Chandigarh Housing Board vs Tarsem Lal

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2024 (Arising out of Special Leave Petition (Civil) No.1663 of 2019)

CHANDIGARH HOUSING BOARD ...APPELLANT

VERSUS

TARSEM LAL ...RESPONDENT

JUDGMENT

Leave granted.

2. Being aggrieved by judgment dated 10.08.2018 passed

by the High Court of Punjab and Haryana at Chandigarh, the

appellant/Chandigarh Housing Board has preferred this

appeal.

Signature Not Verified Digitally signed by Neetu Sachdeva Date: 2024.02.19 17:02:08 IST Reason: Civil Appeal @ SLP (C) No.1663 of 2019 Page 1 of 31

3. Briefly stated, the facts pertinent to the adjudication of

the present appeal are that the appellant herein, vide

advertisement dated 28.06.1983, had called for applications

for allotment of houses exclusively for Scheduled Castes and

Scheduled Tribes and a total of 35 houses in the HIG (Upper)

and HIG (Lower) categories were reserved for that purpose.

This advertisement was issued pursuant to Regulation 25 of

the Chandigarh Housing Board (Allotment, Management and

Sale of Tenements) Regulations, 1979 which makes a

provision for reservation of 12.5 % of the total number of

dwelling units for Scheduled Castes and Scheduled Tribes.

One of the conditions stipulated for the applicants was that

they should be a domicile of Union Territory (U.T.) of

Chandigarh or should have been a bona fide resident of U.T. of

Chandigarh for a period of at least three years on the date of

submission of the application. The respondent submitted his

application and the draw of lots was held on 09.09.1983. The

list of successful applicants was published on 12.09.1983

wherein thirty houses were allotted.

Civil Appeal @ SLP (C) No.1663 of 2019 Page 2 of 31

4. Due to administrative confusion about the separate

reservation for the Scheduled Tribes within the reserved

dwelling units, four houses, two each in HIG(Upper) and

HIG(Lower) categories were kept in abeyance out of 35 houses

since there were only four applicants from the Scheduled

Tribes category. A clarification was sought from the

Chandigarh Administration by the appellant owing to the fact

there was no Scheduled Tribe community which had been

notified by the President of India with regard to U.T. of

Chandigarh under Article 342 even though a notification

under Article 341 for the Scheduled Castes in Chandigarh had

been issued. Thus, it was enquired as to whether the

Scheduled Tribes category could be entitled to a minimum

reservation of 5%. In response to the request of the Appellant,

the clarification issued by the Research Officer to the Finance

Secretary of the Chandigarh Administration vide letter dated

21.09.1983 referred to the Brochure on Reservation for

Scheduled Castes and Scheduled Tribes and noted that even

if the population of the Scheduled Tribe community was less

than 5%, a minimum reservation of 5% could be made even

Civil Appeal @ SLP (C) No.1663 of 2019 Page 3 of 31 for the Scheduled Tribes in respect of all built

houses/dwelling units. Being aggrieved by the non-allotment

of a house, the respondent-plaintiff approached the civil

Court.

5. The respondent instituted Civil Suit No. 327/1984 in the

Court of Senior Sub Judge, Chandigarh seeking a declaration

that the appellant’s decision to not allot houses earmarked for

Scheduled Tribes was mala fide. It was stated that he belongs

to the Scheduled Tribes community as recognized in the State

of Rajasthan and had been permanently residing in

Chandigarh for twenty years.

6. The suit was contested by the appellant herein by

averring that no right much less a legal right to allotment of

four houses kept in abeyance could accrue to the Scheduled

Tribes in the absence of the notification of any Scheduled

Tribe by the President of India in so far as Union Territory of

Chandigarh was concerned.

7. By judgment and decree of the trial court dated

09.01.1986, the suit was decreed by the trial Court on the

basis of the letter of clarification dated 21.09.1983 from which

Civil Appeal @ SLP (C) No.1663 of 2019 Page 4 of 31 the trial court inferred that the Appellant was obliged to

reserve a minimum of 5% dwelling units for Scheduled Tribes.

The said letter was found to be ‘good for all purpose’ and all

the four applicants belonging to the Schedules Tribe category

were held to be entitled to the allotment. While noting that

Article 342 of the Constitution had not been ‘made applicable

to the U.T. Chandigarh’, the trial court concluded that it

would not mean that Scheduled Tribes cannot get any benefit

from the Chandigarh Administration. The trial court reasoned

that the advertisement dated 28.06.1983 did not stipulate

that only members of the Scheduled Tribes of Chandigarh

could apply. Therefore, the respondent was decreed to be

entitled to allotment of the house at the price fixed on the date

of draw of lots dated 09.09.1983.

8. Being aggrieved by the judgment and decree of the trial

Court, the appellant herein preferred Civil Appeal No.

295/1990 before the First Appellate Authority (Additional

District Judge), which was also dismissed. Hence, the

appellant herein preferred Regular Second Appeal No.

1570/1991 (O&M) before the High Court. By the impugned

Civil Appeal @ SLP (C) No.1663 of 2019 Page 5 of 31 judgment, the Regular Second Appeal has also been

dismissed. The High Court placed reliance on the Chandigarh

Administration’s letter of clarification dated 21.09.1983

(Exhibit D-3) and the Ministry of Home Affairs’ Letter No.

BC.12017/9/85 SC & BCD I dated 21.05.1985 (Exhibit P-8)

to conclude that it leaves no manner of doubt that Chandigarh

Administration instructed the Chandigarh Housing Board to

keep the reservation for allotment of dwelling units as

aforementioned. Thus, issuance of notification under Article

342 of the Constitution of India, pales into insignificance.

That the appellant is also a Scheduled Tribe and holder of

such certificate, even though from another State (Rajasthan)

and was not debarred as per the contents of the letter. Hence,

this appeal.

9. We have heard Mrs. Rachana Joshi Issar, learned

counsel appearing for the appellant and Shri Shivendra

Singh, learned counsel for respondent and perused the

impugned order as well as the material on record.

Civil Appeal @ SLP (C) No.1663 of 2019 Page 6 of 31

10. During the course of submissions, learned counsel for

the appellant drew our attention to three Constitution Bench

judgments of this Court in the case of Marri Chandra

Shekhar Rao vs. Dean, Seth G. S. Medical College (1990)

3 SCC 130 (Marri Chandra Shekhar Rao); Action

Committee on Issue of Caste Certificate to Scheduled

Castes and Scheduled Tribes in the State of Maharashtra

vs. Union of India (1994) 5 SCC 244 (Action Committee)

and Bir Singh vs. Delhi Jal Board (2018) 10 SCC 312 (Bir

Singh) in order to contend that insofar as the Union Territory

of Chandigarh is concerned, firstly, there is no specific

Presidential Order issued insofar as Scheduled Tribes are

concerned and secondly, that it is only by a Presidential Order

issued under Article 342 of the Constitution of India that

Scheduled Tribes could be recognized in an Union Territory or

a State could be issued. Admittedly, no such Presidential

Order with regard to Scheduled Tribes has been issued vis-a-

vis the Union Territory of Chandigarh. In this regard, reliance

was placed on Exhibit D-3 communication. Therefore, the

applications inviting for the allotment of flats insofar as

Civil Appeal @ SLP (C) No.1663 of 2019 Page 7 of 31 Scheduled Tribes were concerned, were sought to be clarified.

That in the absence of there being any such Presidential

Order insofar as Scheduled Tribes communities are

concerned, the advertisement inviting applicants from the

Scheduled Tribes was not at all correct.

Further, it was contended that the respondent herein

claims to belong to Scheduled Tribes category insofar as the

State of Rajasthan is concerned. He had migrated to Union

Territory of Chandigarh for his employment and, therefore,

having regard to judgment of this Court in the case of Marri

Chandra Shekhar Rao followed by other judgments,

respondent is not entitled to place reliance on his caste status

insofar as the State of Rajasthan is concerned and enforce the

same in the Union Territory of Chandigarh. It was further

submitted that the High Court was not right in interpreting

letters dated 21.09.1983 and 21.05.1985 by ignoring the fact

that the caste status could be claimed insofar as the State or

Union Territory of a person’s origin only and not carried to a

State or Union Territory to which the person migrates.

Therefore, the impugned judgments may be set aside and the

Civil Appeal @ SLP (C) No.1663 of 2019 Page 8 of 31 suit filed by the respondent herein may be dismissed.

11. Per contra, learned counsel for the respondent with

reference to the counter affidavit strenuously contended that

the impugned judgments and decrees are just and proper,

which would not call for any interference at the hands of this

Court. It was submitted that although there may be no

Presidential Order issued with regard to Scheduled Tribes

under Article 342 of the Constitution of India insofar as Union

Territory of Chandigarh is concerned, Annexure P-9 (colly)

letter dated 25.11.1985 issued by the Ministry of Welfare,

Government of India was relied upon. The said document

would clearly indicate that insofar as a migrant, such as the

respondent herein is concerned, he could derive the benefits

having regard to his status in the State of origin; that the

reference in the said letter is only to State and not to any

Union Territory. Therefore, by that logic it was contended that

if a person migrates from a State to an Union Territory, it

would imply that even if there is no Presidential Order issued

in terms of Article 342 of the Constitution, the migrant is

entitled to place reliance on his status as Scheduled Tribe in

Civil Appeal @ SLP (C) No.1663 of 2019 Page 9 of 31 the State of his origin and, therefore, seek the benefit in the

Union Territory to which he migrates.

In support of his submissions, learned counsel for the

respondent placed reliance on judgment of this Court in

Director, Transport Department, Union Territory

Administration of Dadra and Nagar Haveli, Silvassa vs.

Abhinav Dipakbhai Patel (2019) 6 SCC 434 (Abhinav

Dipakbhai Patel). Further, this Court in paragraph 66 of the

judgment Bir Singh while dealing with the case which arose

from Delhi Jal Board, did not express any view with regard to

question as far as other Union Territories were concerned and

confined the decision only with regard to National Capital

Territory of Delhi. Therefore, there is no judgment of this

Court which states that if a person migrates from a State

where he is recognised as a Scheduled Tribe to an Union

Territory in which there is no Presidential Order recognising

any Scheduled Tribe nevertheless placing reliance on the

Presidential Order vis-a-vis the State of origin of the migrant,

benefit must be given to such a person. He therefore,

submitted that there is no merit in this appeal. Civil Appeal @ SLP (C) No.1663 of 2019 Page 10 of 31

12. We have considered the arguments advanced at the bar

in relation to the facts of the case and the judgments of this

Court.

13. It is not in dispute that the respondent herein had

sought for allotment of HIG house reserved for Scheduled

Tribes category in terms of the advertisement issued by the

appellant herein; that being aggrieved by non-allotment of a

house, the suit which was decreed by the Trial Court and

which judgment and decree was affirmed by the First

Appellate Court as well as in the second appeal by the High

Court.

14. At the outset, we may refer to Articles 341 and 342

which read as under:

“341. Scheduled Castes.-

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

Civil Appeal @ SLP (C) No.1663 of 2019 Page 11 of 31 (2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.

342. Scheduled Tribes. –

(1) The President may with respect to any State or Union territory, and where it is a State after consultation with the Governor thereof, by public notification, specify the 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.

(2) Parliament may by law 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.”

15. Thus, the public notification of ‘tribes or tribal

communities’ by the President of India, upon consultation

with the Governor, is a sine qua non for deeming such tribes

or tribal communities to be ‘Scheduled Tribes’ in relation to

that State or Union Territory for the purposes of the

Civil Appeal @ SLP (C) No.1663 of 2019 Page 12 of 31 Constitution.

16. With respect to the Union Territory of Chandigarh, we

find that the Parliament, vide the Punjab Reorganization Act,

1966 had created the Union Territory of Chandigarh and

made provision for amendment of the Scheduled Castes and

Schedules Tribes Orders. Section 27(2) of the said Act

provided for amendment of the Constitution (Scheduled

Castes) (Union Territories) Order, 1951, to include, with

respect to Chandigarh, 36 castes enlisted in Part V of the

Ninth Schedule of the said Act. A similar provision is also

made for amendment of the Constitution (Scheduled Tribes)

(Union Territories) Order, 1951, as directed in the Eleventh

Schedule but the said Schedule does not include any part or

entry with respect the Union Territory of Chandigarh.

In this context, it is apposite to refer to what the

Constitution Bench of this Court, speaking through Chief

Justice Gajendragadkar, in Bhaiya Lal v. Harikishan

Singh, AIR 1965 SC 1557, held as it expounded on the

object of issuance of public notification under Article 341 of

the Constitution.

Civil Appeal @ SLP (C) No.1663 of 2019 Page 13 of 31 “10. … The object of Article 341(1) plainly is to provide additional protection to the members of the Scheduled Castes having regard to the economic and educational backwardness from which they suffer. It is obvious that in specifying castes, races or tribes, the President has been expressly authorised to limit the notification to parts of or groups within the castes, races or tribes, and that must mean that after examining the educational and social backwardness of a caste, race or tribe, the President may well come to the conclusion that not the whole caste, race or tribe but parts of or groups within them should be specified. Similarly, the President can specify castes, races or tribes or parts thereof in relation not only to the entire State, but in relation to parts of the State where he is satisfied that the examination of the social and educational are backwardness of the race, caste or tribe justifies such specification. In fact, it is well known that before a notification is issued under Article 341(1), an elaborate enquiry is made and it is as a result of this enquiry that social justice is sought to be done to the castes, races or tribes as may appear to be necessary, and in doing justice, it would obviously be expedient not only to specify parts or groups of castes, races or tribes, but to make the said specification by reference to different areas in the State. Educational and social backwardness in regard to these castes, races or tribes may not be uniform or of the same intensity in the whole of the State; it may vary in degree or in kind in different areas and that may justify the division of the State into convenient and suitable areas for the purpose of issuing the public notification in question.”

Civil Appeal @ SLP (C) No.1663 of 2019 Page 14 of 31

17. The absolute necessity of a public notification in terms of

Articles 341 and 342 was explicated by a Constitution Bench

of this Court in State of Maharashtra v. Milind, (2001) 1

SCC 4 (‘Milind’) which held that de hors a specific mention in

the entry concerned in the Constitution (Scheduled Tribes)

Order, 1950 (as amended by Parliament), it was impermissible

to hold an inquiry and declare that any tribe or tribal

community to be included in the list of Scheduled Tribes.

While holding that Article 341(2) did permit anyone to

seek such modification and that it is not open to any judicial

body to modify or vary the Constitution (Scheduled Tribes)

Order, 1950, this Court expounded on the salutary purpose of

deferring to the Presidential order, as amended by Parliament

while considering the grant of any benefit to members of the

Scheduled Tribe community:

“11. By virtue of powers vested under Articles 341 and 342 of the Constitution of India, the President is empowered to issue public notification for the first time specifying the castes, races or tribes or part of or groups within castes, races, or tribes which shall, for the purposes of the Constitution be deemed to be Scheduled Castes or Scheduled

Civil Appeal @ SLP (C) No.1663 of 2019 Page 15 of 31 Tribes in relation to a State or Union Territory, as the case may be. The language and terms of Articles 341 and 342 are identical. What is said in relation to Article 341 mutatis mutandis applies to Article 342. The laudable object of the said articles is to provide additional protection to the members of the Scheduled Castes and Scheduled Tribes having regard to social and educational backwardness from which they have been suffering since a considerable length of time. The words “castes” or “tribes” in the expression “Scheduled Castes” and “Scheduled Tribes” are not used in the ordinary sense of the terms but are used in the sense of the definitions contained in Articles 366(24) and 366(25). In this view, a caste is a Scheduled Caste or a tribe is a Scheduled Tribe only if they are included in the President's Orders issued under Articles 341 and 342 for the purpose of the Constitution. Exercising the powers vested in him, the President has issued the Constitution (Scheduled Castes) Order, 1950 and the Constitution (Scheduled Tribes) Order, 1950. Subsequently, some orders were issued under the said articles in relation to Union Territories and other States and there have been certain amendments in relation to Orders issued, by amendment Acts passed by Parliament.

x x x

35. In order to protect and promote the less fortunate or unfortunate people who have been suffering from social handicap, educational backwardness besides other disadvantages, certain provisions are made in the Constitution with a view to see that they also have the opportunity to be on par with the others in the society. Certain privileges and benefits are conferred on such people belonging to Scheduled Tribes by way of reservations in admission to educational

Civil Appeal @ SLP (C) No.1663 of 2019 Page 16 of 31 institutions (professional colleges) and in appointments in services of State. The object behind these provisions is noble and laudable besides being vital in bringing a meaningful social change. But, unfortunately, even some better-

placed persons by producing false certificates as belonging to Scheduled Tribes have been capturing or cornering seats or vacancies reserved for Scheduled Tribes defeating the very purpose for which the provisions are made in the Constitution. The Presidential Orders are issued under Articles 341 and 342 of the Constitution recognising and identifying the needy and deserving people belonging to Scheduled Castes and Scheduled Tribes mentioned therein for the constitutional purpose of availing benefits of reservation in the matters of admissions and employment. If these benefits are taken away by those for whom they are not meant, the people for whom they are really meant or intended will be deprived of the same and their sufferings will continue. Allowing the candidates not belonging to Scheduled Tribes to have the benefit or advantage of reservation either in admissions or appointments leads to making mockery of the very reservation against the mandate and the scheme of the Constitution.” (underlining by us)

18. Learned counsel for the appellant has drawn our

attention to the judgment of this Court in Marri Chandra

Shekhar Rao by placing reliance on the following

paragraphs:-

“13. It is trite knowledge that the statutory and constitutional provisions should be interpreted broadly and harmoniously. It is trite saying that

Civil Appeal @ SLP (C) No.1663 of 2019 Page 17 of 31 where there is conflict between two provisions, these should be so interpreted as to give effect to both. Nothing is surplus in a Constitution and no part should be made nugatory. This is well settled.

See the observations of this Court in Venkataramana Devaru v. State of Mysore [1958 SCR 895, 918 : AIR 1958 SC 255] , where Venkatarama Aiyer, J. reiterated that the rule of construction is well settled and where there are in an enactment two provisions which cannot be reconciled with each other, these should be so interpreted that, if possible, effect could be given to both. It, however, appears to us that the expression ‘for the purposes of this Constitution’ in Article 341 as well as in Article 342 do imply that the Scheduled Caste and the Scheduled Tribes so specified would be entitled to enjoy all the constitutional rights that are enjoyable by all the citizens as such. Constitutional right, e.g., it has been argued that right to migration or right to move from one part to another is a right given to all — to Scheduled Castes or Tribes and to non- scheduled castes or tribes. But when a Scheduled Caste or Tribe migrates, there is no inhibition in migrating but when he migrates, he does not and cannot carry any special rights or privileges attributed to him or granted to him in the original State specified for that State or area or part thereof. If that right is not given in the migrated State it does not interfere with his constitutional right of equality or of migration or of carrying on his trade, business or profession. Neither Article 14, 16, 19 nor Article 21 is denuded by migration but he must enjoy those rights in accordance with the law if they are otherwise followed in the place where he migrates. There should be harmonious construction, harmonious in the sense that both parts or all parts of a constitutional provision should be so read that one part does not become

Civil Appeal @ SLP (C) No.1663 of 2019 Page 18 of 31 nugatory to the other or denuded to the other but all parts must be read in the context in which these are used. It was contended that the only way in which the fundamental rights of the petitioner under Articles 14, 19(1)(d), 19(1)(e) and 19(1)(f) could be given effect to is by construing Article 342 in a manner by which a member of a Scheduled Tribe gets the benefit of that status for the purposes of the Constitution throughout the territory of India. It was submitted that the words “for the purposes of this Constitution” must be given full effect. There is no dispute about that. The words “for the purposes of this Constitution” must mean that a Scheduled Caste so designated must have right under Articles 14, 19(1)(d), 19(1)(e) and 19(1)(f) inasmuch as these are applicable to him in his area where he migrates or where he goes. The expression “in relation to that State” would become nugatory if in all States the special privileges or the rights granted to Scheduled Castes or Scheduled Tribes are carried forward. It will also be inconsistent with the whole purpose of the scheme of reservation. In Andhra Pradesh, a Scheduled Caste or a Scheduled Tribe may require protection because a boy or a child who grows in that area is inhibited or is at disadvantage. In Maharashtra that caste or that tribe may not be so inhibited but other castes or tribes might be. If a boy or a child goes to that atmosphere of Maharashtra as a young boy or a child and goes in a completely different atmosphere or Maharashtra where this inhibition or this disadvantage is not there, then he cannot be said to have that reservation which will denude the children or the people of Maharashtra belonging to any segment of that State who may still require that protection. After all, it has to be borne in mind that the protection is necessary for the disadvantaged castes or tribes of Maharashtra as well as disadvantaged castes or tribes of Andhra

Civil Appeal @ SLP (C) No.1663 of 2019 Page 19 of 31 Pradesh. Thus, balancing must be done as between those who need protection and those who need no protection, i.e., who belong to advantaged castes or tribes and who do not. Treating the determination under Articles 341 and 342 of the Constitution to be valid for all over the country would be in negation to the very purpose and scheme and language of Article 341 read with Article 15(4) of the Constitution.”

19. The rationale for the aforesaid interpretation was further

explained by another Constitution Bench in Action

Committee wherein this Court relied upon the Constituent

Assembly Debates to hold that the list of Scheduled Castes,

Scheduled Tribes and backward classes in a given State

would correspond to the disadvantages and social hardships

existing in the specific social context for a particular caste,

tribe or class in that State. Given the variance of social

context, the list of such castes, tribes or classes would be

totally non est in another State to which persons belonging

thereto may migrate. Thus, the learned judges wholly agreed

with the reasoning and conclusion in Marri Chandra

Shekhar Rao and observed as under:

“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

Civil Appeal @ SLP (C) No.1663 of 2019 Page 20 of 31 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.”

20. Thereafter, the Constitution Bench of this Court in Bir

Singh, being seized of the dispute pertaining to SC/ST

reservation for persons who had migrated to the National

Capital Territory of Delhi, reiterated the well-settled principles

enunciated in Marri Chandra Shekhar Rao and Action

Committee in the following words:

“34. Unhesitatingly, therefore, it can be said that a

Civil Appeal @ SLP (C) No.1663 of 2019 Page 21 of 31 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 confined to the geographical territories of a State/Union Territory in respect of which the lists of Scheduled 32 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'.

x x x

36. 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 Parliament alone which has been vested with the power to so act, that too, by laws made. Scheduled Castes and Scheduled Tribes thus specified in relation to a State or a Union Territory does not carry the same status in another State or Union Territory. Any expansion/deletion of the list of Scheduled Castes/Scheduled Tribes by any authority except Parliament would be against the constitutional mandate under Articles 341 and 342 of the Constitution of India.”

21. Learned counsel for the respondent placed reliance on

Civil Appeal @ SLP (C) No.1663 of 2019 Page 22 of 31 the Constitution Bench judgment of this Court in Bir Singh

concerning the services in the NCT of Delhi. In the said

judgment in paragraph 68, it has been categorically recorded

as under:–

“68. The Affidavit of the Union does not touch upon the details of Subordinate Services in other Union Territories. 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.”

22. In view of the aforesaid observations, we do not think

that the respondent can draw any parity from what the

position is, insofar as NCT of Delhi is concerned with regard

to availing of benefits by Scheduled Tribes, even though, there

is no Presidential Order with regard to Scheduled Tribes

issued insofar as NCT of Delhi is concerned. Further, the

observations made above are in the context of services. In the

circumstances, we find that the respondent cannot rely upon

the judgment of this Court in Bir Singh.

23. This court, in Abhinav Dipakbhai Patel sustained the

Civil Appeal @ SLP (C) No.1663 of 2019 Page 23 of 31 High Court’s direction to appoint a person who had migrated

to the Union Territory of Dadra and Nagar Haveli and was a

member of the Scheduled Tribe ‘Dhodia’ community as an

Assistant Motor Vehicle Inspector. This Court noted that the

Presidential notification issued for the Union Territory of

Dadra and Nagar Haveli extended the benefit of reservation to

the Scheduled Tribes mentioned therein. Therefore, the

reservation for Scheduled Tribes in the Union Territory of

Dadra and Nagar Haveli was held to be available to migrant

Scheduled Tribes. The significant fact is that there was a

Presidential notification for Scheduled Tribes insofar as the

aforesaid Union Territory was concerned.

24. In view of the aforesaid observations, we do not think

that the respondent can rely upon Abhinav Dipakbhai Patel.

This is for the simple reason that there is no Presidential

notification for Scheduled Tribes in Chandigarh unlike in the

case of Dadra & Nagar Haveli.

25. In view of the aforesaid, we find that the appellant had

erroneously issued the advertisement inviting applications for

allotment of houses from both Scheduled Castes as well as

Civil Appeal @ SLP (C) No.1663 of 2019 Page 24 of 31 Scheduled Tribes persons because no such reservation for

Scheduled Tribes could have been made without strict

compliance with Article 342. The effect of the finding that the

advertisement was issued without necessary jurisdiction and

authority would lead to the setting aside of the impugned

judgment and decrees on that ground alone.

26. The upshot of the above discussion is that:

i. The Presidential notification of a tribe or tribal

community as a Scheduled Tribe by the President of

India under Article 342 is a sine qua non for extending

any benefits to the said community in any State or U.T.

ii. This implies that a person belonging to a group that is

recognized as a Scheduled Tribe in a State would be

recognized a Scheduled Tribe only within the said State

and not in a U.T. where he migrates if no such

Presidential notification exists in the said U.T.

27. As far as the Annexure R-9, produced by the respondent

herein is concerned, it is noted firstly, that the said document

is dated 25.11.1985 and the same was issued prior to the

judgment of this Court in Marri Chandra Shekhar Rao

Civil Appeal @ SLP (C) No.1663 of 2019 Page 25 of 31 which is contrary to the said judgment and wherein the

position of law has been clearly enunciated. Secondly, the

reading of the said document would clearly indicate that what

has been emphasized there is with regard to the Scheduled

Tribes and Scheduled Castes persons migrating from the

State of his origin to another State, to which he has migrated.

There is no reference whatsoever to a case where a person

claiming to be a Scheduled Caste or Scheduled Tribe

migrating from a State to a Union Territory as such. By that

logic, it would not imply that a person who is recognized as a

Scheduled Tribe in a State has to be Scheduled Tribe in an

U.T. also wherein he migrates and can rely on his status in

the State of his origin. The said letter is also contrary to

Article 342 of the Constitution and the spirit of the dictum of

this court in the case of Marri Chandra Shekhar Rao and,

therefore, the same would hold no water. Merely because in

the said letter there is no reference to migration of a person

claiming to belong to Scheduled Tribe in a State to a Union

Territory, it does not, by that logic mean that such a person

would be entitled to claim benefit on the basis of his status as

Civil Appeal @ SLP (C) No.1663 of 2019 Page 26 of 31 a Scheduled Tribe in the State of his origin. For immediate

reference, letter dated 25.11.1985 is extracted as under–

“No. BC-12017/9/85-SC&BCD.I Government of India/Bharat Sarkar Ministry of Welfare/Kalyan Mantralaya

New Delhi: 25th November, 1985.

To The Chairman, Chandigarh Housing Board, 8-Jan Marg, Sector–9, Chandigarh – 160009

Subject : Entitlement of Scheduled Tribe persons for allotment of houses by the Chandigarh Housing Board – Clarification of -

… Sir,

I am directed to invite your attention to the Ministry of Home Affair’s letter of even number dated 21st May 1985 on the above subject and to say that the contents appearing at the end of line 23 to 28 i.e. “It has ……………… migrated.” may please be read as under:

“It has also been made clear in the latter that the migrated person will be entitled to derive benefits admissible to the Scheduled Castes/ Tribes from the State of his origin only and not from the State to which he has migrated.”

2. A copy of the Ministry of Home Affairs letter No. BC-16014-I/9/82-SC&BCD.I dated 22.2.85 containing the instructions about issue of certificates to the migrants has already been sent to you with our letter dated 21.5.85 referred to above.

Yours faithfully, Sd/-

(Y.P. MARWAHA) Assistant Director”

Civil Appeal @ SLP (C) No.1663 of 2019 Page 27 of 31

28. It is also unclear whether the aforesaid letter was at all

marked in evidence in the Suit.

29. In view of the judgments of this Court in the aforesaid

cases, we hold that insofar as a person claiming benefit

having regard to his status as a Scheduled Tribe in a State,

when he migrates to a Union Territory where a Presidential

Order has not been issued at all insofar Scheduled Tribe is

concerned, or even if such a Notification is issued, such an

identical Scheduled Tribe does not find a place in such a

Notification, the person cannot claim his status on the basis

of his being noted as a Scheduled Tribe in the State of his

origin.

30. Reliance placed on the judgment of this Court in Bir

Singh by the learned counsel for the respondent is also of no

assistance since the said case concerned granting of benefits

to Scheduled castes and Scheduled Tribes in the matter of

employment and education in a particular State and Union

Territory and that a migrant to that particular State or Union

Territory cannot place reliance on his or her status in the

State of origin for the purpose of claiming similar benefit in a

Civil Appeal @ SLP (C) No.1663 of 2019 Page 28 of 31 State to which he or she has migrated. Reliance was placed

on paragraph 68 of the said judgment wherein this Court

noted that it had refrained from addressing the issue in

question as far as other Union Territories apart from the

National Capital Territory of Delhi are concerned, would not

in any way further the case of the respondent when the

significant fact is that there has been no notification issued

by the President of India vis-à-vis Scheduled Tribe in the

Union Territory of Chandigarh is concerned.

31. In the instant case, merely because the appellant herein

had issued a Notification calling for applications from both

Scheduled Castes and Scheduled Tribes did not confer any

benefit by that Notification on the respondent herein when

there is no Presidential Order at all under Article 342 of the

Constitution of India issued with regard to Scheduled Tribes

insofar as Union Territory of Chandigarh is concerned. The

said basic foundational fact goes against the respondent

herein and the invitation given by the appellant/Housing

Board to Scheduled Tribes was in fact contrary to the said

basic tenets as well as the prevalent law and by that reason,

Civil Appeal @ SLP (C) No.1663 of 2019 Page 29 of 31 the respondent herein cannot also seek any estoppel as

against the appellant herein.

32. The High Court lost sight of the aforesaid facts and

instead placed reliance on Exhibit P-8 letter dated 21.09.1983

and Exhibit D-3 letter dated 21.05.1985 to hold that there

was reservation made for Scheduled Tribe applicants also for

allotment of dwelling units of flats. In fact, in the letter dated

21.09.1983 (Exhibit P-8) it has been expressly noted that

there are no Scheduled Tribes notified for Union Territory of

Chandigarh but there are general instructions on reservation

for Scheduled Tribes enunciated in Appendix-3 Note 2 on the

Brochure on Reservation of Scheduled Castes and Scheduled

Tribes. The said Brochure cannot override Article 342 of the

Constitution of India which empowers the President of India

to notify the Scheduled Tribes either for a State or for an

Union Territory.

33. In the circumstances, we find that the impugned

judgment of the High Court affirming the judgment of the

First Appellate Court, which in turn affirms the judgment of

the Trial Court are all liable to be set aside and are hence set

Civil Appeal @ SLP (C) No.1663 of 2019 Page 30 of 31 aside.

The Appeal is allowed in the aforesaid terms. No costs.

…………………..…………………J. [B.V. NAGARATHNA]

…………………..…………………J. [AUGUSTINE GEORGE MASIH]

New Delhi.

February 07, 2024

Civil Appeal @ SLP (C) No.1663 of 2019 Page 31 of 31