with the following conclusions arrived at in paras (30) and (34) and the reasonings thereon.
"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' ".
" 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/Union Territory (Union Territory added by me) and not beyond."
With due respect, I do not agree with the conclusion arrived at in para
(61) and the reasonings thereon.
“......So far as the National Capital Territory of Delhi is concerned the pan-India Reservation Rule in force is in accord with the constitutional scheme relating to services under the Union and the States/Union Territories."
For agreeing with the conclusion arrived at in paras (30) and (34) and for differing from the conclusions in para (61) and the reasonings thereon, I have given my own reasonings.
2. The extent and nature of interplay and interaction under Articles 16(4), 341(1) and 342(1) of the Constitution of India was referred to the Constitution Bench in State of Uttaranchal v. Sandeep Kumar Singh and Ors., (2010) 12 SCC 794, with the following reference:-
"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."
3. Territory of India:- Article 1(1) of the Constitution of India declares that India, that is Bharat, shall be a Union of States. As amended by the Constitution Seventh (Amendment) Act, 1956. Article 1 of the Constitution reads as under:-
1. Name and territory of the Union.- (1) India, that is Bharat, shall be a Union of States.
(2) The States and the territories thereof shall be as specified in the First Schedule.
(3) The territory of India shall comprise—
(a) the territories of the States;
(b) the Union Territories specified in the First Schedule; and
(c) such other territories as may be acquired.
4. Under the Constitution of India, as initially enacted, the States were divided into Part A States, Part B States, Part C States and the territories in Part D. Substantial changes were made by the Constitution (Seventh Amendment) Act, 1956 which incorporated the recommendations of the States Reorganisation Commission and was to have effect in concert with the States Reorganisation Act, 1956. The four categories of States that existed were reduced to two categories. The first of these categories - Part A and Part B States comprised one class, called "States". The second category comprised the areas which had earlier been included in Part C and Part D States; these areas were called "Union Territories". Some additions and deletions were made to the existing lists. Now as per Schedule I, there are twenty-nine States and Seven Union Territories.
5. The expression “State” is not defined in the Constitution. It is defined in the General Clauses Act, 1897 which is made applicable to the interpretation of the Constitution by Article 367. As on the date of the commencement of the Constitution, clause (58) in Section 3 of the General Clauses Act, 1897 defined “State” in the following words:-
“3. (58) ‘State’, — shall mean a Part A State, a Part B State or a Part C State.”
The said definition was amended by the Adaptation of Laws Order No. 1 of 1956 issued by the President in exercise of the power conferred upon him by Article 372-A of the Constitution introduced by the Constitution Seventh (Amendment) Act, 1956. The amended definition 'State' reads thus:-
“3. (58) ‘State’, —
(a) as respects any period before the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean a Part A State, a Part B State or a Part C State; and
(b) as respects any period after such commencement, shall mean a State specified in the First Schedule to the Constitution and shall include a Union Territory.”
6. Clause (30) in Article 366 defines the “Union Territory” in the following words:-
“366. (30) ‘Union Territory’ means any Union Territory specified in the First Schedule and includes any other territory comprised with the territory of India but not specified in that Schedule.”
7. Clause (24) of Article 366 defines “Scheduled Castes” and clause (25) of Article 366 defines “Scheduled Tribes”. The latter means “such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be 'Scheduled Tribes' for the purposes of this Constitution”. Article 341(1) of the Constitution empowers the President, in consultation with the Governor of the State concerned, to specify Scheduled Castes by public notification. Equally, Article 342(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, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be 'Scheduled Tribes' in relation to that State or Union Territory, as the case may be”. Article 342(2) of the Constitution empowers “Parliament, by law, to include in or exclude from the list of 'Scheduled Tribes' specified in a notification issued under clause (1), any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.” Until the Presidential Notification is modified by appropriate amendment by Parliament in exercise of the power under Article 341(2) of the Constitution, the Presidential Notification issued under Article 341(1) is final and conclusive and any caste or group cannot be added to it or subtracted by any action either by the State Government or by a Court on adducing of evidence. In other words, it is the constitutional mandate that the tribes or tribal communities or parts of or groups within such tribes or tribal communities specified by the President, after consultation with the Governor in the public notification, will be 'Scheduled Tribes' subject to the law made by Parliament alone, which may, by law, include in or exclude from the list of 'Scheduled Tribes' specified by the President. Thereafter, it cannot be varied except by law made by the Parliament.
8. The President of India alone is competent or authorized to issue an appropriate Notification in terms of Article 341(1) and Article 342(1). Cumulative reading of Articles 338, 341 and 342 indicate that:-
a) Only the President could notify castes/tribes as Scheduled Castes/Tribes and also indicate conditions attaching to such declaration. A public Notification by the President specifying the particular castes or tribes as SC/ST shall be final for the purpose of Constitution and shall be exhaustive.
b) Once a notification is issued under clause (1) of Articles 341 and 342 of the Constitution, the 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 notification24.
9. It is stated that before notification was issued under Article 341(1) and Article 342(1) notifying certain caste/race or group as Scheduled Caste/Scheduled Tribe, an elaborate enquiry was made and also after such enquiry, the Presidential Order was issued. While doing so, Presidential Order not only specified parts or groups of caste, races or tribes but also made the said specification by reference to different areas in the State. By perusal of the Presidential Order, it is clear that some caste/race is actually confined with reference to a particular area; for instance, confined to a particular taluk in a district. The reason for such specification by reference to different areas in the State being educational, social backwardness, races or tribes cannot be the same 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 a given State would depend on the nature and extent of the disadvantages and social hardships
24 Ref. 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. (1994) 5 SCC 244.
suffered in that State. These may be absent in another State to which these persons belonging to other States may migrate.
10. Whenever States' reorganization took place in the past, Parliament exercised its powers under Articles 341(2) and 342(2) and provided for specific Castes/Tribes that had to be Scheduled Castes and Scheduled Tribes in relation to the reorganized States/Union Territories. The Constitution Scheduled Caste Orders and the Constitution Scheduled Castes (Union Territories) Order, also clarify that Parliament's intention was to extend benefits of reservation in relation to the States/Union Territories in terms of the castes, races or tribes mentioned as per the Presidential Orders themselves.
11. Presidential Order which provided for castes/races, tribes recognized as 'Scheduled Caste/Scheduled Tribe' and their interpretation cannot be challenged or agitated in a court of law. The question whether Dohar caste is a sub-caste of Chamar caste which is recognized as a Scheduled Caste came up for consideration in Bhaiya Lal v. Harikishan Singh, AIR 1965 SC 1557, wherein this Court held that the court cannot enquire into whether Dohar caste is a sub-caste of Chamar caste and whether the same must be deemed to have been included in the Presidential Order. In Bhaiya Lal's case, this Court held "...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...” and while doing so, the notification not only to specify parts or groups of castes, races or tribes but to make specification by reference to different areas in the State. In Bhaiya Lal's case, the Supreme Court held that only the Parliament is empowered to amend the Notification under Articles 341(2) and 342(2) of the Constitution.
12. Presidential Notification (Scheduled Caste) Order 1950:- The List of Scheduled Castes is contained in the Constitution (Scheduled Castes) Order 1950. The Presidential Notifications of 1950 and 1951 (as amended) in relation to Scheduled Castes and Scheduled Tribes of various States, very importantly provided that:-
"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 members thereof resident in the localities specified in relation to them respectively in those Parts of that Schedule."
The Presidential Notification of 1950 was amended by the Constitution (Scheduled Castes and Scheduled Tribes Order), Amendment Act, 1956, (Act No.63 of 1956). Another amending Act was enacted by Parliament in 1976. Further, amendments had taken place as and when Parliament reorganized States like Bombay, Andhra Pradesh, Uttarakhand, Chhattisgarh and Jharkhand through separate Acts. All these were Parliamentary enactments. Presidential Notification pertaining to Union Territories, Scheduled Castes (Union Territories) Order, 1951 specifies Scheduled Castes resident in the Union Territories of Delhi, Chandigarh and Daman and Diu. When new Union Territories were formed such as Pondicherry, Sikkim, Goa, Daman and Diu, Arunachal Pradesh, Mizoram, the Scheduled Castes or Scheduled Tribes Orders were made in relation to those new Union Territories.
13. The Constitution (Scheduled Tribes) Order, 195025:- In exercise of the powers conferred by clause (1) of Article 342 of the Constitution of India the President has, after consultation with the Governors of the States concerned, made the Constitution (Scheduled Tribes) Order, 1950, specifying the tribes or communities which shall be deemed to be
25 Ref. Election Manual (1984), p.44 quoted in Commentary on the Constitution of India 8th Ed. by Durga Das Basu.
Scheduled Tribes in the States mentioned therein. This Order has been amended by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 (Act No.108 of 1976), the Constitution (Scheduled Tribes) Order (Amendment) Act, 1991 (16 of 1991), the Constitution (Scheduled Tribes) Order (Second Amendment) Act, 1991 (39 of 1991), the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 2002 (32 of 2002), the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 2002 (10 of 2003), the Constitution (Scheduled Tribes) Order (Amendment) Act, 2003 (47 of 2003), the Constitution (Scheduled Tribes) Order (Amendment) Act 2006 (48 of 2006), the Constitution (Scheduled Tribes) Order (Amendment) Act, 2008 (14 of 2008) and the Constitution (Scheduled Tribes) Union Territories Order (Amendment) Act, 2008 (2 of 2009). As it stands amended, it specifies the Scheduled Tribes resident in the States of Andhra Pradesh, Assam, Bihar, Gujarat, Himachal Pradesh, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Manipur, Meghalaya, Orissa, Rajasthan, Tamil Nadu, Tripura, West Bengal.
14. Article 16(4) is only an enabling provision to provide reservation to backward classes. Clause (4) of Article 16 of the Constitution cannot be made applicable for the purpose 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 in the State to which they have migrated. The Presidential Orders made under Article 341 and Article 342 have an overriding status. The presence of Articles 338, 338A, 341, 342 of the Constitution clearly shows that it precludes any tinkering or deviation from the list of castes or tribes notified in the Presidential Order which are reserved for that State or that Union territory.
15. India is huge. There is Unity in Diversity. Diversity in terms of language, culture, demography, geographical area, development of regions, opportunities available to individuals for education and to make social and economical advancement etc. Some States are well- developed; some other States are developing; few other States are under-developed. All the affirmative action of the States is to provide equality of opportunity to the socially and economically disadvantaged group. Under Article 15(4) of the Constitution, State is empowered to make special provisions for the advancement of any socially and educationally backward class of citizens or for the Scheduled Castes or Scheduled Tribes. Article 16 of the Constitution of India lays down that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Article 16(4) of the Constitution empowers the State to make provisions to provide reservation to the backward classes in employment or appointment to any posts and thereby to create equally opportunities for their socio- economic empowerment and their emancipation. Article 16(4) speaks of one type of reservation namely reservation of appointments/posts.
16. Article 16(4) of the Constitution is an enabling provision directed towards achieving equality of opportunity in services under the State. Observing that Article 14 of the Constitution is the genus while Article 16 is the species, in E. P. Royappa v. State of Tamil Nadu and Anr., (1974) 4 SCC 3, it was held that:-
"85. .........Article 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged in the Constitution, Article 16 is only an instance of the application of the concept of equality enshrined in Article 14. In other words, Article 14 is the genus while Article 16 is a species. Article 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose. J., “a way of life”, and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed, cabined and confined” within traditional and doctrinaire limits........" [Underlining added]
17. The Constitution Bench of nine Judges in Indra Sawhney and Ors. v. Union of India and Ors., (1992) Supp 3 SCC 217, observed that Article 16(4) of the Constitution is aimed at 'protective equality' and it was held as under:-
"563. Thus, Article 16(1) and (4) operate in the same field. Both are directed towards achieving equality of opportunity in services under the State. One is broader in sweep and expansive in reach. Other is limited in approach and narrow in applicability. Former applies to 'all' citizens whereas latter is available to 'any' in Article 16(4) read together indicate that they are part of same scheme. The one is substantive equality and other is protective equality. Article 16(1) is fundamental right of a citizen whereas Article 16(4) is an obligation of the State. The former is enforceable in a Court of law, whereas the latter is 'not constitutional compulsion' but an enabling provision. Whether Article 16(4) is in substance, 'an exception', 'a proviso', or an 'emphatic way of putting the extent to which equality of opportunity could be carried', or 'presumed to exhaust all exceptions in favour of backward class', or 'expressly designed as benign discrimination devoted to lifting to backward classes', but if Article 16(1) is the positive aspect of equality of opportunity', Article 16(4) is a complete Code for reservation for backward class of citizens as it not only provides for exercise of power but also lays down the circumstances, in which the power can be exercised, and the purpose and extent or its exercise. One is mandatory and operates automatically whereas the other comes into play on identification of backward class of citizens and their inadequate representation." [Underlining added]
18. Article 16(4) of the Constitution is not an exception; but a facet of Article 14 and Article 16(1) of the Constitution; it enables the State to effectuate equality of opportunity to any backward class. As held in Chattar Singh and Ors. v. State of Rajasthan and Ors. (1996) 11 SCC 742 in paras (17) and (18), that "....It gives power to the state to effectuate the opportunity of equality to any backward class of citizens.
……..The object of reservation for the Scheduled Casts and Scheduled Tribes is to bring them into the mainstream of national life, while the objective in respect of the backward classes is to remove their social and educational handicaps. Therefore, they are always treated dissimilar and they do not form an integrated class with Dalits and Tribes for the purpose of Article 16(4) or 15 (4)...".
19. In State of Kerala and Anr. v. N.M. Thomas and Ors. (1976) 2 SCC 310 in para (178), it was held that "...differences and disparities exist among men and things and they cannot be treated alike by the application of the same laws but the law has to come in terms with life and must be able to recognize the genuine differences and disparities that exist in human nature. Legislature has also to enact legislation to meet specific ends by making a reasonable and rational classification..".
20. A Constitution Bench of this Court in Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College and Ors., (1990) 3 SCC 130 had the occasion to consider the question as to whether a member of Gouda community which is recognised as “Scheduled Tribe” in the Constitution (Scheduled Tribes) Order, 1950 would be entitled to admission in a medical institution situated in the State of Maharashtra. Based on the Government of India circular dated 22.02.1985, the appellant was denied admission to the Medical College on the ground that Marri Chandra Shekhar Rao was not a ‘Scheduled Tribe’ in the migrated State i.e. State of Maharashtra.
21. After referring to various provisions of Constitution of India, background in which the Presidential Order was issued and earlier judgments, in Marri Chandra Shekhar Rao's case, 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 well-being of the Scheduled Castes and Scheduled Tribes in the country as a whole."
22. Marri Chandra Shekhar Rao case was followed by another Constitution Bench of this Court in Action Committee on issue of caste certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and Anr. v. Union of India and Anr. (1994) 5 SCC 244. In Action Committee's case, 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 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 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 "
Marri Chandra Shekhar Rao's case and Action Committee's case were followed in Subhash Chandra and Anr. v. Delhi Subordinate Services Selection Board and Ors., (2009) 15 SCC 458. In Subhash Chandra case, the Supreme Court reiterated that “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."
23. In Marri Chandra Shekhar Rao's case, it was held that a Scheduled Caste or Scheduled Tribe of any State which depends on the nature and extent of disadvantages and social hardships suffered by the caste, tribe or class in that State or area may be non-existent in another State. The inclusion of the castes, races or tribes is mainly based on the degree of disadvantages or hardships faced by the castes, races or tribes in that State or in some cases or in part area of the State. For instance, in the Presidential Order relating to the State of Tamil Nadu, the caste Kanikaran, Kanikkar (in Kanyakumari District and Shenkottah and Ambasaundram taluks of Tirunelveli district) are notified as Scheduled Castes. This shows that the President can specify castes, races or tribes or parts thereof in relation not only to the entire State but in relation to the parts of the State. The President has been authorised to limit the notification to parts of the State or groups within castes, races or tribes. In Marri Chandra Shekhar Rao case, the Constitution Bench therefore held that the expression “in relation to that State” must be read meaningfully; otherwise the expression “in relation to that State” would come nugatory.
24. The Presidential Order issued under Article 341 of the Constitution in regard to Scheduled Castes and Article 342 of the Constitution in regard to Scheduled Tribes cannot be varied by anyone or by the Court. Only the Parliament by law include or exclude from the list of Scheduled Castes or Scheduled Tribes specified in a notification issued under Article 341(1) and Article 342(1) of the Constitution respectively any caste, race or tribe or parts or group within any caste, race or tribe. The Scheduled Castes or Scheduled Tribes thus specified in relation to one State or Union Territory does not carry their status in another State or Union Territory. When the Scheduled Castes or Scheduled Tribes are specified for each State and in some cases, specific areas of the State or Union Territory, neither the State legislature nor the courts can include or exclude other Scheduled Castes or Scheduled Tribes so specified in some States or Union Territories which would be against the mandate of Articles 341 and 342 of the Constitution and the Presidential Orders issued thereon. If that is permitted, it would amount to addition or alteration of the Presidential Order which is violative of the Constitutional Scheme.
25. State of Maharashtra v. Milind and Ors. (2001) 1 SCC 4, dealt with a question as to whether the notified Scheduled Tribe being Halba or Halbi as contained in item 19 of the Presidential Order would include "Halba-Koshti". This Court held that addition of "Halba-Koshti" in the Presidential Order would amount to amendment thereto which is impermissible in law. In Milind's case, it was held as under:-
"33......The jurisdiction of the High Court would be much more restricted while dealing with the question whether a particular caste or tribe would come within the purview of the notified Presidential Order, considering the language of Articles 341 and 342 of the Constitution. These being the parameters and in the case in hand, the Committee conducting the inquiry as well as the Appellate Authority, having examined all relevant materials and having recorded a finding that Respondent 1 belonged to “Koshti” caste and has no identity with “Halba/Halbi” which is the Scheduled Tribe under Entry 19 of the Presidential Order, relating to the State of Maharashtra, the High Court exceeded its supervisory jurisdiction by making a roving and in-depth examination of the materials afresh and in coming to the conclusion that “Koshtis” could be treated as “Halbas”. In this view the High Court could not upset the finding of fact in exercise of its writ jurisdiction. Hence, we have to essentially answer Question 2 also in the negative. Hence it is answered accordingly."
26. When the Parliament restricts the benefit of reservation by inclusion of a caste as a Scheduled Caste to a State or part of State i.e. certain specified districts in a State, the Court cannot express any opinion as to its correctness. Hence, as regards the inclusion of caste “Mochi” in the list of Scheduled Castes within a particular area as per Constitution (Scheduled Castes) Order (Second Amendment) Act, 2002, it was held that it was not for the Court to render any opinion in regard to the correctness of the same. [vide Shree Surat Valsad Jilla K.M.G. Parishad v. Union of India and Ors. (2007) 5 SCC 360].
27. The executive instructions/circulars issued by the Government of India also reiterate to well-settled position. The circular No. BC-16014/1/82-SC & BCD-I dated 06.08.1984 of the Ministry of Home Affairs addressed to all State Governments and UT Administration states that SC and ST on migration from the State of his origin to another State will not lose his status as SC/ST; but will be entitled to the concession/benefits admissible to the SC/ST from the State of his origin and not from the State where he has migrated. The relevant portion of the said circular reads as under:-
To,
No. BC-16014/1/82-SC & BCD-I
Government of India/Bharat Sarkar Ministry of Home Affairs/GrihMantralaya New Delhi, the 6th August, 1984
The Chief Secretaries of All State Governments and U.T. Administrations.
Subject: - Verification of claim of candidates belonging to Scheduled Castes and Scheduled Tribes and migrants from other States/Union Territories-Form of certificate-Amendment to.
Sir, ……..
2. The instructions issued in this Ministry’s letter of even number dated the 18.11.1982 will continue. It is, however, clarified that the Scheduled Caste/Scheduled Tribe person on migration from the State of his origin to another State will not lose his status as Scheduled Caste/Scheduled Tribes but he will be entitled to the concessions/benefits admissible to the Scheduled Castes/Scheduled Tribes from the State of his origin and not from the State where he has migrated…… (Underlining added) Yours faithfully Sd/- Joint Secretary to Govt. of India
28. The same thing was reiterated in the circular dated 22.02.1985 issued by the Ministry of Home Affairs which has also clarified that a Scheduled Caste/Scheduled Tribe person who has migrated from the State of origin to some other State for the purpose of seeking education, employment, etc. will be deemed to be a Scheduled Caste/Tribe of the State of his origin and will be entitled to derive benefits from the State of origin and not from the State to which he has migrated.
29. My Conclusion for agreeing with the view taken in paras (30) and (32):- It is now settled law that a person belonging to Scheduled Caste/Scheduled Tribe in State 'A' cannot claim the same status in another State 'B' on the ground that he is declared as a Scheduled Caste/Scheduled Tribe in State 'A'. 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 are to be meaningfully interpreted. A given caste or tribe can be a Scheduled Caste or a Scheduled Tribe in relation to that State or Union Territory for which it is specified. Thus, the person notified as a Scheduled Caste in State 'A' cannot claim the same status in another State on the basis that he was declared Scheduled Caste in State 'A'. Article 16(4) has to yield to the Constitutional mandate of Articles 341 and 342.
Union Territories:
30. Part VIII of the Constitution of India deals with Union Territories.
Article 239 provides that the Union Territory shall be administered by the President acting through an Administrator to be appointed by him. Article 239 reads as follows:-
“239. Administration of Union Territories
(1) Save as otherwise provided by Parliament by law, every Union Territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify.
(2) Notwithstanding anything contained in Part VI, the President may appoint the Governor of a State as the administrator of an adjoining Union Territory, and where a Governor is so appointed, he shall exercise his functions as such administrator independently of his Council of Ministers.”
31. Article 239A was inserted by the Constitution (Fourteenth Amendment) Act, 1962. Article 239A of the Constitution of India empowers the Parliament to create by law legislatures and Council of Ministers in the then Union Territories of Himachal Pradesh, Manipur, Goa, Daman & Diu and Pondicherry. Arunachal Pradesh and Mizoram were added later. With Himachal Pradesh, Manipur, Tripura, Goa and Mizoram all becoming full-fledged States, the only Union Territory left under Article 239A is Pondicherry. Now, Union Territory of Pondicherry (Puducherry) also has a legislature and Council of Ministers.
32. Article 341 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, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution, be deemed to be Scheduled Caste in relation to that State or Union Territory as the case may be.” Equally Article 342(1) 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, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of the Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be”. Articles 341(2) and 342(2) of the Constitution empower the Parliament alone by law to include or exclude from the list of Scheduled Castes/Scheduled Tribes specified by notification issued under Articles 341(1) and 342(1) of the Constitution of India. Until the Presidential Notification is modified by appropriate amendment by Parliament in exercise of the power under Articles 341(2) or 342(2) of the Constitution, the Presidential Notification issued under Articles 341(1) and 342(1) of the Constitution is final and conclusive. No caste or group can be added to it or subtracted by any action either by the State Government or by a Court on adducing of evidence. Articles 341 and 342 of the Constitution do not make any distinction between a ‘State’ or ‘Union Territory’.
33. Constitution (Scheduled Castes) (Union Territories) Order, 1951:- In exercise of powers under Clause (1) of Articles 341 and 342 of the Constitution, the Presidential Notifications were issued specifying Scheduled Castes in relation to various Union Territories. List of Scheduled Castes are declared in relation to each Union Territory separately. Presidential Notification pertaining to Union Territories, Scheduled Castes (Union Territories) Order, 1951 specifies Scheduled Castes resident in the Union Territories of Delhi, Chandigarh and Daman and Diu. The Presidential Order provided that:-
"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 III] of the Schedule to this Order shall, in relation to the *[Union territories] to which those parts respectively relate, be deemed to be Scheduled Castes so far as regards members thereof resident in the localities specified in relation to them respectively in those Parts of that Schedule."
As and when there is reorganisation of the Union Territories, in exercise of the powers conferred under Article 341(1) of the Constitution, the President has made various orders.
34. The Constitution (Scheduled Tribes) (Union Territories) Order,
195126:- In exercise of the powers conferred by clause (1) of Article 342 of the Constitution of India, as amended by the Constitution (First Amendment) Act, 1951, the President made the Constitution (Scheduled Tribes) (Part C States) Order, 1951, specifying the tribes or communities which shall be deemed to be 'Scheduled Tribes’ in Part C State. This Order was adapted for the Union Territories by the Scheduled Castes and Scheduled Tribes Lists (Modification) Order, 1956.
35. When new territories were formed, such as Pondicherry (Puducherry), or Sikkim, the Scheduled Castes or Scheduled Tribes Orders were made in relation to the new territories. In exercise of the powers under Articles 341(1) and 342(1), the President has made the orders - The Constitution (Dadra and Nagar Haveli) Scheduled Castes Order, 1962; The Constitution (Dadra and Nagar Haveli) Scheduled Tribes Order, 1962; The Constitution (Pondicherry) Scheduled Castes Order, 1964; The Constitution (Goa, Daman and Diu) Scheduled Caste Order, 1968; The Constitution (Goa, Daman and Diu) Scheduled Tribes Order, 1968; In the case of Goa, the Goa, Daman and Diu Reorganisation Act, 1987 (Act No.18 of 1987), by Section 19 amended the Scheduled Castes and Scheduled Tribes Orders.
26 Ref. Ibid., p.53, quoted in Article 342 of commentary on the Constitution of India 8th Ed. by Durga Das Basu.
36. Union Territories do not become merged with the Central Government:- The Union Territories are centrally administered by the President acting through an administrator. As held by this Court in New Delhi Municipal Council v. State of Punjab & Ors. (1997) 7 SCC 339, the President, who is the executive head of a Union Territory while administering the Union Territory, does not function as the head of the Central Government, but as the head of the Union Territory under powers specially vested in him under Article 239 of the Constitution thereby occupying a position analogous to that of a Governor in a State. Though the Union Territories are centrally administered under the provisions of Article 239, they do not become merged with the Central Government as has been held by this Court in Satya Dev Bushahri v. Padam Dev and Ors. AIR 1954 SC 587. They are centrally administered; but they retain their independent identity [Chandigarh Administration and Anr. v. Surinder Kumar and Ors. (2004) 1 SCC 530]. The Union Territory does not entirely lose its existence as an entity though large control is exercised by the Union of India. [Government of NCT Delhi v. All India Central Civil Accounts, Jao's Association and Ors. (2002) 1 SCC 344]
37. View taken in Pushpa and Chandigarh Administration – not correct view:- Reliance was placed upon Pushpa’s case to contend that Article 16(4) is not controlled by the Presidential Order issued under Article 341(1) or Article 342(1) to the Officers appointed to the post in the Union Territories need not be confined to only such Schedule Castes/Schedule Tribes of the particular Union Territory. In Pushpa’s case, the Supreme Court was confined with the question as to whether, selection and appointment already made to migrants’ Schedule Caste candidates of other States against the quota reserved for the Schedule Caste candidates in the Union Territory of Pondicherry was legal and valid. In S. Pushpa and Ors. v. Shivachanmugavelu and Ors. (2005) 3 SCC 1, Pondicherry Government appointed Selection Grade Teachers in 1995 under the Scheduled Castes quota not only from the Scheduled Castes candidates of Pondicherry but also such candidates of Scheduled Castes from other States. In Pushpa's case, this Court upheld the policy of the Pondicherry Government extending the benefit of reservation of SC/ST seats even to those candidates who came from other States. The Pondicherry Government proceeded on the basis that since Central Government jobs were open to all SC/ST candidates irrespective of origin of their States, the same may apply to jobs with a Union Territory as well. In Pushpa's case, this Court held that in the matter of providing reservation, it was open to the Pondicherry Government to extend the benefit of reservation to migrant Scheduled Caste and Scheduled Tribe candidates and that the same will not be an infraction of clause (4) of Article 16 of the Constitution of India.
38. In Pushpa's case, the principle that “when members of Scheduled Castes/Scheduled Tribes migrate to another State, they do not carry with them the special privileges and advantages”, was held not applicable in case of Union Territories. In para (21) of Pushpa's case, it was held as under:-
"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." (Underlining added) In my considered view, the above observation in Pushpa's case is not a correct view. The judgment in Pushpa's case is contrary to the views taken in Marri Chandra Shekhar Rao's case. The judgment in Pushpa's case is contrary to the views taken in Marri Chandra Shekhar Rao's case. Facts of Pushpa’s case disclose that the Government of Pondicherry had throughout proceeded on the basis that being a Union Territory all orders regarding reservation for SC/ST in respect of post/services under the Central Government were applicable to post/services as under the Pondicherry administration. The decision in Pushpa’s case therefore cannot be taken to be an authoritative pronouncement. Clause (2) of Article 341 of the Constitution empowers Parliament alone by law to include or exclude from the lists of Scheduled Castes specified in a notification issued under clause (1) of Article 341. No executive action or order or modification or variance of the same is possible and any such variance would be against the constitutional scheme.
39. In Pushpa's case, the posts advertised were of Selection Grade Teachers under the Pondicherry Services and not for Central Government jobs. It may be that Pondicherry is a Union Territory; but the posts/services exclusively coming under Pondicherry administration is meant only for the Scheduled Casts/Scheduled Tribes as notified under the Presidential Order for Pondicherry. In fact, Pondicherry (Union Territory) itself by referring to Subhash Chandra's case has taken the decision that reservation benefits to posts/services arising under the Union Territory of Pondicherry will be confined only to the Scheduled Castes/Scheduled Tribes notified by virtue of Presidential Order. The said Government Order of the Pondicherry Government was upheld by this Court in Puducherry Scheduled Caste People Welfare Association v. Chief Secretary to Government, Union Territory of Pondicherry and Ors. (2014) 9 SCC 236, wherein this Court held as under:-
"13. It is important to bear in mind that it is by virtue of the notification of President under Article 341(1) that the Scheduled Castes come into being. The members of the Scheduled Castes are drawn from castes, races or tribes, they attain a new status by virtue of Presidential Order. Clause (2) of Article 341 empowers Parliament alone by law to include or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) by the President. By no executive power, amendment, modification, alteration or variance in the Presidential Order is permissible. It is not open to the executive to do anything directly or indirectly which may lead to any change in the Presidential Order. Once Presidential Order has been issued under Article 341(1) or Article 342(1), any amendment in the Presidential Order can only be made by Parliament by law as provided in Article 341(2) or Article 342(2), as the case may be, and in no other manner. The interpretation of “resident” in the Presidential Order as “of origin” amounts to altering the Presidential Order."
40. The principle in Pushpa's case was not accepted in Subhash Chandra's case. It was held that although Union Territory is administered by the Union Government, socio-political aspect of the Union Territory cannot be mixed up with administrative aspect. In Subhash Chandra's case, it was held that if the principle applied in Pushpa's case is to be given a logical extension, it will lead to an absurdity, that the Scheduled Castes Order in a State/Union Territory brought under the control of the President under Article 341 of the Constitution could be altered by virtue of a notification issued in pursuance of Article 16(4) of the Constitution, which is not in consonance with the Constitutional Scheme.
41. Let us refer to the facts of Chandigarh Administration and Another v. Surinder Kumar and Others (2004) 1 SCC 530. Ministry of Home Affairs, Government of India issued various circulars pertaining to the Scheduled Castes and Scheduled Tribes. The circular dated 22.02.1985 regarding "Issue of Scheduled Caste/Scheduled Tribe certificate to migrants from other States/Union Territories", issued by the Ministry of Home Affairs clarified that a Scheduled Caste/Tribe person who has migrated from the State of origin to some other State for the purpose of seeking education, employment, etc. will be deemed to be a Scheduled Caste/Tribe of the State of his origin and will be entitled to derive benefits from the State of origin and not from the State to which he has migrated. Based on the aforesaid circular of the Government of India, the Home Secretary, Chandigarh Administration vide his letter dated 28.07.1986 sought clarification from the Government of India, Ministry of Home Affairs, as to whether, these instructions are applicable in the Union Territory of Chandigarh. Chandigarh Administration received the reply dated 26.08.1986 from Ministry of Welfare stating that there is no discrimination in the employment under the Central Government between the Schedule Caste/Schedule Tribes of one State or another and Union Territories and that the same may be followed by the Chandigarh Administration. The letter dated 26.08.1986 stated that Scheduled Castes/Scheduled Tribes of any other State/Union Territory would be entitled to the benefits and facilities provided in the services under the Union Territory of Chandigarh. Further the said circular leaves it to the Chandigarh Administration to seek further clarification. The above letter of Government of India is in clear violation of Constitutional scheme.
42. Pursuant to the said letter, Chandigarh Administration sought clarification from the Department of Personnel and Training. However, they have not received any response. The clarification was issued by the Home Secretary, Chandigarh Administration vide letter dated 07.09.1999. The said letter had given a clarification based on the Government of India circular dated 02.02.1985 stating that a Schedule Caste/Schedule Tribe of any other State or Union Territory would not be entitled to the benefits of reservation in the services in the Chandigarh Administration and that the benefit of reservation to persons belonging to reserved categories in other States in the Chandigarh Administration is to be discontinued with effect from 07.09.1999. In Chandigarh Administration case, the Supreme Court took the view that the stand taken by Chandigarh Administration discontinuing the benefits of reservation with effect from 07.09.1999 was untenable. With due respect, I am not in agreement with the view taken in Chandigarh
Administration case. The letter dated 26.08.1986 sent by the Ministry
of Welfare/Kalyan Mantralaya is contrary to the letter dated 22.02.1985 sent by the Ministry of Home Affairs and also against the Constitutional scheme.
43. It was held in Subhash Chandra that Chandigarh Administration and Pushpa proceeded on the basis that Marri Chandra Shekhar Rao and Action Committee would have no application in relation to Union Territories. Observing that both Articles 341 and 342 not only refer to the State but also to the Union Territory. In para (64) of Subhash Chandra's case, it was held as under:-
"64. Although Union Territories are administered by the Central Government, yet it is difficult to conceive that the socio-political aspect can be mixed up with the administrative aspect. Article 341 leads to grant of constitutional rights upon a person whose affinity to a caste/tribe would attract the Constitution (Scheduled Castes) Order or the Constitution (Scheduled Tribes) Order. Once a person comes within the purview of presidential promulgation, he would be entitled to constitutional and other statutory or administrative benefits attached thereto. In our opinion, such socio-political rights created in our Constitution cannot be segregated keeping in view the administrative exigencies.”
44. As per the scheme of the Constitution under Articles 341, 342 and 239 of the Constitution, only those Scheduled Castes/Scheduled Tribes as notified in the Presidential Notification for the respective Union Territory can legitimately claim the benefit of reservation in that Union Territory. Even though the Union Territories are centrally administered, though the administrator/Lieutenant Governor so far as the administrative aspects of the Union Territories, each Union Territory has its own identity. Each of the Union Territories would be bound by their respective Presidential Order of Scheduled Castes/Scheduled Tribes for giving benefit of reservation to Scheduled Castes/Scheduled Tribes in employment. Only those persons, who come within the purview of the Presidential Notification, would be entitled to constitutional and other statutory benefits of reservation in the respective Union Territory. If the benefit of reservation is to be extended to Scheduled Castes/Scheduled Tribes from all over the country then it would amount to inclusion of caste, races or tribes to the Presidential Order pertaining to that Union Territory. As discussed earlier, such inclusion or exclusion in the Presidential Order can be done only by the Parliament in the manner as indicated in Articles 341(2) and 342(2) of the Constitution of India. By no executive order, amendment, alteration or variance in the Presidential Order is permissible.
Whether there can be PAN India reservation of SCs and STs to services under various Union Territories of India
45. Under Central Civil Services (Classification, Control and Appeal) Rules, 1965 [CCS(CCA) Rules, 1965], there are four categories of services namely:-
(i) Central Civil Services, Group A;
(ii) Central Civil Services, Group B;
(iii) Central Civil Services, Group C; and
(iv) Central Civil Services, Group D
Central Civil Services – Group A:-
46. As per the Schedule to Central Civil Services (CCA) Rules, 1965, under Group ‘A’, there are forty five services inter alia like – (i) Archaeological Service (Serial No.1); (ii) Central Health Service (Serial No.5); (iii) Indian Defence Accounts Service (Serial No.11); (iv) Indian Foreign Service (Serial No.12); (v) Indian Meteorological Service (Serial No.13); (vi) Indian Postal Service (Serial No.14); (vii) Indian Posts and Telegraphs Traffic Service (Serial No.15); (viii) Indian Revenue Service (Serial No.16); (ix) Indian Salt Service (Serial No.17); (x) Directorate General of Mines Safety (Serial No.19); (xi) Indian Telecommunication Service (Serial No.22); (xii) Central Legal Service (Grades I,II, III and IV) (Serial No.25); (xiii) Delhi and Andaman and Nicobar Islands Civil Service, Grade I (DANICS) (Serial No.28); (xiv) Delhi and Andaman and Nicobar Islands Police Service, Grade II (DANIPS) (Serial No.29); (xv) Company Law Board Service (Serial No.38); (xvi) Labour Officers of the Central Pool (Serial No.39); and (xvii) Armed Forces Headquarters Civil Services (Serial No.44).
47. By reading of the categories of services, the said services of Group ‘A’ are concerned only with the services of the Union of India and the appointment to Group ‘A’ services are made by the President. The Cadre Controlling Authority of Group ‘A’ services are the respective ministries of the Government of India. Recruitment to Group ‘A’ services is made by the Union Public Service Commission (UPSC) and the recruitment is on all-India basis. So far as the recruitment to Group ‘A’ services is concerned, Union of India in its counter affidavit has stated as under:-
“a. ……… Recruitment to Group A services is made by the UPSC.
This recruitment is again on all India basis…………
b. Whichever ministry seeks recruitment to the service in this Group sends requisition to UPSC as per procedure prescribed and UPSC accordingly advertises for the post in Group A. Every citizen of India is eligible to apply as per the qualifications and requirements in the notification.
c. DoPT is the nodal ministry for regulating the conditions of service of all Central Civil Services as per Allocation of Business Rules. As per the conditions of service, every employee is required to give an undertaking agreeing to the conditions of the all India transfer liability at the time of joining the service.
d. Central Civil Services employees belonging to Group A serve the Union of India and that is the reason why these services are across the length and breadth of the country, wherever there is an office of the Central Government.
e. Member of the Group A service are governed by Central Civil Services (Class, Control & Appeal) Rules, 1965 as well as Central Civil Services (Conduct) Rules, 1972 & Central Civil Services (Pension) Rules, 1972 and such other rules made by the central ministries.”27
Central Civil Services – Group B:-
48. Under Rule 5, the Central Civil Services – Group ‘B’ are specified in the Schedule and there are thirty-two such services mentioned. Some
27 Para No. 6(i) of the Counter Affidavit filed by the Union of India at Pg. No.3-4 of the thirty-two services of Group ‘B’ and their appointing authorities are as under:-
PART II - Central Civil Services, Group 'B'
(Except for Civilians in Defence Services) Recruitment to Group ‘B’ services are conducted by the UPSC. The appointing authority to various Group ‘B’ services is the President of India/respective Ministries/respective Heads like Ministry of Home Affairs, Collector of Customs, Commissioner of Customs etc.
49. In Serial Nos. 28 and 29 of the Schedule, we have the Union Territories Service known as Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman & Diu and Dadra & Nagar Haveli Civil Services (DANICS) and Delhi, Andaman and Nicobar Islands, Lakshdweep, Daman & Diu and Dadra & Nagar Haveli Police Services (DANIPS). In the counter affidavit filed by the Union of India, it is stated as under:-
“a. …….DANICS/DANIPS officers are posted in Delhi, Andaman & Nicobar Islands, Lakshdweep, Daman & Diu and Dadra & Nagar Haveli. The recruitment to all the Union Territories for these Group B posts are common. They are also centralised and the appointing authority is none other than Ministry of Home Affairs, Government of India. The recruitment to these services is the very same examination meant for the All India Services (IAS/IPS) on the one hand and the Central Civil Services Group A on the other. Any citizen of India is eligible to apply, subject to the conditions prescribed. As per service rules, transfer undertakings throughout the Union Territories covered under DANICS/DANIPS is taken from these officers.
b. This is the reason why the Union of India while inviting applications for recruitment considers all candidates, including reserved candidates on all India basis. Group B cadre of DANICS and DANIPS is the feeder cadre for IAS and IPS respectively. They retire invariably in these offices, some of them reaching high positions in the central government.
c. As indicated above recruitment to the All India Services, CCS Group A as well as CCS Group B (Gazetted) is conducted through UPSC in the Civil Services Examination, the applicants are common when the applications are made, every aspirant seeks recruitment to the services and it is only as per the marks and ranking that allocations are made eventually to All India Services, Group A and Group B. Therefore, when UPSC undertakes the recruitment, it is naturally a PAN India recruitment and therefore it is necessary to seek applications including from reserved candidates from all over India.”28
Central Civil Services – Group C:-
50. There are five services under Central Civil Services – Group ‘C’ under CCS (CCA) Rules. Some of the posts noted in Group ‘C’ and their appointing authorities are as under:-
28 Para No. 6(ii) of the Counter Affidavit filed by the Union of India at Pg. No.4-5
PART III - Central Civil Services, Group 'C'
(Except for Civilians in Defence Services)
(i) Posts in the Ministry/Department of Government other than the posts in respect of which specific provision has been made by a general or special order of the President
(ii) Posts in non-Secretariat Office other than posts in respect of which specific provision has been made by a general or special order of the President
(iii) Posts in Union Territories
(iv) All Group ‘C’ posts of the Departmentalized Accounts Office of the Government of India Insofar as Group ‘C’ services of Union of India are concerned, they are recruited by the Staff Selection Commission (SSC) which is the recruiting agency under DoPT. Members of these services get promoted to CCS – Group ‘B’. In the counter affidavit filed by the Union of India, it is stated as under:-
“a. ……Recruitment to posts in Group C arise out of requisition made by the concerned ministries all over India. These requisitions upon reaching the Staff Selection Commission are processed and selection takes place and appointments are made. Even from these appointees undertaking for all India transfer liability is taken. As these are posts under Central Government and these employees are liable to be transferred anywhere in the country and the recruitment being centralised for all such posts in the country, it had been consistent policy of the Union of India to have PAN India eligibility.
b. The posts in CCS Group C are in the subordinate services. The equivalent in the Union Territory of Delhi is the Delhi Administrative Subordinate Services (DASS) and the recruiting agency in the place of Staff Selection Commission is the Delhi Subordinate Service Selection Board (DSSSB). Members of Delhi Administrative Subordinate Services are the feeder cadre for Central Civil Services Group B (DANICS). It is for these reasons that the policy is consistently adopted.”29
Central Civil Services – Group D:-
51. Class IV employees now referred to as Multi-Tasking Staff (MTS) come under this category. Some of the posts noted in Group ‘D’ and their appointing authorities are as under:-
PART IV - Central Civil Services, Group 'D'
(Except for Civilians in Defence Services)
(i) Posts in Ministries or Departments of Government other than posts in respect of which specific provision has been made by a general or special order of the President.
(ii) Posts in non-Secretariat Offices other than posts in respect of which specific provision has been made by a general or special order of the President.
(iii) Posts in Union Territories
29 Para No. 6(iii) of the Counter Affidavit filed by the Union of India at Pg. No.5-6
52. As pointed out earlier, there is centralised recruitment conducted by UPSC for the Central Civil Services in Group ‘A’ and Group ‘B’. For this centralised recruitment, applications are invited from candidates across the country and Scheduled Castes/Scheduled Tribes of all the States/Union Territories are entitled to apply for the reserved posts. Recruitment to various posts in Group ‘A’ and Group ‘B’ (Gazetted) categories for services in States/Union Territories are presently filled only through UPSC by centralised recruitment. After recruitment, the Group ‘A’ and Group ‘B’ officers are posted across the country wherever there are offices of Central Government.
53. Services mentioned at Serial No.28 that is Delhi and Andaman and Nicobar Islands Civil Service, Grade-II (DANICS) are Group ‘B’ civil services. DANICS officers are posted at Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli. DANICS - Group ‘B’ civil service officers are directly recruited through the Central Civil Services examination conducted by UPSC. Since DANICS is a centralised recruitment conducted through UPSC naturally applications are invited from the candidates across the country including reserved candidates of Scheduled Castes/Scheduled Tribes.
54. Delhi, Andaman and Nicobar Islands Police Services (DANIPS) are recruited directly through centralised civil services examination conducted by UPSC. DANIPS are posted at Delhi and other Union Territories – Andaman and Nicobar Islands, Lakshadweep Islands, Daman and Diu and Dadar and Nagar Haveli. The cadre strength is controlled by the Ministry of Home Affairs, Government of India. Two-thirds of DANIPS are filled by direct recruitment and remaining are promoted from non-gazetted police officers of Union Territory of Delhi and other Union Territories. Since, DANIPS officers are recruited through a centralised recruitment conducted through UPSC, applications are invited from candidates from across the country including reserved candidates of Scheduled Castes and Scheduled Tribes of all the States and Union Territories. Thus, up to Group ‘B’ (Gazetted) of Central Civil Services including the Group ‘B’ (Gazetted) services of Union Territories, there is Centralised Civil Services Examination conducted by UPSC with PAN INDIA reservation.
55. Serial No.32, Group ‘B’ of CCS (CCA) Rules refers to General Central Services. At the risk of repetition, we may usefully refer to Serial No.32 which reads as under:-
Serial No. General Central Service, Group 'B'-
32
(i) Post in any Ministry of Department of Government of India, other than the post in respect of which specific provision has been made by a general or special order of the President.
(i-a) Posts outside a Ministry or Department of Government of India, other than the posts in respect of which specific provision has been made by a general or special order of the president.
(ii) Posts in Union Territories other than Delhi Administration, the Andaman and Nicobar Islands and the Laccadive, Minicoy and Amindive Islands
(iii) Delhi Administration-All posts
(iv) The Andaman and Nicobar Islands-All Posts
(v) The Lakshadweep Administration-All Posts Secretary in the Ministry or Department In respect of posts in an office under the control of a Head of Department directly under the Government.
-Head of the Department In respect of other posts - Secretary in the Ministry or Department Administrator Chief Secretary Chief Commissioner Administrator As seen from the above, Serial No.32(i) and (i-a) relates to the posts under the Government of India for which the appointing authority is the Secretary in the Ministry or Department/Head of the Department respectively. Serial No.32 (ii) of Central Civil Services (CCA) Rules, 1965 relates to “Posts in Union Territories other than Delhi Administration, the Andaman and Nicobar Islands and the Laccadive, Minicoy and Amindive Islands”. The appointing authority is shown to be the ‘Administrator’. Serial No.32 (iii) to (v) relate to ‘All posts’ in Delhi administration, Andaman and Nicobar Islands and the Lakshadweep administration respectively. Serial No.32(ii) posts in the Union Territories (other than Delhi Administration, the Andaman & Nicobar Islands and the Laacadive, Minicoy and Amindive Islands) Group ‘B’ (Gazetted) posts for which recruitment is conducted by UPSC. Since there is centralised recruitment conducted by UPSC for Group ‘B’ (Gazetted), naturally applications are invited from the candidates across the country including reserved candidates of Scheduled Castes/Schedules Tribes from all the States/Union Territories. Up to the level of Group ‘B’ (Gazetted) of Central Civil Services, since there is centralised recruitment for which there is PAN INDIA reservation of Scheduled Castes and Scheduled Tribes, Scheduled Castes/Scheduled Tribes from any State/Union Territory are entitled to apply for the reserved posts for Group ‘B’ examinations conducted by UPSC.
56. When it comes to services under Union Territories, there are so many other services like teaching, clerical cadre, police services, Medical Officers, Health Services, Stenographers, Typists, services under the Revenue department, services under public-sector undertakings, services under the municipalities and the corporations in the Union Territories and various other services which are concerned with the administration of Union Territories. These services under the Union Territories would fall under Group ‘B’, Group ‘C’ and Group ‘D’ and their recruitment is within the exclusive domain of the respective Union Territories. Though the government servants under the Union Territories are governed by Central Civil Services Rules, the services under the Union Territories are essentially different from All India Services. For recruitment to services under respective Union Territories, there are different modes of recruitment for the different Union Territories.
57. This Court posed the question whether there is other category of employees in UT administration and what is the practice followed for recruitment. In response to the question, Union of India, on instructions, filed the following response:-
SCOPE OF SC/ST RESERVATION IN UTs
1. Puducherry : Reserved posts confined to local
reserved candidates.
2. Chandigarh : Reserved posts filled up by
candidates from all India.
3. Daman & Diu : Reserved posts confined to local
reserved candidates for Group C posts. For Group B it is opened to candidates from all India but local candidates get additional 20 marks.
4. Dadra & Nagar Haveli
: Reserved posts confined to local reserved candidates for Group C posts. For Group B it is opened to candidates from all India but local candidates get additional 20 marks.
5. Lakshadweep : Reserved posts confined to local
reserved candidates.
6. A & N Islands : For Group C posts locally reserved.
7. NCT of Delhi : Reserved posts filled up by
candidates from all India.
For the above response that there is PAN India reservation of the reserved candidates for recruitment by Union Territories of Chandigarh, Dadra and Nagar Haveli and NCT of Delhi, no authenticated documents were produced to substantiate the same. When there are Presidential Orders notifying the Scheduled Castes/Scheduled Tribes for Union Territories of Chandigarh, Dadra and Nagar Haveli, calling for application from the Scheduled Castes/Scheduled Tribes candidates from all over India for the reserved posts of services under various Union Territories, be it Group ‘B’ or Group ‘C’, is not in accordance with the constitutional scheme.
58. For Group ‘B’ and Group ‘C’ posts falling within the services of the Union Territories, recruitment is made by the Staff Selection Board of respective Union Territories. For instance, let me refer to the Staff Selection Board of UT Administration of Daman and Diu whose home page reads as under:-
“In exercise of the powers conferred by the provision of Article 239 of the Constitution of India, the Administrator of Daman & Diu is pleased to make following rules to regulate the method of recruitment to all Group ‘B’ and ‘C’ categories of posts under the Administration of Daman & Diu.
It aims to “ensure a uniform and transparent process and procedures for recruitment of all Group ‘B’ and ‘C’ categories of posts under the Administration of Daman and Diu through an autonomous body, without disturbing the existing recruitment processes and procedures and for ensuring that cumulative outcome of the recruitment is to provide just and fair opportunities to all the candidates and for matters connected therewith or incidental thereto30.”
59. In response to the question posed by the court, Union of India filed response affidavit stating that in Union Territories Daman and Diu and Dadra and Nagar Haveli, for Group ‘B’, it is opened to candidates from all over India. Local candidates with domicile certificate get additional twenty per cent marks. Response filed by the Union of India that there is PAN India reservation for Group ‘B’ services of Daman and Diu and Dadra and Nagar Haveli, no authenticated documents/format of any application for Group ‘B’ posts conducted by Daman and Diu was produced before us. Even assuming that there is such PAN India reservation for recruitment of Group ‘B’ conducted by the Union Territory of Daman and Diu, when there are Scheduled Castes/Scheduled Tribes as notified in the Presidential Order (Reorganisation Act, 1987 in respect of SCs/STs), there cannot be PAN India reservation as it is not in accordance with the constitutional scheme.
60. Pointing out that services in the Union Territories are different from All India Services and that the mode of recruitment are also different, in para (29) of Subhash Chandra and another v. Delhi Subordinate Service Selection Board and others (2009) 15 SCC 458, it was held
30 https://daman.nic.in/staff-selection-board-daman-diu.aspx#downloads (27.06.2018) as under:-
“29. Concededly, in respect of education or service, there exists a distinction between State Services and State-run institutions including the Union Territory Services and Union Territory-run institutions on the one hand, and the Central Civil Services and the institutions run by the Central Government on the other. Whereas in the case of the former, the reservation whether for admission or appointment in an institution and employment or appointment in the services or posts in a State or Union Territory must confine to the members of the Scheduled Castes and Scheduled Tribes as notified in the Presidential Orders but in respect of All India Services, Central Civil Services or admission to an institution run and founded by the Central Government, the members of the Scheduled Castes and Scheduled Tribes and other reserved category candidates irrespective of their State for which they have been notified are entitled to the benefits thereof. It is not denied or disputed that services in the Union Territory is essentially different from All India Services. It is also beyond any controversy that machinery for recruitment is also different. Indisputably again, not only the conditions of recruitment but also conditions of service differ.”
I am in full agreement with the view taken by Justice Sinha in Subhash Chandra case.
61. Rule 3 of Delhi Administration Subordinate Services (DASS) Rules, 1967 deals with constitution of services and its classification in Delhi Administration. As per Rule 3(3) of DASS Rules, the post in Grade-I, Class-II Group ‘B’ (Gazetted) and those in Grades II, III and IV shall be Central Civil Services Posts. But as noted earlier, as per Serial No.32 – General Central Service, Group ‘B’, insofar as Delhi Administration – All Posts (Serial No. 32 (iii)), the Appointing Authority is the Chief Secretary. The subordinate services in the National Capital Territory of Delhi though “Central Civil Services”, they are neither All India Services nor services under Union of India so as to attract Pan India Reservation.
62. Even in the counter affidavit filed by the Union of India, by referring to Group ‘C’ services, it is stated that CCS – Group ‘C’ are in the subordinate services and there are equivalent services in the Union Territory of Delhi. For recruitment of other employees in the Union Territory of Delhi, there is Delhi Administrative Subordinate Services (DASS) and the recruiting agency is Delhi Subordinate Staff Selection Board (DSSSB). Members of Delhi Administrative Subordinate Services are stated to be the feeder cadre for Central Civil Services – Group ‘B’ (DANICS).31 Merely because members of Delhi Administrative Subordinate Services are the feeder category for DANICS, PAN India reservation cannot be extended to Delhi Subordinate Services or to services under various Union Territories. Likewise, merely because, DANICS and DANIPS (Serial Nos. 28 and 29 of Group ‘B’ Services) are the feeder category for IAS and IPS, it cannot be said that the Pan India Reservation is applicable to services under National Capital Territory of Delhi.
31 Para No. 6(iii) of the Counter Affidavit filed by the Union of India at Pg. No.6
63. So far as Group ‘B’ and Group ‘C’ posts falling under the services of the Union Territories, recruitment is done by the respective Staff Selection Board of respective Union Territories. Serial No.4 (iii) – ‘Posts in Union Territories’ of Group ‘C’ in CCS (CCA) Rules is shown and the appointing authority is stated as Head of the Office of such other authority as may be specified by the Administrator. Merely because the posts in the Union Territories and the appointing authority are shown in Group ‘C’ in CCS (CCA) Rules, that does not mean that those Group ‘C’ and Group ‘D’ posts are available for the Scheduled Castes and Scheduled Tribes of all the States/Union Territories. For recruitment of Group ‘B’ and Group ‘C’ posts of services under the respective Union Territories, since the examination is conducted by the respective Union Territories like Delhi Subordinate Staff Selection Board and other Union Territories Staff Selection Boards of respective Union Territories, reservation of posts of Scheduled Castes/Scheduled Tribes must be confined only to those Scheduled Castes/Scheduled Tribes as notified in the Presidential Order of the respective Union Territories. For recruitment of Group ‘B’ and Group ‘C’ posts under various Union Territories including Union Territory of Delhi, there cannot be PAN INDIA reservation of Scheduled Castes/Scheduled Tribes, lest, it would defeat the very object of the Presidential Orders issued specifying the Scheduled Castes/Scheduled Tribes for respective Union Territories.
64. As pointed out earlier, services under the Union Territories though they are Central Government services, they are services under the respective Union Territories and not under the direct control of Union of India/different Ministries. Procedure for recruitment to the various posts for the services of Union Territories are different as followed by respective Union Territories. The persons appointed for the services of Union Territories might be governed by CCS (CCA) Rules; but they are employees of respective Union Territories. The appointing authorities are the authorities under the administration of Union Territories and not under the Ministries of Union of India. Central Civil Services are the services directly under Union of India. Contrarily, various services under the Union Territories are the services under the respective Union Territories. Such services under Union Territories cannot be said to be Central Civil Services that is services under Union of India to extend the benefit of PAN India reservation for recruitment to the services under respective Union Territories including Union Territory of Delhi.
65. In exercise of the powers conferred by clause (1) of Article 341, the President issued the Constitution (Scheduled Castes) Union Territories Order, 1951 in the Presidential Order specifying Scheduled Castes in relation to Delhi and the thirty-six castes/groups notified are as under:-
Part 1 – Delhi Throughout the Union Territory Adi Dharmi 19. Kachhandha Agria 20. Kanjar or Giarah Aheria 21. Khatik Balal 22. Koli Banjara 23. Lalbegi Bawaria 24. Madri Bazigar 25. Mallah Bhangi 26. Mazhabi Bhil 27. Meghwal 10. Chamar, l Chanwan Chmanr, Jatya or Jatav 28. Naribut
In relation to Delhi, there are thirty-six castes notified as Scheduled Castes in the Presidential Order. The members of the Scheduled Castes in Delhi are drawn from castes, races and by virtue of the Presidential Order pertaining to Delhi, they attain the status of the Scheduled Caste. In view of the Presidential Order issued for the Scheduled Castes to Delhi, only those Scheduled Castes can claim the benefit of reservation in the employment under the Union Territory of Delhi who are notified in the Presidential Order. Neither the Delhi Government nor the court can add any caste or group to the list of Scheduled Castes notified in the Presidential Order. Once a Presidential Order has been issued under Article 341(1) of the Constitution, any addition or deletion to the Presidential Order can only be made by the Parliament by law as provided under Article 341(2) and in no other manner. Merely because, Delhi Subordinate Services is a feeder category for DANICS, there cannot be Pan India Reservation of the SCs and STs for the services under Group ‘C’ and ‘D’ categories, for which recruitment are made by the Delhi Subordinate Staff Selection Board (DSSSB).
66. Likewise, the Presidential Order has notified the following Scheduled Castes for the Union Territory of Chandigarh, Daman and Diu, Puducherry and Dadra and Nagar Haveli:-
Part II – Chandigarh
1 Adi Dharmi 1 . 9 .
2 Bangali 2 . 0 .
Khatik Kori or Koli
3 Barar, Burar . or Berar
4 Batwal, . Barwala
5 Bauria or . Bawaria 2 Marjia or 1 Marecha .
2 Mazhabi 2 .
2 Megh 3 .
6 Bazigar 2 . 4 .
Nat
7 Balmiki, . Chura or Bhangi 2 Od 5 .
8 Bhanjra 2 . 6 .
Pasi
9 Chamar, . Jatia Chamar, Rehgar, Raigar, Ramdasi or Ravidasi 2 Perna 7 .
1 Chanal 2 0 8 . .
1 Dagi 2 1 9 . .
1 Darain 3 2 0 . .
1 Dhanak 3 3 1 . .
Pherera Sanhai Sanhal Sansoi 1 Dhogri, 4 Dhangri or . Siggi 1 Dumna, 5 Mahasha or .
3 Sansi, 2 Bhedkut . or Manesh 3 Sapela 3 .
Doom 1 Gagra 3 6 4 . .
Sarera 1 Gandhila or 7 Gnadil . Gondola 1 Kabirpanthi 8 or Julaha .
3 Sikligar 5 .
3 Sirkiband 6 .
PART III – Daman and Diu Bhangi (Hadi) 4. Mahyavanshi (Vankar) Chambhar, Mochi Mahar 5. Mang The Schedule - Puducherry Adi Andhra 9. Pallan Adi Dravida Chakkiliya n
10. Parayan, Sambavar
11. Samban Jambuvulu 12. Thoti Kuravan 13. Valluvan Madiga 14. Vetan Mala, Mala Masti 15. Vetriyan Paky 16. Puthirai Vannan The Schedule – Dadra and Nagar Haveli Bhangi 3. Mahar Chamar 4. Mahayavanshi
67. Let me take the case of Andaman & Nicobar Islands. The Constitution (Andaman and Nicobar Islands) Scheduled Tribes Order, 1959 has notified the following tribes or tribal communities who have been included in the Schedule for the Andaman & Nicobar Islands:-
The Schedule The Andamanese4. Sentinelese (including Chariar or Chari, Kora, Tabo or Bo, Yere, Kede, Bea Balawa, Bojigiyab, Juwai and Kol Jarawas 5. The Nicoberese Onges 6. The Shompens When Andaman & Nicobar Islands is recruiting persons to the services of Group ‘B’, ‘C’ and ‘D’ under its administration, it has to necessarily follow the policy of recruiting members from amongst the Scheduled Tribes who are notified as Scheduled Tribes in the Presidential Notification for Andaman and Nicobar Islands. It will not be appropriate to extend the benefit of reservation to the SCs and STs from other States/Union Territories, lest it would deprive the notified Scheduled Tribes of the Andaman and Nicobar Islands.
68. It may be that the candidates recruited by the respective Union Territories for Group ‘B’ and Group ‘C’ may become the feeder categories for further promotion in Group ‘A’ and Group ‘B’ of All India Services respectively in the Central Civil Services. The fact that the candidates who are recruited by the respective Union Territories become the feeder categories for further promotion in the Central Civil Services is not a ground for extending the benefit of all India reservation to the Scheduled Castes/Scheduled Tribes for the reserved posts in the respective Union Territories. Be it noted that the candidates recruited by the various State Governments under Group ‘A’ of respective State services become the feeder category for IAS and IPS. The persons recruited for Group ‘B’ and Group ‘C’ by the respective Union Territories stand on the same footing as that of the candidates so recruited by the various States where only the Scheduled Castes/Scheduled Tribes of the respective States can apply.
69. A letter dated 10.05.2013 by Special Secretary (Services) addressed to all the Secretaries/Heads of Departments of NCT of Delhi has been filed by the Union of India. The letter relates to the subject “Reservation policy to be followed with regard to SCs/STs in civil posts under GNCTD”. The said letter refers to the judgment in Pushpa’s case and states that the Ministry of Law and Justice has opined that the law declared by the Supreme Court in Pushpa’s case applies to the NCT of Delhi and that Pushpa’s case cannot be ignored. Relevant portion of the said letter reads as under:-
“GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI (SERVICES DEPARTMENT BRANCH-IV) 7TH LEVEL, B-WING, DELHI SECRETARIAT, I.P. ESTATE, NEW DELHI – 110002 No. F. 19(6)/2012/S-IV/883 Dated: 10-05-2013 …… The Government of National Capital Territory of Delhi follows the guidelines and instructions issued by the Government of India from time to time in matters regarding reservation to Scheduled Castes and Scheduled Tribes in recruitment to various civil posts in Government of Delhi.
Ministry of Home Affairs, Govt. of India, in the context of order dated 11.02.2005 of Hon’ble Supreme Court of India in case titled S. Pushpa & Ors. Vs. Sivachanmugavelu & Ors. stated vide their letter dated 01.06.2005 that the matter has been examined in consultation with the Ministry of Law & Justice (Department of Legal Affairs). That the Ministry had opined that the law declared by the Supreme Court of India cited above, applies to the National Capital Territory of Delhi. This was accordingly conveyed to the departments vide this department’s letter No.F.16(73)/97-S-III/710 dated 30.06.2005, stating that all the Scheduled Castes/Scheduled Tribe candidates irrespective of their nativity, are eligible for reservation to the civil posts under Govt. of NCT of Delhi, which are reserved for SC/ST candidates and appropriate action for recruitment may be taken accordingly.
Subsequently, in view of order dated 04.08.2009 of Hon’ble Supreme Court in the matter of Sarv Rural & Urban Welfare Society vs. Union of India & Ors. and of the Hon’ble High Court dated 12.09.2012 in WP(C) No.5390/2010 under consideration in the Ministry of Home Affairs, Govt. of India.
Now, Ministry of Home Affairs, Govt. of India, vide its letter No.14012/09/2012-Delhi-I dated 03.04.2013 has informed that the subject matter has been re-examined in consultation with Ministry of Law & Justice. In this matter Learned Attorney General for India has given his opinion dated 18.02.2013 (copy enclosed), which is self-explanatory and has been approved by the Hon’ble Minister of Law & Justice, Govt. of India. The opinion, inter alia, states that having regard to the order in the State of Uttaranchal’s case, till this issue is resolved by a larger bench, the decision in S. Pushpa case cannot be ignored. Ministry of Home Affairs has conveyed that it has been decided to proceed according to this opinion.
Copy of above mentioned letter of the Ministry of Home Affairs is circulated for information & necessary action accordingly.
Yours faithfully, (Kailash Chandra) Spl. Secretary (Services) Dated: 10-05-2013 …..”
70. PAN India reservation probably is followed by NCT of Delhi in its recruitment based on the above letter dated 10.05.2013. Since I have taken the view that the decision in Pushpa’s case is not a correct decision extending PAN India reservation for the reserved posts recruited by NCT of Delhi or any other Union Territories is against the Presidential Orders issued under Articles 341 and 342 of the Constitution of India and against the constitutional scheme.
71. As discussed earlier in para (8), in case of Union Territories, though administrative control to certain extent is exercised by the Union of India, Union Territories do not lose their identity as an entity. The existing practice of PAN INDIA reservation followed in Delhi and Chandigarh is against the constitutional scheme and also against the executive instructions dated 06.08.1984 and 22.02.1985 issued by the Ministry of Home Affairs.
72. As pointed our earlier, the Ministry of Home Affairs in its circular dated 06.08.1984 addressed to all the State Governments and Union Territories administration stated that SCs and STs on migration from the State of his origin to other State will not loose his status as SCs/STs; but will be entitled to the concession/benefits to the SCs/STs from the State of his origin and not from the State where he has migrated. The same thing was reiterated in the letter dated 22.02.1985 of the Ministry of Home Affairs, Government of India. If PAN India reservation is to be extended to the Union Territories like Delhi, Chandigarh, Puducherry, Andaman & Nicobar Islands or Daman & Diu for Group ‘C’ and ‘D’ services for which recruitment are made by the respective Union Territories, the very object of the Constitutional Scheme of upliftment of the SCs/STs of these Union Territories will be defeated. All India reservation to the services under the Union Territories including the Union Territory of Delhi will be against the mandate of Articles 341 and 342 of the Constitution and against the Constitutional Scheme.
73. Marri Chandra Shekhar Rao and Action Committee are applicable to the States and they are applicable with equal force to the Union Territories including Union Territory of Delhi. There cannot be any distinction between the States and the Union Territories. Likewise, there can be no distinction between Union Territory of Delhi and other Union Territories. When Presidential Orders of Scheduled Castes/Scheduled Tribes are notified for various Union Territories including Union Territory of Delhi extending PAN India reservation to the employment falling under the services of Union Territories including Union Territory of Delhi, will be against the Constitutional scheme and the law laid down in Marri Chandra Shekhar Rao and Action Committee.
74. Article 16(4) of the Constitution has to yield to the constitutional mandate of Articles 341 and 342 of the Constitution.
The Presidential Order issued under Article 341 in regard to Scheduled Castes and Article 342 in regard to Scheduled Tribes cannot be varied by anyone or by the Court. Only the Parliament by law include or exclude from the list of Scheduled Castes or Scheduled Tribes specified in the notification issued under Article 341 (1) and Article 342(1) respectively any caste, race or tribe or parts or group within any caste, race or tribe. The Scheduled Castes or Scheduled Tribes thus specified in relation to one State or Union Territory does not carry the status in another State or Union Territory. When the Scheduled Castes or Scheduled Tribes are specified for each State in relation to one State or Union Territory, neither the State legislature, the administration of the Union Territories and nor the courts can include or exclude other Scheduled Castes or Scheduled Tribes so notified in the Presidential Order. Providing all India reservation to the services of Union Territories including Union Territory of Delhi, would be against the mandate of Articles 341 and 342 and the Presidential Orders issued thereon. If that is permitted, it would amount to addition or alteration of the Presidential Order which is impermissible and violative of the Constitutional Scheme.
75. It is the responsibility of each State/Union Territory to provide for such reservation/affirmative action by positive discretion to bring backward classes/Scheduled Castes and Scheduled Tribes in the respective States/areas to provide socio-economic empowerment. If the reservation to the Scheduled Castes and Scheduled Tribes are to be extended to all categories of Scheduled Castes and Scheduled Tribes all over India or to the migrants then there is every possibility of the Scheduled Castes and Scheduled Tribes of other developed States and Union Territories squandering reservations to the Scheduled Castes and Scheduled Tribes who are disadvantaged in the respective States/Union Territories including Union Territory of Delhi. If this is permitted, it would defeat the very object of providing reservation to the disadvantaged Scheduled Castes and Scheduled Tribes in a particular State or Union territory. The enabling provision of Article 16(4) of the Constitution has to yield to the constitutional scheme of Article 341 and Article 342 of the Constitution.
76. Conclusion:-
• Insofar as the States, I agree with the majority view that a person who is recognised as a member of Scheduled Castes/Scheduled Tribes in his original State, will be entitled to all the benefits of reservation under the Constitution in that State only and not in other States/Union Territories and not entitled to the benefits of reservation in the migrated State/Union Territory.
• Marri Chandra Shekhar Rao and Action Committee are applicable to the States and they are applicable with equal force to the Union Territories including Union Territory of Delhi. There cannot be any distinction between the States and the Union Territories. Likewise, there can be no distinction between Union Territory of Delhi and other Union Territories. When Presidential Orders of Scheduled Castes/Scheduled Tribes are notified for various Union Territories including Union Territory of Delhi extending PAN India reservation to the employment falling under the services of Union Territories including Union Territory of Delhi, will be against the Constitutional scheme and the law laid down in Marri Chandra Shekhar Rao and Action
Committee.
• Since there is centralised recruitment upto Group ‘B’ (Gazetted) services conducted by UPSC for the Central Civil Services posts in the States/Union Territories of India, there has to be necessarily PAN India reservation for Scheduled Castes/Scheduled Tribes for those recruitment conducted by UPSC. Sofaras Group ‘B’ and Group ‘C’ posts falling under services of Union Territories including Union Territory of Delhi for which recruitment is conducted by the respective Union Territories, benefit of reservation in employment (Article 16(4)) is to be extended only to those Scheduled Castes/Scheduled Tribes specified in the Presidential Order of the respective Union Territories. Insofar as the posts recruited by the Staff Selection Board of the respective Union Territories including the Union Territory of Delhi, there cannot be PAN India reservation for Group ‘B’, Group ‘C’ and Group ‘D’ posts falling under the services of various Union Territories and such PAN India reservation would be against the constitutional scheme and Marri Chandra Shekhar Rao and Action Committee.
… J.
[R. BANUMATHI]
New Delhi; August 30, 2018
ITEM NO.1501 COURT NO.2 SECTION XIV/XVI/III S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS CIVIL APPEAL NO(S). 1085/2013 BIR SINGH APPELLANT(S) VERSUS DELHI JAL BOARD & ORS. RESPONDENT(S) WITH C.A. No. 9935-9937/2014 (XVI) C.A. No. 8375/2014 (III) C.A. No. 10081/2014 (XIV) C.A. No. 8141/2014 (XIV) C.A. No. 8802/2012 (XIV) C.A. No. 1086/2013 (XIV) SLP(C) No. 36324/2017 (XIV) Date : 30-08-2018 These cases were called on pronouncement of judgment/order today.
For parties: Mr. P.S. Narasimha, ASG Ms. V. Mohana, Sr. Adv. Ms. Rekha Pandey, Adv. Ms. Rashmi Malhotra, Adv. Mr. B.V. Balaram Das, AOR Mr. Colin Gonsalves, Sr. Adv. Ms. Aditi Gupta, Adv.
Ms. Jyoti Mendiratta, AOR Mr. Nishant Ramakantrao Katneshwarkar, AOR Mr. Sudhanshu S. Choudhari, AOR Mr. Shakul R. Ghatole, Adv. Ms. Surabhi Guleria, Adv.
Dr. Krishan Singh Chauhan, AOR Mr. Ajit Kumar Ekka, Adv.
Mr. Ravi Prakash, Adv. Mr. R.S.M. Kalky, Adv. Mr. Chand Kiran, Adv.
Mr. Bijan Kumar Ghosh, AOR Mr. Naresh Kaushik, Adv. Mr. Vardhman Kaushik, Adv. Mr. Manoj Joshi, Adv.
Mr. Omung Raj Gupta, Adv. Mr. Devik Singh, Adv.
Mrs. Lalita Kaushik, AOR Mr. Abhinav Mukerji, AOR Mr. D. N. Goburdhan, AOR Mr. B. V. Balaram Das, AOR Ms. G. Indira, AOR Mr. K.V. Jagdishvaran, Adv.
Mr. Nishant Ramakantrao Katneshwarkar, AOR Mr. Gaurav Agrawal, AOR Mr. P. Parmeswaran, AOR Mr. Ajay Bansal, Adv. Mr. Praveen Swarup, AOR Mr. Gaurav Yadava, Adv. Ms. Veena Bansal, Adv.
Mrs. Anil Katiyar, AOR Mr. Praneet Ranjan, AOR Mr. Bankey Bihari Sharma, AOR Ms. Asha Gopalan Nair, AOR Mr. B. Krishna Prasad, AOR Mr. Annam D. N. Rao, AOR Ms. Binu Tamta, AOR Ms. Sushma Suri, AOR Mr. Jatinder Kumar Bhatia, AOR UPON hearing the counsel the Court made the following O R D E R
CIVIL APPEAL NO.8375 OF 2014
Civil Appeal No.8375 of 2014 is de-linked from Civil Appeal No.1085/2013 (Bir Singh Vs. Delhi Jal Board & Ors.) and other connected matters and list the same for hearing before the appropriate Bench.
CIVIL APPEAL NO(S). 1085/2013, 9935-9937/2014, 10081/2014, 8141/2014, 8802/2012, 1086/2013 AND CIVIL APPEAL (@ SLP(C) No.
36324/2017)
Leave granted in Special Leave Petition (Civil) No.36324 of 2017.
Hon'ble Mr. Justice Ranjan Gogoi pronounced the judgment of the Bench comprising His Lordship, Hon'ble Mr. Justice N.V. Ramana, Hon’ble Mr. Justice Mohan M. Shantanagoudar and Ho’ble Mr. Justice S. Abdul Nazeer.
Civil Appeal Nos. 1085/2013, 10081/2014, 8141/2014, 8802/2012, 1086/2013 and Civil Appeal arising out of SLP(C) NO.36324/2017 (Pertaining to Delhi) are disposed of in terms of the signed reportable judgment and Civil Appeal No.9935-9937 of 2014 (Pertaining to U.T. of Andaman and Nicobar Island) will be listed before the appropriate Bench.
Hon’ble Mrs. Justice R. Banumathi pronounced the separate reportable judgment.
[VINOD LAKHINA] [SAROJ KUMARI GAUR] AR-cum-PS BRANCH OFFICER [TWO SIGNED REPORTABLE JUDGMENTS ARE PLACED ON THE FILE]