Central Administrative Tribunal - Delhi
Sheetal Jaind D/O Mr. Ved Prakash vs Govt. Of Nct Of Delhi on 18 December, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.720/2013 Wednesday, this the 18th day of December 2013 Honble Mr. A.K. Bhardwaj, Member (J) Honble Mr. P.K. Basu, Member (A) Sheetal Jaind d/o Mr. Ved Prakash aged 24 years r/o B-50, UG-1, Dilshad Colony Delhi-95 .. Applicant (By Advocate: Mr. Manoj Ohri) Versus 1. Govt. of NCT of Delhi Through Chief Secretary Delhi Secretariat, IP Estate, Delhi 2. Delhi Subordinate Service Selection Board Govt. of NCT of Delhi FC-18, Institutional Area Karkardooma, Delhi-92 3. Health & Family Welfare Department Govt. of NCT of Delhi Through Principal Secretary F-17 Karkardooma, Delhi-92 ..Respondents (By Advocate: Ms. Sumedha Sharma) O R D E R (ORAL)
Mr. A.K. Bhardwaj:
The short issue arises to be determined in the present Original Application is whether a migrant scheduled caste candidate can get the benefit of reservation in employment to the post of Staff Nurse under Post Code No.77/09 under Government of National Capital Territory of Delhi or not.
2. Mr. Manoj Ohri, learned counsel for applicant submitted that in the case of Deepak Kumar & others v. District & Sessions Judge, Delhi & others (W.P. (C) No.5390/2010 with connected petitions) decided on 12.9.2012, Honble High Court of Delhi has categorically viewed that though a migrant scheduled caste candidate may not get benefit of reservation in employment to the services of another state but such candidates would be entitled to reservation in employment to the services of the union territory of Delhi.
3. On the other hand, Ms. Sumedha Sharma, learned counsel for respondents would submit that the result of the selection in the present case had been declared on 27.1.2011 while the aforesaid decision of the Tribunal is dated 12.9.2012, thus would not be applicable to the present Original Application, as in the present case, it would be the judgment of Honble Supreme Court in Subhash Chander & others v. Delhi Subordinate Services Selection Board & others, (2009) 15 SCC 458, which would govern the field.
4. We find that in the case of Deepak Kumar (supra), decided with connected matters, the Honble High Court of Delhi noticed the judgments of Honble Supreme Court in Subhash Chanders case (supra) and S. Pushpa & others v. Sivachanmugavelu & others, (2005) 3 SCC 1 and summarized its conclusions as follows:-
66. This Court summarizes its conclusions, as follows:
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 relation to the State which provided for such reservations.
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 cases, or tribes, in view of Article 341(2), Article 342(2) which is also reinforced by Article 16(3). States cannot legislate on this aspect; nor can the executive Union of 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 over classification 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 respet of 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 case is included in the latter States 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 reservations, 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 case residents of other states as members of scheduled caste of the Union Territory, even though their castes are not 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 aspet vis-`-vis 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 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 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.
5. As can be seen from the aforementioned, the residents of state who moves to union territory would be entitled to carry his reservation benefit and status as a member of scheduled caste from a state to a union territory. In the circumstances and even if the applicant is a migrant SC he cannot be denied the benefit of reservation in recruitment to the post in question, i.e., the post of Staff Nurse under Post Code No.77/09.
6. We do not agree with the view taken by the respondents that the order of the Honble High Court (ibid) would apply prospectively. Once the Honble High Court declared the law, it governs the field for all purposes. In this regard, it would be relevant to refer to the judgment of the Honble Supreme Court in P.V. George & others v. State of Kerala & others, (2007) 3 SCC 557. Relevant excerpt of the judgment reads as under:-
14. For the views we propose to take, it is not necessary for us to consider all the decisions relied upon by Mr. Rajan. The legal position as regards the applicability of doctrine of prospective overruling is no longer res integra. This Court in exercise of its jurisdiction under Article 32 or Article 142 of the Constitution of India may declare a law to have a prospective effect. The Division Bench of the High Court may be correct in opining that having regard to the decision of this Court in L.C. Golak Nath and Others v. State of Punjab and Another [AIR 1967 SC 1643) the power of overruling is vested only in this Court and that too in constitutional matters, but the High Courts in exercise of their jurisdiction under Article 226 of the Constitution of India, even without applying the doctrine of prospective overruling, indisputably may grant a limited relief in exercise of their equity jurisdiction.
7. Being bound by the aforementioned decision of the Honble High Court of Delhi (ibid) taken by it after taking note of the judgment of the Honble Supreme Court in Subhash Chanders case (supra) and S. Pushpas case (supra), we set aside the impugned order and direct the respondents to consider the candidature of the applicant for the aforementioned post treating him as scheduled caste category candidate.
7. Original Application stands disposed of accordingly.
( P.K. Basu ) ( A.K. Bhardwaj ) Member (A) Member (J) December 18, 2013 /sunil/