Central Administrative Tribunal - Delhi
Jitender Singh vs Delhi Subordinate Services on 18 November, 2011
Central Administrative Tribunal
Principal Bench
TA NO. 72/2010 with
TA NO. 74/2010
TA NO. 76/2010
TA NO. 77/2010
OA NO. 3607/2010
New Delhi this the 18th day of November, 2011
Honble Mr.G.George Paracken, Member(J)
Honble Dr. A.K.Mishra, Member(A)
TA No.72/2010
1. Jitender Singh
S/o Shivcharan
R/o Village P.O. Alwalpur distt. Palwal
Haryana.
2. Dinesh
S/o Raghbir
R/o Village P.O. Alwalpur, Distt. Palwal
Haryana.
3. Hira Singh
S/o Bakkhtaware Singh
R/o Village: Nikiri, P.O. Dungarwal
Distt. Riwari, Haryana.
4. Poonam Singh
S/o Bridaman Singh
R/o G-2, Anmol Apart-721, Shalimar Garden G2B,
Uttar Pradesh.
5. Suresh Kr. Bairwa
S/o Gopilal Bairwa
R/o Village Bheepura,
Post Thadoli The
Distt. Sawai, Modhopur,
Rajasthan.
6. Rajesh Kumar
S/o Budhram
R/o Village P.O. Aswati Distt. Palwal
Haryana.
7. Som Singh
S/o Dheera Ram
R/o Vill. Narwar, P.O. Kichhana,
Dist. Kaithai
Haryana.
8. Tulsi Ram
S/o Sukhram
R/o KC-258, Krishna Colony Palwal
Haryana.
9. Pramukh Jatav
S/o Nathilal Jatav,
R/o Village Bhadurpur, Jatangla
Distt. Karoli
Rajasthan.
10. Anil Kumar Nagar,
S/o Harichand Bairwa
R/o Village Piplu Distt. Tonk
Rajasthan.
11. Satish Kumar
S/o Indirraj Singh
R/o Village Yadupur
P.R Dist Palwal
Haryana.
12. Sahab Singh
S/o Bansho Ram
R/o village P.O. Bahaj The,
Deeg Distt. Bharatpur
Rajasthan.
13. Banwari Lal
S/o Ram Sahai,
R/o Village Parkhari, P.O. Agan
Distt. Palwal, Haryana.
. Applicants
(By Advocate: Shri H.K.Chaturvedi)
Versus
Delhi Subordinate Services
Selection Board
Through its Chairman
FC-18, Institutional Area,
Karkardooma, Delhi-32.
.. Respondents
(By Advocate: Sh. Vijay Pandita)
TA No.74/2010
1. Pooja Rani
W/o Mr. Puneet
R/o Village and Post-Patti Kalyana,
Tehsil-Samalakha,
District-Sonepat (Haryana).
2. Poonam Devi,
D/o Shri Partap Singh
R/o T-583/2, Gali No.2
Baljeet Nagar,
New Delhi.
3. Pooja Devi
D/o Sh. Krishan Chand
R/o Raghubir Vihar,
Near Khadi Samiti,
G.T.Road, Gharunda (Haryana).
4. Om Narain
S/o Shri Prem Singh
R/o Village-Kami, Post Office-Tharru,
District Sonepat, Haryana.
. Applicants
(By Advocate: Shri H.K.Chaturvedi)
Versus
1. Delhi Subordinate Services
Selection Board
Govt. of NCT of Delhi
FC-18, Institutional Area,
Karkardooma, Delhi-32.
2. Municipal Corporation of Delhi
Through its Chairman,
Town Hall, Chandni Chowk,
Delhi-110006.
.. Respondents
(By Advocate: Sh. Amit Anand for respondent No.1
Sh. Abhishek Sharma for respondent No.2)
TA No.76/2010
1. Anju
D/o Sh. Mahabir Singh
Roll No.01626341
R/o C-1, General Hospital,
Campus, Sonepat.
2. Sanjay Kumar
S/o sh. Ishwar Singh
Roll No.01628578
R/o VPO Chhapra
Tehsil Gohana Distt. Sonepat-131304.
3. Deep Chand
S/o Sh. Zile Singh
Roll No.01612008,
R/o VPO-Kheri Munak, P.O.-Anchla,
Distt. Karnal, Haryana.
4. Sandeep
S/o Sh. Balwan Singh
Roll No.01623304
R/o Village Padana, Post Office Nidani,
Distt & Tehsil Jind, Haryana.
5. Sanjay Kumar
S/o Sh. Balwan Singh
Roll No.01621494
R/o VPO-Baliali, Tehsil-Bawanikhera,
Distt-Bhiwani, Haryana.
. Applicants
(By Advocate: Shri H.K.Chaturvedi)
Versus
1. Delhi Subordinate Services
Selection Board
Govt. of NCT of Delhi
FC-18, Institutional Area,
Karkardooma, Delhi-32.
2. Municipal Corporation of Delhi
Through its Chairman,
Town Hall, Chandni Chowk,
Delhi-110006.
.. Respondents
(By Advocate: Sh. Amit Anand and Sh. Duli Chand for respondent No.1
Sh. Abhishek Sharma for respondent No.2)
TA No.77/2010
1. Surender Kumar
s/o Baldev Singh
R/o H.No.11/222,
Hari Vishnu Colony,
Kirti Nagar,
Haryana-125055.
2. Raju
D/o Sh. Babu Singh
r/o Dhaliwal Nagar
Sirsa Road,
Ward No.18
Mandi Dabwali
District Sirsa,
Haryana-125104.
3. Deepak Kumar
d/o Sh. Om Prakash
r/o Begu Road,
Kirti Nagar,
Gali No.6, House No.423/2,
Shiv Mandir Wali Gali,
Sirsa, Haryana.
4. Lakhveer Chand,
d/o Sh. Dharampal
r/o village Alikan,
Tehsil & PO Dabwali
District Sirsa
Haryana-125104.
5. Parveen Kumari
D/o Sh. Attar Singh
R/o H.No.567/29 Tilak Nagar, Rohtak,
Haryana-124001.
6. Ritesh Kumar,
S/o Sh. Sulekh Chand
R/o Vill. & PO Khukhri,
District Karnal, Haryana.
. Applicants
(By Advocate: Shri Sumit Kumar)
Versus
1. Delhi Subordinate Services
Selection Board
`Through its Chairman
3rd Floor, UTCS Building,
Vishwas Nagar,
Shahdara,
Delhi-32.
.. Respondents
(By Advocate: Sh. Amit Anand for respondent No.1
Sh. Abhishek Sharma for respondent No.2)
OA No.3607/2010
Satya Narayan Arya,
S/o Sh. Roora Ram Arya,
R/o Village & PO Basai (Khohar)
Vaya Gandala,
Tehsil Behror
Distt Alwar (Rajasthan)-301709.
. Applicant
(By Advocate: Shri H.K.Chaturvedi)
Versus
1. Delhi Subordinate Services
Selection Board
Govt. of NCT of Delhi
FC-18, Institutional Area,
Karkardooma,
Delhi-32.
2. Municipal Corporation of Delhi
Through its Chairman,
Town Hall,
Chandni Chowk,
Delhi-110006.
.. Respondents
(By Advocate: Sh. Amit Anand for respondent No.1
Ms. Harvinder Oberoi for respondent No.2)
O R D E R
Honble Shri George Paracken:
All these Transfer Applications (TA for short)/Original Application (OA for short) raise the same issue, namely, whether the SC candidates belong to other States are entitled for appointment under the Government of NCT of Delhi, Undertakings and local bodies like MCD, etc. under its control.
2. The undisputed facts in these cases are that the applicants in these TAs/OA belong to SC category from States of Haryana, UP etc. They have applied to the Delhi Subordinate Services Selection Board (DSSSB for short) for various posts under the Government of NCT of Delhi/autonomous bodies/local bodies. All of them have qualified in the examination/test conducted by the DSSSB but they have not been finally selected for appointments on the ground that the SC/ST candidates belonging to other States are not eligible for the admissibility of the benefit of reservation for the posts under the Government of NCT of Delhi and the undertakings, autonomous bodies and the local bodies under it in terms of the judgment of the Honble Supreme Court in Subhash Chandra and another vs. DSSSB & ors., 2009 (15) SCC 458, wherein it has been held that the SC/ST candidates from the other States cannot be treated as SC and ST for employment under the Government of NCT of Delhi and the autonomous bodies etc. under it.
3. According to the learned counsel for applicant, the aforesaid decision of the DSSSB is in violation of the decision of Government of NCT of Delhi itself which has been conveyed to the Chairman, DSSSB and all units of department/autonomous bodies/PSUs according to which SC/ST candidates irrespective of their nativity are eligible for reservation to the civil posts under the Government of NCT of Delhi, which are reserved for SC/ST candidates. The said letter is reproduced as under:
GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI (SERVICES DEPARTMENT BRANCH IV) 7TH LEVEL, B-WING, DELHI SECRETARIAT I.P.ESTATE, NEW DLEHI-110002.
No.F.16(73)/97-S.III/710 Dt. 30.06.2005 To,
1. The Chairman Delhi Subordinate Services Selection Board, Government of NCT od Delhi, UTCS Building, Shahdara, Delhi.
2. All head of Department/local/Autonomous Bodies/ PSUs, Government of NCT of Delhi.
Sub: Reservation for SCs/STs in the jobs under the Government of NCT of Delhi.
Ref.: Letter No.1401/23/2005-Delhi-I dated 01.06.2005 Of the Ministry of Home Affairs, Government of India.
Sir/Madam, I am to inform you that the matter regarding grant of reservation to SCs/STs in jobs under the Government of NCT of Delhi has been examined by the Ministry of Home Affairs in consultation with the Ministry of Law and Justice (Department of Legal Affairs), Govt. of India in light of the Judgment of Honble Supreme Court dated 11.02.2005 in Civil Appeal No.6-7 of 1998 in the matter of S.Pushpa & Ors. Vs. Sivachanmugavelu & Ors.
It has been stated by the Ministry of Home Affairs, Government of India vide their letter cited above that the Ministry of Law & Justice (Department of Legal Affairs) has opined that the law declared by the Honble Supreme Court of India in its Judgment dated 11.02.2005 applies to the National Capital Territory of Delhi also and shall be binding on all courts within the territory of India under Article 141 of the Constitution of India.
In light of the above, all the Scheduled Caste/Scheduled Tribe candidates irrespective of their nativity are eligible for reservation to the civil posts under Government of NCT of Delhi, which are reserved for SC/ST candidates and appropriate act for recruitment may be taken accordingly.
Yours sincerely, Sd/-
( S.P. Singh) Joint Secretary (Services) According to the judgment of the Honble Supreme Court in Subhash Chandra and another vs. DSSSB & ors., 2009 (15) SCC 458, the SC/ST candidates from the other States cannot be treated as SC and ST for employment under the Government of NCT of Delhi and autonomous bodies therein.
4. At this juncture, it is necessary to consider the various judgments passed by the Honble Supreme Court in this regard. A Constitution Bench of the Apex Court has considered the issue in the case of Marri Chandra Shekhar Rao Vs. Dean SGS Medical College and others, 1990 (3) SCC 130 decided on 2.5.1990 and held that the Scheduled Castes and Scheduled Tribes have protection in their own State and not in other States. The relevant facts as stated in the said judgment is as under:
2. The petitioner, a citizen of India, was born on 6/10/1969 in Tenali in the State of Andhra Pradesh. He belongs to the Gouda community also know as "Goudu", it is stated in the petition. This community is recognised as Scheduled Tribe in the Constitution (Scheduled Tribes) Order, 1950, as amended up to date. We are not concerned with the correctness or otherwise of the factual position on this aspect in this application. the father of the petitioner had been issued a Scheduled Tribe certificate by the Tahsildar, Tenali, Andhra Pradesh on 3/08/1977. On the basis of the said certificate, the father of the petitioner was appointed in the Fertilizer Corporation of India, a public sector undertaking, on 17/10/1977 in the Schedule Tribes quota. On 19/06/1978, the Petitioners father joined the Rashtriya Chemicals and Fertilizers Ltd., a Government of India undertaking, under the quota reserved for Scheduled Tribes and he has been stationed in Bombay since then. the petitioner, therefore, came to live in Bombay, in the State of Maharashtra, since the age of nine years. the petitioner completed the secondary and higher education in Bombay. In March 1989, the petitioner passed the 12th standard examination of the Maharashtra State Board of Secondary and Higher Secondary Examination, Bombay Divisional Board, securing 165 marks in the aggregate in Physics, Chemistry and Mathematics. For the academic year 1989-90, the petitioner submitted his application for three medical colleges in Bombay which are run by the Bombay Municipal Corporation (respondent 2 herein) and for one medical college in Bombay run by the State of Maharashtra (respondent 3. the total number of seats in the three medical colleges run by the Municipal Corporation for the MBBS Course is 400 out of which 7 per cent i.e. 28 seats were reserved for Scheduled Tribes. the total number of seats in the medical college run by the State of Maharashtra is 200 out of which 7 per cent i.e. 14 seats are reserved for Scheduled Tribes. the petitioner sought and availed the benefit of the reservation in favour of the Scheduled Tribes. the petitioner was however not admitted to the MBBS course in eithe the medical colleges run by the Bombay Municipal Corporation or the State of Maharashtra, though indubitably Scheduled Tribes candidates who had secured lesser marks than him had been admitted. the undisputed reason for denial of admission to the petitioner was that the petitioner was not entitled to Scheduled Tribe status of his origin, in which this community is specified as a Scheduled Tribe in the Constitution (Scheduled Tribes) Order, 1950.
5. The findings of the Apex Court in the aforesaid case was as under:
10. . Scheduled Castes and Scheduled Tribes belonging to a particular area of the country must be given protection so long as and to the extent they are entitled in order to become equal with others. But equally those who go to other areas should also ensure that they make way for the disadvantaged and disabled of that part of the community who suffer from disabilities in those areas. In other words, Scheduled Castes and Scheduled Tribes say of Andhra Pradesh do require necessary protection as balanced between other communities. But equally the Scheduled Castes and Scheduled Tribes say of Maharashtra in the instant case, do require protection in the State of Maharashtra, which will have to be in balance to other communities. This must be the basic approach to the problem. If one bears this basic approach in mind, then the determination of the controversy in the instant case does not become difficult.
Xxxx xxxx xxxx 22. In that view of the matter, we are of the opinion that the petitioner is not entitled to be admitted to the medical college on the basis of Scheduled Tribe certificate in Maharashtra. In the view we have taken, the question of petitioners right to be admitted as being domicile does not fall for consideration.
6. Thereafter, another Constitution Bench of the Apex Court has considered the issue in the case of Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra & anr. Vs. Union of India, (1994) 5 SCC 244 decided on 8.7.1994. In para 16 of the said judgment, the Apex Court has held that Marri Chandra Shekhar Rao (supra) lays down the correct law and it reads 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/Scheduled 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."
7. The question that is framed in the said judgment and the answer given therein were as under:
The Question "Where a person belonging to a caste or tribe specified for the purposes of the Constitution to be a Scheduled Caste or a Scheduled Tribe in relation to State A migrates to State B where a caste or tribe with the same nomenclature is specified for the purposes of the Constitution to be a Scheduled Caste or a Scheduled Tribe in relation to that State B, will that person be entitled to claim the privileges and benefits admissible to persons belonging to the Scheduled Castes and/or Scheduled Tribes in State B?"
The Answer "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."
8. In State of Maharashtra Vs. Milind & Ors., (2001) 1 SCC 4, the Apex Court has laid down the proposition that neither practice prevailing in a State nor the decisions of the High Court which are otherwise binding on the State would create a right in a person to obtain the benefit of reservation. The relevant part of the said judgment is as under:
"35. The arguments advanced before the High Court on behalf of an intervener relying on Articles 162, 256 to 258 and 339(2) of the Constitution of India that instructions issued by the Central Government in the matter have overriding effect over the instructions issued by the State Government, was lightly brushed aside on the ground that this aspect assured little importance in the view taken by the High Court that the State Government was bound by the circulars issued by it. We have already expressed above the view in the light of Articles 341 and 342 of the Constitution that a Scheduled Tribes Order can be amended only by the Parliament. Hence it is not possible to accept that orders/circulars issued by the State Government, which have the effect of amending Scheduled Tribes Order, were binding on the Government or other affected parties."
9. In MCD Vs. Veena & Ors., (2001) 6 SCC 571 decided on 14.8.2001 relates to the reservation in respect of OBC candidates but the principle followed in it was the same as in Marri Chandra Shekhar Raos case (supra) and in Action Committees case (supra), the Apex Court held as under:-
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 belongs 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 have 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 other State and a person belonging to that group is entitled to 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.
10. In UP Public Service Commission, Allahahbad Vs. Sanjay Kumar Singh, (2003) 7 SCC 657, the appellant belonged to Scheduled Tribe Naga from Nagaland. He had sought admission in the Medical College at Kanpur under the Schedule Tribe quota. The Apex Court following its judgment in Marri Chandra Rao (supra), Action Committee (supra) and Veena (supra) held that the appellant could not be treated as Scheduled Tribe candidate to claim reservation against the vacancy reserved for Schedule Tribes in the State of UP.
11. In Chandigarh Administration & anr. Vs. Surinder Kumar & Ors., (2004) 1 SCC 530, decided on 27.11.2003 the Apex Court held that the Government of India was entitled to issue instructions qua service in the Union Territories and the same were binding on the Union Territory. The relevant part of the judgment reads as under:
"The judgments relied upon by the learned counsel for the appellant only decide the constitutional aspect of the Government policy on the subject at a given time while leaving the policy decision as to what benefits are to be conferred on persons belonging to reserved categories with the Government of India. In the present case the Government of India has conveyed its decision on the point vide its circular letter dated 26.8.1986 which has not been modified. Therefore, the instructions contained in the said letter which were admittedly being followed till 7.9.1999, in our view, continue to be in force. There is no reasonable basis to discontinue the said decision with effect from 7.9.1999. No reason or basis has been disclosed for discontinuing the same with effect from the said date."
12. Later on, by a three Member Bench of the Apex Court considered the matter once again in the case of S. Pushpa and ors. vs. Sivachanmugavelu and Ors., (2005) 3 SCC 1. The said case was arising out of an order dated 5.11.1996 of the Central Administrative Tribunal, Madras Bench by which the selection made of migrant SC candidates against the quota reserved for SC on the post of Selection Grade teachers in the selection held in the year 1995 in the Union Territory of Pondicherry was declared illegal and invalid. In the said case, the Madras Bench of this Tribunal relying upon the decisions of the Apex Court in Marri Chandra Rao (supra) and in Action Committee on issue of a caste certificate to SCs and STs in the State of Maharashtra vs. Union of India and others (supra) held that the SC persons who migrated to Union Territory of Pondicherry after issuance of Presidential notification which has specified SCs in terms of Article 323 of the Constitution cannot claim benefit of SC in the matter of Pondicherry service. Accordingly, the selection and appointment of migrant SC candidates was set aside and the direction was issued to review the selection process with regard to the reserved quota after excluding the migrant candidates who migrated to Pondicherry after the year 1964. Aggrieved by the aforesaid Order of the Tribunal, the Union of India and the Directorate of Education, Government of Pondicherry preferred this SLP before the Supreme Court. The Apex Court did not find any fault with the policy of the Union of India and Union Territory of Pondicherry and held that the principle enunciated in Marri Chandra Shekhar Rao (supra) cannot have any application as Union Territory of Pondicherry is not a State. The relevant part of the said judgment reads 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 (supra) cannot have application here as U.T. 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 expression "State" occurring therein. This was clearly explained by a Constitution Bench in T.M. Kanniyan vs. Income Tax Officer 1968 (2) SCR 103 (AIR 1968 SC 367). In New Delhi Municipal Council vs. State of Punjab 1997 (7) SCC 339 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.
Xxx xxx xxx xxx
22. For the reasons discussed above, we are of the opinion that there has been no violation of any constitutional or any other legal provision in making selection and appointment of migrant Scheduled Caste candidates against the quota reserved for Scheduled Castes on the post of Selection Grade Teachers. The view to the contrary taken by the Tribunal cannot, therefore, be sustained and has to be set aside.
13. Thereafter the matter was considered by a Division Bench of the Apex Court in Subhash Chandra and others (supra). Vide order dated 24.9.2009 the said DB held that the judgment of the Apex Court in the case of S.Pushpa and others is an obiter on the ground that the decision of the Apex Court in Marri Chandra Rao (supra) and E.V.Chennaiah are decisions of the Constitutional Bench which were being followed in large number of decisions by the same Court including three judges Bench decisions. According to the said judgment, they could not have ignored either Marri Chandra Rao (supra) or other decisions while deciding S.Pushpas and others (supra) case. The relevant part of the said judgment is as under:
46. Should we consider Pushpa to be an obiter following the said decision is the question which arises herein.
We think we should. The decisions referred to hereinbefore clearly suggest that we are bound by a Constitution Bench decision. We have referred to two Constitution Bench decisions, namely Marri Chandra Shekhar Rao and E.V. Chinnaiah. Marri Chandra Shekhar Rao had been followed by this Court in a large number of decisions including Three Judge Bench decisions. Pushpa, therefore, could not have ignored either Marri Chandra Shekhar Rao or other decisions following the same only on the basis of an administrative circular issued or otherwise and more so when the Constitutional scheme as contained in clause (1) of Articles 341 and 342 of the Constitution of India putting the State and Union Territory in the same bracket.
Following Dayanand (supra), therefore, we are of the opinion that the dicta in Pushpa is an obiter and does not lay down any binding ratio.
47. For the reasons aforementioned, the impugned judgments cannot be sustained which are set aside accordingly. The appeal and the writ petition are allowed. In the facts and circumstances of the case, there shall be no orders as to costs.
14. On the basis of the judgment of the Apex Court in Subhash Chandras case, the High Court of Delhi has decided a number of writ petitions. In its judgment dated 25.7.2011 in WP (C) No.610/2011 DSSSB and another vs. Mukesh Kumar and other connected cases, the High Court has held as under:
7. At the very outset, we may state that there is no dispute that the Competent Authorities of Govt. of NCT of Delhi had issued Scheduled Caste Certificates in favour of the respondents on the basis of the certificates to their parents by other States. On a perusal of the decision in Subhash Chandra & Anr. (supra), it is clear as crystal that the Apex Court has followed the decisions in Marri Chandra Shekhar Rao (supra) and the Action Committee (supra). The Constitution Bench in Marri Chandra Shekhar Rao (supra) has clearly laid down that a candidate recognized as a member of Scheduled Tribe and Scheduled Caste in his original State on his migration to another State, would not be entitled to get the benefit of reservation of seats. After laying down the principles, their Lordships have stated thus:
"23. Having construed the provisions of Articles 341 and 342 of the Constitution in the manner we have done, the next question that falls for consideration, is, the question of the fate of those Scheduled Caste and Scheduled Tribe students who get the protection of being classed as Scheduled Caste or Scheduled Tribes in the States of origin when, because of transfer or movement of their father or guardian's business or service, they move to other States as a matter of voluntary (sic in voluntary) transfer, will they be WP(C) No. 610/2011 & connected cases Page 7 of 10 entitled to some sort of protective treatment so that they may continue or pursue their education. Having considered the facts and circumstances of such situation, it appears to us that where the migration from one State to another is involuntary, by force of circumstances either of employment or of profession, in such cases if students or persons apply in the migrated State where without affecting prejudicially the rights of the Scheduled Castes or Scheduled Tribes in those States or areas, any facility or protection for continuance of study or admission can be given to one who has or migrated then some consideration is desirable to be made on that ground. It would, therefore, be necessary and perhaps desirable for the legislatures or the Parliament to consider appropriate legislations bearing this aspect in mind so that proper effect is given to the rights given to Scheduled Castes and Scheduled Tribes by virtue of the provisions under Articles 341 and 342 of the Constitution. This is a matter which the State legislatures or the Parliament may appropriately take into consideration."
8. In the case of the Action Committee (supra) another Constitution Bench referred to the decision in Marri Chandra Shekhar Rao (supra) has opined thus:
"16. We may add that considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/Scheduled 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 WP(C) No. 610/2011 & connected cases Page 8 of 10 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"."
9. In the case of Subhash Chandra & Anr. (supra) their Lordships were dealing with the notifications and circulars issued by National Capital Territory of Delhi in terms of Clause (1) of Article 341 of the Constitution of India and in that context their Lordships have expressed thus:
"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 at par on the ground of administrative exigibility 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."
10. From the aforesaid pronouncement of law, it is vivid that Scheduled Castes or Scheduled Tribes in one State cannot get the benefit in another State. The parents of the respondents may belong to the castes WP(C) No. 610/2011 & connected cases Page 9 of 10 of Chamar?, Jatva?, Kali? and Pasi and those castes may have been notified in terms of Scheduled Caste Order or Scheduled Tribe Order issued in terms of Clause (1) of Article 341 or Article 342 of the Constitution of India in a particular State but the respondents who have obtained the certificates in Delhi on the basis of the certificates of their parents issued by other States and have migrated to Delhi, cannot avail the benefit. Thus, the view expressed by the tribunal that they belong to Scheduled Castes in the National Capital Territory of Delhi because of the said notification and, hence, what is only required is the authentication and verification of the same is not in consonance with the decisions of the Marri Chandra Shekhar Rao (supra), Action Committee (supra) and Subhash Chandra & Anr. (supra).
11. In view of the aforesaid premised reasons, we allow the writ petitions and quash the orders of the tribunal. There shall be no order as to costs.
15. However, on 7.10.2010 another Division Bench of the Apex Court in the State of Uttaranchal vs. Sandeep Kumar Singh and others, 2010 X AD AC 483 considered the question as to whether a person belonging to SC in relation to a particular State would be entitled or not to the benefits or concessions allowed to SC caste candidates in the matter of employment in any other State. Referring to both the judgmemts on S.Pushpa and others (supra and Subhash Chandra (supra), it was held that it was not open to a two Judge Bench of the Supreme Court in Subhash Chandras case to say that the decision of a three Judge Bench to be per incurium. The said judgment also directed the Registry of the Supreme Court to place the matter before Honble Chief Justice of India for constituting a bench of appropriate strength to get the matter decided finally. The relevant part of the said judgment reads as under:
7. In S. Pushpa & Ors. vs. Sivachanmugavelu & ors., (2005) 3 SCC 1, a three Judge Bench after referring to Marri Chandra Shekhar Rao & Action Committee cases held: Part XVI of the Constitution deals with special provisions relating to certain classes and contains Articles 330 to 341. Articles 330 and 332 make provision for reservation of seats in the House of the People and Legislative Assemblies of the States respectively, for Scheduled Castes and Scheduled Tribes. Similar provisions have been made for Anglo- Indian community in Articles 331 and 333. Article 338 provides that there will be a Commission for the Scheduled Castes to be known as National Commission for the Scheduled Castes and it also provides for its composition, powers and duties. Clause (2) of Article 330 provides that the number of seats reserved in the States or Union Territories for Scheduled Castes or Scheduled Tribes shall bear, as nearly as may be, the same proportion to the number of seats allotted to that State or Union Territory in the House of the People as the population of the Scheduled Castes in the State or Union Territory or of the Scheduled Tribes in the State or Union Territory, as the case may be, in respect of which seats are so reserved, bears to the total population of the State or Union Territory. Similar provision for reservation of seats in favour of SC/ST in the Legislative Assembly of any State is contained in clause (3) of Article 332 of the Constitution. Therefore, in order to ascertain the number of seats which have to be reserved for Scheduled Castes or Scheduled Tribes in the House of the People or in the Legislative Assembly, it is absolutely essential to ascertain precisely the population of the Scheduled Castes or Scheduled Tribes in the State or Union Territory. A fortiori, for the purpose of identification, it becomes equally important to know who would be deemed to be Scheduled Caste in relation to that State or Union Territory. This exercise has to be done strictly in accordance with the Presidential Order and a migrant Scheduled Caste of another State cannot be taken into consideration otherwise it may affect the number of seats which have to be reserved in the House of the People or Legislative Assembly. Though, a migrant SC/ST person of another State may not be deemed to be so within the meaning of Articles 341 and 342 after migration to another State but it does not mean that he ceases to be an SC/ST altogether and becomes a member of a forward caste. Clauses (1) and (2) of Article 16 guarantee equality of opportunity to all citizens in the matter of appointment to any office or of any other employment under the State. Clauses (3) to (5), however, lay down several exceptions to the above rule of equal opportunity. Article 16(4) is an enabling provision and confers a discretionary power on the State to make reservation in the matter of appointments in favour of & backward classes of citizens; which in its opinion are not adequately represented either numerically or qualitatively in services of the State. But it confers no constitutional right upon the members of the backward classes to claim reservation. 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 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. A two Judge Bench in Subhash Chandra & Anr. vs. Delhi Subordinate Services Selection Board & Ors. held that the dicta in S. Pushpa case is an obiter and does not lay down any binding ratio. We may notice that a three Judge Bench in S. Pushpa case relied on Marri Chandra Shekhar Rao & Action Committee... cases and understood the ratio of those judgments in a particular manner. In our considered opinion, 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.
8. In Central Board of Dawoodi Bohra Community & Anr. vs. State of Maharashtra & Anr. (2005) 2 SCCC 673, a Constitution Bench of this Court in categorical terms held that the law laid down by the Supreme Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength. A Bench of lesser Coram cannot disagree or dissent from the view of the law taken by a Bench of larger Coram. In case of doubt all that the Bench of lesser Coram can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger Coram than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a Coram larger than the one which pronounced the decision laying down the law the correctness of which is doubted.
9. In our view, a two Judge Bench of this Court could not have held the decision rendered by a three Judge Bench in S. Pushpa case to be obiter and per incuriam.
10. A very important question of law as to interpretation of Articles 16 (4), 341 and 342 arises for consideration in this appeal. Whether 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.
11. For the aforesaid reasons, therefore, in our view, it would be appropriate that this case is placed before the Hon'ble the Chief Justice of India for constituting a Bench of appropriate strength. The registry is, accordingly, directed to place the papers before the Hon'ble the Chief Justice of India for appropriate directions.
16. Thus the position is that before the Apex Courts judgment dated 24.8.2009 in Subhash Chandras case (supra), the decision rendered by the three judges Bench in S.Pushpa and others (supra) was holding the field. According to the said judgment, the persons belonging to SC of any other States were entitled for the benefit of concession allowed to them in the matter of employment in the Union Territory of Delhi now known as Government of NCT of Delhi. However, when the two Bench judgment of the Apex Court in Subhash Chandras case came in 2009, the benefits enjoyed by such SC candidates from other States were stopped from getting any benefits under Govt. of NCT of Delhi. But now the position has changed inasmuch as that a two Judge Bench of Apex Court in its judgment in State of Uttaranchal (supra) held that the earlier two Judge Bench of the Supreme Court in Subhash Chandras case could not have held that the three Judge Bench judgment of the Apex Court in S.Pushpa and others case (supra) as obiter. It has also been held that the judgment in Subhash Chandras case does not lay down any binding ratio. There is also a direction to the Registry in the said judgment to place it before the Chief Justice of India for constituting a larger Bench. However, as on date, as per the information made available to us, no larger bench has been constituted.
17. The contention of the learned counsel for applicants Sh. H.K. Chaturvedi in these cases is that since the Division Bench of the Apex Court in State of Uttaranchal (supra) has held that the earlier Division Bench in Subhash Chandras case (supra) could not have held the judgment of the Larger Bench in S.Pushpa and others (supra) as per incuriam, the judgment in the case of S.Pushpa and others (supra) will again hold the field till a contrary decision is taken by the Apex Court by Larger Bench/Constitution Bench. Accordingly, the SC/ST/OBCs who belong to other States can avail the benefit of reservation for the posts under the Government of NCT of Delhi, its autonomous bodies and local bodies. The learned counsel has also submitted that since the Larger Bench has not been constituted so far by the Chief Justice of India to consider the judgments of the Division Benches in Subhash Chandra and others case (supra) and State of Uttaranchal (supra), the present cases shall be decided in terms of the judgment of the Apex Court in S.Pushpa and others (supra) case. Consequently, the applicant should be given appointment under the Govt. of NCT of Delhi, its autonomous bodies and the local bodies. Counsel for applicants has also invited our attention that TAs-72/2010, 74/2010, 76/2010 and 77/2010 were originally filed before the Honble High Court of Delhi in the year 2009 and since then the applicants have been waiting for the final adjudication of their cases. Similarly, the applicant in OA-3607/2010 is also waiting for his appointment since the year 2010. In the above circumstances, the learned counsel Sh. Chaturvedi has argued that the present TAs may be allowed subject to the outcome of the Apex Courts judgment by a Larger Bench/Constitution Bench to be constituted by the Chief Justice of India as proposed in the judgment of the Division Bench in State of Uttaranchal (supra).
18. On the other hand, the learned counsel for the respondents S/Sh. Vijay Pandita, Amit Anand, Abhisek Sharma and Smt. Harvinder Oberoi have submitted that in view of the judgment of the Apex Court in State of Uttaranchal (supra) it cannot be construed that the judgment of Apex Court in S.Pushpa and others (supra) has got revived and it can be made applicable in the present cases. According to them, till the judgment of another Larger Bench/Constitution Bench becomes available, the judgment in the case of Subhash Chandra and others (supra) shall be made applicable to the applicants and accordingly the present cases have to be dismissed.
19. We have considered the submissions made by the learned counsel for the parties. In our considered view, since the Division Bench of the Apex Court in the case of State of Uttaranchal (supra) has directed the Registry of the Apex Court to place the matter before the Honble Chief Justice of India for constituting a Larger Bench, it will be in the fitness of things to adjourn this case sine die awaiting the decision of the Larger Bench to be so constituted. However, we make it clear that, if the decision of the Larger Bench when pronounced is in favour of the applicants, the respondents may, by themselves, grant relief sought by applicants in these Transfer Applications/Original Application.
( Dr. A.K. Mishra ) ( George Paracken )
Member (A) Member (J)
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