Director, Transport Department, Union Territory Administration of Dadra and Nagar Haveli, Silvassa & Ors. vs Mr. Abhinav Dipakbhai Patel

CIVIL APPEAL No.4665 of 2019 [ Arising out of S.L.P. (Civil) No. 16421 of 2017 ]

Director Transport Department Union Territory Administration of Dadra and Nagar Haveli Silvassa & Ors. .... Appellants

Versus

Mr. Abhinav Dipakbhai Patel …. Respondent

JUDGMENT

L. NAGESWARA RAO, J.

Leave granted.

1. The judgment of the High Court directing appointment

of the Respondent as Assistant Motor Vehicle Inspector by

allowing his Writ Petition is the subject matter of the above

Appeal. The Respondent belongs to “Dhodia” caste which is

recognized as a Scheduled Tribe category in the State of

Gujarat as well as in the Union Territory of Dadra and Nagar

Haveli. He holds a caste certificate which was issued by the Signature Not Verified Digitally signed by VISHAL ANAND Date: 2019.05.08 10:48:57 IST concerned competent authority in the State of Gujarat. He Reason:

shifted his residence from Gujarat to the Union Territory of

1 Dadra and Nagar Haveli. He owns a residential

accommodation in the Union Territory and has a Voter’s I.D.

card to show that he was a resident of Dadra and Nagar

Haveli.

2. An advertisement was issued on 25.10.2014 calling for

applications for filling up two posts of Assistant Motor

Vehicle Inspectors, one of them reserved for the Scheduled

Tribe category. It was made clear in the advertisement that

all Indian citizens could apply for appointment to the post.

However, persons having ‘Domicile’ in Dadra and Nagar

Haveli would be given weightage. Candidates claiming to

be members of a Scheduled Tribe were required to furnish

an attested copy of the certificate issued by the competent

authority stating that he/ she belongs to the Scheduled Tribe

community. The Respondent applied for selection to the

post of Assistant Motor Vehicle Inspector and after scrutiny

of 114 applications that were received, it was found that

three candidates belonging to the ‘General’ category and

two from the ‘Scheduled Tribe’ category were eligible. The

respondent appeared in the written examination on

01.07.2015. To his surprise, the Respondent found that the

2 result of the written examination for the Scheduled Tribe

vacancy was not announced while announcing the result for

the unreserved post on 11.07.2015. As there was no

response to the representations made by him regarding his

non-selection to the post of Assistant Motor Vehicle

Inspector, he approached the National Commission for

Scheduled Tribes, Govt. of India. The National Commission,

being convinced that the Respondent was a resident of the

Union Territory of Dadra and Nagar Haveli and that he

belongs to a Scheduled Tribe category, directed the

representative of Dadra and Nagar Haveli to seek a

clarification from the Ministry of Home Affairs, Govt. of India

and appoint the Respondent thereafter. The Ministry of

Home Affairs, Govt. of India clarified that the Respondent

was eligible for appointment and advised the concerned

authority to take appropriate action as per the directions

issued by the National Commission for Schedule Tribes.

After a series of correspondence between the Government

of India, Union Territory of Dadra and Nagar Haveli and the

National Commission, an order was passed on 25.07.2016

by the National Commission directing the Appellants to

3 issue a letter of appointment in favour of the Respondent.

Since no action was taken to appoint the Respondent, he

was constrained to file a Writ Petition in the High Court of

Judicature at Bombay.

3. On behalf of the Appellants, it was submitted before

the High Court that a policy was framed by the Union

Territory of Dadra and Nagar Haveli on 01.09.2006 by which

it was decided that the local candidates from open category

had to provide ‘Domicile’ certificate. Insofar as the reserved

categories are concerned, only local candidates would be

considered. The said policy was modified on 26.12.2013

only in respect of ‘Domicile’ relating to open category

candidates. It was also contended on behalf of the

Appellants that there can be no difference between

migrants of the Scheduled Tribe from one State to another

and from one State to a Union Territory. As there was a

separate Presidential Order issued for notifying the

Scheduled Tribes in Dadra and Nagar Haveli, migrants

cannot claim the benefit of reservation in the Union

Territory. While referring to the weightage given to local

candidates, the Appellants submitted that 20 marks were

4 given for local candidates in the selection process which

apply equally to the open category and the reserved

category candidates. However, the Appellants maintained

that the benefit of reservation under the Scheduled Tribes

category was restricted only to local candidates and not

migrants.

4. The High Court was not impressed with the submission

of the Appellants that the members of the Scheduled Tribe

category from outside the Union Territory were excluded

from consideration for appointment to the public post in the

Union Territory in the reserved category. Weightage of

marks given to local candidates in the selection indicates

that outsiders were not excluded from consideration,

according to the High Court. The Respondent was found to

be a resident of the Union Territory of Dadra and Nagar

Haveli and though he migrated from the State of Gujarat, he

was entitled to be considered for appointment as a reserved

category candidate. On the basis of the said findings, the

High Court directed the Appellants to appoint Respondent as

Assistant Motor Vehicle Inspector with effect from the date

5 of appointment of other candidates from the same selection

process.

5. The learned counsel appearing for the Appellants

referred to various circulars which indicate the policy of the

Union Territory that the reservation was applicable only to

the locals and not to the migrants. He argued that the

benefit of reservation can only be claimed by a person who

is domiciled in the Union Territory. According to him,

residence of at least 10 years is required for a person to be

considered for appointment on a public post as a Scheduled

Tribe. To justify the action of the Union Territory in refusing

to appoint the Respondent, he relied upon the judgment of

this Court reported in Action Committee on Issue of

Caste Certificate to Scheduled Castes and Scheduled

Tribes in the State of Maharashtra and Another v.

Union of India & Another,1 S. Pushpa and Others v.

Sivachanmugavelu and Others,2 Puducherry

Scheduled Caste People Welfare Association v. Chief

Secretary to Government, Union Territory of

1 (1994) 5 SCC 244 2 (2005) 3 SCC 1

6 Pondicherry and Others,3 and Bir Singh v. Delhi Jal

Board and Others.4

6. The learned Senior Counsel appearing for the

Respondent referred to the Office Memorandum issued by

the Union Territory to argue that there is a clear indication

from the Memorandum that there is no exclusion of

Scheduled Tribes of other States from being considered for

appointment to a public post in the reserved category. The

local candidates were given the benefit of weightage which

applies to Scheduled Tribes as well. Amongst the four

candidates who were found eligible and who participated in

the written examination, the Respondent secured the

highest marks and was eligible for being appointed in the

unreserved post according to the law laid down by this

Court. Even as per the Office Memorandum dated

26.12.2013, which pertains to the direct recruitment in

group ‘C’ posts, the Scheduled Tribe candidates who were

selected on their own merit without relaxed standards shall

be appointed in the posts earmarked for the open category.

The learned Senior Counsel argued that it is settled law that

3 (2014) 9 SCC 236 4 (2018) 10 SCC 313

7 a resident of the Union Territory is entitled to be considered

for appointment to the public post as a reserved category

candidate. He cannot be deprived of the status as a

member of a reserved category candidate only on the

ground that he is a migrant. It was submitted that there is

no doubt that the Respondent had been residing in the

Union Territory for six years before the date of the

advertisement. He referred to the judgment of this Court in

Bir Singh (supra) to argue that the law laid down in

Pushpa’s (supra) case has not been disturbed.

7. By the Constitution (Dadra and Nagar Haveli)

Scheduled Tribes Order, 1962, the President declared

“Dhodia” caste as a Scheduled Tribe in relation to the Union

Territory of Dadra and Nagar Haveli regarding members

thereof who are residents in that Union Territory. A circular

was issued by the Appellants on 10.07.1995 by which the

benefit of reservation in Government offices for Scheduled

Castes/ Scheduled Tribes candidates would continue in

respect of persons who were appointed prior to 01.01.1990

and a separate decision shall be taken for future

appointments. Persons belonging to Scheduled Castes/

8 Scheduled Tribes domiciled in the Union Territory

Administration of Dadra and Nagar Haveli are to be

considered for appointment to public posts in reserved

categories as per the Office Memorandum dated

01.09.2006. The said notification was in respect of direct

recruitments to group ‘C’ and ‘D’ posts. While reiterating

that the benefit of reservation for appointment to public

posts shall be restricted to those castes/ tribes included in

the notification applicable to the Union Territory, in the

Letter to the Ministry of Home Affairs dated 13.09.2013, it

was conveyed that priority/preference shall be given to the

locals. It is not disputed that the said priority shall be

applicable to candidates belonging to open category as well

as reserved categories. The Government of India approved

the said proposal regarding weightage/preference to local

people in direct recruitment in respect of Group ‘B’, ‘C’ and

‘D’ posts. The Government of India was of the opinion that

exclusive reservation for local people would be

unconstitutional. Thereafter, a decision was taken by the

Union Territory of Dadra and Nagar Haveli that weightage of

20 additional marks shall be given to the locals in both open

9 and reserved categories for direct recruitment to category

‘C’ posts in the Union Territory. According to the

advertisement, a candidate applying in the reserved

category should produce a certificate issued by the

competent authority. All Indian citizens were eligible to

apply for selection to the post of Assistant Motor Vehicle

Inspector and the candidates were informed about the

weightage to be given to the locals.

8. In Marri Chandra Shekhar Rao v. Dean, Seth G.S.

Medical College and Others5 the Petitioner belonged to

‘Gouda’ community in the State of Andhra Pradesh which

was recognized as a Scheduled Tribe in the Presidential

Order issued for the said State. He applied for admission in

a medical college in the State of Maharashtra and claimed

the benefit of reservation. ‘Gouda’ community was not

recognized as a Scheduled Tribe in the Presidential Order

issued for the State of Maharashtra, and on that ground he

was denied the benefit of reservation. It was held by this

Court that he had no legal right to claim benefit of

reservation in the State of Maharashtra as his community

5 (1990) 3 SCC 130

10 was not included as a Scheduled Tribe in the Presidential

Order issued for the State of Maharashtra.

9. Appointments of Selection Grade Teachers made by the

Directorate of Education, Government of Pondicherry was

the subject matter of a judgment of this Court in S. Pushpa

(supra). An advertisement was issued for recruitment of

350 General Central Service Group ‘C’ posts of Selection

Grade Teachers out of which 56 posts were reserved for

Scheduled Caste candidates. As sufficient number of

Scheduled Castes candidates were not available in the

Yanam and Mahe regions of the Union Territory of

Pondicherry, candidates registered in the neighbouring

employment exchanges in the States of Tamil Nadu, Andhra

Pradesh and Kerala were also sponsored. The question that

arose for consideration therein was whether a migrant

Scheduled Caste candidate belonging to another State was

eligible for appointment to the post which is reserved for a

Scheduled Caste candidate in the Union Territory of

Pondicherry. The Central Administrative Tribunal was of the

opinion that migrant Scheduled Caste candidates were not

entitled to claim the benefit of reservation in the matter of

11 employment in the Pondicherry Government Service. This

Court reversed the judgment of the Central Administrative

Tribunal by observing that there is no violation of any

provision of the Constitution of India in making the selection

and appointment of migrant Scheduled Caste candidates

against the quota reserved for Scheduled Castes in the

Union Territory of Pondicherry.

10. Government Orders issued by the Pondicherry

Government extending the benefit of reservation for

admissions in colleges was extended only to the members

of the Scheduled Castes who were originally from the Union

Territory. While referring to the notification issued under

Articles 341(1) and 342(1) of the Constitution of India, this

Court in Puducherry Scheduled Caste People Welfare

Association (supra) decided that no amendment,

modification, alteration or variation of the Presidential Order

is permissible by an executive power. Altering the word

“Resident” in the Presidential Order to “Origin” by an

executive order amounted to altering the Presidential Order,

was held to be impermissible by this Court in the said

judgment.

12

11. In view of the difference of opinion relating to the

extension of benefits or concessions allowed to Scheduled

Caste candidates belonging to a particular State in another

State, the matter was referred to a Constitution Bench. In

Bir Singh’s case (supra), this Court was of the opinion that

the correctness of the view expressed in the case of S.

Pushpa (supra) did not require reconsideration. The

Constitution Bench also reiterated that the Presidential

Notification issued under Articles 341 and 342 cannot be

altered or modified by the Executive. The upshot of the

above discussion is that a person belonging to a Scheduled

Caste or a Scheduled Tribe which is notified by the President

for a Union Territory is entitled to be considered as a

reserved candidate provided he is a resident of the said

Union Territory.

12. There is no dispute that the Respondent was a resident

in the Union Territory of Dadra and Nagar Haveli for six

years prior to the date of advertisement. He stated in the

Writ Petition that he owns an apartment in which he was

residing and he married a woman from “Dhodia” tribe in the

Union Territory. He further stated that his name is in the

13 Voter’s List in the Union Territory. These facts have not been

disputed by the Appellants. The central issue raised by the

Appellants before the High Court was that a person should

be a local in the Union Territory which meant that migrant

Scheduled Tribes cannot be given the benefit of reservation.

The Presidential Notification issued for the Union Territory of

Dadra and Nagar Haveli extends the benefit of reservation

to the Scheduled Tribes mentioned therein on the basis of

residence and not on the basis of origin. We find no force in

the point canvassed by the learned counsel for the

Appellants that the reservation for Scheduled Tribes in the

Union Territory of Dadra and Nagar Haveli is not available to

migrant Scheduled Tribes. A feeble attempt was made by

the learned counsel for the Appellant that the requirement

of residence is for a period of 10 years for a person to claim

the benefit of reservation. There is no material which was

placed on record in the High Court in support of the said

submission and there was no such averment in the counter

affidavit filed in the Writ Petition. This point was not raised

before the High Court and no such ground is taken in the

Special Leave Petition for which reason the said contention

14 does not merit any consideration. Other points canvassed

by the learned Senior Counsel for the Respondent need not

be adverted to in view of the order we propose to pass.

Gross injustice is caused to the Respondent by the action of

the Appellants in not appointing him in spite of the advice of

the Union of India and the direction issued by the National

Commission for Scheduled Tribes. The appointment of

Respondent as Assistant Motor Vehicle Inspector does not

brook any further delay.

13. We have no reason to interfere with the judgment of

the High Court. Accordingly, the Appeal is dismissed.

.................................J. [L. NAGESWARA RAO]

..................................J. [M.R.SHAH]

New Delhi, May 07, 2019.

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