R.M. LODHA, C.J.I.
The appellant is an association representing the Scheduled Caste residents who have permanent residence/place of abode in Puducherry. The association filed two Writ Petitions before the High Court challenging the two Government Orders being G.O.Ms.No.11/2005/Wel(SCW II) [for short, 'G.O.M. 11/2005'] and G.O.Ms.No.12/2005/Wel(SCW II) [for short, 'G.O.M. 12/2005'] both dated 05.08.2005. G.O.M. 11/2005 relates to reservation benefits in promotion and employment to Group C & D posts and the other G.O.M. 12/2005 relates to reservation benefits in professional courses.
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2. The High Court was not persuaded by the arguments of the writ petitioner and dismissed the two Writ Petitions by a common order dated 21.07.2008.
3. The present Civil Appeals, by special leave, arise from the above common judgment.
4. Both Government Orders take note of the Constitution (Pondicherry) Scheduled Castes Order, 1964 and also the judgment of this Court in S. Pushpa and others Vs. Sivachanmugavelu and others1 and then provide for extension of reservation only to the Scheduled Castes origins of the Union Territory.
5. Para 5 of G.O.M. 11/2005 reads as follows :-
“Having examined the demand made by various Welfare Associations and Scheduled Castes (origin) people of the Union Territory of Pondicherry and taking into account the observations made by the Hon'ble Supreme Court at para 21 of the said judgment dated 11.02.2005, the Lieutenant Governor, Pondicherry is pleased to order that the reservation benefits in promotion, employment to Group 'C' and 'D' posts shall henceforth be extended only to the Scheduled Caste origins of the Union Territory as notified in the Constitution (Pondicherry) Scheduled Castes Order, 1964 read 1 (2005) 3 SCC 1 Page 2 :3:
with the Constitution (Scheduled Castes) Order (Second Amendment) Act, 2002 (Central Act 61 of 2002).”
6. Similarly, para 5 of G.O.M. 12/2005 reads as follows :-
“Having examined the demand made by various Welfare Associations and Scheduled Castes (origin) people of the Union Territory of Pondicherry and taking into account the observations made by the Hon'ble Supreme Court at para 21 of the said judgment dated 11.02.2005, the Lieutenant Governor, Pondicherry is pleased to order that the reservation benefits in the field of education and welfare shall henceforth be extended only to the Scheduled Caste origins of this Union Territory as notified in the Constitution (Pondicherry) Scheduled Castes Order, 1964 read with the Constitution (Scheduled Castes) Order (Second Amendment) Act, 2002 (Central Act 61 of 2002).”
7. Leave was granted in these matters on 13.12.2010 and it was ordered that these matters be tagged with Civil Appeal No. 4494 of 2006.
8. It so happened that subsequently by order dated October 7, 2010, Civil Appeal No. 4494 of 20062, came to be referred to a 3-Judge Bench as the 2-Judge Bench, inter alia, observed that in Subhash Chandra Vs. Delhi Subordinate Service Selection Board3, the 2-Judge Bench could not have
2 (2010) 12 SCC 794, State of Uttaranchal Vs. Sandeep Kumar Singh and Others
3 (2009) 15 SCC 458
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held that the decision rendered in S. Puspha1 case is obiter and not binding.
9. Civil Appeal No. 4494 of 20062 has been dismissed by us yesterday (August 6, 2014) without answering the reference as it was not necessary in view of paragraph 4 of the impugned judgment therein.
10. In the present case also, it is not necessary to answer the question raised in the reference only in Civil Appeal No. 4494 of 20062 as we find that the impugned Government Orders cannot be sustained on the short ground, viz., they being not in consonance with the Presidential Order, 1964.
11. The Presidential Order, 1964 reads as follows :-
“THE CONSTITUTION (PONDICHERRY) SCHEDULED CASTES ORDER, 1964 (C.O. 68) In exercise of the powers conferred by clause
(1) of article 341 of the Constitution of India, the President is pleased to make the following Order, namely:-
1. The Order may be called the Constitution (Pondicherry) Scheduled Castes Order, 1964.
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2. The castes, races or tribes or parts of or groups within castes, races or tribes specified in the Schedule to this Order shall, for the purposes of the Constitution, be deemed to be Scheduled Castes in relation to the Union Territory of Pondicherry so far as regards members thereof resident in that Union territory.
Provided that no person, who professes a religion different from the Hindu or the Sikh religion, shall be deemed to be a member of a Scheduled Caste.
THE SCHEDULE
1. Adi Andhra 9. Pallan
2. Adi Dravida 10. Parayan, Sambavar
3. Chakkiliyan 11. Samban
4. Jambuvulu
5. Kuravan
6. Madiga
12. Thoti
13. Valluvan
14. Vetan
7. Mala, Mala Masti 15. Vettiyan
8. Paky”
12. It will be seen from para 2 of the above Presidential Order that the castes, races or tribes or parts of or groups within castes, races or tribes (15 in all) specified in the Schedule appended thereto are deemed to be Scheduled Castes for the purposes of the Constitution in relation to the Union Territory of Pondicherry so far as regards members thereof are resident in the Union Territory.
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13. The Government Orders, however, have confined reservation benefits to Scheduled Castes origins of the Union Territory of Pondicherry. It would be seen that the Presidential Order does not speak of “origins” of the Union Territory of Pondicherry, it only speaks of “resident”.
14. Article 341 of the Constitution of India provides as under:-
“341. Scheduled Castes.-(1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed Castes in relation to that territory, as the case may be.
to be Scheduled State or Union
(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.”
15. 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 Page 6 :7:
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, the 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 the 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.
16. Thus, we find that the impugned Government Orders - G.O.M. 11/2005 and G.O.M. 12/2005 -
not being in conformity and consonance with the Page 7 :8:
Presidential Order, 1964 cannot be sustained in law and have to be set aside. We order accordingly.
17. Civil Appeals are allowed as above with no order as to costs.
. CJI.
(R.M. LODHA) . J.
(MADAN B. LOKUR) NEW DELHI; AUGUST 7, 2014 . J.
(KURIAN JOSEPH) Page 8