Madras High Court
S.Nandhivarman vs J.Kumaran .. R1 In Rev.A.No.69/15 & R6 In ... on 1 April, 2015
Bench: V.Ramasubramanian, P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 01.4.2015 CORAM: THE HON'BLE MR.JUSTICE V.RAMASUBRAMANIAN AND THE HON'BLE MR.JUSTICE P.R.SHIVAKUMAR Rev.A.Nos.69 and 70 of 2015 in W.P.No.34971 of 2014 S.Nandhivarman .. Applicant in Rev.A.No.69/2015 K.Essakki Magesh Kumar .. Applicant in Rev.A.No.70/2015 Vs. J.Kumaran .. R1 in Rev.A.No.69/15 & R6 in Rev.A.No.70/15 The Union of India, rep. by the Chief Secretary to Government, Government of Puducherry, Puducherry. The Secretary to Government (Law), Government of Puducherry, Puducherry. The High Court of Judicature at Madras rep. by the Registrar General, Chennai. The Pondicherry Advocates Bar Assocation rep. by its General Secretary, District Court Complex, Mudaliarpet, Puducherry. The Tamil Nadu Public Service Commission, Government of Tamil Nadu, R2-R6 in Rev.A.No.69/15 Chennai. .. & R1-R5 in Rev.A.No.70/15 ----- Review Applications under Article 226 of the Constitution of India read with Order 47 Rule 1 r/w Section 114 of C.P.C. to review the order passed by this Court in W.P.No.34971 of 2014, dated 23.01.2015. ----- For Applicant in : Mr.V.Raghavachari Rev.A.No.69/2015 For Applicant : Mr.L.S.M.Hassan Faizal Rev.A.No.70/2015 For R1 in Rev.A.No.69/15 & R6 in Rev.A.No.70/15 : Mr.J.Kumaran-Party in person For Government of Mr.T.Murugesan, Sr.Counsel and Pondicherry : Government Pleader, Puducherry assisted by Mrs.N.Mala, AGP. For High Court : Mr.V.Ayyadurai For Pondicherry Bar Association : Mr.K.S.Ilangovan For TNPSC : Ms.C.N.G.Niraimathi ----- COMMON ORDER
(Made by V.Ramasubramanian,J) These Review Applications are filed by the third parties seeking review of the order passed by this Court in a writ petition filed by the first respondent herein.
2. We have heard Mr.V.Raghavachari and Mr.L.S.M.Hassan Faizal, learned counsel for the applicants/third-parties, Mr.J.Kumaran, first respondent appearing in person, Mr.T.Murugesan, learned Senior Counsel and Government Pleader of Pondicherry, Mr.V.Ayyadurai, learned counsel appearing for the High Court, Mr.K.S.Ilangovan, learned counsel appearing for the Puducherry Bar Association and Ms.C.N.G.Niraimathi, learned counsel appearing for the Tamil Nadu Public Service Commission.
3. A notification for recruitment to 8 posts of Civil Judges in the Puducherry Judicial Service was issued on 23.11.2014. Out of the 8 posts, 1 was reserved for Scheduled Castes, 2 for other Backward Classes and 5 were unreserved. Paragraph 2 of the notification stated that the reservation of posts for Scheduled Castes/Scheduled Tribes/Other Backward Classes shall be in accordance with the orders issued by the Central Government from time to time.
4. The recruitment comprised of a two tier selection process, the first comprising of a written examination in four papers namely (1) Translation (2) Law Paper-I, (3) Law Paper-II and (4) Law Paper-III conducted on 17th and 18th of January, 2015 and the second comprising of a viva voce. As per the notification read with the Schedule to the Puducherry Judicial Services (Cadre and Recruitment) Rules, candidates belonging to the Scheduled Castes were required to secure a minimum of 30% marks, candidates belonging to the Backward Classes were required to secure a minimum of 35% marks and the general category candidates were required to secure a minimum of 40% marks in each of the four papers to qualify for the viva voce. The written examinations were scheduled to be held in two centers namely Chennai and Puducherry.
5. Within a month of the publication of the notification, but before the date of the written examinations, the first respondent herein who is a practicing advocate, came up with a writ petition in W.P.No.34971 of 2014, praying for the issue of a declaration that candidates having residence at Puducherry Region alone are entitled to the benefits of reservation and to direct the High Court not to grant the benefit of reservation to persons who are not the residents of Puducherry.
6. The writ petition was allowed by the Bench by an order dated 23.1.2015, on the basis of the ratio laid down by the Constitution Bench of the Supreme Court in Marri Chandra Shekhar Rao vs. Dean, Seth G.S.Medical College [(1990) 3 SCC 130] and the decision of a two member Bench in Subhash Chandra vs. Delhi Subordinate Services Selection Board [(2009) 15 SCC 448]. It was held by the Bench that candidates belonging to the Backward Classes and Scheduled Castes who are not the residents of Puducherry, can be treated only as general category candidates in view of the Presidential Order issued in 1964.
7. Aggrieved by the said decision, two advocates who had taken part in the selection and who were treated as general category candidates, have come up with the above Review Applications. The main grounds on which the applicants seek review of the order are:-
(i) that the first respondent herein obtained an order without even impleading the candidates like the applicants; and
(ii) that the decision of the Constitution Bench of the Supreme Court in Marri Chandra Shekhar Rao was clarified by a three member Bench of the Supreme Court in Pushpa vs. Sivachanmugavelu [(2004) 3 SCC 132] and that Supreme Court held in State of Uttaranchal vs. Sandeep Kumar [(2010) 12 SCC 794 that the observations in Subhash Chandra, nullifying the effect of the decision in Pushpa were not correct.
8. We have carefully considered the above submissions.
9. The first ground on which the applicants seek review of the order in question is that necessary parties namely those hailing from the State of Tamil Nadu or other States but who claimed the benefit of reservation were not made parties to the writ petition.
10. But the above contention cannot be sustained. The first respondent filed a writ petition in December 2014, even before the hall tickets were issued to candidates. Therefore, the first respondent/writ petitioner could not have made a guess work as to who are all the candidates from the State of Tamil Nadu who may apply under the category of Backward Classes and Scheduled Castes. Therefore, the non-impleadment of candidates who may be affected by the ultimate outcome of the writ petition, cannot be put against the first respondent/writ petitioner in view of the fact that he had come up before this Court even before the deadline for scrutiny of applications and issue of hall tickets had expired.
11. In any case, the said objection may not any longer be pressed into service, in view of the fact that we have now heard the arguments in extenso from the rival candidates. They came up with applications for leave to file third-party review and we have allowed the same and heard them fully in the review applications. Hence, the first ground on which review is sought has lost its force.
12. The second ground on which review is sought is of significance and hence it requires consideration in greater detail. In order to consider the scope of the second ground on which review is sought, we may have to start our discussions from the provisions of the Constitution.
13. Though Article 16(1) of the Constitution guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State and though Article 16(2) prohibits discrimination of any kind in respect of employment or office under the State, Article 16(3) makes it clear that the Parliament is empowered to make any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of a State or Union Territory, any requirement as to residence within that States or Union Territory prior to such employment or appointment. Clause (4) of Article 16 declares that the State is not prevented from making any provision for the reservation of appointment 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. Other Clauses of Article 16 are not relevant for the present discussion and hence we are not touching upon the same.
14. Article 340(1) of the Constitution empowers the President to appoint a commission to investigate the conditions of socially and educationally backward classes within the Territory of India and to make recommendation as to the steps that should be taken by the Union or any State to remove such difficulties and to improve their condition.
15. Under Article 341(1), the President is empowered to specify, by a public notification, the castes, races or tribes which shall be deemed to be Scheduled Castes in relation to that State or Union Territory. But he shall do so only after consultation with the Governor, if the same pertains to a State. However, the requirement of consultation is not there if the matter pertains to a Union Territory. The Presidential Notification may be modified by the Parliament by law.
16. Article 342 of the Constitution is a replica of Article 341, but it applies to the Scheduled Tribes.
17. In Marri Chandra Shekhar Rao vs. Dean, Seth G.S.Medical College [(1990) 3 SCC 130], a peculiar case came up before the Supreme Court. A person who was born in the State of Andhra Pradesh in a community called Gouda community and which is recognized in the State of Andhra Pradesh as a Scheduled Tribe under the Constitution (Scheduled Tribes) Order 1950, was denied the benefit of reservation, when he applied for admission to a Medical College in the State of Maharashtra. The reason as to why he applied for a Medical seat in the State of Maharashtra was that his father was working in Bombay in a Government of India Undertaking and the petitioner lived in the State of Maharashtra from the age of 9 years and had passed Higher Secondary Examination conducted by the Maharashtra State Board of Secondary and Higher Secondary Examinations. Since the issue raised in the said case was of seminal importance, the matter was taken up by a Constitution Bench of the Supreme Court. It was actually a writ petition filed under Article 32 of the Constitution. As seen from para 6 of the Report in the said decision, the question that arose in Marri Chandra Shekhar Rao, before the Constitution Bench was as to whether the petitioner can claim the benefit of being a Scheduled Tribe in the State of Maharashtra, though he had a Scheduled Tribe certificate in the State of Andhra Pradesh.
18. After taking note of the express language of Article 342(1) (which is in pari materia) with Article 341(1), the Supreme Court held in para 13 of the report as follows:-
"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 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 controversy raised in Marri Chandra Shekhar Rao was sought to be re-agitated by projecting yet another facet of the issue, before another Constitution Bench of the Supreme Court in Action Committee vs. Union of India [(1994) 5 SCC 244]. In that case, a Public Interest Litigation was filed under Article 32 of the Constitution by a person questioning the wisdom of one State denying the benefits and privileges admissible to persons belonging to Scheduled Castes and Scheduled Tribes who had migrated from another State. The Supreme Court took up for consideration (as seen from para 1 of the report) a fundamental question as to whether a person belonging to a caste or Tribe specified to be a Scheduled Caste or Scheduled Tribe in relation to a State 'A', would be entitled to claim privileges and benefits admissible to persons belonging to Scheduled Castes and Scheduled Tribes in another State 'B', when the same nomenclature is specified for the purpose of the Constitution in both the States for determining whether a caste or Tribe is a Scheduled Caste or Tribe. After looking into the language of Articles 341 and 342 of the Constitution and after taking note of the decision in Marri Chandra Shekhar Rao, the second Constitution Bench affirmed the views expressed in Marri Chandra Shekhar Rao. A portion of para 16 of the report in Action Committee may be usefully extracted as follows:-
"We may add that considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/Schedule Tribes or backward classes in a given State would depend on the nature and extent of disadvantages and social hardships suffered by that caste, tribe or class in that State which may be totally non est in another State to which persons belonging thereto may migrate. Coincidentally it may be that a caste or tribe bearing the same nomenclature is specified in two States but the considerations on the basis of which they have been specified may be totally different. So also the degree of disadvantages of various elements which constitute the input for specification may also be totally different. Therefore, merely because a given caste is specified in State A as a Scheduled Caste does not necessarily mean that if there be another caste bearing the same nomenclature in another State the person belonging to the former would be entitled to the rights, privileges and benefits admissible to a member of the Scheduled Caste of the latter State "for the purposes of this Constitution".
20. After the issue relating to Scheduled Castes and Scheduled Tribes was settled in Marri Chandra Shekhar Rao and Action Committee, the same issue in relation to Backward Classes came up for consideration before a two member Bench of the Supreme Court in M.C.D vs. Veena [(2001) 6 SCC 571]. In that case, the Municipal Corporation of Delhi invited applications from Indian citizens for appointment to the posts of Primary and Nursery Teachers. Candidates who belonged to the OBCs in States other than the National Capital Territory of Delhi applied for consideration under the quota reserved for OBCs. But their applications were rejected. The Delhi High Court gave relief to the individuals and the Municipal Corporation of Delhi went on appeal to the Supreme Court. The question that was taken up for consideration in that case was as to whether the service of candidates belonging to Backward Classes in States other than Delhi could hold good for the purpose of recruitment in the Municipal Corporation of Delhi. In para 1 of the report, the Supreme Court took up for consideration another ancillary question as to whether the OBCs of other States can be treated as OBCs in Delhi or not.
21. After pointing out in paragraph 6 of the report that castes or groups are specified in relation to a given State or Union Territory, depending upon the nature and extent of disadvantages and social hardships suffered by them in that State and after holding that even if a caste having the same nomenclature is identified in two States as OBCs, the degree of disadvantages may be entirely different, the Supreme Court held that the candidates were not entitled to the benefit of reservation in the National Capital Territory of Delhi, on the basis of the certificates that they had obtained in the States of which they belonged.
22. After nearly 10 years of the law laid down in Action Committee, the Supreme Court was concerned with a case arising from the Union Territory of Puducherry itselef in S.Pushpa vs. Sivachanmugvelu [(2005) 3 SCC 1]. Interestingly, what was in question in that case was the wisdom of the Government of Puducherry in extending the benefit of reservation for Scheduled Castes and Scheduled Tribes even to candidates who had migrated from other States, where they were treated as Scheduled Castes and Scheduled Tribes. The Central Administrative Tribunal, Madras allowed the applications filed by the local Scheduled Caste candidates and set aside the selection of migrant Scheduled Castes. The order of the Tribunal was on appeal before the Supreme Court. A three member Bench of the Supreme Court took note of Article 341(1) as well as the decisions of the Constitution Bench in Marri Chandra Shekhar Rao and Action Committee and eventually held that in so far as the Union Territories are concerned, the law was different. In paragraph 17 of the report in S.Pushpa, the Supreme Court held as follows:
"We do not find anything inherently wrong or any infraction of any constitutional provision in such a policy. The principle enunciated in Marri Chandra Shekhar Rao cannot have application here as UT of Pondicherry is not a State. As shown above, a Union territory is administered by the President through an administrator appointed by him. In the context of Article 246, Union territories are excluded from the ambit of expression "State" occurring therein. This was clearly explained by a Constitution Bench in T.M.Kannaiyan v. ITO. In New Delhi Municipal Council v. State of Punjab the majority has approved the ratio of T.M. Kanniyan and has held that the Union Territories are not States for the purpose of Part XI of the Constitution (para 145). The Tribunal has, therefore, clearly erred in applying the ratio of Marri Chandra Shekhar Rao in setting aside the selection and appointment of migrant SC candidates."
23. Interestingly, an argument was advanced before the Supreme Court in S.Pushpa that the benefit of reservation will be confined only to those castes covered by the Constitution (Pondicherry) Scheduled Castes Order 1964 and upon the expression "in relation to that State or Union Territory" occurring Article 341(1). But the Supreme Court rejected the said argument and held in para 20 of the report as follows:-
" 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 ceased up the SC/ST altogether and becomes a member of the Forward Caste".
24. Again in para 21 the Supreme Court pointed out something, upon which heavy reliance is placed by the review applicants. It would be useful to extract the relevant portion of para 21 of the report in S.Pushpa, as follows:-
"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 recognized 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 recognized 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."
25. However, the Supreme Court was once again haunted with the same question on different terms, in Subhash Chandra vs. Delhi Subordinate Services Selection Board [(2009) 15 SCC 448]. In that case, a society formed by persons who belonged to the Scheduled Castes in their native places and but who had migrated to Delhi challenged a notification issued by the State Subordinate Selection Board of the Union Territory of Delhi requiring the candidates to obtain community certificates from the Government of Delhi. A single Judge of the Delhi High Court allowed the writ petition of persons who were born and brought up in Delhi and whose castes has been notified as reserved castes in Delhi on the basis of the certificates issued to their parents who were migrants from the other States. The judgment of the single Judge was confirmed by the Division Bench and the matter eventually landed up before the Supreme Court. The questions that the Supreme Court framed for consideration as seen from para 18 of the report are as follows:-
"(1) Having regard to the decisions of this Court in Marri Chandra Shekhar Rao and Action Committee, the specification of a particular caste or tribe to be a Scheduled Caste and Scheduled Tribe being in relation to that State or Union Territory, whether a person on his migration to another State would carry the same status with him? (2) Whether in view of the decisions of this Court in Action Committee even where the similar caste bearing the same name having been declared to be a Scheduled Caste both in the State to which he originally belonged and the State and/or Union Territory to which he has migrated would make any difference in view of the provisions contained in Article 341 of the Constitution of India? (3) Whether in view of the decisions of the Constitution Bench of this Court in State of Maharashtra v. Milind & Ors. and E.V. Chinnaiah v. State of A.P. & ors. extension of notification even to a migrant would amount to modification and/or alteration of the notification which is impermissible in law in view of clause (2) of Article 341 and clause (2) of Article 342 of the Constitution of India? (4) Whether having regard to the provisions contained in Articles 239 and 239AA of the Constitution in relation to Union Territory it is permissible for the Central Government to direct recruitment to the Union Territory Services treating it to be akin to Central Civil Services in view of the decisions of this Court in Chandigarh Administration and S. Pushpa? (5) Whether the ratio laid down by this Court in Chandigarh Administration and S. Pushpa having not taken into consideration the binding precedents in Constitution Bench decisions in Milind, Chinnaiah and M.C.D. v. Veena would constitute binding precedents?"
26. Eventually,the supreme Court held in Subhash Chandra as follows:-
"Chandigarh Administration and S. Pushpa read together, therefore, proceed on the basis that Marri Chandra Shekhar Rao would have no application in relation to Union Territory. The contention of the respondents in the present case is squarely based on these two decisions. Can it be said that Marri Chandra Shekhar Rao does not apply to Union Territory? The answer thereto, in our opinion, is a big emphatic `no'. Both Articles 341 and 342 not only refer to the State but also to the Union Territory ."
27. Again in para 71, the Supreme Court considered the distinction that could be maintained between the Central Civil Services and Union Territory Services. Para 71 of the report in Subhash Chandra reads as follows:-
"If the Central Civil Services and the Union Territory Services are different, keeping in view the constitutional schemes, particularly having regard to the proviso appended to Article 309 of the Constitution of India, the same cannot be done away with only because a Union Territory administratively is administered by the Central Government. Any direction or policy decision, thus, must satisfy the constitutional requirements laid down under Articles 341 and 342 of the Constitution of India. If any other construction is made, a policy decision having regard to the decisions of this Court will have to be treated as a proviso appended to clause (2) of Article 341 of the Constitution of India and would amount to deriding of the Constitution which is impermissible in law."
28. In para 106 of the report in Subhash Chandra, the Supreme Court posed a question to itself as to whether it was right in ignoring the decision in Pushpa. Para 106 reads as follows:-
"We have noticed hereinbefore that the premise on which S. Pushpa (supra) was rendered, namely, Marri Chandra Shekhar Rao (supra), had no application to union territories was not correct. Would we be violating the norms of judicial discipline in ignoring the decision of this Court in Pushpa is the question, having regard to the provisions contained in Article 141 of the Constitution of India?"
29. Ultimately, the Supreme Court held in Subhash Chandra that the observations in Pushpa were only an obiter.
30. However, a two member Bench of the Supreme Court held in State of Uttaranchal vs. Sandeep Kumar [(2010) 12 SCC 794] that what a two member Bench did in Subhash Chandra, nullifying the effect of the dicta in S.Pushpa was not correct. In para 10 of its decision, the Supreme Court held as follows:-
"A two Judge Bench in Subhash Chandra & Anr. v. 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. "
31. But unfortunately, the Supreme Court did not settle the issue in the State of Uttaranchal. As seen from para 1 of the report in State of Uttaranchal, the question that was again taken up for consideration by the Supreme Court was whether a person belonging to Scheduled Caste in relation to a particular State would be entitled or not, to the benefits of the concessions allowed to Scheduled Caste candidates in the matter of employment in any other State. Without answering this question, even on the basis of S.Pushpa, the Court referred the matter to a larger Bench.
32. When the reference made in State of Uttaranchal was pending, the Supreme Court was confronted with the same question once again in Ranjana Kumari vs. State of Uttaranchal [(2013) 14 SCC 710]. The Supreme Court directed this case also to be referred to a larger Bench, to be taken up along with State of Uttaranchal vs. Sandeep Kumar.
33. But, unfortunately, a three member Bench of the Supreme Court took up the first reference alone and passed an order on 6.8.2014, refusing to answer the reference in State of Uttaranchal vs. Sandeep Kumar Singh [(2014) 9 SCC 236]. This was on the ground that the Judgment of the High Court was not legally flawed. The order passed by the three member Bench on 6.8.2014 in State of Uttaranchal vs. Sandeep Kumar reads as follows:-
"Applications (I.A.Nos.7 and 8) for inpleadment and intervention are dismissed.
2. It is not necessary to answer the reference in the present case in view of the peculiar facts and circumstances, particularly, Office Order dated 3rd July, 2003 and the reasons given by the High Court in paragraph 4 of the impugned order, which reads as under:-
"4. The impugned order suffers from illegality as the appointing authority of the petitioner is the University and the University has acted at the dictate of the State Government which has no power to ask for cancellation of an appointment made in accordance with the advertisement. It is adhesion of power by the appointing authority and to act at the dictate of the Government without applying its mind. Such order cannot be sustained in the eyes of law."
3. The impugned order of the High Court does not appear to us to be legally flawed.
4. Civil appeal is dismissed. Question of law is kept open.
5. No costs."
34. In the meantime, a Full Bench of the Delhi High Court took a survey of all the decisions from Marri Chandra up to State of Uttaranchal, in its decision in Deepak Kumar vs. District and Sessions Judge, [(2012) 132 DRJ 169]. In paragraph 66, the Full Bench of the Delhi High Court summarised the position as follows:-
"66. This court summarizes its conclusions, as follows:
(1) The decisions in Marri, Action Committee, Milind and Channaiah have all ruled that scheduled caste and tribe citizens moving from one State to another cannot claim reservation benefits, whether or not their caste is notified in the state where they migrate to, since the exercise of notifying scheduled castes or tribes is region (state) specific, i.e " in relation" to the state of their origin. These judgments also took note of the Presidential Notifications, which had enjoined such citizens to be "residents" in relation to the state which provided for such reservations.
(2) The considerations which apply to Scheduled Caste and Tribe citizens who migrate from state to state, apply equally in respect of those who migrate from a state to a union territory, in view of the text of Articles 341 (1) and 342 (1), i.e. only those castes and tribes who are notified in relation to the concerned Union Territory, are entitled to such benefits. This is reinforced by the Presidential Notification in relation to Union Territories, of 1951. Only Parliament can add to such notification, and include other castes, or tribes, in view of 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 or state, add to or alter the castes, or tribes in any notification in relation to a state or Union Territory, either through state legislation or through policies or circulars. Differentiation between residents of states, who migrate to states, and residents of states who migrate to Union Territories would result in invidious discrimination and 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 respect 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 caste is included in the latter State's list of scheduled castes;
(ii) However, the resident of a state who moves to a Union Territory would be entitled to carry his reservation benefit, and status as member of scheduled caste, even if his caste is not included as a scheduled caste, for that Union Territory;
(iii) The resident of a Union Territory would however, be denied the benefit of reservation, if he moves to a State, because he is not a resident scheduled caste of that State.
(iv) The resident of a Union Territory which later becomes a State, however, can insist that after such event, residents of other states, whose castes may or may not be notified, as scheduled castes, cannot be treated as such members in such newly formed states;
(v) Conversely, the scheduled caste resident of a state which is converted into a Union Territory, cannot protest against the treatment of scheduled caste residents of other states as members of scheduled caste of the Union Territory, even though their castes are not included in the list of such castes, for the Union Territory.
(3) The ruling in Pushpa is clear that if the resident of a state, whose caste is notified as Scheduled caste or scheduled tribe, moves to a Union Territory, he carries with him the right to claim that benefit, in relation to the Union Territory, even though if he moves to another state, he is denied such benefit (as a result of the rulings in Marri and Action Committee). The ruling in Pushpa, being specific about this aspect 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 doubted, and the question as to the correct view has been referred to a Constitution Bench in the State of Uttaranchal case.
(5) By virtue of the specific ruling applicable in the case of Union Territories, in Pushpa, whatever may be the doubts entertained as to the soundness of its reasoning, the High Courts have to apply its ratio, as it is by a formation of 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."
35. But, the decision of the Full Bench of the Delhi High Court in Deepak Kumar was considered by a two member Bench of the same High Court in Ravindra Devi vs. Government of NCT of Delhi, dated 27.11.2013. In the said decision, the entire dispute took an interesting turn, which can be seen from paragraphs 26 and 27 of the decision which reads as follows:-
"26. Ravindra Devi, the writ petitioner of WP(C) No.3049/2012 has been unsuccessful before the Tribunal. She claims benefit of reservation on the strength of a certificate issued by the competent authority in the State of Haryana certifying she belonging to the Scheduled Caste 'Chamar'.
27. The reason given by the Tribunal to deny her relief is wrong, being that the certificate produced by her has been issued by an authority in Haryana. But she would not be entitled to any relief because admittedly she resides in Haryana and it had not her case that she is ordinarily a resident of Delhi. The law declared in S.Pushpa's case (supra) is that a person who is a member of a Scheduled Caste in a particular State would be entitled to reservation in a Union Territory provided he is ordinarily a resident of the Union Territory."
36. In the meantime, the Government of Puducherry issued two orders in G.O.Ms.No.11 and 12 of 2005, both dated 5.8.2005. While the former was with respect to the benefits of reservation in promotion and in employment to Group-C and D posts, the latter was with respect to the benefits of reservation in the field of education and welfare. It is of interest to note that both the Government Orders were issued on the basis of the observations made by the Supreme Court in para 21 of the decision in S.Pushpa. By these Government Orders, the Government of Puducherry declared that the benefits of reservation available under the Constitution (Pondicherry) Scheduled Castes Order 1964, would be extended only to the Scheduled Caste Origins of the Union Territory and not to others.
37. The aforesaid Government Orders were unsuccessfully challenged before this court by an association known as Puducherry SC People Welfare Association. This Court dismissed the writ petitions by a common order dated 21.7.2008. But the appeal filed by the association in Puducherry SC People Welfare Association vs. Chief Secretary to Government [(2014) 9 SCC 236], was allowed by the Supreme Court on the short ground that the Presidential Order 1964 speaks only of "residence" and not of "origin". Paragraph 2 of the Presidential Order 1964, as extracted in the decision of the Supreme Court reads as follows:-
"The castes, races or tribes or parts of or groups within castes, races or tribes specified in the Schedule to this Order shall, for the purposes of the Constitution, be deemed to be Scheduled Castes in relation to the Union Territory of Pondicherry so far as regards members thereof resident in that Union Territory."
38. Therefore, it appears that two expressions namely (i) "in relation to that State or Union Territory" appearing in Article 341(1) and (ii) "resident" appearing in the last line of para 2 of the Presidential Order 1964, hold the key to the issue on hand. From the last decision of the Supreme Court (Puducherry SC People Welfare Association case), it appears that the words and expressions contained in the Presidential Order cannot be tampered with and the Supreme Court did not take exception to the word "resident" appearing in the Presidential Order.
39. In such circumstances, it is not possible for this Court to interpret the decisions of the Supreme Court starting from Marri Chandra and ending with Puducherry SC People Welfare Association to the effect that to claim the benefit of reservation in the Union Territory of Puducherry, a person need not even be a resident. Even if he wants to claim the benefits of the decision in Pushpa, he must be a migrant.
40. But unfortunately, none of the review applicants herein are either residents of or migrants to the Union Territory of Puducherry. Therefore, they may not be entitled to claim the benefit of the Presidential Order 1964. Even if we keep all the decisions of the Supreme Court aside for a moment and go to the fundamental principles, it could be seen that a person can claim the benefit of reservation only on the basis of the Presidential Order. If the Presidential Order restricts the benefit to the residents, no one else can claim the benefit.
41. In any case, the two member Bench of the Supreme Court declared in Subhash Chandra that the observations in S.Pushpa were obiter. The attempt made by another two member Bench in State of Uttaranchal to have the issue resolved by making a reference to a larger Bench has failed. Therefore, even if we take it that the law is in a state of flux, the benefit would go to the respondents, as we are now dealing with a review. A petition for review cannot succeed, if there are two views possible on an issue. That two views are possible is seen from the swing made by the Supreme Court from one extreme to the other. Therefore, this is not a fit case for review.
42. Hence, the review applications are dismissed. No costs. Consequently, M.P.No.1 of 2015 in Rev.A.No.69 of 2015 is also dismissed.
(V.R.S., J) (P.R.S., J)
01.4.2015
Index:Yes/No
Internet:Yes/No
gr/kpl
To
1. The Chief Secretary to Government,
Government of Puducherry,
Puducherry.
2. The Secretary to Government (Law),
Government of Puducherry,
Puducherry.
3. The Registrar General,
High Court of Judicature at Madras
Chennai.
4. The Tamil Nadu Public Service Commission,
Government of Tamil Nadu, Chennai.
V.RAMASUBRAMANIAN, J
and
P.R.SHIVAKUMAR, J.
gr/kpl
Rev.A.Nos. 69 and 70 of 2015
in W.P.No. 34971 of 2014
01.4.2015