Bir Singh vs Delhi Jal Board .

BIR SINGH ….APPELLANT(S) VERSUS

DELHI JAL BOARD & ORS. ….RESPONDENT(S) WITH CIVIL APPEAL NO(S) 9935­9937 OF 2014 CIVIL APPEAL NO(S).10081 OF 2014 CIVIL APPEAL NO(S). 8141 OF 2014 CIVIL APPEAL NO(S). 8802 OF 2012 CIVIL APPEAL NO(S).1086 OF 2013 CIVIL APPEAL NO.9048 OF 2018 [ARISING OUT OF S.L.P(C) NO.36324 OF 2017]

J U D G M E N T

RANJAN GOGOI, J

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

of 2017

2. In State of Uttaranchal vs. Sandeep Kumar Singh and Signature Not Verified

others1 [Civil Appeal No.4494 of 2006) the following question arose Digitally signed by VINOD LAKHINA Date: 2018.08.30 14:56:53 IST Reason:

1 (2010) 12 SCC 794

1 for consideration of this Court:

“Whether a person belonging to a Scheduled Caste in relation to a particular State would be entitled or not, to the benefits or concessions allowed to Scheduled Caste candidate in the matter of employment, in any other State?”

3. In the course of the deliberations that took place this

Court noticed the Constitution Bench judgments of this Court in

Marri Chandra Shekhar Rao vs. Dean, Seth G.S. Medical College and

others2 and Action Committee on Issue of Caste Certificate to

Scheduled Castes and Scheduled Tribes in the State of Maharashtra

and another vs. Union of India and another3. The view of a three

Judge Bench of this Court in S. Pushpa and others vs.

Sivachanmugavelu and others4 was also noticed and the same was

perceived to be somewhat contrary to the view expressed by the

Constitution Bench in the above two cases. This Court also took

note of the fact that a two judge Bench of this Court in Subhash

2 (1990) 3 SCC 130 3 (1994) 5 SCC 244 4 (2005) 3 SCC 1

2 Chandra and another vs. Delhi Subordinate Services Selection

Board and others5 held that the dicta in S. Pushpa (supra) is an

obiter and does not lay down any binding ratio. The Bench hearing

the case i.e. State of Uttaranchal vs. Sandeep Kumar Singh and

others (supra) took the view that “it was not open to a two judge

Bench to say that the decision of a three judge Bench

rendered following the Constitution Bench judgments to be per

incuriam”. In this regard, the canons of judicial discipline carved

out by this Court in Central Board of Dawoodi Bohra Community

and another vs. State of Maharashtra and another6 were recalled

and eventually in paragraph 13 of the opinion rendered in State of

Uttaranchal vs. Sandeep Kumar Singh and others (supra) the

reference of the question noted below was made to a larger Bench:

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

5 (2009) 15 SCC 458 6 (2005) 2 SCC 673

3 341(1) or Article 342(1) of the Constitution has any bearing on the State’s action in making provision for the reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State, is not adequately represented in the services under the State? The extent and nature of interplay and interaction among Articles 16(4), 341(1) and 342(1) of the Constitution is required to be resolved.”

4. The said Civil Appeal No.4494 of 2006 (State of

Uttaranchal vs. Sandeep Kumar Singh and others) was disposed of

by the larger Bench of this Court by order dated 6 th August, 2014,

in the light of the findings of the High Court recorded in paragraph

4 of the High Court order to the effect that the order impugned

suffers from an apparent illegality as the appointing authority of the

petitioner therein is the University and the University had acted at

the dictate of the State Government, which has no power to ask for

cancellation of an appointment made in accordance with the

advertisement. In the aforesaid order dated 6 th August, 2014 this

Court took the view that the conclusions recorded in paragraph 4 of

4 the High Court order cannot be said to be legally flawed and

accordingly closed the said Civil Appeal (No. 4494 of 2006) on the

aforesaid basis. The question referred was not answered.

5. However, the question arising and referred to in the State

of Uttaranchal vs. Sandeep Kumar Singh and others (supra) was felt

to be surviving and subsisting in the present appeals also.

Accordingly, by an order of the Court dated 7 th August, 2014, the

very same question as formulated in paragraph 13 of the judgment

in State of Uttaranchal vs. Sandeep Kumar Singh and others

(supra), as extracted above, has been referred for an answer by a

five judge Bench of this Court. That is how we are in seisin of the

matters.

6. The factual matrix need not detain us and a brief resume

will suffice.

The question as to whether a policy in furtherance of the

enabling provision contained in Article 16(4) of the Constitution of

5 India could extend to giving of benefits beyond the Scheduled

Castes and Scheduled Tribes of a State/Union Territory

enumerated in the Presidential Orders framed/issued under

Articles 341 and 342 of the Constitution of India had arisen in the

bunch of writ petitions filed before the High Court of Delhi against

the order/orders of the Central Administrative Tribunal. The

learned Tribunal following Marri Chandra Shekhar Rao (supra) and

Action Committee (supra), in preference to the view expressed in S.

Pushpa (supra) (three judge Bench) held that insofar as the Union

Territory of Delhi is concerned, a migrant Scheduled Caste person

would not be entitled to the benefits conferred on members of the

Scheduled Castes enumerated in the list for the Union Territory of

Delhi by the Presidential Order (i.e. the Scheduled Castes and

Scheduled Tribes Lists (Modification) Order, 1956) in question. The

Delhi High Court sitting in a Full Bench (perhaps in view of the

importance of the question) found the decision in S. Pushpa (supra)

to be more directly relatable to the issue at hand i.e. being one of

6 services in the Union Territory and, therefore, felt to be bound by

the decision of the three judge Bench of this Court in S. Pushpa

(supra). While doing so, the Delhi High court in paragraph 66 of

the judgment emphasised on the necessity of an authoritative

pronouncement on the issue(s) arising. Accordingly, certificate to

appeal under Article 134­A of the Constitution was granted by the

High Court. Paragraph 66 of the judgment of the Full Bench of the

Delhi High Court will require a specific notice and is, therefore,

reproduced below:

“66. This court summarizes its conclusions, as follows: (1) The decisions in Marri, Action Committee, Milind and Channaiah have all ruled that scheduled caste and tribe citizens moving from one State to another cannot claim reservation benefits, whether or not their caste is notified in the state where they migrate to, since the exercise of notifying scheduled castes or tribes is region (state) specific, i.e " in relation" to the state of their origin. These judgments also took note of the Presidential Notifications, which had enjoined such citizens to be "residents" in

7 relation to the state which provided for such reservations. (2) The considerations which apply to Scheduled Caste and Tribe citizens who migrate from state to state, apply equally in respect of those who migrate from a state to a union territory, in view of the text of Articles 341 (1) and 342 (1), i.e. only those castes and tribes who are notified in relation to the concerned Union Territory, are entitled to such benefits. This is reinforced by the Presidential Notification in relation to Union Territories, of 1951. Only Parliament can add to such notification, and include other castes, or tribes, in view of Articles 341 (2), Article 342(2) which is also reinforced by Article 16(3). States cannot legislate on this aspect; nor can the executive ­ Union or state, add to or alter the castes, or tribes in any notification in relation to a state or Union Territory, either through state legislation or through policies or circulars. Differentiation between residents of states, who migrate to states, and residents of states who migrate to Union Territories would result in invidious discrimination and over­classification thus denying equal access to reservation benefits, to those who are residents of Union Territories, and whose castes or tribes are included in the Presidential Order in respect of

8 such Union Territories. The Pushpa interpretation has led to peculiar consequences, whereby: (i) The resident of a state, belonging to a scheduled caste, notified in that state, cannot claim reservation benefit, if he takes up residence in another state, whether or not his caste is included in the latter State's list of scheduled castes; (ii) However, the resident of a state who moves to a Union Territory would be entitled to carry his reservation benefit, and status as member of scheduled caste, even if his caste is not included as a scheduled caste, for that Union Territory; (iii) The resident of a Union Territory would however, be denied the benefit of reservation, if he moves to a State, because he is not a resident scheduled caste of that State. (iv) The resident of a Union Territory which later becomes a State, however, can insist that after such event, residents of other states, whose castes may or may not be notified, as scheduled castes, cannot be treated as such members in such newly formed states; (v) Conversely, the scheduled caste resident of a state which is converted into a Union Territory, cannot protest against the treatment of scheduled caste residents of other states as members of scheduled caste of the Union Territory, even though their castes are not

9 included in the list of such castes, for the Union Territory. (3) The ruling in Pushpa is clear that if the resident of a state, whose caste is notified as Scheduled caste or scheduled tribe, moves to a Union Territory, he carries with him the right to claim that benefit, in relation to the Union Territory, even though if he moves to another state, he is denied such benefit (as a result of the rulings in Marri and Action Committee). The ruling in Pushpa, being specific about this aspect vis­à­vis Union Territories, is binding; it was rendered by a Bench of three judges. (4) The later ruling in Subhash Chandra doubted the judgment in Pushpa, holding that it did not appreciate the earlier larger Bench judgments in the correct perspective. Yet, Subhash Chandra cannot be said to have overruled Pushpa, since it was rendered by a smaller Bench of two judges. This approach of Subhash Chandra has been doubted, and the question as to the correct view has been referred to a Constitution Bench in the State of Uttaranchal case. (5) By virtue of the specific ruling applicable in the case of Union Territories, in Pushpa, whatever may be the doubts entertained as to the soundness of its reasoning, the High Courts have to apply its ratio, as it is by a formation of

10 three judges; the said decision did notice the earlier judgments in Marri and Action Committee. Article 141 and the discipline enjoined by the doctrine of precedent compels this Court to follow the Pushpa ruling. (6) In matters pertaining to incidence of employment, such as seniority, promotion and accelerated seniority or promotional benefits, flowing out of Articles 16 (4A) and (4B) of the Constitution, there may be need for clarity, whichever rule is ultimately preferred ­ i.e the Pushpa view or the Marri and Action Committee view. In such event, it may be necessary for the guidance of decision makers and High Courts, to spell out whether the correct view should be applied prospectively. Furthermore, it may be also necessary to clarify what would be meant by prospective application of the correct rule, and whether such employment benefits flowing after recruitment, would be altered if the Marri view is to be preferred.”

7. Civil Appeal Nos.9935­9937 of 2014 from the decision of

the Calcutta High court pertain to claims made by persons

belonging to Uraons and Mundas members of the Scheduled Tribes

11 communities who have migrated to the Union Territory of Andaman

& Nicobar Island. The High Court rejected the claim of reservation

made by the aforesaid migrants Scheduled Tribes communities

confining such benefits to the Scheduled Castes communities

enumerated in the list appearing in the Presidential Order

pertaining to the Union Territory of Andaman & Nicobar Island.

8. Before delving into the constitutional provisions which

would be necessary to be dealt with for answering the reference a

brief look at the pre­constitutional position on the issue would

throw considerable light and provide a sound insight to the multi­

faceted questions that the reference has given rise to.

9. The caste system in India, which is the bane of a just

social order, has a long history which can be traced to the earliest

times. Ancient Hindu religious scriptures refer to the practice.

Division of Society based on birth and the calling/profession of a

person has continued to dominate Hindu thinking and way of life

12 and is perhaps one of the thorny problems inherited by the British

Administration which had tried to resolve the same by giving legal

recognition to what came to be termed as the “depressed classes”.

Such recognition was in the form of a protective regime which

extended to representation in the Legislature and in the services

under the State. Exercises in finding out the numerical strength of

the depressed class in the early 20 th Century (By Southborough

Committee) revealed a grim picture indicating such number to be as

high as 20 per cent of the majority population (Hindu) in eight (08)

Indian Provinces of Madras, Bombay, Bengal, United Provinces,

Punjab, Bihar and Orissa, Central Provinces and Assam. The above

figure did not include primitive or aboriginal tribes who later came

to be known as the Scheduled Tribes and included in the list of

Scheduled Tribes under the different Presidential Orders issued

from time to time.

13 10. The Government of India Act, 1935 (hereinafter referred

to as “1935 Act”) (also referred to as “the Constitution Act”) brought

into force the expression “Scheduled Castes” for the first time in

Indian Constitutional history. Entry 26 Part I of the First Schedule

to the 1935 Act stipulates that “the Scheduled Castes mean such

castes, races or tribes or parts of or groups within the castes,

races or tribes, being castes, races, tribes, parts or groups,

which appear to His Majesty in Council to correspond to the

classes of persons formerly known as ‘the depressed classes’,

as His Majesty in Council may specify”.

11. Thereafter a Gazette Notification was published on 6 th

June, 1936 promulgating the Government of India (Scheduled

Castes) Order, 1936 notifying the list of castes that are to be

considered as “the Scheduled Castes” across the territory of India.

A look at the Schedule which consisted of nine (09) parts i.e.

Madras, Bombay, Bengal, United Provinces, Punjab, Bihar, Central

14 Provinces, Assam, Orissa would indicate that identification of the

different castes for inclusion as Scheduled Castes in the Schedule

to the 1935 Act was based on an elaborate exercise conducted for

each of the Provinces so much so that while some castes have been

identified as Scheduled Castes throughout a Province, others have

been so identified to limited areas within a province. The post

constitutional exercise by the Constitution (Scheduled Castes)

Order, 1950 and the Constitution (Scheduled Tribes) Order, 1950,

as originally enacted under Articles 341 and 342 of the

Constitution, was basically an exercise in re­casting the Schedule to

the 1935 Act. The subsequent amendments to the aforesaid two

Orders, from time to time, have been necessitated to bring the

position in tune with the amendments to the First Schedule to the

Constitution made at different points of time by creation of new

States and alterations in the area and boundaries of existing States.

15 12. Article 366 of the Constitution which defines expressions

appearing in the Constitution specifically defines ‘Scheduled Castes’

[clause (24)] to mean “such castes, races or tribes or parts of or

groups within such castes, races or tribes as are deemed

under Article 341 to be Scheduled Castes for the purposes of

this Constitution”. Similarly, clause (25) of Article 366 defines

“Scheduled Tribes” to mean “such tribes or tribal communities

or parts of or groups within such tribes or tribal communities

as are deemed under Article 342 to be Scheduled Tribes for

the purposes of this Constitution”.

13. Part XVI of the Constitution of India deals with special

provisions relating to certain classes. Article 330 provides for

reservation of seats for Scheduled Castes and Scheduled Tribes in

the House of the People (Lok Sabha) whereas Article 332 contains

similar provisions so far as the Legislative Assemblies of the States

16 are concerned. Article 335 of the Constitution provides that “the

claims of the members of the Scheduled Castes and Scheduled

Tribes shall be taken into consideration, consistently with the

maintenance of efficiency of administration, in the making of

appointments to services and posts in connection with the

affairs of the Union or of a State ”. By the Constitution (Eighty­

Second) Amendment Act, 2000 a proviso to Article 335 was added

to provide that the members of the Scheduled Castes and

Scheduled Tribes may be granted relaxation in qualifying marks in

any examination or standards of evaluation can be lowered in

matters of promotion to any class or classes of services or posts in

connection with the affairs of the Union or of a State. Article 338 of

the Constitution provides for a National Commission for Scheduled

Cates which is invested with the following duties:

“(a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes under this Constitution or under any other law for the time being in force or

17 under any order of the Government and to evaluate the working of such safeguards; (b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes; (c) to participate and advise on the planning process of socio­economic development of the Scheduled Castes and to evaluate the progress of their development under the Union and any State; the Scheduled Castes and to evaluate the progress of their development under the Union and any State; (d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards; deem fit, reports upon the working of those safeguards; (e) to make in such reports recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio­ economic development of the Scheduled Castes; and (f) to discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Castes as the President may, subject to the provisions of any law made by Parliament, by the rule specify.”

18 14. Similarly, Article 338A provides for a National

Commission for Scheduled Tribes which is vested with similar

duties as in the case of the Commission for the Scheduled Castes.

15. Article 341(1) of the Constitution empowers the President

with respect to any State or Union Territory, and where it is a State,

after consultation with the Governor thereof, by public notification,

to specify the castes, races or tribes or parts of or groups within

castes, races or tribes which shall for the purposes of the

Constitution be deemed to be Scheduled Castes in relation to that

State or Union Territory, as the case may be.

16. In case of Scheduled Tribes the President has been

similarly empowered under Article 342(1) of the Constitution. Sub­

clause (2) of Article 341 and Article 342 empowers the Parliament

by law to include in or exclude from the list of Scheduled

Castes/Scheduled Tribes specified in the Notification issued under

clause (1) thereof any caste, race or tribe/tribal community or part

19 of or group within any caste, race or tribe/tribal community. It is

further provided that except as provided i.e. by Parliament by law(s)

made, the notification issued under Article 341(1) or Article 342(1)

shall not be varied by any subsequent notification. The

constitutional mandate, therefore, appears to be that any caste,

race or tribe/tribal community or part of or group within any caste,

race or tribe/tribal community as has been specified in the

Presidential Order under clause (1) of Article 341 or Article 342 can

be altered only by Parliament by law(s) made.

17. Article 341 and Article 342 also makes it clear that the

caste, race or tribe or part of or group within any caste, race or tribe

as specified in the Presidential Order under Article 341(1) or a tribe

or tribal community as may be specified in the Presidential Order

under Article 342(1) shall be deemed to be Scheduled

Castes/Scheduled Tribes for the purposes of the Constitution in

relation to that State or Union Territory, as the case may be. The

20 above position is further made clear by clause (2) of the two

Presidential Orders which are in the following terms.

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

2. Subject to the provisions of this Order, the castes, races or tribes or parts of, or groups within, castes or tribes specified in Parts I to XXV of the Schedule to this Order shall, in relation to the States to which those Parts respectively relate, be deemed to be Scheduled Castes so far as regards member thereof resident in the localities specified in relation to them in those Parts of that Schedule.

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

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

18. There are various parameters by which a caste/race is

recognized as 'Scheduled Caste/Scheduled Tribe' in a State/Union

21 Territory or a particular part thereof. There is no doubt that before

the Presidential Orders were issued under Article 341(1) or under

Article 342(1), elaborate enquiries were made and only after such

enquiries that the Presidential Orders were issued. While doing so,

the Presidential Orders not only provided that even specified parts

or groups of castes, races or tribes/tribal community could be

Scheduled Castes/Tribes in a particular State/Union Territory but

also made it clear that certain castes or tribes or parts/groups

thereof could be Scheduled Castes/Tribes only in

specified/particular areas/districts of a State/Union Territory. The

reason for such an exercise by reference to specific areas of a State

is that judged by standards of educational, social backwardness,

etc. races or tribes may not stand on the same footing throughout

the State. The consideration for specifying a particular caste or tribe

or class for inclusion in the list of Scheduled Castes and Scheduled

Tribes or Backward Classes in any given State depends on the

nature and extent of the disadvantages and social hardships

22 suffered by the concerned members of the class in that State. These

may be absent in another State to which the persons belonging to

some other State may migrate.

19. The Presidential Orders which enumerate lists of

castes/races, tribes recognized as 'Scheduled Caste/Scheduled

Tribe' cannot be challenged or agitated in a court of law except,

perhaps, on the limited ground as held in M. Nagaraj and others vs.

Union of India and others7. A few illustrations may clarify the

position. The question whether Dohar caste is a sub­caste of

Chamar caste which is recognized as a scheduled caste came up for

consideration in Bhaiya Lal vs. Harikishan Singh8. This Court held

that the court cannot enquire into whether Dohar caste is a sub­

caste of Chamar caste and whether the same must be deemed to

have been included in the Presidential Order. In Bhaiya Lal

(supra), this Court held that before issuing notifications under

7 (2006) 8 SCC 212 8 AIR 1965 SC 1557

23 Articles 341 and 342, an elaborate enquiry is made and as a result

of the enquiry social justice is sought to be done to the castes, races

or tribes as may appear to be necessary. It was further held that

only Parliament is empowered to amend the Notification under

Articles 341(2) and 342(2) of the Constitution, as is underlined by

the expression "but save as aforesaid a notification issued

under the said clause shall not be varied by any subsequent

notification" occurring in each of the said provisions. In Bhaiya

Lal (supra), this Court held as under:­

"10...The object of Article 341(1) plainly is to provide additional protection to the members of the Scheduled Castes having regard to the economic and educational backwardness from which they suffer. It is obvious that in specifying castes, races or tribes, the President has been expressly authorised to limit the notification to parts of or groups within the castes, races or tribes, and that must mean that after examining the educational and social backwardness of a caste, race or tribe, the President may well come to the conclusion that not the whole caste, race or tribe but parts of or groups within them should be specified. Similarly, the President can specify castes, races or tribes or

24 parts thereof in relation not only to the entire State, but in relation to parts of the State where he is satisfied that the examination of the social and educational are backwardness of the race, caste or tribe justifies such specification. In fact, it is well known that before a notification is issued under Article 341(1), an elaborate enquiry is made and it is as a result of this enquiry that social justice is sought to be done to the castes, races or tribes as may appear to be necessary, and in doing justice, it would obviously be expedient not only to specify parts or groups of castes, races or tribes, but to make the said specification by reference to different areas in the State. Educational and social backwardness in regard to these castes, races or tribes may not be uniform or of the same intensity in the whole of the State; it may vary in degree or in kind in different areas and that may justify the division of the State into convenient and suitable areas for the purpose of issuing the public notification in question..." [Underlining added]

20. Whenever States' reorganization had taken place in

the past, Parliament had exercised its powers under Article

341(2) and Article 342(2) and provided for specific

Castes/Tribes that were entitled to be recognised as

Scheduled Castes and Scheduled Tribes in relation to the

25 reorganized States/Union Territories. The Scheme of the

Constitution (Scheduled Castes) and (Scheduled Tribes)

Orders makes it clear that Parliament's intention was to

extend the benefits of reservation in relation to the

States/Union Territories only to the castes, races or tribes as

mentioned in the Presidential Orders.

21. The Orders of 1950 was amended by the

Constitution (Scheduled Castes and Scheduled Tribes Order),

by the Amendment Act, 1956 (Act 63/1956). Another

amending Act was enacted by parliament in 1976. Earlier,

orders had been made for the first time in relation to certain

territories, such as the Constitution (Andaman and Nicobar

Islands) Scheduled Tribes Order, 1959. Further, amendments

had taken place as and when parliament reorganized states,

through separate Reorganisation Acts, which led to large scale

modification of the Presidential Orders. Illustratively, when

26 new States/Union Territories were formed such as, Nagaland,

Pondicherry, or Sikkim, the Scheduled Castes or Scheduled

Tribes Orders were made in relation to the new States/Union

Territories, for instance, the Constitution (Nagaland)

Scheduled Tribes Order, 1970­ after the reorganisation of

Assam; the Constitution (Sikkim) Scheduled Castes Order,

1978; the Constitution (Sikkim) Scheduled Tribes Order, 1978)

upon creation of the State of Sikkim; the recent ones being

upon creation of the States of Uttarakhand, Chhattisgarh, and

Jharkhand. Likewise, when previous Union Territories (such

as Goa, Mizoram and Arunachal Pradesh) were constituted

into States, consequential amendments were made to the

Scheduled Castes and Tribes Orders. All such

amendments/enactments were made by Parliament.

22. Though in a different context i.e. in relation to

Backward Classes this Court in M.C.D. v. Veena and Ors.9, has

9 (2001) 6 SCC 571

27 specifically held that migrants are not entitled for reservation

as Other Backward Classes (OBCs) in the States/Union

Territories where they have migrated. The relevant portion of

the judgment that may be noticed is as hereunder:­ "6. Castes or groups are specified in relation to a given State or Union Territory, which obviously means that such caste would include caste belonging to an OBC group in relation to that State or Union Territory for which it is specified. The matters that are to be taken into consideration for specifying a particular caste in a particular group belonging to OBCs would depend on the nature and extent of disadvantages and social hardships suffered by that caste or group in that State. However, it may not be so in another State to which a person belonging thereto goes by migration. It may also be that a caste belonging to the same nomenclature is specified in two States but the considerations on the basis of which they had been specified may be totally different. So the degree of disadvantages of various elements which constitute the data for specification may also be entirely different. Thus, merely because a given caste is specified in one State as belonging to OBCs does not necessarily mean that if there be another group belonging to the same nomenclature in another State, a person belonging to that group is entitled to

28 the rights, privileges and benefits admissible to the members of that caste. These aspects have to be borne in mind in interpreting the provisions of the Constitution with reference to application of reservation to OBCs."

23. A Constitution Bench of this Court in Marri

Chandra Shekhar Rao (supra) had the occasion to consider the

question as to whether a member of the Gouda community

which is recognised as “Scheduled Tribe” in the Constitution

(Scheduled Tribes) Order, 1950 for the State of Andhra

Pradesh would be entitled to admission in a medical

institution situated in the State of Maharashtra. This Court

noticed the fact that the father of the petitioner in Marri

Chandra Shekhar Rao (supra) was an employee in Fertilizer

Corporation of India, a public sector undertaking and

thereafter in Rashtriya Chemicals and Fertilizers Limited, a

Government of India undertaking. He belonged to the Gouda

community, a recognized Scheduled Tribe of Andhra Pradesh.

29 On his appointment he was stationed at Bombay. The

petitioner came to Bombay at the age of nine years. He

completed his studies in Bombay; he submitted an application

for his admission in the medical institutions run by Bombay

Municipal Corporation which was denied. This denial of

admission was based on the Government of India circular

dated 22nd February, 1985, according to which a person who

migrates from one State to another is entitled to the benefit of

being Scheduled Castes/Scheduled Tribes in the State of

origin and not in the State to which he or she migrates. The

appellant was held not entitled to be admitted to the Medical

College on the basis that he belonged to a Scheduled Tribe in

his original State i.e. Andhra Pradesh.

24. After referring to various provisions of the

Constitution of India, the background in which the

Presidential Orders were issued and several earlier judgments

of this Court, it was held as under:­

30 "9. It appears that Scheduled Castes and Scheduled Tribes in some States had to suffer the social disadvantages and did not have the facilities for development and growth. It is, therefore, necessary in order to make them equal in those areas where they have so suffered and are in the state of underdevelopment to have reservations or protection in their favour so that they can compete on equal terms with the more advantageous or developed sections of the community. Extreme social and economic backwardness arising out of traditional practices of untouchability is normally considered as criterion for including a community in the list of Scheduled Castes and Scheduled Tribes. The social conditions of a caste, however, varies from State to State and it will not be proper to generalise any caste or any tribe as a Scheduled Tribe or Scheduled Caste for the whole country. This, however, is a different problem whether a member or the Scheduled Caste in one part of the country who migrates to another State or any other Union territory should continue to be treated as a Scheduled Caste or Scheduled Tribe in which he has migrated. That question has to be judged taking into consideration the interest and well­being of the Scheduled Castes and Scheduled Tribes in the country as a whole." [underlining is ours]

31 25. In Marri Chandra Shekhar Rao (supra), rejecting the

contention that a member of Scheduled Castes/Scheduled

Tribes should get the benefit of the status 'for the purpose of

the Constitution throughout the territory of India', it was

observed that if such contention is to be accepted the

expression "In relation of that State" would become

nugatory.

26. Marri Chandra Shekhar Rao (supra) was followed by

another Constitution Bench of this Court in Action Committee

(supra). After referring to Articles 14, 15(1), 15(4), 16(4) and

19 and Part XVI of the Constitution of India and the decisions

governing the field and also Articles 341 and 342, it was held

as under:­

"3. On a plain reading of clause (1) of Articles 341 and 342 it is manifest that the power of the President is limited to specifying the castes or tribes which shall, for the purposes of the

32 Constitution, be deemed to be Scheduled Castes or Scheduled Tribes in relation to a State or a Union Territory, as the case may be. Once a notification is issued under clause (1) of Articles 341 and 342 of the Constitution, Parliament can by law include in or exclude from the list of Scheduled Castes or Scheduled Tribes, specified in the notification, any caste or tribe but save for that limited purpose the notification issued under clause (1), shall not be varied by any subsequent notification. What is important to notice is that the castes or tribes have to be specified in relation to a given State or Union Territory. That means a given caste or tribe can be a Scheduled Caste or a Scheduled Tribe in relation to the State or Union Territory for which it is specified. These are the relevant provisions with which we shall be concerned while dealing with the grievance made in this petition. .... 16. We may add that considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/Schedule Tribes or backward classes in a given State would depend on the nature and extent of disadvantages and social hardships suffered by that caste, tribe or class in that State which may be totally non est in another State to which persons belonging thereto may migrate. Coincidentally it may be that a caste or tribe bearing the same nomenclature is specified in two States but the

33 considerations on the basis of which they have been specified may be totally different. So also the degree of disadvantages of various elements which constitute the input for specification may also be totally different. Therefore, merely because a given caste is specified in State A as a Scheduled Caste does not necessarily mean that if there be another caste bearing the same nomenclature in another State the person belonging to the former would be entitled to the rights, privileges and benefits admissible to a member of the Scheduled Caste of the latter State “for the purposes of this Constitution”. This is an aspect which has to be kept in mind and which was very much in the minds of the Constitution­makers as is evident from the choice of language of Articles 341 and 342 of the Constitution...." [underlining is ours]

27. Marri Chandra Shekhar Rao (supra) and Action

Committee (supra) were followed in Subhash Chandra and

another (supra). After referring to various judgments on the

point and also the various circulars, this Court in Subhash

Chandra and another (supra) held as under:­

34 "69. Both the Central Government and the State Government indisputably may lay down a policy decision in regard to reservation having regard to Articles 15 and 16 of the Constitution of India but such a policy cannot violate other constitutional provisions. A policy cannot have primacy over the constitutional scheme. If for the purposes of Articles 341 and 342 of the Constitution of India, State and the Union Territory are on a par on the ground of administrative exigibility (sic) or in exercise of the administrative power, the constitutional interdict contained in clause (2) of Article 341 or clause (2) of Article 342 of the Constitution of India cannot be got rid of. ....... 75. If a caste or tribe is notified in terms of the Scheduled Castes Order or the Scheduled Tribes Order, the same must be done in terms of clause (1) of Article 341 as also that of Article 342 of the Constitution of India, as the case may be. No deviation from the procedure laid down therein is permissible in law. If any amendment/alteration thereto is required to be made, recourse to the procedure laid down under clause (2) thereof must be resorted to."

28. In Marri Chandra Shekhar Rao (supra), the

Constitution Bench observed that the expression "in relation

to that State" must be read meaningfully and harmoniously.

35 It was observed that if a member of Scheduled

Castes/Scheduled Tribes gets the benefit of that status

throughout the territory of India, the expression "in relation

to that State" would become nugatory. If the special

privileges or the rights granted to scheduled castes or

scheduled tribes in a particular State are to be made available

in all the States and if such benefits are to be carried from

State ‘A’ to State ‘B’ on migration, the mandate of Article

341/342 would get compromised. Such a consequence must

be avoided for it is a fundamental rule of interpretation, be it

of a statutory enactment or of the Constitution, that wherever

and whenever there is a conflict between two provisions, the

same should be so interpreted as to give effect to both.

“…….Nothing is surplus in a Constitution and no part should

be made nugatory…..”. [Marri Chandra Shekhar Rao (supra)]

36 29. The issue has to be viewed from another

perspective. If a member of a Scheduled Caste/ Scheduled

Tribe of Andhra Pradesh who had migrated to Maharashtra is

to be given the benefit of reservation it will amount to

depriving a member of a Scheduled Caste/Scheduled Tribe of

Maharashtra by reducing the reservation earmarked for them.

It is in this context, in Marri Chandra Shekhar Rao (supra),

that the Constitution Bench observed as under:­

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

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

30. Unhesitatingly, therefore, it can be said that a

person belonging to a Scheduled Caste in one State cannot be

deemed to be a Scheduled Caste person in relation to any

other State to which he migrates for the purpose of

employment or education. The expressions "in relation to

that State or Union Territory" and "for the purpose of this

Constitution" used in Articles 341 and 342 of the

Constitution of India would mean that the benefits of

reservation provided for by the Constitution would stand

38 confined to the geographical territories of a State/Union

Territory in respect of which the lists of Scheduled

Castes/Scheduled Tribes have been notified by the

Presidential Orders issued from time to time. A person

notified as a Scheduled Caste in State 'A' cannot claim the

same status in another State on the basis that he is declared

as a Scheduled Caste in State 'A'.

31. In S. Pushpa (supra), the Pondicherry Government

had appointed Selection Grade Teachers in 1995 under the

Scheduled Castes quota from amongst the scheduled castes

candidates registered in the employment exchange in

Pondicherry but also extended the benefit of reservation to

scheduled castes candidates of other States and Union

Territories. The Chennai Bench of Central Administrative

Tribunal (“CAT” for short) quashed the selection process

holding that migrant Scheduled Castes/Scheduled Tribes

39 candidates could not be considered for appointment for posts

within the union territory of Pondicherry. In S. Pushpa (supra)

the issue was with regard to the extent of benefit that

Scheduled Castes candidates of other States/Union Territories

would be entitled to in Pondicherry. This Court held that in

the matter of providing reservation, it was open to the

Pondicherry Government to apply or adopt a policy to give the

benefit of reservation to migrant Scheduled Castes and

Scheduled Tribes. In paragraphs 17 and 21 in S. Pushpa

(supra), it was held as under:

“17. We do not find anything inherently wrong or any infraction of any constitutional provision in such a policy. The principle enunciated in Marri Chandra Shekhar Rao cannot have application here as UT of Pondicherry is not a State. As shown above, a Union Territory is administered by the President through an Administrator appointed by him. In the context of Article 246, Union Territories are excluded from the ambit of the expression “State” occurring therein. This was clearly explained by a Constitution Bench in T.M. Kanniyan v. ITO. In New Delhi Municipal

40 Council v. State of Punjab the majority has approved the ratio of T.M. Kanniyan and has held that the Union Territories are not States for the purpose of Part XI of the Constitution (para 145). The Tribunal has, therefore, clearly erred in applying the ratio of Marri Chandra Shekhar Rao in setting aside the selection and appointment of migrant SC candidates. (underlining is ours)

*** *** ***

21. ....Article 16(4) is not controlled by a Presidential Order issued under Article 341(1) or Article 342(1) of the Constitution in the sense that reservation in the matter of appointment on posts may be made in a State or Union Territory only for such Scheduled Castes and Scheduled Tribes which are mentioned in the Schedule appended to the Presidential Order for that particular State or Union Territory. This article does not say that only such Scheduled Castes and Scheduled Tribes which are mentioned in the Presidential Order issued for a particular State alone would be recognised as backward classes of citizens and none else. If a State or Union Territory makes a provision whereunder the benefit of reservation is extended only to such Scheduled Castes or Scheduled Tribes which are recognised as such in relation to that State or Union

41 Territory then such a provision would be perfectly valid. However, there would be no infraction of clause (4) of Article 16 if a Union Territory by virtue of its peculiar position being governed by the President as laid down in Article 239 extends the benefit of reservation even to such migrant Scheduled Castes or Scheduled Tribes who are not mentioned in the Schedule to the Presidential Order issued for such Union Territory. The UT of Pondicherry having adopted a policy of the Central Government whereunder all Scheduled Castes or Scheduled Tribes, irrespective of their State are eligible for posts which are reserved for SC/ST candidates, no legal infirmity can be ascribed to such a policy and the same cannot be held to be contrary to any provision of law."

32. The upshot of the aforesaid discussion would lead

us to the conclusion that the Presidential Orders issued under

Article 341 in regard to Scheduled Castes and under Article

342 in regard to Scheduled Tribes cannot be varied or altered

by any authority including the Court. It is the Parliament

alone which has been vested with the power to so act, that too,

by laws made. Scheduled Castes and Scheduled Tribes thus

42 specified in relation to a State or a Union Territory does not

carry the same status in another State or Union Territory.

Any expansion/deletion of the list of Scheduled

Castes/Scheduled Tribes by any authority except Parliament

would be against the constitutional mandate under Articles

341 and 342 of the Constitution of India.

33. Article 16(4) is an enabling provision. It enables the

State to provide to backward classes including Scheduled

Castes and Scheduled Tribes reservation in appointments to

public services. Such reservation is to be provided on the basis

of quantifiable data indicating the adequacy or inadequacy, as

may be, of the representation of such classes in Government

service. The data which is the basis of the satisfaction of the

State being verifiable, is open to judicial scrutiny on the limited

ground of relevance of the circumstances on which the

satisfaction is moulded. The policy decision to provide

43 reservation, of course, is beyond the pale of judicial review.

34. It is an unquestionable principle of interpretation

that interrelated statutory as well as constitutional provisions

have to be harmoniously construed and understood so as to

avoid making any provision nugatory and redundant. If the list

of Scheduled Castes/Scheduled Tribes in the Presidential

Orders under Article 341/342 is subject to alteration only by

laws made by Parliament, operation of the lists of Scheduled

Castes and Scheduled Tribes beyond the classes or categories

enumerated under the Presidential Order for a particular

State/Union Territory by exercise of the enabling power vested

by Article 16(4) would have the obvious effect of circumventing

the specific constitutional provisions in Articles 341/342. In

this regard, it must also be noted that the power under Article

16(4) is not only capable of being exercised by a legislative

provision/enactment but also by an Executive Order issued

44 under Article 166 of the Constitution. It will, therefore, be in

consonance with the constitutional scheme to understand the

enabling provision under Article 16(4) to be available to provide

reservation only to the classes or categories of Scheduled

Castes/Scheduled Tribes enumerated in the Presidential orders

for a particular State/Union Territory within the geographical

area of that State and not beyond. If in the opinion of a State it

is necessary to extend the benefit of reservation to a

class/category of Scheduled Castes/Scheduled Tribes beyond

those specified in the Lists for that particular State,

constitutional discipline would require the State to make its

views in the matter prevail with the central authority so as to

enable an appropriate parliamentary exercise to be made by an

amendment of the Lists of Scheduled Castes/Scheduled Tribes

for that particular State. Unilateral action by States on the

touchstone of Article 16(4) of the Constitution could be a

possible trigger point of constitutional anarchy and therefore

45 must be held to be impermissible under the Constitution.

35. The decision in S. Pushpa (supra) may now be taken

up to understand the basis on which the conclusion recorded

therein was recorded. In S. Pushpa (supra) a distinction was

found by this Court in the constitutional status of a Union

Territory and a State in relation to the Union/Central

Government. The provisions of Article 239 and 239A of the

Constitution; Section 3(8) of the General Clauses Act, 1897

defining ‘Central Government’ and the provisions of the

Government of Union Territories Act, 1963 were considered to

arrive at the following conclusion:

“14. The effect of these provisions is also that the Administrator (Lt Governor of Pondicherry) and his Council of Ministers act under the general control of and are under an obligation to comply with any particular direction issued by the President. Further, the Administrator (Lt Governor of Pondicherry) while acting under the scope of the authority given to him under Article 239 of the Constitution would be the

46 Central Government.”

36. It is on the aforesaid basis that the concerned

Notification/Government Order dated 16th February, 1974 by

which it was provided that Scheduled Castes/Scheduled

Tribes candidates from outside the Union Territory of

Pondicherry should also be considered for appointment to

posts reserved for Scheduled Castes/Scheduled Tribes in the

Union Territory Administration and the communication of the

Government of India dated 6th October, 1995 to the same effect

were upheld.

37. The First Schedule to the Constitution, as original

enacted, provided for three (03) categories of States i.e. Part

‘A’, Part ‘B’ and Part ‘C’ States to comprise the territory of

India. The States Reorganization Act, 1956 and the

consequential Constitution (Seventh Amendment) Act, 1956

drastically altered the provisions of the First Schedule to the

47 Constitution by establishment of new States; alteration in the

area and boundaries of existing States and also by abolition of

the three (03) categories of States; and by classification of

certain areas as Union Territories. Pursuant thereto the

Government of Union Territories Act, 1963 was enacted to

provide for Legislative Assemblies and Councils of Ministers

for certain Union Territories and for certain other incidental

matters. It will not be necessary to specifically deal with the

provisions of the aforesaid Act in any great detail except to say

that in course of time most of the Union Territories (except for

Pondicherry), which had been provided with their own

Legislatures and Councils of Ministers have graduated to

become full­fledged States on the basis of enactment of several

State Reorganisation Acts details of which have been

mentioned (para 21). The Union Territory of Pondicherry, as

on date, stands out as sole Union Territory which has a

Legislature and Council of Ministers, apart from Delhi.

48 38. Delhi, which was one of the original Union

Territories, came to be called as “National Capital Territory of

Delhi”. This change was introduced by the Constitution

(Sixty­Ninth Amendment) Act, 1991 with effect from 1 st

February, 1992 by insertion of Article 239­AA in Part VIII of

the Constitution (i.e. Special provisions with respect to Delhi).

Article 239­AA(3)(a) empower the Legislative Assembly of the

National Capital Territory of Delhi to make laws with respect

to any matters enumerated in the State List or in the

Concurrent List (i.e. List II and List III of the Seventh Schedule

to the Constitution of India) subject to certain exceptions. It is

here that the Union Territory of Delhi i.e. National Capital

Territory of Delhi is enjoined a special status inasmuch as

power to enact laws on any of the subjects in List II and List III

is a constitutional conferment as opposed to the position in

the erstwhile Union Territories and the present day Union

49 Territory of Pondicherry where the power to frame/make laws

has been conferred on the Union Territory Legislatures by a

Parliamentary enactment i.e. Section 18 of the Government of

Union Territories Act, 1963. The above narration has been

considered necessary only to make the discussion complete.

We make it clear that we are not entering into any discussion

as to the special position/status of Delhi, if any, by virtue of

the provisions contained in Article 239AA as the said issue

does not arise for consideration in the present reference.

39. The above view coupled with the scope and ambit of

the present reference may also not require us to go into the

correctness of the view expressed by this Court in paragraph

14 of the decision in S. Pushpa (supra) (as already extracted).

The resolution of the question formulated for an answer is

capable of being reached by adopting an entirely different

perspective which we intend to do hereinafter.

50 40. The federal nature of the Constitution finds broad

manifestation in two principal areas i.e. division of legislative

power and exercise thereof by the Union and the constituent

States and secondly, which is more relevant and important to

the subject in hand, is the constitutional provisions relating to

services under the Union and the States as dealt with in Part

XIV of the Constitution.

41. The subject finds an elaborate study by Dr. D.D.

Basu in “Commentary on the Constitution of India” 10.

According to Dr. D.D. Basu, “In India though the Union and

the States have their own public services, (vide Entry 70

of List I and Entry 41 of List II) there is no clear­cut

bifurcation in the administration of the Union and the

State laws as in the U.S.A. The State officials administer

the State laws as well the Union laws applicable within

10 8th Edition, 2011, Volume 9, Page 9858

51 that Sate whereas the members of the Union Services

while working within a State, also carry out State laws,

insofar as they may be applicable. The second peculiarity

of the Indian federal system of administration is that

though the federal and State Governments have civil

services of their own to manage their own households,

there are certain services known as the All­India

Services, which are common to both the federal and

State Governments.

The organisation of the Civil services in the Indian

federal system may be demonstrated as thus:

All India Services Central Civil State Civil Services Services

Central Secretariat Subordinate Services Services”

52 42. At the State Level, as Dr. D.D. Basu points out, “the

State Civil Services administer the subject solely

belonging to the State Governments, according to the

federal distribution of subjects thus including the

Judicial, Executive, Medical, Engineering, Police,

Education branches. Their members are under the

exclusive control of the respective State Governments and

their duties are confined to the territories of the State by

which they have been appointed, unless sent on

deputation to the Union Government”.11 These State Civil

Services may be Administrative Services, Forest Services etc.

[illustratively, in case of Himachal Pradesh, Himachal Pradesh

Administrative Service (HPAS) is a type of service, so is,

Himachal Pradesh Forest Service (HPFS). The recruitment to

these services is conducted by way of Civil Services

11 8th Edition, Volume 9, 2011, Page 9860.

53 Examinations organised by the State­specific Public Service

Commission e.g. in case of Himachal Pradesh, it is Himachal

Pradesh Public Service Commission. As stated earlier, persons

inducted into the State Service of a particular State cannot be

transferred to any other State. These officers are concerned

with only the affairs of the state in which they are appointed.

These services (like HPAS, HPFS) may, for convenience, be

called as Superior Services/Higher Services with reference to a

State. But in addition to these higher services, there are also

services that may, again for convenience, be called as

Subordinate Services/Lower Level Jobs. The posts in these

services are like those of Clerks, School Teachers; Drivers,

Attendants, Safai Workers, etc. For the purpose of recruitment

of Subordinate Servants, states have in place State­specific

Selection Commissions.

54 43. At the Federal Level, civil administration is carried

out by the members of – (1) All India Services (specifically

provided for in Article 312); (2) Central Civil Services (although,

not specifically provided for in the Constitution but are

regulated by creation of statutory Rules framed under the

proviso to Article 309). These are again Superior Services and

the selection/recruitment is by the Union Public Service

Commission.

ALL INDIA SERVICES

There are three All India Services (AIS) – (a) Indian

Administrative Service (IAS); (b) Indian Forest Service (IFoS); (c)

Indian Police Service (IPS). As regards AIS, Dr. D.D. Basu 12

says that, “the peculiarity of the AIS from the federal

standpoint is that –

(a) Though they are recruited and their conditions

12 8th Edition, 2011, Volume 9, Page 9858.

55 of service are determined by the Union Government, they

have to administer both Union and the State subjects,

accordingly as their services are placed at the disposal of

the Union or a State Government, in connection with the

affairs of the Union or the State, as the case may be.

(b) While serving in a State, they are controlled by

the State Government, except as regards the imposition of

the penalty of dismissal, removal or compulsory

retirement, which can be awarded only by the Union

Government.

(c) In a sense, this system is an exception to the

usual federal precedent inasmuch as it is intended to fill

up the strategic posts both under the Union and State

Governments by men of superior calibre, recruited on a

uniform basis, through the UPSC. Thus, while a Deputy

56 Collector may be a member of the State Civil Service, the

Additional Collector and the Collector may be members of

the Indian Administrative Service. The category of AIS

thus breaks through the federal division so far as the

administrative services in India are concerned. In fact,

the principal agents of a Sate administration are

members of the AIS and it would be a mistake to suppose

that the AIS exist for the administration of the Union

subjects. Broadly, speaking, the administration of a State

is run both by the members of the AIS and State Services,

the latter supplying only the intermediate and

subordinate tiers.

(d) Though the bulk of recruitment to the AIS is by

competitive examination, a certain proportion is selected

by promotion from amongst members of the State Civil

57 Services.

(e) Though a member of AIS may be required to

serve anywhere in India, on recruitment, he is usually

assigned to a State or States jointly, or, in a technical

language, is included in a State cadre or Joint cadre and

continues to serve there until or unless he is called upon

to serve the Union Government, in any of its Departments.

(f) While employed under a State, again, the

members of the AIS do not have to work only in the

Secretariat of the State but also in the Districts as

already stated and members of these services are

expected to acquire experience of the business in the

district as well as Secretariat administration and there

is a constant interchange of officers between the

Secretariat and the Districts, just as there is such an

58 interchange between the States and the Union

Secretariats on the other hand.”

44. Therefore, the members of the All India Services are

common to the Union and the States and they serve, by turn,

both the Union and State Governments. The members of these

services although recruited by the Centre their services are

placed under various State cadres. “It is evident from Article

312(1) that the members of the AIS are common to the

Union and the States. Curiously, however, there is a

cadre for the Indian Administrative Service only in the

States, according to the Indian Administrative Service

(Cadre) Rules, 1954 and there is no separate cadre for

members of this service in the Government of India. Each

members of the Indian Administrative Service therefore,

59 belongs to the cadre of one State or the other.”13

45. There are many State Cadres e.g. Bihar Cadre,

Rajasthan Cadre and Joint Cadres like AGMUT (for Arunachal

Pradesh + Goa + Mizoram + the 7 Union Territories). These

officers remain in the allotted Cadres till they retire. They are

not normally to be transferred from one State Cadre to another

State Cadre though they have the accountability to serve both

under the State and the Centre.

46. At this juncture, the Union of India’s Affidavit may

also be referred to, which states with reference to AIS that,

“the conditions of service of these services (AIS) are

regulated by the DoPT by way of executive and statutory

instructions, statutory rules formulated under Article

309 of the Constitution and Act of Parliament etc. The

functional control of some of the services rests with other

13 D.D. Basu, 8th Edition, 2011, Volume 9, Page 10585.

60 Ministries and Departments also. The Ministry of Home

Affairs exercises functional control on IPS and the

Ministry of Environment & Forest & Climate Change

exercises functional control on IFoS. Members of these

services are allocated a cadre under a State or Union

Territory and they serve the Union as well as the State,

whichever is allotted to them. Thus their services are All

India Services. Their recruitment is by the Union Public

Service Commission and as they serve the Union as well

as the States, their recruitment is on pan India basis.

Every citizen of this country having the required

qualification is eligible to be considered for the

appointment. It is pertinent to note that before selection

in the AIS, there is no specification or indication of the

cadre in Union, Union Territory or State, which they may

61 serve. Upon selection alone, they would be allocated

cadre depending upon the merit and the preferences they

would have made at the time of applying. Upon selection

they could be allocated to serve through any of the 25

states or 7 Union Territories of Delhi; Puducherry;

Chandigarh; Daman & Diu; Dadra & Nagar Haveli;

Andaman & Nicobar; Lakshadweep coupled with the

states of Arunachal Pradesh, Goa and Mizoram”14.

47. CENTRAL CIVIL SERVICES

The Central Civil Services (CCS), as Dr. D.D. Basu

points out, “are engaged in administering the Union

subjects, such as the Posts and Telegraphs, Customs and

Excise, Income Tax. In short, these constitute all the

administrative services in the Central Departments which

have not so far been included in the list of All India 14 Para 5 of the Affidavit.

62 Services. They are under the exclusive control of the

Union Government. Besides the Central Services, there are

other Services intended for work solely in the Central

Secretariat, or, in other words, those who are to manage

the offices of the Central Departments. Both the Central

Civil Services and Central Secretariat Services are sub­

divided into Class I, II, III, IV, (= Group A, B, C, D 15)

according to the rank and responsibilities of the

officers… Members of the Central Services are also sent

on transfer or deputation to States where offices relating

to the Union subjects or Public Sector Undertakings

relating thereto are located.”16 All that we would like to add

15 Rule 6A of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 provides that, “All reference to Central Civil Services/Central Civil Posts, Class I, Class II, Class III and Class IV in all Rules, Orders, Schedules, Notifications, Regulations, Instructions in force, immediately before the commencement of these rules shall be construed as references to Central Civil Services/Central Civil Posts, Group 'A', Group 'B', Group 'C' and Group 'D' respectively, and any reference to "Class or Classes" therein in this context shall be construed as reference to "Group or Groups", as the case may be.” 16 8th Edition. Volume 9, Page 9859.

63 is that though the members of these services are concerned

only with the affairs of the Union/Centre they discharge such

duties in the offices and establishments of the Union

Government as may be located in the States and the Union

Territories. The Central Civil Services (Classification, Control

and Appeal) Rules, 1965 [CCS Rules, 1965] (enacted under the

proviso to Article 309) are the governing statutory Rules with

reference to these services. Rule 4 of CCS Rules, 1965

classifies the Central Civil Services into four types –

(i) Central Civil Services, Group A (45 services as per

the Schedule to the Rules);

(ii) Central Civil Services, Group B (33 services as per

the Schedule to the Rules);

(iii) Central Civil Services, Group C (5 services as per the

Schedule to the Rules);

(iv) Central Civil Services, Group D (1 service as per the

64 Schedule to the Rules)17.

48. CCS Group A:

The Affidavit of the Union of India says that,

“recruitment to Group A services is made by UPSC. The

recruitment is again on all India basis. This is the reason

the personnel belonging to these 45 services work in the

posts of Union and the Union Territories (UT) across the

length and breadth of the country. The Cadre Controlling

Authority of Group A services are the respective

ministries of the Government of India. For example, the

first service being the Archaeological Service, the Cadre

Controlling Authority is the Ministry of Culture, Central

Government. Another example, the 12th service being the

Indian Foreign Service and this is controlled by Ministry

17 Para 6 of the Affidavit.

65 of External Affairs. No. 16 is the Indian Revenue Service

and it is controlled by the Ministry of Finance. The

members of these services being recruited pursuant to the

Central Service Exams conducted by the UPSC are

allocated to the respective services. 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. 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 all India transfer liability at the time of

66 joining service. 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. Member of the Groups A service are governed

by CCS Rules of 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.”

49. CCS Group B:

As mentioned earlier, there are 33 Group B Services.

Amongst these, are the Union Territory Services listed at No.

28 and No. 29 and known as the ‘Delhi and Andaman and

Nicobar Islands Civil Service’ abbreviated as ‘DANICS’ and

‘Delhi and Andaman and Nicobar Islands Police Service’ (Grade

67 II) abbreviated as ‘DANIPS’. While at this stage we may have

also a look at Union Territory services in some detail.

UNION TERRITORY SERVICES

50. The Government of India (Ministry of Home Affairs)

by way of a notification dated 6th August, 2003, and in the

exercise of the proviso to Article 309, enacted ‘the National

Capital Territory of Delhi, Andaman and Nicobar Islands,

Lakshadweep, Daman and Diu and Dadra and Nagar Havel

(Civil Service) Rules, 2003 [DANICS Rules, 2003]. As also, ‘the

National Capital Territory of Delhi, Andaman and Nicobar

Islands, Lakshadweep, Daman and Diu and Dadra and Nagar

Havel (Police Service) Rules, 2003 [DANIPS Rules, 2003].

51. The DANICS/DANIPS Rules, 2003 define:­

* ‘Administration’ to mean the Government of the

National Capital Territory of Delhi in respect National Capital

68 Territory of Delhi and Union Territory Administration in

respect of the Union Territories of – Andaman & Nicobar

Islands; Lakshadweep; Daman & Diu; Dadra & Nagar Haveli

[under Rule 2(a)]

* ‘Commission’ to mean the Union Public Service

Commission [under Rule 2(h)].

* ‘Scheduled Castes and Scheduled Tribes’ to have the

same meaning as are assigned to them by Articles 366(24) and

366(25) [under Rule 2(n)].

The DANICS/DANIPS Rules, 2003, further, state that posts in

Junior Administrative Grade­I, Junior Administrative Grade­II,

Selection Grade will be Central Civil Services (Group A),

whereas Entry Grade shall be Central Civil Services (Group B)

[Rule 3]. The vacancies in DANICS/DANIPS shall be filled in on

the basis of the Civil Services Examination conducted by UPSC

[Rule 7]. Every member of DANICS/DANIPS allocated to an

69 Administration shall be posted against a duty post 18 under the

Administration by the Administrator [Rule 12]. More

importantly, the Government of India shall, from time to time,

allocate a member of DANICS/DANIPS to any Administration

for posting [Rule 12]. Nothing in the Rules affects reservations,

relaxation in age­limit and other concessions required to be

provided for the Scheduled Castes, the Scheduled Tribes,

Other Backward Classes and other special categories of

persons in accordance with the orders issued by the

Government of India from time to time in this regard [Rule 17:

the Saving clause]. The Sanctioned Strength for DANICS and

DANIPS is in the DANICS/DANIPS Rules, 2003 (approximately

398 DANICS; approximately 355 DANIPS).

52. As per the Union of India’s Affidavit, DANICS and

18 Duty Posts are mentioned in the Schedule to these Rules. To name a few, these are - Joint Director of Social Welfare/Delhi; Joint Director of Education/Delhi; Deputy Medial Superintendent of Lok Nayak Jai Prakash Narain Hospital/Delhi; Registrar of Cooperative Societies/Port Blair; Assistant Commissioner of Police/Delhi; Deputy Superintendent of Police/Andaman & Nicobar; Chief of Police/Dadra & Nagar Haveli etc.

70 DANIPS are ‘Union Territory Services’19. The Affidavit says,

“...at Serial 28 and 29 of the Schedule (to CCS Rules,

1965), we have the Union Territory Services known as

DANICS and DANIPS”. The Affidavit, further, says that,

“DANICS/DANIPS Officers are posted in Delhi; Andaman &

Nicobar Islands; Lakshadweep; Daman & Diu; 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 the Ministry of Home Affairs (Joint Secretary). For

the recruitment to these services, it is the very same

examination meant for AIS and CCS Group A. Any citizen

of India is eligible to apply, subject to the conditions

prescribed. As per the Service Rules, transfer

undertakings throughout the Union Territories covered

19 Page 4, Para (ii)(a) of the Affidavit.

71 under DANICS/DANIPS is taken from these officers. 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/DANIPS is the Feeder Cadre for IAS and

IPS respectively (i.e. AIS). They retire invariably in these

Offices, some of them reaching high positions in the

Central Government. Recruitment to AIS; CCS Group A;

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 AIS; CCS Group A; CCS Group B. Therefore, when UPSC

undertakes the recruitment, it is naturally a pan India

72 recruitment and therefore, it is necessary to seek

applications including from reserved candidates from all

over India.”20

53. But it is not the Members of the All India Services

(AGMUT Cadre); Central Civil Services (Group ‘A’ and ‘B’) and

the ‘DANICS’ and ‘DANIPS’ who alone are the public servants

in the States and the Union Territories engaged in the

discharge of duties in connection with the affairs of the Union.

There are and bound to be public servants that work the

subordinate services.

CCS Group C:

54. At the subordinate level these are the Group ‘C’

posts. In the Schedule to CCS Rules, 1965, there are 5 such

services. The Union of India’s Affidavit says that, “These

posts, in so far, as they relate to services under the Union 20 Page 4, 5 of the Affidavit.

73 of India are concerned are recruited by the Staff

Selection Commission (which is the Recruiting Agency

under the DoPT). The members of CCS Group C get

promoted to CCS Group B. Recruitment to posts in this

group 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 the

Central Government and these employees are liable to

transferred anywhere in the country and the recruitment

being centralised for all such posts in the country, it has

been consistent policy of the Union of India to have pan

India eligibility.”

74 55. With regard to CCS Group D posts, in the affidavit of

the Union it is stated that “the posts under this category are

primarily of what used to be Class IV employees now

referred to as the Multi Tasking staff. In recent years,

Central Pay Commission has recommended against any

further recruitment to these posts in Group D. Further it

has also been recommended that the existing posts will be

merged with Group C. Hence, this is now a vanishing

cadre21.”

56. The broad picture that emanates from the above

discussion and narration is that insofar as the services in

connection with the affairs of the Union is concerned (Central

Services), wherever the establishment may be located i.e. in the

National Capital Territory of Delhi or in a State or within the 21 Page 6, para iv.a. of the Affidavit

75 geographical areas of Union Territory, recruitment to all

positions is on an All India basis and reservation provided for

is again a pan­ India reservation. This by itself, from one

perspective, may appear to be in departure from the rule set

out in Part XVI of the Constitution of India (Articles 341 and

342). However, the close look undertaken hereinbefore

indicates such a position is fully in accord with the

constitutional structure of a federal polity.

NATIONAL CAPITAL TERRITORY OF DELHI

57. In case of National Capital Territory of Delhi,

especially, to make the picture even clearer, a reference may be

made to ‘Delhi Administration Subordinate Service Rules,

1967’. Rule 3 of the aforesaid Rules is to the following effect:

“3. Constitution of service and its classification.­ (1) On and from the date of commencement of these Rules, there shall be constituted one Central Civil Service, known as the Subordinate Service of the Delhi Administration. (2) The Service shall have four Grades, namely—

76 Grade I Grade II Grade III Grade IV (3) The posts in Grade I shall be Central Civil posts, Class II Group ‘B’ (Gazetted) and those in Grades II, III and IV shall be Central Civil posts Group ‘C’ (Non­Gazetted). (4) Members of the service shall, in the normal course be eligible for appointment to various Grades of the service to which they belong and not to the other service.” (underlining is ours)

Subordinate services in the National Capital Territory of

Delhi are, therefore, clearly Central Civil Services. The Affidavit

of the Union also points out this feature by stating that, “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 the Delhi Administrative

77 Subordinate Services are the Feeder Cadre for Central

Civil Services Group B (DANICS). It is for these reasons

that the policy (of pan India eligibility) consistently

adopted.”22

58. A combined reading of these provisions of the DASS

Rules, 1967 and CCS Rules, 1965, therefore, more than

adequately explains the nature of Subordinate Services in the

NCT of Delhi. These clearly are General Central Services and

perhaps, it is owing to this state of affairs that the Union of

India in its Affidavit has stated that, “Members of the Delhi

Administrative Subordinate Services are the Feeder Cadre

for Central Civil Services Group B (DANICS). It is for these

reasons that the policy (of pan India eligibility) is

consistently adopted.”

22 Page 6, Para (b) of the Affidavit.

78 59. While examining the validity of reservation of seats

in medical colleges for local candidates in Delhi, this Court in

Dr. Jagdish Saran and Others Vs. Union of India23 had made

certain observations with regard to the special status that the

capital city enjoys, which today, has come to be known as the

National Capital Territory of Delhi. The observations of this

Court in paragraphs 10 and 56 may be usefully recapitulated

and, therefore, is set out below:

“10. The capital city is not just a part of India. It is miniaturised India, a fact often forgotten by the administration in the field of culture and education, especially vis­a­vis regional, minorities. It is magapolitan and people from all parts flock to this outsized city. But we cannot exaggerate this factor, for the presence of the farther regions like the South and the North­east, population­wise, is minimal and precarious. Shri Balakrishnan insisted that the University was sustained by Central Government finances, collected from the whole country, and the benefits must likewise belong to all qualified students from everywhere. These are valuable aspects to shape policy but the 23 (1980) 2 SCC 768

79 court must test constitutionality and no more. To that extent alone we will weigh these factors in moulding our verdict.

xxx xxx xxx

56. We may wind­up by articulating the core thought that vitalises our approach. Anyone who lives inside India can never be considered an ‘outsider’ in Delhi. The people in the States are caught in a happy network of mutuality, woven into a lovely garment of humanity, whose warp and woof is India. This is the underlying fundamental of the preambular resolve registered in our National Parchment. So we insist that blind and bigoted local patriotism in xenophobic exclusivism is destructive of our Freedom and only if compelling considerations of gross injustice, desperate backwardness and glaring inequality desiderate such a purposeful course can protective discrimination gain entrance into the portals of college campuses. The Administration has a constitutional responsibility not to be a mere thermometer where mercury rises with populist pressure but to be a thermostat that transforms the mores of groups to stay in the conscience of the nation viz. the Constitution.”

60. The Affidavit of the Union does not touch upon the

details of Subordinate Services in other Union Territories.

80 Neither the authorities of the other Union Territories have laid

before the Court any relevant material in this regard. We,

therefore, refrain from addressing the issue in question as far

as other Union Territories are concerned and have confined

our discussions and the consequential views only to the

National Capital Territory of Delhi.

61. Accordingly, we answer the question referred in

terms of the views expressed in para 34 of this opinion. We

further hold that 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.

62. In view of the conclusions reached as above, it will

not be necessary to remit Civil Appeal Nos. 1085 of 2013,

10081 of 2014, 8141 of 2014, 8802 of 2012, 1086 of 2013 and

Civil Appeal arising out of Special Leave Petition (Civil)

81 No.36324 of 2017 (pertaining to Delhi) for further

consideration by the appropriate Bench. Accordingly, we

dispose of the said appeals (pertaining to Delhi) in terms of the

present order.

So far as Civil Appeal Nos.9935­9937 of 2014 pertaining

to the U.T. of Andaman and Nicobar Island are concerned the

issue may be decided by the appropriate Bench in the light of

the views expressed herein on adequate and sufficient

materials being placed before the Bench by the contesting

parties.

..……………………………………., J. [RANJAN GOGOI]

..……………………………………., J. [N.V. RAMANA]

..……………………………………., J. [MOHAN M. SHANTANAGOUDAR]

..……………………………………., J. [S. ABDUL NAZEER] PLACE: NEW DELHI DATE: 30th AUGUST, 2018

82 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1085 OF 2013

BIR SINGH ....Appellant Versus

DELHI JAL BOARD & ORS. ....Respondents WITH

CIVIL APPEAL NOS. 9935-37 OF 2014 CIVIL APPEAL NO. 10081 OF 2014 CIVIL APPEAL NO. 8141 OF 2014 CIVIL APPEAL NO. 8802 OF 2012 CIVIL APPEAL NO. 1086 OF 2013 CIVIL APPEAL NO. 9048 OF 2018 (Arising out of SLP(C) No. 36324 of 2017)

JUDGMENT

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.

83 "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:- 84

"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

85 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

86 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

87 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

88 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.

89 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 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.

90 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 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.

91

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

92 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

93 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, 1950 25:- 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 Scheduled Tribes in the States

mentioned therein. This Order has been amended by the Scheduled

Castes and Scheduled Tribes Orders (Amendment) Act, 1976 (Act

25 Ref. Election Manual (1984), p.44 quoted in Commentary on the Constitution of India 8 th Ed. by Durga Das Basu.

94 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

95 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

96 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

97 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

98 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

99 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

100 130 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

101 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

102 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

103 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

104 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

105 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

106 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]. 107

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:-

No. BC-16014/1/82-SC & BCD-I Government of India/Bharat Sarkar Ministry of Home Affairs/GrihMantralaya New Delhi, the 6th August, 1984 To, 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

108 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

109 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

110 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

111 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

112 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

113 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.

26 Ref. Ibid., p.53, quoted in Article 342 of commentary on the Constitution of India 8 th Ed. by Durga Das Basu.

114

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.

36. Union Territories do not become merged with the Central

Government:- The Union Territories are centrally administered by the

115 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] 116

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

117 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

118 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

119 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

120 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

121 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

122 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

123 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

124 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.”

125

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

126 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

127 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

128 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

27 Para No. 6(i) of the Counter Affidavit filed by the Union of India at Pg. No.3-4

129 specified in the Schedule and there are thirty-two such services

mentioned. Some 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) Description of service Appointing Description of service Appointing (2) Authority (2) Authority (3) (3)

Section Officer Grade of the President Postal Superintendents' Director-General Central Secretariat Service Service, Group 'B' Posts excluding Section Officers with (Serial No.7) Group 'A' status. (Serial No.1) Postmasters' Service, Group 'B' Director-General Customs Preventive Service, Collector of Customs (Serial No.8) Posts Group 'B'- Chief Inspectors (Serial No.15)

Botanical Survey of India, Group Chief Botanist, Income Tax Service, Group 'B' Commissioner of 'B' (Serial No.18) Botanical Survey (Serial No.17) Income Tax of India Geological Survey of India, Group Director-General Survey of India, Group 'B' Surveyor General of 'B' (Serial No.19) , Geological (Serial No.20) India Survey of India Zoological Survey of India, Group Zoological Central Electrical Engineering Director General 'B' (Serial No.21) Survey of India Service Group 'B' (Works), Central (Serial No.22) Public Works Department Central Engineering Service, Indian Salt Service, Group 'B' Joint Secretary, Group 'B': (Serial No.24) (Serial No.26) Ministry of

(i) Posts in the Ministry of Joint Secretary, Production Irrigation and Power.

Chairman,

(ii) Posts in the Central Water and Central Water Power Commission and Power Commission

Joint Secretary,

(iii) Posts in the Chambal Control Ministry of Board Irrigation and Power

Commissioner

(iv) Posts in the Farakka Barrage (Ganga Basin), Control Board Ministry of Irrigation and Power

130 Commissioner (Ganga Basin),

(v) Posts in the Ganga Discharge Ministry of Circle Irrigation and Power

Delhi and Andaman and Joint Secretary, Delhi and Andaman and Joint Secretary, Nicobar Islands Civil Service, Ministry of Nicobar Islands Police Ministry of Home Grade II. (DANICS) Home Affairs Service, Grade II. (DANIPS) Affairs (Serial No.28) (Serial No.29) General Central Service, Group All Group 'B' posts of the Chief Controller of 'B'- (Serial No.32) Departmentalised Accounts Accounts or Joint

(i) Post in any Ministry of Secretary in the Offices of the Government of Controller General of Department of Government of Ministry or India. (Serial No.33) Accounts in a India, other than the post in Department Ministry or respect of which specific Department where provision has been made by a there is no Chief general or special order of the Controller of President. In respect of Accounts posts in an office (i-a) Posts outside a Ministry or under the control Department of Government of of a Head of India, other than the posts in Department respect of which specific directly under provision has been made by a the Government.

general or special order of the president. -Head of the Department

In respect of other posts -

Secretary in the Ministry or Department

(ii) Posts in Union Territories Administrator other than Delhi Administration, the Andaman and Nicobar Islands and the Laccadive, Minicoy and Amindive Islands Chief Secretary

(iii) Delhi Administration-All posts Chief Commissioner

(iv) The Andaman and Nicobar Administrator Islands-All Posts

131

(v) The Lakshadweep Administration-All Posts

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.

132 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:-

PART III - Central Civil Services, Group 'C' (Except for Civilians in Defence Services) Description of service Appointing Description of service Appointing (2) Authority (2) Authority (3) (3)

Central Secretariat Clerical Deputy General Central Service, Service, Upper Division and Secretary or Group ‘C’ (Serial No.4) Lower Division Grade Director, Cadre (Serial No.1) Authority (i) Posts in the Ministry/Department of Deputy Secretary or Government other than Director in the the posts in respect of Ministry/Department which specific provision of Government has been made by a

28 Para No. 6(ii) of the Counter Affidavit filed by the Union of India at Pg. No.4-5

133 general or special order of the President

(ii) Posts in non-Secretariat Office other than posts in respect of which specific Head of Office provision has been made by a general or special order of the President

(iii) Posts in Union Head of Office of Territories such other authority as may be specified by the

(iv) All Group ‘C’ posts of the Administrator.

Departmentalized Accounts Office of the Government of India Controller of Accounts or Deputy Controller General of Accounts in a Ministry or Department where there is no Controller of Accounts.

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

134 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) Description of service Appointing (2) Authority (3)

General Central Service, Group ‘D’ (Serial No.1)

(i) Posts in Ministries or Departments of Government other Under Secretary 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 Head of Office general or special order of the President.

(iii) Posts in Union Territories Head of Office or such other authority as may be specified by the Administrator

(iv) All Group ‘D’ posts of the Departmentalized Accounts Offices of the Government of India Deputy Controller of Accounts or Assistant Controller General of Accounts in a Ministry or Department where there is no Deputy Controller of Accounts.

29 Para No. 6(iii) of the Counter Affidavit filed by the Union of India at Pg. No.5-6

135

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

136 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

137 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. 32 General Central Service, Group 'B'-

(i) Post in any Ministry of Department of Secretary in the Ministry Government of India, other than the post in or Department respect of which specific provision has been made by a general or special order of the President.

In respect of posts in an (i-a) Posts outside a Ministry or office under the control Department of Government of India, other of a Head of Department than the posts in respect of which specific directly under the provision has been made by a general or Government. special order of the president.

-Head of the Department In respect of other posts - Secretary in the Ministry or Department (ii) Posts in Union Territories other than Delhi Administration, the Andaman and Administrator Nicobar Islands and the Laccadive, Minicoy and Amindive Islands (iii) Delhi Administration-All posts Chief Secretary

(iv) The Andaman and Nicobar Islands-All Chief Commissioner Posts

138

(v) The Lakshadweep Administration-All Administrator Posts

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

139 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

140 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 : Reserved posts confined to local Haveli 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

141 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

142 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

30 https://daman.nic.in/staff-selection-board-daman-diu.aspx#downloads (27.06.2018)

143 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 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

144 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.

145

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

146

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

147 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

148 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 Chamar, l 28. Naribut Chanwan Chmanr,

149 Jatya or Jatav Chamar, Mochi Ramadasia, Ravidasi, Reghgrh or Raigharh Chohra (Sweeper) 29. Nat (Rana), Badi Chuhra (Balmiki) 30. Pasi Dhanak or Dhanuk 31. Perna Dhobi 32. Sansi or Bhedkut Dom 33. Sapera Gharrami 34. Sikligar Julaha (Weaver) 35. Singiwala or Kalbelila Karbirpanthi 36. Sirkiband

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

150 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 19. Khatik

2. Bangali 20. Kori or Koli

3. Barar, Burar or 21. Marjia or Marecha Berar

4. Batwal, Barwala 22. Mazhabi

5. Bauria or Bawaria 23. Megh

6. Bazigar 24. Nat

7. Balmiki, Chura or 25. Od Bhangi

8. Bhanjra 26. Pasi

9. Chamar, Jatia 27. Perna Chamar, Rehgar, Raigar, Ramdasi

151 or Ravidasi 10 Chanal 28. Pherera .

11 Dagi 29. Sanhai .

12 Darain 30. Sanhal .

13 Dhanak 31. Sansoi .

14 Dhogri, Dhangri or 32. Sansi, Bhedkut . Siggi or Manesh 15 Dumna, Mahasha or 33. Sapela . Doom 16 Gagra 34. Sarera . 17 Gandhila or Gnadil 35. Sikligar . Gondola 18 Kabirpanthi or 36. Sirkiband . Julaha

PART III – Daman and Diu The Schedule - Puducherry Bhangi (Hadi) 4. Mahyavanshi (Vankar) Adi Andhra 9. Pallan Chambhar, Mochi5. Mang Adi 10. Parayan, Mahar Dravida Sambavar Chakkiliya 11. Samban n Jambuvulu 12. Thoti Kuravan 13. Valluvan Madiga 14. Vetan Mala, Mala 15. Vetriyan Masti 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

152

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

153 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

154 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

155 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

156 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

157 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.

158

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

159 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

160 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

161 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

162 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

163