Supreme Court of India
Bir Singh vs Delhi Jal Board . on 30 August, 2018
Equivalent citations: AIR 2018 SUPREME COURT 4077, 2018 LAB IC 4153, AIR 2019 SC (CIV) 1, (2018) 10 SCALE 284, (2018) 4 SCT 285, (2018) 5 SERVLR 655, (2018) 3 SERVLJ 210, (2019) 1 ALL WC 669, (2018) 6 BOM CR 798, 2018 (10) SCC 312, AIRONLINE 2018 SC 233
Author: Ranjan Gogoi
Bench: Chief Justice, N.V. Ramana, R. Banumathi, Mohan M. Shantanagoudar, S. Abdul Nazeer, Ranjan Gogoi
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1085 OF 2013
BIR SINGH ….APPELLANT(S)
VERSUS
DELHI JAL BOARD & ORS. ….RESPONDENT(S)
WITH
CIVIL APPEAL NO(S) 99359937 OF 2014
CIVIL APPEAL NO(S).10081 OF 2014
CIVIL APPEAL NO(S). 8141 OF 2014
CIVIL APPEAL NO(S). 8802 OF 2012
CIVIL APPEAL NO(S).1086 OF 2013
CIVIL APPEAL NO.9048 OF 2018
[ARISING OUT OF S.L.P(C) NO.36324 OF 2017]
J U D G M E N T
RANJAN GOGOI, J
1. Leave granted in Special Leave Petition (Civil) No.36324
of 2017
2. In State of Uttaranchal vs. Sandeep Kumar Singh and
Signature Not Verified
others1 [Civil Appeal No.4494 of 2006) the following question arose
Digitally signed by
VINOD LAKHINA
Date: 2018.08.30
14:56:53 IST
Reason:
1 (2010) 12 SCC 794
1
for consideration of this Court:
“Whether a person belonging to a Scheduled
Caste in relation to a particular State would be
entitled or not, to the benefits or concessions
allowed to Scheduled Caste candidate in the
matter of employment, in any other State?”
3. In the course of the deliberations that took place this
Court noticed the Constitution Bench judgments of this Court in
Marri Chandra Shekhar Rao vs. Dean, Seth G.S. Medical College and
others2 and Action Committee on Issue of Caste Certificate to
Scheduled Castes and Scheduled Tribes in the State of Maharashtra
and another vs. Union of India and another3. The view of a three
Judge Bench of this Court in S. Pushpa and others vs.
Sivachanmugavelu and others4 was also noticed and the same was
perceived to be somewhat contrary to the view expressed by the
Constitution Bench in the above two cases. This Court also took
note of the fact that a two judge Bench of this Court in Subhash
2 (1990) 3 SCC 130
3 (1994) 5 SCC 244
4 (2005) 3 SCC 1
2
Chandra and another vs. Delhi Subordinate Services Selection
Board and others5 held that the dicta in S. Pushpa (supra) is an
obiter and does not lay down any binding ratio. The Bench hearing
the case i.e. State of Uttaranchal vs. Sandeep Kumar Singh and
others (supra) took the view that “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”. In this regard, the canons of judicial discipline carved
out by this Court in Central Board of Dawoodi Bohra Community
and another vs. State of Maharashtra and another6 were recalled
and eventually in paragraph 13 of the opinion rendered in State of
Uttaranchal vs. Sandeep Kumar Singh and others (supra) the
reference of the question noted below was made to a larger Bench:
“13. A very important question of law as to
interpretation of Articles 16(4), 341 and 342
arises for consideration in this appeal. Whether
the Presidential Order issued under Article
5 (2009) 15 SCC 458
6 (2005) 2 SCC 673
3
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.”
4. The said Civil Appeal No.4494 of 2006 (State of
Uttaranchal vs. Sandeep Kumar Singh and others) was disposed of
by the larger Bench of this Court by order dated 6 th August, 2014,
in the light of the findings of the High Court recorded in paragraph
4 of the High Court order to the effect that the order impugned
suffers from an apparent illegality as the appointing authority of the
petitioner therein is the University and the University had 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. In the aforesaid order dated 6 th August, 2014 this
Court took the view that the conclusions recorded in paragraph 4 of
4
the High Court order cannot be said to be legally flawed and
accordingly closed the said Civil Appeal (No. 4494 of 2006) on the
aforesaid basis. The question referred was not answered.
5. However, the question arising and referred to in the State
of Uttaranchal vs. Sandeep Kumar Singh and others (supra) was felt
to be surviving and subsisting in the present appeals also.
Accordingly, by an order of the Court dated 7 th August, 2014, the
very same question as formulated in paragraph 13 of the judgment
in State of Uttaranchal vs. Sandeep Kumar Singh and others
(supra), as extracted above, has been referred for an answer by a
five judge Bench of this Court. That is how we are in seisin of the
matters.
6. The factual matrix need not detain us and a brief resume
will suffice.
The question as to whether a policy in furtherance of the
enabling provision contained in Article 16(4) of the Constitution of
5
India could extend to giving of benefits beyond the Scheduled
Castes and Scheduled Tribes of a State/Union Territory
enumerated in the Presidential Orders framed/issued under
Articles 341 and 342 of the Constitution of India had arisen in the
bunch of writ petitions filed before the High Court of Delhi against
the order/orders of the Central Administrative Tribunal. The
learned Tribunal following Marri Chandra Shekhar Rao (supra) and
Action Committee (supra), in preference to the view expressed in S.
Pushpa (supra) (three judge Bench) held that insofar as the Union
Territory of Delhi is concerned, a migrant Scheduled Caste person
would not be entitled to the benefits conferred on members of the
Scheduled Castes enumerated in the list for the Union Territory of
Delhi by the Presidential Order (i.e. the Scheduled Castes and
Scheduled Tribes Lists (Modification) Order, 1956) in question. The
Delhi High Court sitting in a Full Bench (perhaps in view of the
importance of the question) found the decision in S. Pushpa (supra)
to be more directly relatable to the issue at hand i.e. being one of
6
services in the Union Territory and, therefore, felt to be bound by
the decision of the three judge Bench of this Court in S. Pushpa
(supra). While doing so, the Delhi High court in paragraph 66 of
the judgment emphasised on the necessity of an authoritative
pronouncement on the issue(s) arising. Accordingly, certificate to
appeal under Article 134A of the Constitution was granted by the
High Court. Paragraph 66 of the judgment of the Full Bench of the
Delhi High Court will require a specific notice and is, therefore,
reproduced below:
“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
7
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 Articles 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 overclassification
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
8
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
9
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
visàvis 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
10
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.”
7. Civil Appeal Nos.99359937 of 2014 from the decision of
the Calcutta High court pertain to claims made by persons
belonging to Uraons and Mundas members of the Scheduled Tribes
11
communities who have migrated to the Union Territory of Andaman
& Nicobar Island. The High Court rejected the claim of reservation
made by the aforesaid migrants Scheduled Tribes communities
confining such benefits to the Scheduled Castes communities
enumerated in the list appearing in the Presidential Order
pertaining to the Union Territory of Andaman & Nicobar Island.
8. Before delving into the constitutional provisions which
would be necessary to be dealt with for answering the reference a
brief look at the preconstitutional position on the issue would
throw considerable light and provide a sound insight to the multi
faceted questions that the reference has given rise to.
9. The caste system in India, which is the bane of a just
social order, has a long history which can be traced to the earliest
times. Ancient Hindu religious scriptures refer to the practice.
Division of Society based on birth and the calling/profession of a
person has continued to dominate Hindu thinking and way of life
12
and is perhaps one of the thorny problems inherited by the British
Administration which had tried to resolve the same by giving legal
recognition to what came to be termed as the “depressed classes”.
Such recognition was in the form of a protective regime which
extended to representation in the Legislature and in the services
under the State. Exercises in finding out the numerical strength of
the depressed class in the early 20 th Century (By Southborough
Committee) revealed a grim picture indicating such number to be as
high as 20 per cent of the majority population (Hindu) in eight (08)
Indian Provinces of Madras, Bombay, Bengal, United Provinces,
Punjab, Bihar and Orissa, Central Provinces and Assam. The above
figure did not include primitive or aboriginal tribes who later came
to be known as the Scheduled Tribes and included in the list of
Scheduled Tribes under the different Presidential Orders issued
from time to time.
13
10. The Government of India Act, 1935 (hereinafter referred
to as “1935 Act”) (also referred to as “the Constitution Act”) brought
into force the expression “Scheduled Castes” for the first time in
Indian Constitutional history. Entry 26 Part I of the First Schedule
to the 1935 Act stipulates that “the Scheduled Castes mean such
castes, races or tribes or parts of or groups within the castes,
races or tribes, being castes, races, tribes, parts or groups,
which appear to His Majesty in Council to correspond to the
classes of persons formerly known as ‘the depressed classes’,
as His Majesty in Council may specify”.
11. Thereafter a Gazette Notification was published on 6 th
June, 1936 promulgating the Government of India (Scheduled
Castes) Order, 1936 notifying the list of castes that are to be
considered as “the Scheduled Castes” across the territory of India.
A look at the Schedule which consisted of nine (09) parts i.e.
Madras, Bombay, Bengal, United Provinces, Punjab, Bihar, Central
14
Provinces, Assam, Orissa would indicate that identification of the
different castes for inclusion as Scheduled Castes in the Schedule
to the 1935 Act was based on an elaborate exercise conducted for
each of the Provinces so much so that while some castes have been
identified as Scheduled Castes throughout a Province, others have
been so identified to limited areas within a province. The post
constitutional exercise by the Constitution (Scheduled Castes)
Order, 1950 and the Constitution (Scheduled Tribes) Order, 1950,
as originally enacted under Articles 341 and 342 of the
Constitution, was basically an exercise in recasting the Schedule to
the 1935 Act. The subsequent amendments to the aforesaid two
Orders, from time to time, have been necessitated to bring the
position in tune with the amendments to the First Schedule to the
Constitution made at different points of time by creation of new
States and alterations in the area and boundaries of existing States.
15
12. Article 366 of the Constitution which defines expressions
appearing in the Constitution specifically defines ‘Scheduled Castes’
[clause (24)] to mean “such castes, races or tribes or parts of or
groups within such castes, races or tribes as are deemed
under Article 341 to be Scheduled Castes for the purposes of
this Constitution”. Similarly, clause (25) of Article 366 defines
“Scheduled Tribes” to mean “such tribes or tribal communities
or parts of or groups within such tribes or tribal communities
as are deemed under Article 342 to be Scheduled Tribes for
the purposes of this Constitution”.
13. Part XVI of the Constitution of India deals with special
provisions relating to certain classes. Article 330 provides for
reservation of seats for Scheduled Castes and Scheduled Tribes in
the House of the People (Lok Sabha) whereas Article 332 contains
similar provisions so far as the Legislative Assemblies of the States
16
are concerned. Article 335 of the Constitution provides that “the
claims of the members of the Scheduled Castes and Scheduled
Tribes shall be taken into consideration, consistently with the
maintenance of efficiency of administration, in the making of
appointments to services and posts in connection with the
affairs of the Union or of a State ”. By the Constitution (Eighty
Second) Amendment Act, 2000 a proviso to Article 335 was added
to provide that the members of the Scheduled Castes and
Scheduled Tribes may be granted relaxation in qualifying marks in
any examination or standards of evaluation can be lowered in
matters of promotion to any class or classes of services or posts in
connection with the affairs of the Union or of a State. Article 338 of
the Constitution provides for a National Commission for Scheduled
Cates which is invested with the following duties:
“(a) to investigate and monitor all matters
relating to the safeguards provided for the
Scheduled Castes under this Constitution or
under any other law for the time being in force or
17
under any order of the Government and to
evaluate the working of such safeguards;
(b) to inquire into specific complaints with
respect to the deprivation of rights and
safeguards of the Scheduled Castes;
(c) to participate and advise on the planning
process of socioeconomic development of the
Scheduled Castes and to evaluate the progress of
their development under the Union and any
State; the Scheduled Castes and to evaluate the
progress of their development under the Union
and any State;
(d) to present to the President, annually and at
such other times as the Commission may deem
fit, reports upon the working of those safeguards;
deem fit, reports upon the working of those
safeguards;
(e) to make in such reports recommendations as
to the measures that should be taken by the
Union or any State for the effective
implementation of those safeguards and other
measures for the protection, welfare and socio
economic development of the Scheduled Castes;
and
(f) to discharge such other functions in relation
to the protection, welfare and development and
advancement of the Scheduled Castes as the
President may, subject to the provisions of any
law made by Parliament, by the rule specify.”
18
14. Similarly, Article 338A provides for a National
Commission for Scheduled Tribes which is vested with similar
duties as in the case of the Commission for the Scheduled Castes.
15. Article 341(1) of the Constitution empowers the President
with respect to any State or Union Territory, and where it is a State,
after consultation with the Governor thereof, by public notification,
to specify the castes, races or tribes or parts of or groups within
castes, races or tribes which shall for the purposes of the
Constitution be deemed to be Scheduled Castes in relation to that
State or Union Territory, as the case may be.
16. In case of Scheduled Tribes the President has been
similarly empowered under Article 342(1) of the Constitution. Sub
clause (2) of Article 341 and Article 342 empowers the Parliament
by law to include in or exclude from the list of Scheduled
Castes/Scheduled Tribes specified in the Notification issued under
clause (1) thereof any caste, race or tribe/tribal community or part
19
of or group within any caste, race or tribe/tribal community. It is
further provided that except as provided i.e. by Parliament by law(s)
made, the notification issued under Article 341(1) or Article 342(1)
shall not be varied by any subsequent notification. The
constitutional mandate, therefore, appears to be that any caste,
race or tribe/tribal community or part of or group within any caste,
race or tribe/tribal community as has been specified in the
Presidential Order under clause (1) of Article 341 or Article 342 can
be altered only by Parliament by law(s) made.
17. Article 341 and Article 342 also makes it clear that the
caste, race or tribe or part of or group within any caste, race or tribe
as specified in the Presidential Order under Article 341(1) or a tribe
or tribal community as may be specified in the Presidential Order
under Article 342(1) shall be deemed to be Scheduled
Castes/Scheduled Tribes for the purposes of the Constitution in
relation to that State or Union Territory, as the case may be. The
20
above position is further made clear by clause (2) of the two
Presidential Orders which are in the following terms.
“Clause 2 of the Constitution (Scheduled Castes)
Order, 1950
2. Subject to the provisions of this Order, the
castes, races or tribes or parts of, or groups within,
castes or tribes specified in Parts I to XXV of the
Schedule to this Order shall, in relation to the
States to which those Parts respectively relate, be
deemed to be Scheduled Castes so far as regards
member thereof resident in the localities specified
in relation to them in those Parts of that Schedule.
Clause 2 of the Constitution (Scheduled Tribes)
Order, 1950
2. The Tribes or tribal communities, or parts of, or
groups within, tribes or tribal communities,
specified in Parts I to XXII of the Schedule to this
Order shall, in relation to the States to which those
Parts respectively relate, be deemed to be
Scheduled Tribes so far as regards members
thereof residents in the localities specified in
relation to them respectively in those Parts of that
Schedule.”
18. There are various parameters by which a caste/race is
recognized as 'Scheduled Caste/Scheduled Tribe' in a State/Union
21
Territory or a particular part thereof. There is no doubt that before
the Presidential Orders were issued under Article 341(1) or under
Article 342(1), elaborate enquiries were made and only after such
enquiries that the Presidential Orders were issued. While doing so,
the Presidential Orders not only provided that even specified parts
or groups of castes, races or tribes/tribal community could be
Scheduled Castes/Tribes in a particular State/Union Territory but
also made it clear that certain castes or tribes or parts/groups
thereof could be Scheduled Castes/Tribes only in
specified/particular areas/districts of a State/Union Territory. The
reason for such an exercise by reference to specific areas of a State
is that judged by standards of educational, social backwardness,
etc. races or tribes may not stand on the same footing throughout
the State. The consideration for specifying a particular caste or tribe
or class for inclusion in the list of Scheduled Castes and Scheduled
Tribes or Backward Classes in any given State depends on the
nature and extent of the disadvantages and social hardships
22
suffered by the concerned members of the class in that State. These
may be absent in another State to which the persons belonging to
some other State may migrate.
19. The Presidential Orders which enumerate lists of
castes/races, tribes recognized as 'Scheduled Caste/Scheduled
Tribe' cannot be challenged or agitated in a court of law except,
perhaps, on the limited ground as held in M. Nagaraj and others vs.
Union of India and others7. A few illustrations may clarify the
position. The question whether Dohar caste is a subcaste of
Chamar caste which is recognized as a scheduled caste came up for
consideration in Bhaiya Lal vs. Harikishan Singh8. This Court held
that the court cannot enquire into whether Dohar caste is a sub
caste of Chamar caste and whether the same must be deemed to
have been included in the Presidential Order. In Bhaiya Lal
(supra), this Court held that before issuing notifications under
7 (2006) 8 SCC 212
8 AIR 1965 SC 1557
23
Articles 341 and 342, an elaborate enquiry is made and as a result
of the enquiry social justice is sought to be done to the castes, races
or tribes as may appear to be necessary. It was further held that
only Parliament is empowered to amend the Notification under
Articles 341(2) and 342(2) of the Constitution, as is underlined by
the expression "but save as aforesaid a notification issued
under the said clause shall not be varied by any subsequent
notification" occurring in each of the said provisions. In Bhaiya
Lal (supra), this Court held as under:
"10...The object of Article 341(1) plainly is to provide
additional protection to the members of the
Scheduled Castes having regard to the economic
and educational backwardness from which they
suffer. It is obvious that in specifying castes, races
or tribes, the President has been expressly
authorised to limit the notification to parts of or
groups within the castes, races or tribes, and that
must mean that after examining the educational
and social backwardness of a caste, race or tribe,
the President may well come to the conclusion that
not the whole caste, race or tribe but parts of or
groups within them should be specified. Similarly,
the President can specify castes, races or tribes or
24
parts thereof in relation not only to the entire State,
but in relation to parts of the State where he is
satisfied that the examination of the social and
educational are backwardness of the race, caste or
tribe justifies such specification. In fact, it is well
known that before a notification is issued under
Article 341(1), an elaborate enquiry is made and it
is as a result of this enquiry that social justice is
sought to be done to the castes, races or tribes as
may appear to be necessary, and in doing justice, it
would obviously be expedient not only to specify
parts or groups of castes, races or tribes, but to
make the said specification by reference to different
areas in the State. Educational and social
backwardness in regard to these castes, races or
tribes may not be uniform or of the same intensity
in the whole of the State; it may vary in degree or in
kind in different areas and that may justify the
division of the State into convenient and suitable
areas for the purpose of issuing the public
notification in question..."
[Underlining added]
20. Whenever States' reorganization had taken place in
the past, Parliament had exercised its powers under Article
341(2) and Article 342(2) and provided for specific
Castes/Tribes that were entitled to be recognised as
Scheduled Castes and Scheduled Tribes in relation to the
25
reorganized States/Union Territories. The Scheme of the
Constitution (Scheduled Castes) and (Scheduled Tribes)
Orders makes it clear that Parliament's intention was to
extend the benefits of reservation in relation to the
States/Union Territories only to the castes, races or tribes as
mentioned in the Presidential Orders.
21. The Orders of 1950 was amended by the
Constitution (Scheduled Castes and Scheduled Tribes Order),
by the Amendment Act, 1956 (Act 63/1956). Another
amending Act was enacted by parliament in 1976. Earlier,
orders had been made for the first time in relation to certain
territories, such as the Constitution (Andaman and Nicobar
Islands) Scheduled Tribes Order, 1959. Further, amendments
had taken place as and when parliament reorganized states,
through separate Reorganisation Acts, which led to large scale
modification of the Presidential Orders. Illustratively, when
26
new States/Union Territories were formed such as, Nagaland,
Pondicherry, or Sikkim, the Scheduled Castes or Scheduled
Tribes Orders were made in relation to the new States/Union
Territories, for instance, the Constitution (Nagaland)
Scheduled Tribes Order, 1970 after the reorganisation of
Assam; the Constitution (Sikkim) Scheduled Castes Order,
1978; the Constitution (Sikkim) Scheduled Tribes Order, 1978)
upon creation of the State of Sikkim; the recent ones being
upon creation of the States of Uttarakhand, Chhattisgarh, and
Jharkhand. Likewise, when previous Union Territories (such
as Goa, Mizoram and Arunachal Pradesh) were constituted
into States, consequential amendments were made to the
Scheduled Castes and Tribes Orders. All such
amendments/enactments were made by Parliament.
22. Though in a different context i.e. in relation to
Backward Classes this Court in M.C.D. v. Veena and Ors.9, has
9 (2001) 6 SCC 571
27
specifically held that migrants are not entitled for reservation
as Other Backward Classes (OBCs) in the States/Union
Territories where they have migrated. The relevant portion of
the judgment that may be noticed is as hereunder:
"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 belonging
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 had
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 another State, a
person belonging to that group is entitled to
28
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."
23. A Constitution Bench of this Court in Marri
Chandra Shekhar Rao (supra) had the occasion to consider the
question as to whether a member of the Gouda community
which is recognised as “Scheduled Tribe” in the Constitution
(Scheduled Tribes) Order, 1950 for the State of Andhra
Pradesh would be entitled to admission in a medical
institution situated in the State of Maharashtra. This Court
noticed the fact that the father of the petitioner in Marri
Chandra Shekhar Rao (supra) was an employee in Fertilizer
Corporation of India, a public sector undertaking and
thereafter in Rashtriya Chemicals and Fertilizers Limited, a
Government of India undertaking. He belonged to the Gouda
community, a recognized Scheduled Tribe of Andhra Pradesh.
29
On his appointment he was stationed at Bombay. The
petitioner came to Bombay at the age of nine years. He
completed his studies in Bombay; he submitted an application
for his admission in the medical institutions run by Bombay
Municipal Corporation which was denied. This denial of
admission was based on the Government of India circular
dated 22nd February, 1985, according to which a person who
migrates from one State to another is entitled to the benefit of
being Scheduled Castes/Scheduled Tribes in the State of
origin and not in the State to which he or she migrates. The
appellant was held not entitled to be admitted to the Medical
College on the basis that he belonged to a Scheduled Tribe in
his original State i.e. Andhra Pradesh.
24. After referring to various provisions of the
Constitution of India, the background in which the
Presidential Orders were issued and several earlier judgments
of this Court, it was held as under:
30
"9. It appears that Scheduled Castes and
Scheduled Tribes in some States had to suffer
the social disadvantages and did not have the
facilities for development and growth. It is,
therefore, necessary in order to make them
equal in those areas where they have so
suffered and are in the state of
underdevelopment to have reservations or
protection in their favour so that they can
compete on equal terms with the more
advantageous or developed sections of the
community. Extreme social and economic
backwardness arising out of traditional
practices of untouchability is normally
considered as criterion for including a
community in the list of Scheduled Castes
and Scheduled Tribes. The social conditions
of a caste, however, varies from State to State
and it will not be proper to generalise any
caste or any tribe as a Scheduled Tribe or
Scheduled Caste for the whole country. This,
however, is a different problem whether a
member or the Scheduled Caste in one part of
the country who migrates to another State or
any other Union territory should continue to
be treated as a Scheduled Caste or Scheduled
Tribe in which he has migrated. That
question has to be judged taking into
consideration the interest and wellbeing of
the Scheduled Castes and Scheduled Tribes
in the country as a whole."
[underlining is ours]
31
25. In Marri Chandra Shekhar Rao (supra), rejecting the
contention that a member of Scheduled Castes/Scheduled
Tribes should get the benefit of the status 'for the purpose of
the Constitution throughout the territory of India', it was
observed that if such contention is to be accepted the
expression "In relation of that State" would become
nugatory.
26. Marri Chandra Shekhar Rao (supra) was followed by
another Constitution Bench of this Court in Action Committee
(supra). After referring to Articles 14, 15(1), 15(4), 16(4) and
19 and Part XVI of the Constitution of India and the decisions
governing the field and also Articles 341 and 342, it was held
as under:
"3. On a plain reading of clause (1) of Articles
341 and 342 it is manifest that the power of
the President is limited to specifying the castes
or tribes which shall, for the purposes of the
32
Constitution, be deemed to be Scheduled
Castes or Scheduled Tribes in relation to a
State or a Union Territory, as the case may be.
Once a notification is issued under clause (1)
of Articles 341 and 342 of the Constitution,
Parliament can by law include in or exclude
from the list of Scheduled Castes or Scheduled
Tribes, specified in the notification, any caste
or tribe but save for that limited purpose the
notification issued under clause (1), shall not
be varied by any subsequent notification. 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.
....
16. We may add that considerations for
specifying a particular caste or tribe or class
for inclusion in the list of Scheduled
Castes/Schedule Tribes or 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
33
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
Constitutionmakers as is evident from the
choice of language of Articles 341 and 342 of
the Constitution...."
[underlining is ours]
27. Marri Chandra Shekhar Rao (supra) and Action
Committee (supra) were followed in Subhash Chandra and
another (supra). After referring to various judgments on the
point and also the various circulars, this Court in Subhash
Chandra and another (supra) held as under:
34
"69. 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 on a par on the ground of
administrative exigibility (sic) 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.
.......
75. If a caste or tribe is notified in terms of the
Scheduled Castes Order or the Scheduled
Tribes Order, the same must be done in terms
of clause (1) of Article 341 as also that of
Article 342 of the Constitution of India, as the
case may be. No deviation from the procedure
laid down therein is permissible in law. If any
amendment/alteration thereto is required to
be made, recourse to the procedure laid down
under clause (2) thereof must be resorted to."
28. In Marri Chandra Shekhar Rao (supra), the
Constitution Bench observed that the expression "in relation
to that State" must be read meaningfully and harmoniously.
35
It was observed that if a member of Scheduled
Castes/Scheduled Tribes gets the benefit of that status
throughout the territory of India, the expression "in relation
to that State" would become nugatory. If the special
privileges or the rights granted to scheduled castes or
scheduled tribes in a particular State are to be made available
in all the States and if such benefits are to be carried from
State ‘A’ to State ‘B’ on migration, the mandate of Article
341/342 would get compromised. Such a consequence must
be avoided for it is a fundamental rule of interpretation, be it
of a statutory enactment or of the Constitution, that wherever
and whenever there is a conflict between two provisions, the
same should be so interpreted as to give effect to both.
“…….Nothing is surplus in a Constitution and no part should
be made nugatory…..”. [Marri Chandra Shekhar Rao (supra)]
36
29. The issue has to be viewed from another
perspective. If a member of a Scheduled Caste/ Scheduled
Tribe of Andhra Pradesh who had migrated to Maharashtra is
to be given the benefit of reservation it will amount to
depriving a member of a Scheduled Caste/Scheduled Tribe of
Maharashtra by reducing the reservation earmarked for them.
It is in this context, in Marri Chandra Shekhar Rao (supra),
that the Constitution Bench observed as under:
"14. ....But having regard to the purpose, it
appears to us that harmonious construction
enjoins that we should give to each expression
—”in relation to that State” or “for the
purposes of this Constitution” — its full
meaning and give their full effect. This must be
so construed that one must not negate the
other. The construction that reservation made
in respect of the Scheduled Caste or Tribe of
that State is so determined to be entitled to all
the privileges and rights under the
Constitution in that State would be the most
correct way of reading, consistent with the
language, purpose and scheme of the
Constitution. Otherwise, one has to bear in
mind that if reservations to those who are
treated as Scheduled Caste or Tribe in Andhra
37
Pradesh are also given to a boy or a girl who
migrates and gets deducted (sic inducted) in
the State of Maharashtra or other States where
that caste or tribe is not treated as Scheduled
Caste or Scheduled Tribe then either
reservation will have the effect of depriving the
percentage to the member of that caste or tribe
in Maharashtra who would be entitled to
protection or it would denude the other non
Scheduled Castes or nonScheduled Tribes in
Maharashtra to the proportion that they are
entitled to. This cannot be logical or correct
result designed by the Constitution."
30. Unhesitatingly, therefore, it can be said that a
person belonging to a Scheduled Caste in one State cannot be
deemed to be a Scheduled Caste person in relation to any
other State to which he migrates for the purpose of
employment or education. The expressions "in relation to
that State or Union Territory" and "for the purpose of this
Constitution" used in Articles 341 and 342 of the
Constitution of India would mean that the benefits of
reservation provided for by the Constitution would stand
38
confined to the geographical territories of a State/Union
Territory in respect of which the lists of Scheduled
Castes/Scheduled Tribes have been notified by the
Presidential Orders issued from time to time. A person
notified as a Scheduled Caste in State 'A' cannot claim the
same status in another State on the basis that he is declared
as a Scheduled Caste in State 'A'.
31. In S. Pushpa (supra), the Pondicherry Government
had appointed Selection Grade Teachers in 1995 under the
Scheduled Castes quota from amongst the scheduled castes
candidates registered in the employment exchange in
Pondicherry but also extended the benefit of reservation to
scheduled castes candidates of other States and Union
Territories. The Chennai Bench of Central Administrative
Tribunal (“CAT” for short) quashed the selection process
holding that migrant Scheduled Castes/Scheduled Tribes
39
candidates could not be considered for appointment for posts
within the union territory of Pondicherry. In S. Pushpa (supra)
the issue was with regard to the extent of benefit that
Scheduled Castes candidates of other States/Union Territories
would be entitled to in Pondicherry. This Court held that in
the matter of providing reservation, it was open to the
Pondicherry Government to apply or adopt a policy to give the
benefit of reservation to migrant Scheduled Castes and
Scheduled Tribes. In paragraphs 17 and 21 in S. Pushpa
(supra), it was held 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
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 the
expression “State” occurring therein. This was
clearly explained by a Constitution Bench in
T.M. Kanniyan v. ITO. In New Delhi Municipal
40
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.
(underlining is ours)
*** *** ***
21. ....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
41
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."
32. The upshot of the aforesaid discussion would lead
us to the conclusion that the Presidential Orders issued under
Article 341 in regard to Scheduled Castes and under Article
342 in regard to Scheduled Tribes cannot be varied or altered
by any authority including the Court. It is the Parliament
alone which has been vested with the power to so act, that too,
by laws made. Scheduled Castes and Scheduled Tribes thus
42
specified in relation to a State or a Union Territory does not
carry the same status in another State or Union Territory.
Any expansion/deletion of the list of Scheduled
Castes/Scheduled Tribes by any authority except Parliament
would be against the constitutional mandate under Articles
341 and 342 of the Constitution of India.
33. Article 16(4) is an enabling provision. It enables the
State to provide to backward classes including Scheduled
Castes and Scheduled Tribes reservation in appointments to
public services. Such reservation is to be provided on the basis
of quantifiable data indicating the adequacy or inadequacy, as
may be, of the representation of such classes in Government
service. The data which is the basis of the satisfaction of the
State being verifiable, is open to judicial scrutiny on the limited
ground of relevance of the circumstances on which the
satisfaction is moulded. The policy decision to provide
43
reservation, of course, is beyond the pale of judicial review.
34. It is an unquestionable principle of interpretation
that interrelated statutory as well as constitutional provisions
have to be harmoniously construed and understood so as to
avoid making any provision nugatory and redundant. If the list
of Scheduled Castes/Scheduled Tribes in the Presidential
Orders under Article 341/342 is subject to alteration only by
laws made by Parliament, operation of the lists of Scheduled
Castes and Scheduled Tribes beyond the classes or categories
enumerated under the Presidential Order for a particular
State/Union Territory by exercise of the enabling power vested
by Article 16(4) would have the obvious effect of circumventing
the specific constitutional provisions in Articles 341/342. In
this regard, it must also be noted that the power under Article
16(4) is not only capable of being exercised by a legislative
provision/enactment but also by an Executive Order issued
44
under Article 166 of the Constitution. It will, therefore, be in
consonance with the constitutional scheme to understand the
enabling provision under Article 16(4) to be available to provide
reservation only to the classes or categories of Scheduled
Castes/Scheduled Tribes enumerated in the Presidential orders
for a particular State/Union Territory within the geographical
area of that State and not beyond. If in the opinion of a State it
is necessary to extend the benefit of reservation to a
class/category of Scheduled Castes/Scheduled Tribes beyond
those specified in the Lists for that particular State,
constitutional discipline would require the State to make its
views in the matter prevail with the central authority so as to
enable an appropriate parliamentary exercise to be made by an
amendment of the Lists of Scheduled Castes/Scheduled Tribes
for that particular State. Unilateral action by States on the
touchstone of Article 16(4) of the Constitution could be a
possible trigger point of constitutional anarchy and therefore
45
must be held to be impermissible under the Constitution.
35. The decision in S. Pushpa (supra) may now be taken
up to understand the basis on which the conclusion recorded
therein was recorded. In S. Pushpa (supra) a distinction was
found by this Court in the constitutional status of a Union
Territory and a State in relation to the Union/Central
Government. The provisions of Article 239 and 239A of the
Constitution; Section 3(8) of the General Clauses Act, 1897
defining ‘Central Government’ and the provisions of the
Government of Union Territories Act, 1963 were considered to
arrive at the following conclusion:
“14. The effect of these provisions is also
that the Administrator (Lt Governor of
Pondicherry) and his Council of Ministers
act under the general control of and are
under an obligation to comply with any
particular direction issued by the President.
Further, the Administrator (Lt Governor of
Pondicherry) while acting under the scope
of the authority given to him under Article
239 of the Constitution would be the
46
Central Government.”
36. It is on the aforesaid basis that the concerned
Notification/Government Order dated 16th February, 1974 by
which it was provided that Scheduled Castes/Scheduled
Tribes candidates from outside the Union Territory of
Pondicherry should also be considered for appointment to
posts reserved for Scheduled Castes/Scheduled Tribes in the
Union Territory Administration and the communication of the
Government of India dated 6th October, 1995 to the same effect
were upheld.
37. The First Schedule to the Constitution, as original
enacted, provided for three (03) categories of States i.e. Part
‘A’, Part ‘B’ and Part ‘C’ States to comprise the territory of
India. The States Reorganization Act, 1956 and the
consequential Constitution (Seventh Amendment) Act, 1956
drastically altered the provisions of the First Schedule to the
47
Constitution by establishment of new States; alteration in the
area and boundaries of existing States and also by abolition of
the three (03) categories of States; and by classification of
certain areas as Union Territories. Pursuant thereto the
Government of Union Territories Act, 1963 was enacted to
provide for Legislative Assemblies and Councils of Ministers
for certain Union Territories and for certain other incidental
matters. It will not be necessary to specifically deal with the
provisions of the aforesaid Act in any great detail except to say
that in course of time most of the Union Territories (except for
Pondicherry), which had been provided with their own
Legislatures and Councils of Ministers have graduated to
become fullfledged States on the basis of enactment of several
State Reorganisation Acts details of which have been
mentioned (para 21). The Union Territory of Pondicherry, as
on date, stands out as sole Union Territory which has a
Legislature and Council of Ministers, apart from Delhi.
48
38. Delhi, which was one of the original Union
Territories, came to be called as “National Capital Territory of
Delhi”. This change was introduced by the Constitution
(SixtyNinth Amendment) Act, 1991 with effect from 1 st
February, 1992 by insertion of Article 239AA in Part VIII of
the Constitution (i.e. Special provisions with respect to Delhi).
Article 239AA(3)(a) empower the Legislative Assembly of the
National Capital Territory of Delhi to make laws with respect
to any matters enumerated in the State List or in the
Concurrent List (i.e. List II and List III of the Seventh Schedule
to the Constitution of India) subject to certain exceptions. It is
here that the Union Territory of Delhi i.e. National Capital
Territory of Delhi is enjoined a special status inasmuch as
power to enact laws on any of the subjects in List II and List III
is a constitutional conferment as opposed to the position in
the erstwhile Union Territories and the present day Union
49
Territory of Pondicherry where the power to frame/make laws
has been conferred on the Union Territory Legislatures by a
Parliamentary enactment i.e. Section 18 of the Government of
Union Territories Act, 1963. The above narration has been
considered necessary only to make the discussion complete.
We make it clear that we are not entering into any discussion
as to the special position/status of Delhi, if any, by virtue of
the provisions contained in Article 239AA as the said issue
does not arise for consideration in the present reference.
39. The above view coupled with the scope and ambit of
the present reference may also not require us to go into the
correctness of the view expressed by this Court in paragraph
14 of the decision in S. Pushpa (supra) (as already extracted).
The resolution of the question formulated for an answer is
capable of being reached by adopting an entirely different
perspective which we intend to do hereinafter.
50
40. The federal nature of the Constitution finds broad
manifestation in two principal areas i.e. division of legislative
power and exercise thereof by the Union and the constituent
States and secondly, which is more relevant and important to
the subject in hand, is the constitutional provisions relating to
services under the Union and the States as dealt with in Part
XIV of the Constitution.
41. The subject finds an elaborate study by Dr. D.D.
Basu in “Commentary on the Constitution of India” 10.
According to Dr. D.D. Basu, “In India though the Union and
the States have their own public services, (vide Entry 70
of List I and Entry 41 of List II) there is no clearcut
bifurcation in the administration of the Union and the
State laws as in the U.S.A. The State officials administer
the State laws as well the Union laws applicable within
10 8th Edition, 2011, Volume 9, Page 9858
51
that Sate whereas the members of the Union Services
while working within a State, also carry out State laws,
insofar as they may be applicable. The second peculiarity
of the Indian federal system of administration is that
though the federal and State Governments have civil
services of their own to manage their own households,
there are certain services known as the AllIndia
Services, which are common to both the federal and
State Governments.
The organisation of the Civil services in the Indian
federal system may be demonstrated as thus:
All India Services
Central Civil State Civil Services
Services
Central Secretariat Subordinate Services
Services”
52
42. At the State Level, as Dr. D.D. Basu points out, “the
State Civil Services administer the subject solely
belonging to the State Governments, according to the
federal distribution of subjects thus including the
Judicial, Executive, Medical, Engineering, Police,
Education branches. Their members are under the
exclusive control of the respective State Governments and
their duties are confined to the territories of the State by
which they have been appointed, unless sent on
deputation to the Union Government”.11 These State Civil
Services may be Administrative Services, Forest Services etc.
[illustratively, in case of Himachal Pradesh, Himachal Pradesh
Administrative Service (HPAS) is a type of service, so is,
Himachal Pradesh Forest Service (HPFS). The recruitment to
these services is conducted by way of Civil Services
11 8th Edition, Volume 9, 2011, Page 9860.
53
Examinations organised by the Statespecific Public Service
Commission e.g. in case of Himachal Pradesh, it is Himachal
Pradesh Public Service Commission. As stated earlier, persons
inducted into the State Service of a particular State cannot be
transferred to any other State. These officers are concerned
with only the affairs of the state in which they are appointed.
These services (like HPAS, HPFS) may, for convenience, be
called as Superior Services/Higher Services with reference to a
State. But in addition to these higher services, there are also
services that may, again for convenience, be called as
Subordinate Services/Lower Level Jobs. The posts in these
services are like those of Clerks, School Teachers; Drivers,
Attendants, Safai Workers, etc. For the purpose of recruitment
of Subordinate Servants, states have in place Statespecific
Selection Commissions.
54
43. At the Federal Level, civil administration is carried
out by the members of – (1) All India Services (specifically
provided for in Article 312); (2) Central Civil Services (although,
not specifically provided for in the Constitution but are
regulated by creation of statutory Rules framed under the
proviso to Article 309). These are again Superior Services and
the selection/recruitment is by the Union Public Service
Commission.
ALL INDIA SERVICES
There are three All India Services (AIS) – (a) Indian
Administrative Service (IAS); (b) Indian Forest Service (IFoS); (c)
Indian Police Service (IPS). As regards AIS, Dr. D.D. Basu 12
says that, “the peculiarity of the AIS from the federal
standpoint is that –
(a) Though they are recruited and their conditions
12 8th Edition, 2011, Volume 9, Page 9858.
55
of service are determined by the Union Government, they
have to administer both Union and the State subjects,
accordingly as their services are placed at the disposal of
the Union or a State Government, in connection with the
affairs of the Union or the State, as the case may be.
(b) While serving in a State, they are controlled by
the State Government, except as regards the imposition of
the penalty of dismissal, removal or compulsory
retirement, which can be awarded only by the Union
Government.
(c) In a sense, this system is an exception to the
usual federal precedent inasmuch as it is intended to fill
up the strategic posts both under the Union and State
Governments by men of superior calibre, recruited on a
uniform basis, through the UPSC. Thus, while a Deputy
56
Collector may be a member of the State Civil Service, the
Additional Collector and the Collector may be members of
the Indian Administrative Service. The category of AIS
thus breaks through the federal division so far as the
administrative services in India are concerned. In fact,
the principal agents of a Sate administration are
members of the AIS and it would be a mistake to suppose
that the AIS exist for the administration of the Union
subjects. Broadly, speaking, the administration of a State
is run both by the members of the AIS and State Services,
the latter supplying only the intermediate and
subordinate tiers.
(d) Though the bulk of recruitment to the AIS is by
competitive examination, a certain proportion is selected
by promotion from amongst members of the State Civil
57
Services.
(e) Though a member of AIS may be required to
serve anywhere in India, on recruitment, he is usually
assigned to a State or States jointly, or, in a technical
language, is included in a State cadre or Joint cadre and
continues to serve there until or unless he is called upon
to serve the Union Government, in any of its Departments.
(f) While employed under a State, again, the
members of the AIS do not have to work only in the
Secretariat of the State but also in the Districts as
already stated and members of these services are
expected to acquire experience of the business in the
district as well as Secretariat administration and there
is a constant interchange of officers between the
Secretariat and the Districts, just as there is such an
58
interchange between the States and the Union
Secretariats on the other hand.”
44. Therefore, the members of the All India Services are
common to the Union and the States and they serve, by turn,
both the Union and State Governments. The members of these
services although recruited by the Centre their services are
placed under various State cadres. “It is evident from Article
312(1) that the members of the AIS are common to the
Union and the States. Curiously, however, there is a
cadre for the Indian Administrative Service only in the
States, according to the Indian Administrative Service
(Cadre) Rules, 1954 and there is no separate cadre for
members of this service in the Government of India. Each
members of the Indian Administrative Service therefore,
59
belongs to the cadre of one State or the other.”13
45. There are many State Cadres e.g. Bihar Cadre,
Rajasthan Cadre and Joint Cadres like AGMUT (for Arunachal
Pradesh + Goa + Mizoram + the 7 Union Territories). These
officers remain in the allotted Cadres till they retire. They are
not normally to be transferred from one State Cadre to another
State Cadre though they have the accountability to serve both
under the State and the Centre.
46. At this juncture, the Union of India’s Affidavit may
also be referred to, which states with reference to AIS that,
“the conditions of service of these services (AIS) are
regulated by the DoPT by way of executive and statutory
instructions, statutory rules formulated under Article
309 of the Constitution and Act of Parliament etc. The
functional control of some of the services rests with other
13 D.D. Basu, 8th Edition, 2011, Volume 9, Page 10585.
60
Ministries and Departments also. The Ministry of Home
Affairs exercises functional control on IPS and the
Ministry of Environment & Forest & Climate Change
exercises functional control on IFoS. Members of these
services are allocated a cadre under a State or Union
Territory and they serve the Union as well as the State,
whichever is allotted to them. Thus their services are All
India Services. Their recruitment is by the Union Public
Service Commission and as they serve the Union as well
as the States, their recruitment is on pan India basis.
Every citizen of this country having the required
qualification is eligible to be considered for the
appointment. It is pertinent to note that before selection
in the AIS, there is no specification or indication of the
cadre in Union, Union Territory or State, which they may
61
serve. Upon selection alone, they would be allocated
cadre depending upon the merit and the preferences they
would have made at the time of applying. Upon selection
they could be allocated to serve through any of the 25
states or 7 Union Territories of Delhi; Puducherry;
Chandigarh; Daman & Diu; Dadra & Nagar Haveli;
Andaman & Nicobar; Lakshadweep coupled with the
states of Arunachal Pradesh, Goa and Mizoram”14.
47. CENTRAL CIVIL SERVICES
The Central Civil Services (CCS), as Dr. D.D. Basu
points out, “are engaged in administering the Union
subjects, such as the Posts and Telegraphs, Customs and
Excise, Income Tax. In short, these constitute all the
administrative services in the Central Departments which
have not so far been included in the list of All India
14 Para 5 of the Affidavit.
62
Services. They are under the exclusive control of the
Union Government. Besides the Central Services, there are
other Services intended for work solely in the Central
Secretariat, or, in other words, those who are to manage
the offices of the Central Departments. Both the Central
Civil Services and Central Secretariat Services are sub
divided into Class I, II, III, IV, (= Group A, B, C, D 15)
according to the rank and responsibilities of the
officers… Members of the Central Services are also sent
on transfer or deputation to States where offices relating
to the Union subjects or Public Sector Undertakings
relating thereto are located.”16 All that we would like to add
15 Rule 6A of the Central Civil Services (Classification, Control and Appeal)
Rules, 1965 provides that, “All reference to Central Civil Services/Central
Civil Posts, Class I, Class II, Class III and Class IV in all Rules, Orders,
Schedules, Notifications, Regulations, Instructions in force, immediately
before the commencement of these rules shall be construed as references to
Central Civil Services/Central Civil Posts, Group 'A', Group 'B', Group 'C'
and Group 'D' respectively, and any reference to "Class or Classes" therein
in this context shall be construed as reference to "Group or Groups", as the
case may be.”
16 8th Edition. Volume 9, Page 9859.
63
is that though the members of these services are concerned
only with the affairs of the Union/Centre they discharge such
duties in the offices and establishments of the Union
Government as may be located in the States and the Union
Territories. The Central Civil Services (Classification, Control
and Appeal) Rules, 1965 [CCS Rules, 1965] (enacted under the
proviso to Article 309) are the governing statutory Rules with
reference to these services. Rule 4 of CCS Rules, 1965
classifies the Central Civil Services into four types –
(i) Central Civil Services, Group A (45 services as per
the Schedule to the Rules);
(ii) Central Civil Services, Group B (33 services as per
the Schedule to the Rules);
(iii) Central Civil Services, Group C (5 services as per the
Schedule to the Rules);
(iv) Central Civil Services, Group D (1 service as per the
64
Schedule to the Rules)17.
48. CCS Group A:
The Affidavit of the Union of India says that,
“recruitment to Group A services is made by UPSC. The
recruitment is again on all India basis. This is the reason
the personnel belonging to these 45 services work in the
posts of Union and the Union Territories (UT) across the
length and breadth of the country. The Cadre Controlling
Authority of Group A services are the respective
ministries of the Government of India. For example, the
first service being the Archaeological Service, the Cadre
Controlling Authority is the Ministry of Culture, Central
Government. Another example, the 12th service being the
Indian Foreign Service and this is controlled by Ministry
17 Para 6 of the Affidavit.
65
of External Affairs. No. 16 is the Indian Revenue Service
and it is controlled by the Ministry of Finance. The
members of these services being recruited pursuant to the
Central Service Exams conducted by the UPSC are
allocated to the respective services. Whichever Ministry
seeks recruitment to the service in this Group, sends
requisition to UPSC as per procedure prescribed and UPSC
accordingly advertises for the post in Group A. Every
citizen of India is eligible to apply as per the
qualifications and requirements in the notification. DOPT
is the nodal Ministry for regulating the conditions of
service of all Central Civil Services as per Allocation of
Business Rules. As per the conditions of service, every
employee is required to give an undertaking agreeing to
the conditions of all India transfer liability at the time of
66
joining service. Central Civil Services employees belonging
to Group A serve the Union of India and that is the reason
why these services are across the length and breadth of
the country, wherever there is an office of the Central
Government. Member of the Groups A service are governed
by CCS Rules of 1965 as well as Central Civil Services
(Conduct) Rules 1972; Central Civil Services (Pension)
Rules 1972 and such other Rules made by the Central
Ministries.”
49. CCS Group B:
As mentioned earlier, there are 33 Group B Services.
Amongst these, are the Union Territory Services listed at No.
28 and No. 29 and known as the ‘Delhi and Andaman and
Nicobar Islands Civil Service’ abbreviated as ‘DANICS’ and
‘Delhi and Andaman and Nicobar Islands Police Service’ (Grade
67
II) abbreviated as ‘DANIPS’. While at this stage we may have
also a look at Union Territory services in some detail.
UNION TERRITORY SERVICES
50. The Government of India (Ministry of Home Affairs)
by way of a notification dated 6th August, 2003, and in the
exercise of the proviso to Article 309, enacted ‘the National
Capital Territory of Delhi, Andaman and Nicobar Islands,
Lakshadweep, Daman and Diu and Dadra and Nagar Havel
(Civil Service) Rules, 2003 [DANICS Rules, 2003]. As also, ‘the
National Capital Territory of Delhi, Andaman and Nicobar
Islands, Lakshadweep, Daman and Diu and Dadra and Nagar
Havel (Police Service) Rules, 2003 [DANIPS Rules, 2003].
51. The DANICS/DANIPS Rules, 2003 define:
* ‘Administration’ to mean the Government of the
National Capital Territory of Delhi in respect National Capital
68
Territory of Delhi and Union Territory Administration in
respect of the Union Territories of – Andaman & Nicobar
Islands; Lakshadweep; Daman & Diu; Dadra & Nagar Haveli
[under Rule 2(a)]
* ‘Commission’ to mean the Union Public Service
Commission [under Rule 2(h)].
* ‘Scheduled Castes and Scheduled Tribes’ to have the
same meaning as are assigned to them by Articles 366(24) and
366(25) [under Rule 2(n)].
The DANICS/DANIPS Rules, 2003, further, state that posts in
Junior Administrative GradeI, Junior Administrative GradeII,
Selection Grade will be Central Civil Services (Group A),
whereas Entry Grade shall be Central Civil Services (Group B)
[Rule 3]. The vacancies in DANICS/DANIPS shall be filled in on
the basis of the Civil Services Examination conducted by UPSC
[Rule 7]. Every member of DANICS/DANIPS allocated to an
69
Administration shall be posted against a duty post 18 under the
Administration by the Administrator [Rule 12]. More
importantly, the Government of India shall, from time to time,
allocate a member of DANICS/DANIPS to any Administration
for posting [Rule 12]. Nothing in the Rules affects reservations,
relaxation in agelimit and other concessions required to be
provided for the Scheduled Castes, the Scheduled Tribes,
Other Backward Classes and other special categories of
persons in accordance with the orders issued by the
Government of India from time to time in this regard [Rule 17:
the Saving clause]. The Sanctioned Strength for DANICS and
DANIPS is in the DANICS/DANIPS Rules, 2003 (approximately
398 DANICS; approximately 355 DANIPS).
52. As per the Union of India’s Affidavit, DANICS and
18 Duty Posts are mentioned in the Schedule to these Rules. To name a few,
these are - Joint Director of Social Welfare/Delhi; Joint Director of
Education/Delhi; Deputy Medial Superintendent of Lok Nayak Jai Prakash Narain
Hospital/Delhi; Registrar of Cooperative Societies/Port Blair; Assistant
Commissioner of Police/Delhi; Deputy Superintendent of Police/Andaman &
Nicobar; Chief of Police/Dadra & Nagar Haveli etc.
70
DANIPS are ‘Union Territory Services’19. The Affidavit says,
“...at Serial 28 and 29 of the Schedule (to CCS Rules,
1965), we have the Union Territory Services known as
DANICS and DANIPS”. The Affidavit, further, says that,
“DANICS/DANIPS Officers are posted in Delhi; Andaman &
Nicobar Islands; Lakshadweep; Daman & Diu; Dadra &
Nagar Haveli. The recruitment to all the Union Territories
for these Group B posts are common. They are also
centralised and the Appointing Authority is none other
than the Ministry of Home Affairs (Joint Secretary). For
the recruitment to these services, it is the very same
examination meant for AIS and CCS Group A. Any citizen
of India is eligible to apply, subject to the conditions
prescribed. As per the Service Rules, transfer
undertakings throughout the Union Territories covered
19 Page 4, Para (ii)(a) of the Affidavit.
71
under DANICS/DANIPS is taken from these officers. This is
the reason why the Union of India while inviting
applications for recruitment considers all candidates,
including reserved candidates on all India basis. Group B
Cadre of DANICS/DANIPS is the Feeder Cadre for IAS and
IPS respectively (i.e. AIS). They retire invariably in these
Offices, some of them reaching high positions in the
Central Government. Recruitment to AIS; CCS Group A;
CCS Group B (Gazetted) is conducted through UPSC. In the
Civil Services Examination, the applicants are common
when the applications are made. Every aspirant seeks
recruitment to the services and it is only as per the
marks and ranking that allocations are made eventually
to AIS; CCS Group A; CCS Group B. Therefore, when UPSC
undertakes the recruitment, it is naturally a pan India
72
recruitment and therefore, it is necessary to seek
applications including from reserved candidates from all
over India.”20
53. But it is not the Members of the All India Services
(AGMUT Cadre); Central Civil Services (Group ‘A’ and ‘B’) and
the ‘DANICS’ and ‘DANIPS’ who alone are the public servants
in the States and the Union Territories engaged in the
discharge of duties in connection with the affairs of the Union.
There are and bound to be public servants that work the
subordinate services.
CCS Group C:
54. At the subordinate level these are the Group ‘C’
posts. In the Schedule to CCS Rules, 1965, there are 5 such
services. The Union of India’s Affidavit says that, “These
posts, in so far, as they relate to services under the Union
20 Page 4, 5 of the Affidavit.
73
of India are concerned are recruited by the Staff
Selection Commission (which is the Recruiting Agency
under the DoPT). The members of CCS Group C get
promoted to CCS Group B. Recruitment to posts in this
group arise out of requisition made by the concerned
ministries all over India. These requisitions, upon
reaching, the Staff Selection Commission are processed
and selection takes place and appointments are made.
Even from these appointees, undertaking for all India
transfer liability is taken. As these are posts under the
Central Government and these employees are liable to
transferred anywhere in the country and the recruitment
being centralised for all such posts in the country, it has
been consistent policy of the Union of India to have pan
India eligibility.”
74
55. With regard to CCS Group D posts, in the affidavit of
the Union it is stated that “the posts under this category are
primarily of what used to be Class IV employees now
referred to as the Multi Tasking staff. In recent years,
Central Pay Commission has recommended against any
further recruitment to these posts in Group D. Further it
has also been recommended that the existing posts will be
merged with Group C. Hence, this is now a vanishing
cadre21.”
56. The broad picture that emanates from the above
discussion and narration is that insofar as the services in
connection with the affairs of the Union is concerned (Central
Services), wherever the establishment may be located i.e. in the
National Capital Territory of Delhi or in a State or within the
21 Page 6, para iv.a. of the Affidavit
75
geographical areas of Union Territory, recruitment to all
positions is on an All India basis and reservation provided for
is again a pan India reservation. This by itself, from one
perspective, may appear to be in departure from the rule set
out in Part XVI of the Constitution of India (Articles 341 and
342). However, the close look undertaken hereinbefore
indicates such a position is fully in accord with the
constitutional structure of a federal polity.
NATIONAL CAPITAL TERRITORY OF DELHI
57. In case of National Capital Territory of Delhi,
especially, to make the picture even clearer, a reference may be
made to ‘Delhi Administration Subordinate Service Rules,
1967’. Rule 3 of the aforesaid Rules is to the following effect:
“3. Constitution of service and its
classification. (1) On and from the date of
commencement of these Rules, there shall be
constituted one Central Civil Service, known as the
Subordinate Service of the Delhi Administration.
(2) The Service shall have four Grades, namely—
76
Grade I
Grade II
Grade III
Grade IV
(3) The posts in Grade I shall be Central Civil
posts, Class II Group ‘B’ (Gazetted) and those in
Grades II, III and IV shall be Central Civil posts
Group ‘C’ (NonGazetted).
(4) Members of the service shall, in the normal
course be eligible for appointment to various
Grades of the service to which they belong and not
to the other service.”
(underlining is ours)
Subordinate services in the National Capital Territory of
Delhi are, therefore, clearly Central Civil Services. The Affidavit
of the Union also points out this feature by stating that, “The
posts in CCS Group C are in the subordinate services. The
equivalent in the Union Territory of Delhi is the Delhi
Administrative Subordinate Services (DASS) and the
Recruiting Agency in the place of Staff Selection
Commission is the Delhi Subordinate Service Selection
Board (DSSSB). Members of the Delhi Administrative
77
Subordinate Services are the Feeder Cadre for Central
Civil Services Group B (DANICS). It is for these reasons
that the policy (of pan India eligibility) consistently
adopted.”22
58. A combined reading of these provisions of the DASS
Rules, 1967 and CCS Rules, 1965, therefore, more than
adequately explains the nature of Subordinate Services in the
NCT of Delhi. These clearly are General Central Services and
perhaps, it is owing to this state of affairs that the Union of
India in its Affidavit has stated that, “Members of the Delhi
Administrative Subordinate Services are the Feeder Cadre
for Central Civil Services Group B (DANICS). It is for these
reasons that the policy (of pan India eligibility) is
consistently adopted.”
22 Page 6, Para (b) of the Affidavit.
78
59. While examining the validity of reservation of seats
in medical colleges for local candidates in Delhi, this Court in
Dr. Jagdish Saran and Others Vs. Union of India23 had made
certain observations with regard to the special status that the
capital city enjoys, which today, has come to be known as the
National Capital Territory of Delhi. The observations of this
Court in paragraphs 10 and 56 may be usefully recapitulated
and, therefore, is set out below:
“10. The capital city is not just a part of India. It is
miniaturised India, a fact often forgotten by the
administration in the field of culture and
education, especially visavis regional, minorities.
It is magapolitan and people from all parts flock to
this outsized city. But we cannot exaggerate this
factor, for the presence of the farther regions like
the South and the Northeast, populationwise, is
minimal and precarious. Shri Balakrishnan
insisted that the University was sustained by
Central Government finances, collected from the
whole country, and the benefits must likewise
belong to all qualified students from everywhere.
These are valuable aspects to shape policy but the
23 (1980) 2 SCC 768
79
court must test constitutionality and no more. To
that extent alone we will weigh these factors in
moulding our verdict.
xxx xxx xxx
56. We may windup by articulating the core
thought that vitalises our approach. Anyone who
lives inside India can never be considered an
‘outsider’ in Delhi. The people in the States are
caught in a happy network of mutuality, woven
into a lovely garment of humanity, whose warp and
woof is India. This is the underlying fundamental
of the preambular resolve registered in our
National Parchment. So we insist that blind and
bigoted local patriotism in xenophobic exclusivism
is destructive of our Freedom and only if
compelling considerations of gross injustice,
desperate backwardness and glaring inequality
desiderate such a purposeful course can protective
discrimination gain entrance into the portals of
college campuses. The Administration has a
constitutional responsibility not to be a mere
thermometer where mercury rises with populist
pressure but to be a thermostat that transforms
the mores of groups to stay in the conscience of the
nation viz. the Constitution.”
60. The Affidavit of the Union does not touch upon the
details of Subordinate Services in other Union Territories.
80
Neither the authorities of the other Union Territories have laid
before the Court any relevant material in this regard. We,
therefore, refrain from addressing the issue in question as far
as other Union Territories are concerned and have confined
our discussions and the consequential views only to the
National Capital Territory of Delhi.
61. Accordingly, we answer the question referred in
terms of the views expressed in para 34 of this opinion. We
further hold that so far as the National Capital Territory of
Delhi is concerned the pan India Reservation Rule in force is in
accord with the constitutional scheme relating to services
under the Union and the States/Union Territories.
62. In view of the conclusions reached as above, it will
not be necessary to remit Civil Appeal Nos. 1085 of 2013,
10081 of 2014, 8141 of 2014, 8802 of 2012, 1086 of 2013 and
Civil Appeal arising out of Special Leave Petition (Civil)
81
No.36324 of 2017 (pertaining to Delhi) for further
consideration by the appropriate Bench. Accordingly, we
dispose of the said appeals (pertaining to Delhi) in terms of the
present order.
So far as Civil Appeal Nos.99359937 of 2014 pertaining
to the U.T. of Andaman and Nicobar Island are concerned the
issue may be decided by the appropriate Bench in the light of
the views expressed herein on adequate and sufficient
materials being placed before the Bench by the contesting
parties.
..……………………………………., J.
[RANJAN GOGOI]
..……………………………………., J.
[N.V. RAMANA]
..……………………………………., J.
[MOHAN M. SHANTANAGOUDAR]
..……………………………………., J.
[S. ABDUL NAZEER]
PLACE: NEW DELHI
DATE: 30th AUGUST, 2018
82
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1085 OF 2013
BIR SINGH ....Appellant
Versus
DELHI JAL BOARD & ORS. ....Respondents
WITH
CIVIL APPEAL NOS. 9935-37 OF 2014
CIVIL APPEAL NO. 10081 OF 2014
CIVIL APPEAL NO. 8141 OF 2014
CIVIL APPEAL NO. 8802 OF 2012
CIVIL APPEAL NO. 1086 OF 2013
CIVIL APPEAL NO. 9048 OF 2018
(Arising out of SLP(C) No. 36324 of 2017)
JUDGMENT
R. BANUMATHI, J.
Reference Order:-
I have gone through the judgment proposed by His Lordship Justice Ranjan Gogoi. I agree with the following conclusions arrived at in paras (30) and (34) and the reasonings thereon.83
"A person notified as a Scheduled Caste in State 'A' cannot claim the same status in another State on the basis that he is declared as a Scheduled Caste in State 'A'......".
".......It will, therefore, be in consonance with the constitutional scheme to understand the enabling provision under Article 16(4) to be available to provide reservation only to the classes or categories of Scheduled Castes/Scheduled Tribes enumerated in the Presidential orders for a particular State/Union Territory within the geographical area of that State/Union Territory (Union Territory added by me) and not beyond."
With due respect, I do not agree with the conclusion arrived at in para (61) and the reasonings thereon.
“......So far as the National Capital Territory of Delhi is concerned the pan-India Reservation Rule in force is in accord with the constitutional scheme relating to services under the Union and the States/Union Territories."
For agreeing with the conclusion arrived at in paras (30) and (34) and for differing from the conclusions in para (61) and the reasonings thereon, I have given my own reasonings.
2. The extent and nature of interplay and interaction under Articles 16(4), 341(1) and 342(1) of the Constitution of India was referred to the Constitution Bench in State of Uttaranchal v. Sandeep Kumar Singh and Ors., (2010) 12 SCC 794, with the following reference:- 84
"13. A very important question of law as to interpretation of Articles 16(4), 341 and 342 arises for consideration in this appeal. Whether the 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."
3. Territory of India:- Article 1(1) of the Constitution of India declares that India, that is Bharat, shall be a Union of States. As amended by the Constitution Seventh (Amendment) Act, 1956. Article 1 of the Constitution reads as under:-
1. Name and territory of the Union.- (1) India, that is Bharat, shall be a Union of States.
(2) The States and the territories thereof shall be as specified in the First Schedule.
(3) The territory of India shall comprise—
(a) the territories of the States;
(b) the Union Territories specified in the First Schedule; and
(c) such other territories as may be acquired.
4. Under the Constitution of India, as initially enacted, the States were divided into Part A States, Part B States, Part C States and the territories in Part D. Substantial changes were made by the Constitution (Seventh Amendment) Act, 1956 which incorporated the recommendations of the States Reorganisation Commission and was 85 to have effect in concert with the States Reorganisation Act, 1956. The four categories of States that existed were reduced to two categories. The first of these categories - Part A and Part B States comprised one class, called "States". The second category comprised the areas which had earlier been included in Part C and Part D States; these areas were called "Union Territories". Some additions and deletions were made to the existing lists. Now as per Schedule I, there are twenty-nine States and Seven Union Territories.
5. The expression “State” is not defined in the Constitution. It is defined in the General Clauses Act, 1897 which is made applicable to the interpretation of the Constitution by Article 367. As on the date of the commencement of the Constitution, clause (58) in Section 3 of the General Clauses Act, 1897 defined “State” in the following words:-
“3. (58) ‘State’, — shall mean a Part A State, a Part B State or a Part C State.” The said definition was amended by the Adaptation of Laws Order No. 1 of 1956 issued by the President in exercise of the power 86 conferred upon him by Article 372-A of the Constitution introduced by the Constitution Seventh (Amendment) Act, 1956. The amended definition 'State' reads thus:-
“3. (58) ‘State’, —
(a) as respects any period before the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean a Part A State, a Part B State or a Part C State; and
(b) as respects any period after such commencement, shall mean a State specified in the First Schedule to the Constitution and shall include a Union Territory.”
6. Clause (30) in Article 366 defines the “Union Territory” in the following words:-
“366. (30) ‘Union Territory’ means any Union Territory specified in the First Schedule and includes any other territory comprised with the territory of India but not specified in that Schedule.”
7. Clause (24) of Article 366 defines “Scheduled Castes” and clause (25) of Article 366 defines “Scheduled Tribes”. The latter means “such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be 'Scheduled Tribes' for the purposes of this Constitution”. Article 341(1) of the Constitution empowers the President, in consultation with the Governor of the State concerned, to specify Scheduled 87 Castes by public notification. Equally, Article 342(1) of the Constitution empowers the President “with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be 'Scheduled Tribes' in relation to that State or Union Territory, as the case may be”. Article 342(2) of the Constitution empowers “Parliament, by law, to include in or exclude from the list of 'Scheduled Tribes' specified in a notification issued under clause (1), any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.” Until the Presidential Notification is modified by appropriate amendment by Parliament in exercise of the power under Article 341(2) of the Constitution, the Presidential Notification issued under Article 341(1) is final and conclusive and any caste or group cannot be added to it or subtracted by any action either by the State 88 Government or by a Court on adducing of evidence. In other words, it is the constitutional mandate that the tribes or tribal communities or parts of or groups within such tribes or tribal communities specified by the President, after consultation with the Governor in the public notification, will be 'Scheduled Tribes' subject to the law made by Parliament alone, which may, by law, include in or exclude from the list of 'Scheduled Tribes' specified by the President. Thereafter, it cannot be varied except by law made by the Parliament.
8. The President of India alone is competent or authorized to issue an appropriate Notification in terms of Article 341(1) and Article 342(1). Cumulative reading of Articles 338, 341 and 342 indicate that:-
a) Only the President could notify castes/tribes as Scheduled Castes/Tribes and also indicate conditions attaching to such declaration. A public Notification by the President specifying the particular castes or tribes as SC/ST shall be final for the purpose of Constitution and shall be exhaustive.89
b) Once a notification is issued under clause (1) of Articles 341 and 342 of the Constitution, the Parliament can by law include in or exclude from the list of Scheduled Castes or Scheduled Tribes, specified in the notification, any caste or tribe but save for that limited purpose the notification issued under clause (1), shall not be varied by any subsequent notification24.
9. It is stated that before notification was issued under Article 341(1) and Article 342(1) notifying certain caste/race or group as Scheduled Caste/Scheduled Tribe, an elaborate enquiry was made and also after such enquiry, the Presidential Order was issued. While doing so, Presidential Order not only specified parts or groups of caste, races or tribes but also made the said specification by reference to different areas in the State. By perusal of the Presidential Order, it is clear that some caste/race is actually confined with reference to a particular area; for instance, confined to a particular taluk in a district. The reason for such specification by reference to different areas in the State being educational, social 24 Ref. Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and Anr. v. Union of India (UOI) and Anr. (1994) 5 SCC 244. 90 backwardness, races or tribes cannot be the same throughout the State. The consideration for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes and Scheduled Tribes or Backward Classes in a given State would depend on the nature and extent of the disadvantages and social hardships suffered in that State. These may be absent in another State to which these persons belonging to other States may migrate.
10. Whenever States' reorganization took place in the past, Parliament exercised its powers under Articles 341(2) and 342(2) and provided for specific Castes/Tribes that had to be Scheduled Castes and Scheduled Tribes in relation to the reorganized States/Union Territories. The Constitution Scheduled Caste Orders and the Constitution Scheduled Castes (Union Territories) Order, also clarify that Parliament's intention was to extend benefits of reservation in relation to the States/Union Territories in terms of the castes, races or tribes mentioned as per the Presidential Orders themselves. 91
11. Presidential Order which provided for castes/races, tribes recognized as 'Scheduled Caste/Scheduled Tribe' and their interpretation cannot be challenged or agitated in a court of law. The question whether Dohar caste is a sub-caste of Chamar caste which is recognized as a Scheduled Caste came up for consideration in Bhaiya Lal v. Harikishan Singh, AIR 1965 SC 1557, wherein this Court held that the court cannot enquire into whether Dohar caste is a sub-caste of Chamar caste and whether the same must be deemed to have been included in the Presidential Order. In Bhaiya Lal's case, this Court held "...that before a notification is issued under Article 341(1), an elaborate enquiry is made and it is as a result of this enquiry that social justice is sought to be done to the castes, races or tribes as may appear to be necessary, and in doing justice...” and while doing so, the notification not only to specify parts or groups of castes, races or tribes but to make specification by reference to different areas in the State. In Bhaiya Lal's case, the Supreme Court held that only the Parliament is empowered to amend the 92 Notification under Articles 341(2) and 342(2) of the Constitution.
12. Presidential Notification (Scheduled Caste) Order 1950:-
The List of Scheduled Castes is contained in the Constitution (Scheduled Castes) Order 1950. The Presidential Notifications of 1950 and 1951 (as amended) in relation to Scheduled Castes and Scheduled Tribes of various States, very importantly provided that:-
"2. Subject to the provisions of this Order, the castes, races or tribes or parts of, or groups within, castes or tribes specified in [Parts I to XXV] of the Schedule to this Order shall, in relation to the States to which those Parts respectively relate, be deemed to be Scheduled Castes so far as regards members thereof resident in the localities specified in relation to them respectively in those Parts of that Schedule."
The Presidential Notification of 1950 was amended by the Constitution (Scheduled Castes and Scheduled Tribes Order), Amendment Act, 1956, (Act No.63 of 1956). Another amending Act was enacted by Parliament in 1976. Further, amendments had taken place as and when Parliament reorganized States like Bombay, Andhra Pradesh, Uttarakhand, Chhattisgarh and Jharkhand through separate Acts. All these were Parliamentary enactments. Presidential 93 Notification pertaining to Union Territories, Scheduled Castes (Union Territories) Order, 1951 specifies Scheduled Castes resident in the Union Territories of Delhi, Chandigarh and Daman and Diu. When new Union Territories were formed such as Pondicherry, Sikkim, Goa, Daman and Diu, Arunachal Pradesh, Mizoram, the Scheduled Castes or Scheduled Tribes Orders were made in relation to those new Union Territories.
13. The Constitution (Scheduled Tribes) Order, 1950 25:- In exercise of the powers conferred by clause (1) of Article 342 of the Constitution of India the President has, after consultation with the Governors of the States concerned, made the Constitution (Scheduled Tribes) Order, 1950, specifying the tribes or communities which shall be deemed to be Scheduled Tribes in the States mentioned therein. This Order has been amended by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 (Act 25 Ref. Election Manual (1984), p.44 quoted in Commentary on the Constitution of India 8 th Ed. by Durga Das Basu.
94 No.108 of 1976), the Constitution (Scheduled Tribes) Order (Amendment) Act, 1991 (16 of 1991), the Constitution (Scheduled Tribes) Order (Second Amendment) Act, 1991 (39 of 1991), the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 2002 (32 of 2002), the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 2002 (10 of 2003), the Constitution (Scheduled Tribes) Order (Amendment) Act, 2003 (47 of 2003), the Constitution (Scheduled Tribes) Order (Amendment) Act 2006 (48 of 2006), the Constitution (Scheduled Tribes) Order (Amendment) Act, 2008 (14 of 2008) and the Constitution (Scheduled Tribes) Union Territories Order (Amendment) Act, 2008 (2 of 2009). As it stands amended, it specifies the Scheduled Tribes resident in the States of Andhra Pradesh, Assam, Bihar, Gujarat, Himachal Pradesh, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Manipur, Meghalaya, Orissa, Rajasthan, Tamil Nadu, Tripura, West Bengal.
14. Article 16(4) is only an enabling provision to provide reservation 95 to backward classes. Clause (4) of Article 16 of the Constitution cannot be made applicable for the purpose of grant of benefit of reservation for Scheduled Castes or Scheduled Tribes in a State or Union Territory, who have migrated to another State or Union Territory and they are not members of the Scheduled Castes and Scheduled Tribes in the State to which they have migrated. The Presidential Orders made under Article 341 and Article 342 have an overriding status. The presence of Articles 338, 338A, 341, 342 of the Constitution clearly shows that it precludes any tinkering or deviation from the list of castes or tribes notified in the Presidential Order which are reserved for that State or that Union territory.
15. India is huge. There is Unity in Diversity. Diversity in terms of language, culture, demography, geographical area, development of regions, opportunities available to individuals for education and to make social and economical advancement etc. Some States are well- developed; some other States are developing; few other States are 96 under-developed. All the affirmative action of the States is to provide equality of opportunity to the socially and economically disadvantaged group. Under Article 15(4) of the Constitution, State is empowered to make special provisions for the advancement of any socially and educationally backward class of citizens or for the Scheduled Castes or Scheduled Tribes. Article 16 of the Constitution of India lays down that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Article 16(4) of the Constitution empowers the State to make provisions to provide reservation to the backward classes in employment or appointment to any posts and thereby to create equally opportunities for their socio-economic empowerment and their emancipation. Article 16(4) speaks of one type of reservation namely reservation of appointments/posts.
16. Article 16(4) of the Constitution is an enabling provision directed towards achieving equality of opportunity in services under the State. Observing that Article 14 of the Constitution is the genus 97 while Article 16 is the species, in E. P. Royappa v. State of Tamil Nadu and Anr., (1974) 4 SCC 3, it was held that:-
"85. .........Article 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged in the Constitution, Article 16 is only an instance of the application of the concept of equality enshrined in Article 14. In other words, Article 14 is the genus while Article 16 is a species. Article 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose. J., “a way of life”, and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed, cabined and confined” within traditional and doctrinaire limits........"
[Underlining added]
17. The Constitution Bench of nine Judges in Indra Sawhney and Ors. v. Union of India and Ors., (1992) Supp 3 SCC 217, observed that Article 16(4) of the Constitution is aimed at 'protective equality' and it was held as under:-
"563. Thus, Article 16(1) and (4) operate in the same field. Both are directed towards achieving equality of opportunity in services under 98 the State. One is broader in sweep and expansive in reach. Other is limited in approach and narrow in applicability. Former applies to 'all' citizens whereas latter is available to 'any' in Article 16(4) read together indicate that they are part of same scheme. The one is substantive equality and other is protective equality. Article 16(1) is fundamental right of a citizen whereas Article 16(4) is an obligation of the State. The former is enforceable in a Court of law, whereas the latter is 'not constitutional compulsion' but an enabling provision. Whether Article 16(4) is in substance, 'an exception', 'a proviso', or an 'emphatic way of putting the extent to which equality of opportunity could be carried', or 'presumed to exhaust all exceptions in favour of backward class', or 'expressly designed as benign discrimination devoted to lifting to backward classes', but if Article 16(1) is the positive aspect of equality of opportunity', Article 16(4) is a complete Code for reservation for backward class of citizens as it not only provides for exercise of power but also lays down the circumstances, in which the power can be exercised, and the purpose and extent or its exercise. One is mandatory and operates automatically whereas the other comes into play on identification of backward class of citizens and their inadequate representation." [Underlining added]
18. Article 16(4) of the Constitution is not an exception; but a facet of Article 14 and Article 16(1) of the Constitution; it enables the State to effectuate equality of opportunity to any backward class. As held in Chattar Singh and Ors. v. State of Rajasthan and Ors. (1996) 11 SCC 742 in paras (17) and (18), that "....It gives power to the state to effectuate the opportunity of equality to any backward class of citizens. ……..The object of reservation for the Scheduled Casts and 99 Scheduled Tribes is to bring them into the mainstream of national life, while the objective in respect of the backward classes is to remove their social and educational handicaps. Therefore, they are always treated dissimilar and they do not form an integrated class with Dalits and Tribes for the purpose of Article 16(4) or 15 (4)...".
19. In State of Kerala and Anr. v. N.M. Thomas and Ors. (1976) 2 SCC 310 in para (178), it was held that "...differences and disparities exist among men and things and they cannot be treated alike by the application of the same laws but the law has to come in terms with life and must be able to recognize the genuine differences and disparities that exist in human nature. Legislature has also to enact legislation to meet specific ends by making a reasonable and rational classification..".
20. A Constitution Bench of this Court in Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College and Ors., (1990) 3 SCC 100 130 had the occasion to consider the question as to whether a member of Gouda community which is recognised as “Scheduled Tribe” in the Constitution (Scheduled Tribes) Order, 1950 would be entitled to admission in a medical institution situated in the State of Maharashtra. Based on the Government of India circular dated 22.02.1985, the appellant was denied admission to the Medical College on the ground that Marri Chandra Shekhar Rao was not a ‘Scheduled Tribe’ in the migrated State i.e. State of Maharashtra.
21. After referring to various provisions of Constitution of India, background in which the Presidential Order was issued and earlier judgments, in Marri Chandra Shekhar Rao's case, it was held as under:-
"9. It appears that Scheduled Castes and Scheduled Tribes in some States had to suffer the social disadvantages and did not have the facilities for development and growth. It is, therefore, necessary in order to make them equal in those areas where they have so suffered and are in the state of underdevelopment to have reservations or protection in their favour so that they can compete on equal terms with the more advantageous or developed sections of the community. Extreme social and economic backwardness arising out of traditional practices of untouchability is normally considered as criterion for including a community in the list of 101 Scheduled Castes and Scheduled Tribes. The social conditions of a caste, however, varies from State to State and it will not be proper to generalise any caste or any tribe as a Scheduled Tribe or Scheduled Caste for the whole country. This, however, is a different problem whether a member or the Scheduled Caste in one part of the country who migrates to another State or any other Union territory should continue to be treated as a Scheduled Caste or Scheduled Tribe in which he has migrated. That question has to be judged taking into consideration the interest and well-being of the Scheduled Castes and Scheduled Tribes in the country as a whole."
22. Marri Chandra Shekhar Rao case was followed by another Constitution Bench of this Court in Action Committee on issue of caste certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and Anr. v. Union of India and Anr. (1994) 5 SCC 244. In Action Committee's case, it was held as under:-
"3. On a plain reading of clause (1) of Articles 341 and 342 it is manifest that the power of the President is limited to specifying the castes or tribes which shall, for the purposes of the Constitution, be deemed to be Scheduled Castes or Scheduled Tribes in relation to a State or a Union Territory, as the case may be. Once a notification is issued under clause (1) of Articles 341 and 342 of the Constitution, Parliament can by law include in or exclude from the list of Scheduled Castes or Scheduled Tribes, specified in the notification, any caste or tribe but save for that limited purpose the notification issued under clause (1), shall not be varied by any subsequent notification. What is important to notice is that the castes or tribes have to be specified in relation to a given State or 102 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.
....
16. We may add that considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/Schedule Tribes or 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...."
Marri Chandra Shekhar Rao's case and Action Committee's case were followed in Subhash Chandra and Anr. v. Delhi Subordinate Services Selection Board and Ors., (2009) 15 SCC 458. In Subhash Chandra case, the Supreme Court reiterated that “If a caste or tribe is notified in terms of the Scheduled Castes Order or the 103 Scheduled Tribes Order, the same must be done in terms of clause (1) of Article 341 as also that of Article 342 of the Constitution of India, as the case may be. No deviation from the procedure laid down therein is permissible in law. If any amendment/alteration thereto is required to be made, recourse to the procedure laid down under clause (2) thereof must be resorted to."
23. In Marri Chandra Shekhar Rao's case, it was held that a Scheduled Caste or Scheduled Tribe of any State which depends on the nature and extent of disadvantages and social hardships suffered by the caste, tribe or class in that State or area may be non-existent in another State. The inclusion of the castes, races or tribes is mainly based on the degree of disadvantages or hardships faced by the castes, races or tribes in that State or in some cases or in part area of the State. For instance, in the Presidential Order relating to the State of Tamil Nadu, the caste Kanikaran, Kanikkar (in Kanyakumari District and Shenkottah and Ambasaundram taluks of Tirunelveli district) are notified as Scheduled Castes. This shows that the President can 104 specify castes, races or tribes or parts thereof in relation not only to the entire State but in relation to the parts of the State. The President has been authorised to limit the notification to parts of the State or groups within castes, races or tribes. In Marri Chandra Shekhar Rao case, the Constitution Bench therefore held that the expression “in relation to that State” must be read meaningfully; otherwise the expression “in relation to that State” would come nugatory.
24. The Presidential Order issued under Article 341 of the Constitution in regard to Scheduled Castes and Article 342 of the Constitution in regard to Scheduled Tribes cannot be varied by anyone or by the Court. Only the Parliament by law include or exclude from the list of Scheduled Castes or Scheduled Tribes specified in a notification issued under Article 341(1) and Article 342(1) of the Constitution respectively any caste, race or tribe or parts or group within any caste, race or tribe. The Scheduled Castes or Scheduled Tribes thus specified in relation to one State or Union Territory does not carry their status in another State or Union 105 Territory. When the Scheduled Castes or Scheduled Tribes are specified for each State and in some cases, specific areas of the State or Union Territory, neither the State legislature nor the courts can include or exclude other Scheduled Castes or Scheduled Tribes so specified in some States or Union Territories which would be against the mandate of Articles 341 and 342 of the Constitution and the Presidential Orders issued thereon. If that is permitted, it would amount to addition or alteration of the Presidential Order which is violative of the Constitutional Scheme.
25. State of Maharashtra v. Milind and Ors. (2001) 1 SCC 4, dealt with a question as to whether the notified Scheduled Tribe being Halba or Halbi as contained in item 19 of the Presidential Order would include "Halba-Koshti". This Court held that addition of "Halba- Koshti" in the Presidential Order would amount to amendment thereto which is impermissible in law. In Milind's case, it was held as under:-
"33......The jurisdiction of the High Court would be much more restricted while dealing with the question whether a particular caste or tribe would come within the purview of the notified Presidential 106 Order, considering the language of Articles 341 and 342 of the Constitution. These being the parameters and in the case in hand, the Committee conducting the inquiry as well as the Appellate Authority, having examined all relevant materials and having recorded a finding that Respondent 1 belonged to “Koshti” caste and has no identity with “Halba/Halbi” which is the Scheduled Tribe under Entry 19 of the Presidential Order, relating to the State of Maharashtra, the High Court exceeded its supervisory jurisdiction by making a roving and in-depth examination of the materials afresh and in coming to the conclusion that “Koshtis” could be treated as “Halbas”. In this view the High Court could not upset the finding of fact in exercise of its writ jurisdiction. Hence, we have to essentially answer Question 2 also in the negative. Hence it is answered accordingly."
26. When the Parliament restricts the benefit of reservation by inclusion of a caste as a Scheduled Caste to a State or part of State i.e. certain specified districts in a State, the Court cannot express any opinion as to its correctness. Hence, as regards the inclusion of caste “Mochi” in the list of Scheduled Castes within a particular area as per Constitution (Scheduled Castes) Order (Second Amendment) Act, 2002, it was held that it was not for the Court to render any opinion in regard to the correctness of the same. [vide Shree Surat Valsad Jilla K.M.G. Parishad v. Union of India and Ors. (2007) 5 SCC 360]. 107
27. The executive instructions/circulars issued by the Government of India also reiterate to well-settled position. The circular No. BC-16014/1/82-SC & BCD-I dated 06.08.1984 of the Ministry of Home Affairs addressed to all State Governments and UT Administration states that SC and ST on migration from the State of his origin to another State will not lose his status as SC/ST; but will be entitled to the concession/benefits admissible to the SC/ST from the State of his origin and not from the State where he has migrated. The relevant portion of the said circular reads as under:-
No. BC-16014/1/82-SC & BCD-I Government of India/Bharat Sarkar Ministry of Home Affairs/GrihMantralaya New Delhi, the 6th August, 1984 To, The Chief Secretaries of All State Governments and U.T. Administrations.
Subject: - Verification of claim of candidates belonging to Scheduled Castes and Scheduled Tribes and migrants from other States/Union Territories-Form of certificate-Amendment to.
Sir, ……..
2. The instructions issued in this Ministry’s letter of even number dated the 18.11.1982 will continue. It is, however, clarified that the Scheduled Caste/Scheduled Tribe person on migration from the State of his origin to another State will not lose his status as Scheduled Caste/Scheduled Tribes but he will be entitled to the 108 concessions/benefits admissible to the Scheduled Castes/Scheduled Tribes from the State of his origin and not from the State where he has migrated…… (Underlining added) Yours faithfully Sd/-
Joint Secretary to Govt. of India
28. The same thing was reiterated in the circular dated 22.02.1985 issued by the Ministry of Home Affairs which has also clarified that a Scheduled Caste/Scheduled Tribe person who has migrated from the State of origin to some other State for the purpose of seeking education, employment, etc. will be deemed to be a Scheduled Caste/Tribe of the State of his origin and will be entitled to derive benefits from the State of origin and not from the State to which he has migrated.
29. My Conclusion for agreeing with the view taken in paras (30) and (32):- It is now settled law that a person belonging to Scheduled Caste/Scheduled Tribe in State 'A' cannot claim the same status in another State 'B' on the ground that he is declared as a 109 Scheduled Caste/Scheduled Tribe in State 'A'. The expressions "in relation to that State or Union Territory" and "for the purpose of this Constitution" used in Articles 341 and 342 of the Constitution of India are to be meaningfully interpreted. A given caste or tribe can be a Scheduled Caste or a Scheduled Tribe in relation to that State or Union Territory for which it is specified. Thus, the person notified as a Scheduled Caste in State 'A' cannot claim the same status in another State on the basis that he was declared Scheduled Caste in State 'A'. Article 16(4) has to yield to the Constitutional mandate of Articles 341 and 342.
Union Territories:
30. Part VIII of the Constitution of India deals with Union Territories. Article 239 provides that the Union Territory shall be administered by the President acting through an Administrator to be appointed by him. Article 239 reads as follows:-
“239. Administration of Union Territories (1) Save as otherwise provided by Parliament by law, every Union Territory shall be administered by the President acting, to such 110 extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify.
(2) Notwithstanding anything contained in Part VI, the President may appoint the Governor of a State as the administrator of an adjoining Union Territory, and where a Governor is so appointed, he shall exercise his functions as such administrator independently of his Council of Ministers.”
31. Article 239A was inserted by the Constitution (Fourteenth Amendment) Act, 1962. Article 239A of the Constitution of India empowers the Parliament to create by law legislatures and Council of Ministers in the then Union Territories of Himachal Pradesh, Manipur, Goa, Daman & Diu and Pondicherry. Arunachal Pradesh and Mizoram were added later. With Himachal Pradesh, Manipur, Tripura, Goa and Mizoram all becoming full-fledged States, the only Union Territory left under Article 239A is Pondicherry. Now, Union Territory of Pondicherry (Puducherry) also has a legislature and Council of Ministers.
32. Article 341 empowers the President “with respect to any State or Union Territory, and where it is a State, after consultation with the 111 Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution, be deemed to be Scheduled Caste in relation to that State or Union Territory as the case may be.” Equally Article 342(1) empowers the President “with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of the Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be”. Articles 341(2) and 342(2) of the Constitution empower the Parliament alone by law to include or exclude from the list of Scheduled Castes/Scheduled Tribes specified by notification issued under Articles 341(1) and 342(1) of the Constitution of India. Until the Presidential Notification is modified by appropriate amendment by Parliament in exercise of the power under Articles 341(2) or 342(2) of the Constitution, the Presidential Notification issued under Articles 341(1) and 342(1) of the 112 Constitution is final and conclusive. No caste or group can be added to it or subtracted by any action either by the State Government or by a Court on adducing of evidence. Articles 341 and 342 of the Constitution do not make any distinction between a ‘State’ or ‘Union Territory’.
33. Constitution (Scheduled Castes) (Union Territories) Order, 1951:- In exercise of powers under Clause (1) of Articles 341 and 342 of the Constitution, the Presidential Notifications were issued specifying Scheduled Castes in relation to various Union Territories. List of Scheduled Castes are declared in relation to each Union Territory separately. Presidential Notification pertaining to Union Territories, Scheduled Castes (Union Territories) Order, 1951 specifies Scheduled Castes resident in the Union Territories of Delhi, Chandigarh and Daman and Diu. The Presidential Order provided that:-
"Subject to the provisions of this Order, the castes, races or tribes or parts of, or groups within, castes or tribes, specified in *[Parts I to 113 III] of the Schedule to this Order shall, in relation to the *[Union territories] to which those parts respectively relate, be deemed to be Scheduled Castes so far as regards members thereof resident in the localities specified in relation to them respectively in those Parts of that Schedule."
As and when there is reorganisation of the Union Territories, in exercise of the powers conferred under Article 341(1) of the Constitution, the President has made various orders.
34. The Constitution (Scheduled Tribes) (Union Territories) Order, 195126:- In exercise of the powers conferred by clause (1) of Article 342 of the Constitution of India, as amended by the Constitution (First Amendment) Act, 1951, the President made the Constitution (Scheduled Tribes) (Part C States) Order, 1951, specifying the tribes or communities which shall be deemed to be 'Scheduled Tribes’ in Part C State. This Order was adapted for the Union Territories by the Scheduled Castes and Scheduled Tribes Lists (Modification) Order, 1956.
26 Ref. Ibid., p.53, quoted in Article 342 of commentary on the Constitution of India 8 th Ed. by Durga Das Basu.
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35. When new territories were formed, such as Pondicherry (Puducherry), or Sikkim, the Scheduled Castes or Scheduled Tribes Orders were made in relation to the new territories. In exercise of the powers under Articles 341(1) and 342(1), the President has made the orders - The Constitution (Dadra and Nagar Haveli) Scheduled Castes Order, 1962; The Constitution (Dadra and Nagar Haveli) Scheduled Tribes Order, 1962; The Constitution (Pondicherry) Scheduled Castes Order, 1964; The Constitution (Goa, Daman and Diu) Scheduled Caste Order, 1968; The Constitution (Goa, Daman and Diu) Scheduled Tribes Order, 1968; In the case of Goa, the Goa, Daman and Diu Reorganisation Act, 1987 (Act No.18 of 1987), by Section 19 amended the Scheduled Castes and Scheduled Tribes Orders.
36. Union Territories do not become merged with the Central Government:- The Union Territories are centrally administered by the 115 President acting through an administrator. As held by this Court in New Delhi Municipal Council v. State of Punjab & Ors. (1997) 7 SCC 339, the President, who is the executive head of a Union Territory while administering the Union Territory, does not function as the head of the Central Government, but as the head of the Union Territory under powers specially vested in him under Article 239 of the Constitution thereby occupying a position analogous to that of a Governor in a State. Though the Union Territories are centrally administered under the provisions of Article 239, they do not become merged with the Central Government as has been held by this Court in Satya Dev Bushahri v. Padam Dev and Ors. AIR 1954 SC 587. They are centrally administered; but they retain their independent identity [Chandigarh Administration and Anr. v. Surinder Kumar and Ors. (2004) 1 SCC 530]. The Union Territory does not entirely lose its existence as an entity though large control is exercised by the Union of India. [Government of NCT Delhi v. All India Central Civil Accounts, Jao's Association and Ors. (2002) 1 SCC 344] 116
37. View taken in Pushpa and Chandigarh Administration – not correct view:- Reliance was placed upon Pushpa’s case to contend that Article 16(4) is not controlled by the Presidential Order issued under Article 341(1) or Article 342(1) to the Officers appointed to the post in the Union Territories need not be confined to only such Schedule Castes/Schedule Tribes of the particular Union Territory. In Pushpa’s case, the Supreme Court was confined with the question as to whether, selection and appointment already made to migrants’ Schedule Caste candidates of other States against the quota reserved for the Schedule Caste candidates in the Union Territory of Pondicherry was legal and valid. In S. Pushpa and Ors. v. Shivachanmugavelu and Ors. (2005) 3 SCC 1, Pondicherry Government appointed Selection Grade Teachers in 1995 under the Scheduled Castes quota not only from the Scheduled Castes candidates of Pondicherry but also such candidates of Scheduled Castes from other States. In Pushpa's case, this Court upheld the policy of the Pondicherry Government extending the benefit of reservation of SC/ST seats even to those candidates who came from 117 other States. The Pondicherry Government proceeded on the basis that since Central Government jobs were open to all SC/ST candidates irrespective of origin of their States, the same may apply to jobs with a Union Territory as well. In Pushpa's case, this Court held that in the matter of providing reservation, it was open to the Pondicherry Government to extend the benefit of reservation to migrant Scheduled Caste and Scheduled Tribe candidates and that the same will not be an infraction of clause (4) of Article 16 of the Constitution of India.
38. In Pushpa's case, the principle that “when members of Scheduled Castes/Scheduled Tribes migrate to another State, they do not carry with them the special privileges and advantages”, was held not applicable in case of Union Territories. In para (21) of Pushpa's case, it was held as under:-
"21.....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 118 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."
(Underlining added) In my considered view, the above observation in Pushpa's case is not a correct view. The judgment in Pushpa's case is contrary to the views taken in Marri Chandra Shekhar Rao's case. The judgment in Pushpa's case is contrary to the views taken in Marri Chandra Shekhar Rao's case. Facts of Pushpa’s case disclose that the Government of Pondicherry had throughout proceeded on the basis that being a Union Territory all orders regarding reservation for SC/ST in respect of post/services under the Central Government were 119 applicable to post/services as under the Pondicherry administration. The decision in Pushpa’s case therefore cannot be taken to be an authoritative pronouncement. Clause (2) of Article 341 of the Constitution empowers Parliament alone by law to include or exclude from the lists of Scheduled Castes specified in a notification issued under clause (1) of Article 341. No executive action or order or modification or variance of the same is possible and any such variance would be against the constitutional scheme.
39. In Pushpa's case, the posts advertised were of Selection Grade Teachers under the Pondicherry Services and not for Central Government jobs. It may be that Pondicherry is a Union Territory; but the posts/services exclusively coming under Pondicherry administration is meant only for the Scheduled Casts/Scheduled Tribes as notified under the Presidential Order for Pondicherry. In fact, Pondicherry (Union Territory) itself by referring to Subhash Chandra's case has taken the decision that reservation benefits to posts/services arising under the Union Territory of Pondicherry will be 120 confined only to the Scheduled Castes/Scheduled Tribes notified by virtue of Presidential Order. The said Government Order of the Pondicherry Government was upheld by this Court in Puducherry Scheduled Caste People Welfare Association v. Chief Secretary to Government, Union Territory of Pondicherry and Ors. (2014) 9 SCC 236, wherein this Court held as under:-
"13. It is important to bear in mind that it is by virtue of the notification of President under Article 341(1) that the Scheduled Castes come into being. The members of the Scheduled Castes are drawn from castes, races or tribes, they attain a new status by virtue of Presidential Order. Clause (2) of Article 341 empowers Parliament alone by law to include or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) by the President. By no executive power, amendment, modification, alteration or variance in the Presidential Order is permissible. It is not open to the executive to do anything directly or indirectly which may lead to any change in the Presidential Order. Once Presidential Order has been issued under Article 341(1) or Article 342(1), any amendment in the Presidential Order can only be made by Parliament by law as provided in Article 341(2) or Article 342(2), as the case may be, and in no other manner. The interpretation of “resident” in the Presidential Order as “of origin” amounts to altering the Presidential Order."
40. The principle in Pushpa's case was not accepted in Subhash Chandra's case. It was held that although Union Territory is administered by the Union Government, socio-political aspect of the 121 Union Territory cannot be mixed up with administrative aspect. In Subhash Chandra's case, it was held that if the principle applied in Pushpa's case is to be given a logical extension, it will lead to an absurdity, that the Scheduled Castes Order in a State/Union Territory brought under the control of the President under Article 341 of the Constitution could be altered by virtue of a notification issued in pursuance of Article 16(4) of the Constitution, which is not in consonance with the Constitutional Scheme.
41. Let us refer to the facts of Chandigarh Administration and Another v. Surinder Kumar and Others (2004) 1 SCC 530. Ministry of Home Affairs, Government of India issued various circulars pertaining to the Scheduled Castes and Scheduled Tribes. The circular dated 22.02.1985 regarding "Issue of Scheduled Caste/Scheduled Tribe certificate to migrants from other States/Union Territories", issued by the Ministry of Home Affairs clarified that a Scheduled Caste/Tribe person who has migrated from the State of 122 origin to some other State for the purpose of seeking education, employment, etc. will be deemed to be a Scheduled Caste/Tribe of the State of his origin and will be entitled to derive benefits from the State of origin and not from the State to which he has migrated. Based on the aforesaid circular of the Government of India, the Home Secretary, Chandigarh Administration vide his letter dated 28.07.1986 sought clarification from the Government of India, Ministry of Home Affairs, as to whether, these instructions are applicable in the Union Territory of Chandigarh. Chandigarh Administration received the reply dated 26.08.1986 from Ministry of Welfare stating that there is no discrimination in the employment under the Central Government between the Schedule Caste/Schedule Tribes of one State or another and Union Territories and that the same may be followed by the Chandigarh Administration. The letter dated 26.08.1986 stated that Scheduled Castes/Scheduled Tribes of any other State/Union Territory would be entitled to the benefits and facilities provided in the services under the Union Territory of Chandigarh. Further the said circular leaves it to the Chandigarh Administration to seek further 123 clarification. The above letter of Government of India is in clear violation of Constitutional scheme.
42. Pursuant to the said letter, Chandigarh Administration sought clarification from the Department of Personnel and Training. However, they have not received any response. The clarification was issued by the Home Secretary, Chandigarh Administration vide letter dated 07.09.1999. The said letter had given a clarification based on the Government of India circular dated 02.02.1985 stating that a Schedule Caste/Schedule Tribe of any other State or Union Territory would not be entitled to the benefits of reservation in the services in the Chandigarh Administration and that the benefit of reservation to persons belonging to reserved categories in other States in the Chandigarh Administration is to be discontinued with effect from 07.09.1999. In Chandigarh Administration case, the Supreme Court took the view that the stand taken by Chandigarh Administration discontinuing the benefits of reservation with effect 124 from 07.09.1999 was untenable. With due respect, I am not in agreement with the view taken in Chandigarh Administration case. The letter dated 26.08.1986 sent by the Ministry of Welfare/Kalyan Mantralaya is contrary to the letter dated 22.02.1985 sent by the Ministry of Home Affairs and also against the Constitutional scheme.
43. It was held in Subhash Chandra that Chandigarh Administration and Pushpa proceeded on the basis that Marri Chandra Shekhar Rao and Action Committee would have no application in relation to Union Territories. Observing that both Articles 341 and 342 not only refer to the State but also to the Union Territory. In para (64) of Subhash Chandra's case, it was held as under:-
"64. Although Union Territories are administered by the Central Government, yet it is difficult to conceive that the socio-political aspect can be mixed up with the administrative aspect. Article 341 leads to grant of constitutional rights upon a person whose affinity to a caste/tribe would attract the Constitution (Scheduled Castes) Order or the Constitution (Scheduled Tribes) Order. Once a person comes within the purview of presidential promulgation, he would be entitled to constitutional and other statutory or administrative benefits attached thereto. In our opinion, such socio-political rights created in our Constitution cannot be segregated keeping in view the administrative exigencies.” 125
44. As per the scheme of the Constitution under Articles 341, 342 and 239 of the Constitution, only those Scheduled Castes/Scheduled Tribes as notified in the Presidential Notification for the respective Union Territory can legitimately claim the benefit of reservation in that Union Territory. Even though the Union Territories are centrally administered, though the administrator/Lieutenant Governor so far as the administrative aspects of the Union Territories, each Union Territory has its own identity. Each of the Union Territories would be bound by their respective Presidential Order of Scheduled Castes/Scheduled Tribes for giving benefit of reservation to Scheduled Castes/Scheduled Tribes in employment. Only those persons, who come within the purview of the Presidential Notification, would be entitled to constitutional and other statutory benefits of reservation in the respective Union Territory. If the benefit of reservation is to be extended to Scheduled Castes/Scheduled Tribes from all over the country then it would amount to inclusion of caste, races or tribes to the Presidential Order pertaining to that Union Territory. As discussed earlier, such inclusion or exclusion in the 126 Presidential Order can be done only by the Parliament in the manner as indicated in Articles 341(2) and 342(2) of the Constitution of India.
By no executive order, amendment, alteration or variance in the Presidential Order is permissible.
Whether there can be PAN India reservation of SCs and STs to services under various Union Territories of India
45. Under Central Civil Services (Classification, Control and Appeal) Rules, 1965 [CCS(CCA) Rules, 1965], there are four categories of services namely:-
(i) Central Civil Services, Group A;
(ii) Central Civil Services, Group B;
(iii) Central Civil Services, Group C; and
(iv) Central Civil Services, Group D
Central Civil Services – Group A:-
46. As per the Schedule to Central Civil Services (CCA) Rules, 1965, under Group ‘A’, there are forty five services inter alia like – (i) Archaeological Service (Serial No.1); (ii) Central Health Service (Serial No.5); (iii) Indian Defence Accounts Service (Serial No.11); (iv) Indian Foreign Service (Serial No.12); (v) Indian Meteorological 127 Service (Serial No.13); (vi) Indian Postal Service (Serial No.14); (vii) Indian Posts and Telegraphs Traffic Service (Serial No.15); (viii) Indian Revenue Service (Serial No.16); (ix) Indian Salt Service (Serial No.17); (x) Directorate General of Mines Safety (Serial No.19); (xi) Indian Telecommunication Service (Serial No.22); (xii) Central Legal Service (Grades I,II, III and IV) (Serial No.25); (xiii) Delhi and Andaman and Nicobar Islands Civil Service, Grade I (DANICS) (Serial No.28); (xiv) Delhi and Andaman and Nicobar Islands Police Service, Grade II (DANIPS) (Serial No.29); (xv) Company Law Board Service (Serial No.38); (xvi) Labour Officers of the Central Pool (Serial No.39); and (xvii) Armed Forces Headquarters Civil Services (Serial No.44).
47. By reading of the categories of services, the said services of Group ‘A’ are concerned only with the services of the Union of India and the appointment to Group ‘A’ services are made by the President.
The Cadre Controlling Authority of Group ‘A’ services are the respective ministries of the Government of India. Recruitment to 128 Group ‘A’ services is made by the Union Public Service Commission (UPSC) and the recruitment is on all-India basis. So far as the recruitment to Group ‘A’ services is concerned, Union of India in its counter affidavit has stated as under:-
“a. ……… Recruitment to Group A services is made by the UPSC. This recruitment is again on all India basis………… b. Whichever ministry seeks recruitment to the service in this Group sends requisition to UPSC as per procedure prescribed and UPSC accordingly advertises for the post in Group A. Every citizen of India is eligible to apply as per the qualifications and requirements in the notification.
c. DoPT is the nodal ministry for regulating the conditions of service of all Central Civil Services as per Allocation of Business Rules. As per the conditions of service, every employee is required to give an undertaking agreeing to the conditions of the all India transfer liability at the time of joining the service. d. Central Civil Services employees belonging to Group A serve the Union of India and that is the reason why these services are across the length and breadth of the country, wherever there is an office of the Central Government.
e. Member of the Group A service are governed by Central Civil Services (Class, Control & Appeal) Rules, 1965 as well as Central Civil Services (Conduct) Rules, 1972 & Central Civil Services (Pension) Rules, 1972 and such other rules made by the central ministries.”27 Central Civil Services – Group B:-
48. Under Rule 5, the Central Civil Services – Group ‘B’ are 27 Para No. 6(i) of the Counter Affidavit filed by the Union of India at Pg. No.3-4 129 specified in the Schedule and there are thirty-two such services mentioned. Some of the thirty-two services of Group ‘B’ and their appointing authorities are as under:-
PART II - Central Civil Services, Group 'B' (Except for Civilians in Defence Services) Description of service Appointing Description of service Appointing (2) Authority (2) Authority (3) (3) Section Officer Grade of the President Postal Superintendents' Director-General Central Secretariat Service Service, Group 'B' Posts excluding Section Officers with (Serial No.7) Group 'A' status. (Serial No.1) Postmasters' Service, Group 'B' Director-General Customs Preventive Service, Collector of Customs (Serial No.8) Posts Group 'B'- Chief Inspectors (Serial No.15) Botanical Survey of India, Group Chief Botanist, Income Tax Service, Group 'B' Commissioner of 'B' (Serial No.18) Botanical Survey (Serial No.17) Income Tax of India Geological Survey of India, Group Director-General Survey of India, Group 'B' Surveyor General of 'B' (Serial No.19) , Geological (Serial No.20) India Survey of India Zoological Survey of India, Group Zoological Central Electrical Engineering Director General 'B' (Serial No.21) Survey of India Service Group 'B' (Works), Central (Serial No.22) Public Works Department Central Engineering Service, Indian Salt Service, Group 'B' Joint Secretary, Group 'B': (Serial No.24) (Serial No.26) Ministry of
(i) Posts in the Ministry of Joint Secretary, Production Irrigation and Power.
Chairman,
(ii) Posts in the Central Water and Central Water Power Commission and Power Commission Joint Secretary,
(iii) Posts in the Chambal Control Ministry of Board Irrigation and Power Commissioner
(iv) Posts in the Farakka Barrage (Ganga Basin), Control Board Ministry of Irrigation and Power 130 Commissioner (Ganga Basin),
(v) Posts in the Ganga Discharge Ministry of Circle Irrigation and Power Delhi and Andaman and Joint Secretary, Delhi and Andaman and Joint Secretary, Nicobar Islands Civil Service, Ministry of Nicobar Islands Police Ministry of Home Grade II. (DANICS) Home Affairs Service, Grade II. (DANIPS) Affairs (Serial No.28) (Serial No.29) General Central Service, Group All Group 'B' posts of the Chief Controller of 'B'- (Serial No.32) Departmentalised Accounts Accounts or Joint
(i) Post in any Ministry of Secretary in the Offices of the Government of Controller General of Department of Government of Ministry or India. (Serial No.33) Accounts in a India, other than the post in Department Ministry or respect of which specific Department where provision has been made by a there is no Chief general or special order of the Controller of President. In respect of Accounts posts in an office (i-a) Posts outside a Ministry or under the control Department of Government of of a Head of India, other than the posts in Department respect of which specific directly under provision has been made by a the Government.
general or special order of the president. -Head of the Department In respect of other posts -
Secretary in the
Ministry or
Department
(ii) Posts in Union Territories Administrator other than Delhi Administration, the Andaman and Nicobar Islands and the Laccadive, Minicoy and Amindive Islands Chief Secretary
(iii) Delhi Administration-All posts Chief Commissioner
(iv) The Andaman and Nicobar Administrator Islands-All Posts 131
(v) The Lakshadweep Administration-All Posts Recruitment to Group ‘B’ services are conducted by the UPSC. The appointing authority to various Group ‘B’ services is the President of India/respective Ministries/respective Heads like Ministry of Home Affairs, Collector of Customs, Commissioner of Customs etc.
49. In Serial Nos. 28 and 29 of the Schedule, we have the Union Territories Service known as Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman & Diu and Dadra & Nagar Haveli Civil Services (DANICS) and Delhi, Andaman and Nicobar Islands, Lakshdweep, Daman & Diu and Dadra & Nagar Haveli Police Services (DANIPS). In the counter affidavit filed by the Union of India, it is stated as under:-
“a. …….DANICS/DANIPS officers are posted in Delhi, Andaman & Nicobar Islands, Lakshdweep, Daman & Diu and Dadra & Nagar Haveli. The recruitment to all the Union Territories for these Group B posts are common. They are also centralised and the appointing authority is none other than Ministry of Home Affairs, Government of India. The recruitment to these services is the very same examination meant for the All India Services (IAS/IPS) on the one hand and the Central Civil Services Group A on the other. Any citizen of India is eligible to apply, subject to the conditions prescribed. As per service rules, transfer undertakings throughout the Union Territories covered under DANICS/DANIPS is taken from these officers.132
b. This is the reason why the Union of India while inviting applications for recruitment considers all candidates, including reserved candidates on all India basis. Group B cadre of DANICS and DANIPS is the feeder cadre for IAS and IPS respectively. They retire invariably in these offices, some of them reaching high positions in the central government. c. As indicated above recruitment to the All India Services, CCS Group A as well as CCS Group B (Gazetted) is conducted through UPSC in the Civil Services Examination, the applicants are common when the applications are made, every aspirant seeks recruitment to the services and it is only as per the marks and ranking that allocations are made eventually to All India Services, Group A and Group B. Therefore, when UPSC undertakes the recruitment, it is naturally a PAN India recruitment and therefore it is necessary to seek applications including from reserved candidates from all over India.” 28 Central Civil Services – Group C:-
50. There are five services under Central Civil Services – Group ‘C’ under CCS (CCA) Rules. Some of the posts noted in Group ‘C’ and their appointing authorities are as under:-
PART III - Central Civil Services, Group 'C' (Except for Civilians in Defence Services) Description of service Appointing Description of service Appointing (2) Authority (2) Authority (3) (3) Central Secretariat Clerical Deputy General Central Service, Service, Upper Division and Secretary or Group ‘C’ (Serial No.4) Lower Division Grade Director, Cadre (Serial No.1) Authority (i) Posts in the Ministry/Department of Deputy Secretary or Government other than Director in the the posts in respect of Ministry/Department which specific provision of Government has been made by a 28 Para No. 6(ii) of the Counter Affidavit filed by the Union of India at Pg. No.4-5 133 general or special order of the President
(ii) Posts in non-Secretariat Office other than posts in respect of which specific Head of Office provision has been made by a general or special order of the President
(iii) Posts in Union Head of Office of Territories such other authority as may be specified by the
(iv) All Group ‘C’ posts of the Administrator.
Departmentalized Accounts Office of the Government of India Controller of Accounts or Deputy Controller General of Accounts in a Ministry or Department where there is no Controller of Accounts.
Insofar as Group ‘C’ services of Union of India are concerned, they are recruited by the Staff Selection Commission (SSC) which is the recruiting agency under DoPT. Members of these services get promoted to CCS – Group ‘B’. In the counter affidavit filed by the Union of India, it is stated as under:-
“a. ……Recruitment to posts in Group C arise out of requisition made by the concerned ministries all over India. These requisitions upon reaching the Staff Selection Commission are processed and selection takes place and appointments are made. Even from these appointees undertaking for all India transfer liability is taken. As these are posts under Central Government and these employees are liable to be transferred anywhere in the country and the recruitment being centralised for all such posts in the country, it had been consistent policy of 134 the Union of India to have PAN India eligibility.
b. The posts in CCS Group C are in the subordinate services. The equivalent in the Union Territory of Delhi is the Delhi Administrative Subordinate Services (DASS) and the recruiting agency in the place of Staff Selection Commission is the Delhi Subordinate Service Selection Board (DSSSB). Members of Delhi Administrative Subordinate Services are the feeder cadre for Central Civil Services Group B (DANICS). It is for these reasons that the policy is consistently adopted.”29 Central Civil Services – Group D:-
51. Class IV employees now referred to as Multi-Tasking Staff (MTS) come under this category. Some of the posts noted in Group ‘D’ and their appointing authorities are as under:-
PART IV - Central Civil Services, Group 'D' (Except for Civilians in Defence Services) Description of service Appointing (2) Authority (3) General Central Service, Group ‘D’ (Serial No.1)
(i) Posts in Ministries or Departments of Government other Under Secretary than posts in respect of which specific provision has been made by a general or special order of the President.
(ii) Posts in non-Secretariat Offices other than posts in respect of which specific provision has been made by a Head of Office general or special order of the President.
(iii) Posts in Union Territories Head of Office or such other authority as may be specified by the Administrator
(iv) All Group ‘D’ posts of the Departmentalized Accounts Offices of the Government of India Deputy Controller of Accounts or Assistant Controller General of Accounts in a Ministry or Department where there is no Deputy Controller of Accounts.
29 Para No. 6(iii) of the Counter Affidavit filed by the Union of India at Pg. No.5-6 135
52. As pointed out earlier, there is centralised recruitment conducted by UPSC for the Central Civil Services in Group ‘A’ and Group ‘B’. For this centralised recruitment, applications are invited from candidates across the country and Scheduled Castes/Scheduled Tribes of all the States/Union Territories are entitled to apply for the reserved posts. Recruitment to various posts in Group ‘A’ and Group ‘B’ (Gazetted) categories for services in States/Union Territories are presently filled only through UPSC by centralised recruitment. After recruitment, the Group ‘A’ and Group ‘B’ officers are posted across the country wherever there are offices of Central Government.
53. Services mentioned at Serial No.28 that is Delhi and Andaman and Nicobar Islands Civil Service, Grade-II (DANICS) are Group ‘B’ civil services. DANICS officers are posted at Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli. DANICS - Group ‘B’ civil service officers are directly 136 recruited through the Central Civil Services examination conducted by UPSC. Since DANICS is a centralised recruitment conducted through UPSC naturally applications are invited from the candidates across the country including reserved candidates of Scheduled Castes/Scheduled Tribes.
54. Delhi, Andaman and Nicobar Islands Police Services (DANIPS) are recruited directly through centralised civil services examination conducted by UPSC. DANIPS are posted at Delhi and other Union Territories – Andaman and Nicobar Islands, Lakshadweep Islands, Daman and Diu and Dadar and Nagar Haveli. The cadre strength is controlled by the Ministry of Home Affairs, Government of India. Two-thirds of DANIPS are filled by direct recruitment and remaining are promoted from non-gazetted police officers of Union Territory of Delhi and other Union Territories. Since, DANIPS officers are recruited through a centralised recruitment conducted through UPSC, applications are invited from candidates from across the country including reserved candidates of Scheduled 137 Castes and Scheduled Tribes of all the States and Union Territories. Thus, up to Group ‘B’ (Gazetted) of Central Civil Services including the Group ‘B’ (Gazetted) services of Union Territories, there is Centralised Civil Services Examination conducted by UPSC with PAN INDIA reservation.
55. Serial No.32, Group ‘B’ of CCS (CCA) Rules refers to General Central Services. At the risk of repetition, we may usefully refer to Serial No.32 which reads as under:-
Serial No. 32 General Central Service, Group 'B'-
(i) Post in any Ministry of Department of Secretary in the Ministry Government of India, other than the post in or Department respect of which specific provision has been made by a general or special order of the President.
In respect of posts in an (i-a) Posts outside a Ministry or office under the control Department of Government of India, other of a Head of Department than the posts in respect of which specific directly under the provision has been made by a general or Government. special order of the president.
-Head of the Department
In respect of other posts
- Secretary in the
Ministry or Department
(ii) Posts in Union Territories other than
Delhi Administration, the Andaman and Administrator
Nicobar Islands and the Laccadive,
Minicoy and Amindive Islands
(iii) Delhi Administration-All posts Chief Secretary
(iv) The Andaman and Nicobar Islands-All Chief Commissioner
Posts
138
(v) The Lakshadweep Administration-All Administrator Posts As seen from the above, Serial No.32(i) and (i-a) relates to the posts under the Government of India for which the appointing authority is the Secretary in the Ministry or Department/Head of the Department respectively. Serial No.32 (ii) of Central Civil Services (CCA) Rules, 1965 relates to “Posts in Union Territories other than Delhi Administration, the Andaman and Nicobar Islands and the Laccadive, Minicoy and Amindive Islands”. The appointing authority is shown to be the ‘Administrator’. Serial No.32 (iii) to (v) relate to ‘All posts’ in Delhi administration, Andaman and Nicobar Islands and the Lakshadweep administration respectively. Serial No.32(ii) posts in the Union Territories (other than Delhi Administration, the Andaman & Nicobar Islands and the Laacadive, Minicoy and Amindive Islands) Group ‘B’ (Gazetted) posts for which recruitment is conducted by UPSC. Since there is centralised recruitment conducted by UPSC for Group ‘B’ (Gazetted), naturally applications are invited from the candidates across the country 139 including reserved candidates of Scheduled Castes/Schedules Tribes from all the States/Union Territories. Up to the level of Group ‘B’ (Gazetted) of Central Civil Services, since there is centralised recruitment for which there is PAN INDIA reservation of Scheduled Castes and Scheduled Tribes, Scheduled Castes/Scheduled Tribes from any State/Union Territory are entitled to apply for the reserved posts for Group ‘B’ examinations conducted by UPSC.
56. When it comes to services under Union Territories, there are so many other services like teaching, clerical cadre, police services, Medical Officers, Health Services, Stenographers, Typists, services under the Revenue department, services under public-sector undertakings, services under the municipalities and the corporations in the Union Territories and various other services which are concerned with the administration of Union Territories. These services under the Union Territories would fall under Group ‘B’, Group ‘C’ and Group ‘D’ and their recruitment is within the exclusive domain of the respective Union Territories. Though the government servants under 140 the Union Territories are governed by Central Civil Services Rules, the services under the Union Territories are essentially different from All India Services. For recruitment to services under respective Union Territories, there are different modes of recruitment for the different Union Territories.
57. This Court posed the question whether there is other category of employees in UT administration and what is the practice followed for recruitment. In response to the question, Union of India, on instructions, filed the following response:-
SCOPE OF SC/ST RESERVATION IN UTs
1. Puducherry : Reserved posts confined to local reserved candidates.
2. Chandigarh : Reserved posts filled up by candidates from all India.
3. Daman & Diu : Reserved posts confined to local reserved candidates for Group C posts. For Group B it is opened to candidates from all India but local candidates get additional 20 marks.
4. Dadra & Nagar : Reserved posts confined to local Haveli reserved candidates for Group C posts. For Group B it is opened to candidates from all India but local candidates get additional 20 marks.
5. Lakshadweep : Reserved posts confined to local 141 reserved candidates.
6. A & N Islands : For Group C posts locally reserved.
7. NCT of Delhi : Reserved posts filled up by candidates from all India.
For the above response that there is PAN India reservation of the reserved candidates for recruitment by Union Territories of Chandigarh, Dadra and Nagar Haveli and NCT of Delhi, no authenticated documents were produced to substantiate the same. When there are Presidential Orders notifying the Scheduled Castes/Scheduled Tribes for Union Territories of Chandigarh, Dadra and Nagar Haveli, calling for application from the Scheduled Castes/Scheduled Tribes candidates from all over India for the reserved posts of services under various Union Territories, be it Group ‘B’ or Group ‘C’, is not in accordance with the constitutional scheme.
58. For Group ‘B’ and Group ‘C’ posts falling within the services of the Union Territories, recruitment is made by the Staff Selection Board of respective Union Territories. For instance, let me refer to the Staff Selection Board of UT Administration of Daman and Diu 142 whose home page reads as under:-
“In exercise of the powers conferred by the provision of Article 239 of the Constitution of India, the Administrator of Daman & Diu is pleased to make following rules to regulate the method of recruitment to all Group ‘B’ and ‘C’ categories of posts under the Administration of Daman & Diu.
It aims to “ensure a uniform and transparent process and procedures for recruitment of all Group ‘B’ and ‘C’ categories of posts under the Administration of Daman and Diu through an autonomous body, without disturbing the existing recruitment processes and procedures and for ensuring that cumulative outcome of the recruitment is to provide just and fair opportunities to all the candidates and for matters connected therewith or incidental thereto30.”
59. In response to the question posed by the court, Union of India filed response affidavit stating that in Union Territories Daman and Diu and Dadra and Nagar Haveli, for Group ‘B’, it is opened to candidates from all over India. Local candidates with domicile certificate get additional twenty per cent marks. Response filed by the Union of India that there is PAN India reservation for Group ‘B’ services of Daman and Diu and Dadra and Nagar Haveli, no authenticated documents/format of any application for Group ‘B’ posts conducted by Daman and Diu was produced before us. Even assuming that there is such PAN India reservation for recruitment of 30 https://daman.nic.in/staff-selection-board-daman-diu.aspx#downloads (27.06.2018) 143 Group ‘B’ conducted by the Union Territory of Daman and Diu, when there are Scheduled Castes/Scheduled Tribes as notified in the Presidential Order (Reorganisation Act, 1987 in respect of SCs/STs), there cannot be PAN India reservation as it is not in accordance with the constitutional scheme.
60. Pointing out that services in the Union Territories are different from All India Services and that the mode of recruitment are also different, in para (29) of Subhash Chandra and another v. Delhi Subordinate Service Selection Board and others (2009) 15 SCC 458, it was held as under:-
“29. Concededly, in respect of education or service, there exists a distinction between State Services and State-run institutions including the Union Territory Services and Union Territory-run institutions on the one hand, and the Central Civil Services and the institutions run by the Central Government on the other. Whereas in the case of the former, the reservation whether for admission or appointment in an institution and employment or appointment in the services or posts in a State or Union Territory must confine to the members of the Scheduled Castes and Scheduled Tribes as notified in the Presidential Orders but in respect of All India Services, Central Civil Services or admission to an institution run and founded by the Central Government, the members of the Scheduled Castes and Scheduled Tribes and other reserved category candidates irrespective of their State for which they have been notified are entitled to the benefits thereof. It is not denied or 144 disputed that services in the Union Territory is essentially different from All India Services. It is also beyond any controversy that machinery for recruitment is also different. Indisputably again, not only the conditions of recruitment but also conditions of service differ.” I am in full agreement with the view taken by Justice Sinha in Subhash Chandra case.
61. Rule 3 of Delhi Administration Subordinate Services (DASS) Rules, 1967 deals with constitution of services and its classification in Delhi Administration. As per Rule 3(3) of DASS Rules, the post in Grade-I, Class-II Group ‘B’ (Gazetted) and those in Grades II, III and IV shall be Central Civil Services Posts. But as noted earlier, as per Serial No.32 – General Central Service, Group ‘B’, insofar as Delhi Administration – All Posts (Serial No. 32 (iii)), the Appointing Authority is the Chief Secretary. The subordinate services in the National Capital Territory of Delhi though “Central Civil Services”, they are neither All India Services nor services under Union of India so as to attract Pan India Reservation. 145
62. Even in the counter affidavit filed by the Union of India, by referring to Group ‘C’ services, it is stated that CCS – Group ‘C’ are in the subordinate services and there are equivalent services in the Union Territory of Delhi. For recruitment of other employees in the Union Territory of Delhi, there is Delhi Administrative Subordinate Services (DASS) and the recruiting agency is Delhi Subordinate Staff Selection Board (DSSSB). Members of Delhi Administrative Subordinate Services are stated to be the feeder cadre for Central Civil Services – Group ‘B’ (DANICS). 31 Merely because members of Delhi Administrative Subordinate Services are the feeder category for DANICS, PAN India reservation cannot be extended to Delhi Subordinate Services or to services under various Union Territories. Likewise, merely because, DANICS and DANIPS (Serial Nos. 28 and 29 of Group ‘B’ Services) are the feeder category for IAS and IPS, it cannot be said that the Pan India Reservation is applicable to services under National Capital Territory of Delhi. 31 Para No. 6(iii) of the Counter Affidavit filed by the Union of India at Pg. No.6 146
63. So far as Group ‘B’ and Group ‘C’ posts falling under the services of the Union Territories, recruitment is done by the respective Staff Selection Board of respective Union Territories. Serial No.4 (iii) – ‘Posts in Union Territories’ of Group ‘C’ in CCS (CCA) Rules is shown and the appointing authority is stated as Head of the Office of such other authority as may be specified by the Administrator. Merely because the posts in the Union Territories and the appointing authority are shown in Group ‘C’ in CCS (CCA) Rules, that does not mean that those Group ‘C’ and Group ‘D’ posts are available for the Scheduled Castes and Scheduled Tribes of all the States/Union Territories. For recruitment of Group ‘B’ and Group ‘C’ posts of services under the respective Union Territories, since the examination is conducted by the respective Union Territories like Delhi Subordinate Staff Selection Board and other Union Territories Staff Selection Boards of respective Union Territories, reservation of posts of Scheduled Castes/Scheduled Tribes must be confined only to those Scheduled Castes/Scheduled Tribes as notified in the Presidential Order of the respective Union Territories. For recruitment 147 of Group ‘B’ and Group ‘C’ posts under various Union Territories including Union Territory of Delhi, there cannot be PAN INDIA reservation of Scheduled Castes/Scheduled Tribes, lest, it would defeat the very object of the Presidential Orders issued specifying the Scheduled Castes/Scheduled Tribes for respective Union Territories.
64. As pointed out earlier, services under the Union Territories though they are Central Government services, they are services under the respective Union Territories and not under the direct control of Union of India/different Ministries. Procedure for recruitment to the various posts for the services of Union Territories are different as followed by respective Union Territories. The persons appointed for the services of Union Territories might be governed by CCS (CCA) Rules; but they are employees of respective Union Territories. The appointing authorities are the authorities under the administration of Union Territories and not under the Ministries of Union of India. Central Civil Services are the services directly under Union of India. Contrarily, various services under the Union Territories are the 148 services under the respective Union Territories. Such services under Union Territories cannot be said to be Central Civil Services that is services under Union of India to extend the benefit of PAN India reservation for recruitment to the services under respective Union Territories including Union Territory of Delhi.
65. In exercise of the powers conferred by clause (1) of Article 341, the President issued the Constitution (Scheduled Castes) Union Territories Order, 1951 in the Presidential Order specifying Scheduled Castes in relation to Delhi and the thirty-six castes/groups notified are as under:-
Part 1 – Delhi Throughout the Union Territory Adi Dharmi 19. Kachhandha Agria 20. Kanjar or Giarah Aheria 21. Khatik Balal 22. Koli Banjara 23. Lalbegi Bawaria 24. Madri Bazigar 25. Mallah Bhangi 26. Mazhabi Bhil 27. Meghwal Chamar, l 28. Naribut Chanwan Chmanr, 149 Jatya or Jatav Chamar, Mochi Ramadasia, Ravidasi, Reghgrh or Raigharh Chohra (Sweeper) 29. Nat (Rana), Badi Chuhra (Balmiki) 30. Pasi Dhanak or Dhanuk 31. Perna Dhobi 32. Sansi or Bhedkut Dom 33. Sapera Gharrami 34. Sikligar Julaha (Weaver) 35. Singiwala or Kalbelila Karbirpanthi 36. Sirkiband In relation to Delhi, there are thirty-six castes notified as Scheduled Castes in the Presidential Order. The members of the Scheduled Castes in Delhi are drawn from castes, races and by virtue of the Presidential Order pertaining to Delhi, they attain the status of the Scheduled Caste. In view of the Presidential Order issued for the Scheduled Castes to Delhi, only those Scheduled Castes can claim the benefit of reservation in the employment under the Union Territory of Delhi who are notified in the Presidential Order. Neither the Delhi Government nor the court can add any caste or group to the list of Scheduled Castes notified in the Presidential Order. Once a Presidential Order has been issued under Article 341(1) of the 150 Constitution, any addition or deletion to the Presidential Order can only be made by the Parliament by law as provided under Article 341(2) and in no other manner. Merely because, Delhi Subordinate Services is a feeder category for DANICS, there cannot be Pan India Reservation of the SCs and STs for the services under Group ‘C’ and ‘D’ categories, for which recruitment are made by the Delhi Subordinate Staff Selection Board (DSSSB).
66. Likewise, the Presidential Order has notified the following Scheduled Castes for the Union Territory of Chandigarh, Daman and Diu, Puducherry and Dadra and Nagar Haveli:-
Part II – Chandigarh
1. Adi Dharmi 19. Khatik
2. Bangali 20. Kori or Koli
3. Barar, Burar or 21. Marjia or Marecha Berar
4. Batwal, Barwala 22. Mazhabi
5. Bauria or Bawaria 23. Megh
6. Bazigar 24. Nat
7. Balmiki, Chura or 25. Od Bhangi
8. Bhanjra 26. Pasi
9. Chamar, Jatia 27. Perna Chamar, Rehgar, Raigar, Ramdasi 151 or Ravidasi 10 Chanal 28. Pherera .
11 Dagi 29. Sanhai .
12 Darain 30. Sanhal .
13 Dhanak 31. Sansoi .
14 Dhogri, Dhangri or 32. Sansi, Bhedkut
. Siggi or Manesh
15 Dumna, Mahasha or 33. Sapela
. Doom
16 Gagra 34. Sarera
.
17 Gandhila or Gnadil 35. Sikligar
. Gondola
18 Kabirpanthi or 36. Sirkiband
. Julaha
PART III – Daman and Diu
The Schedule - Puducherry
Bhangi (Hadi) 4. Mahyavanshi
(Vankar)
Adi Andhra 9. Pallan
Chambhar, Mochi5. Mang
Adi 10. Parayan,
Mahar
Dravida Sambavar
Chakkiliya 11. Samban
n
Jambuvulu 12. Thoti
Kuravan 13. Valluvan
Madiga 14. Vetan
Mala, Mala 15. Vetriyan
Masti
Paky 16. Puthirai Vannan
The Schedule – Dadra and Nagar Haveli
Bhangi 3. Mahar
Chamar 4. Mahayavanshi
67. Let me take the case of Andaman & Nicobar Islands. The
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Constitution (Andaman and Nicobar Islands) Scheduled Tribes Order, 1959 has notified the following tribes or tribal communities who have been included in the Schedule for the Andaman & Nicobar Islands:-
The Schedule The Andamanese4. Sentinelese (including Chariar or Chari, Kora, Tabo or Bo, Yere, Kede, Bea Balawa, Bojigiyab, Juwai and Kol Jarawas 5. The Nicoberese Onges 6. The Shompens When Andaman & Nicobar Islands is recruiting persons to the services of Group ‘B’, ‘C’ and ‘D’ under its administration, it has to necessarily follow the policy of recruiting members from amongst the Scheduled Tribes who are notified as Scheduled Tribes in the Presidential Notification for Andaman and Nicobar Islands. It will not be appropriate to extend the benefit of reservation to the SCs and STs from other States/Union Territories, lest it would deprive the notified Scheduled Tribes of the Andaman and Nicobar Islands.
68. It may be that the candidates recruited by the respective Union Territories for Group ‘B’ and Group ‘C’ may become the feeder 153 categories for further promotion in Group ‘A’ and Group ‘B’ of All India Services respectively in the Central Civil Services. The fact that the candidates who are recruited by the respective Union Territories become the feeder categories for further promotion in the Central Civil Services is not a ground for extending the benefit of all India reservation to the Scheduled Castes/Scheduled Tribes for the reserved posts in the respective Union Territories. Be it noted that the candidates recruited by the various State Governments under Group ‘A’ of respective State services become the feeder category for IAS and IPS. The persons recruited for Group ‘B’ and Group ‘C’ by the respective Union Territories stand on the same footing as that of the candidates so recruited by the various States where only the Scheduled Castes/Scheduled Tribes of the respective States can apply.
69. A letter dated 10.05.2013 by Special Secretary (Services) addressed to all the Secretaries/Heads of Departments of NCT of Delhi has been filed by the Union of India. The letter relates to the subject “Reservation policy to be followed with regard to SCs/STs in 154 civil posts under GNCTD”. The said letter refers to the judgment in Pushpa’s case and states that the Ministry of Law and Justice has opined that the law declared by the Supreme Court in Pushpa’s case applies to the NCT of Delhi and that Pushpa’s case cannot be ignored. Relevant portion of the said letter reads as under:-
“GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI (SERVICES DEPARTMENT BRANCH-IV) 7TH LEVEL, B-WING, DELHI SECRETARIAT, I.P. ESTATE, NEW DELHI – 110002 No. F. 19(6)/2012/S-IV/883 Dated: 10-05-2013 …… The Government of National Capital Territory of Delhi follows the guidelines and instructions issued by the Government of India from time to time in matters regarding reservation to Scheduled Castes and Scheduled Tribes in recruitment to various civil posts in Government of Delhi.
Ministry of Home Affairs, Govt. of India, in the context of order dated 11.02.2005 of Hon’ble Supreme Court of India in case titled S. Pushpa & Ors. Vs. Sivachanmugavelu & Ors. stated vide their letter dated 01.06.2005 that the matter has been examined in consultation with the Ministry of Law & Justice (Department of Legal Affairs). That the Ministry had opined that the law declared by the Supreme Court of India cited above, applies to the National Capital Territory of Delhi. This was accordingly conveyed to the departments vide this department’s letter No.F.16(73)/97-S-III/710 dated 30.06.2005, stating that all the Scheduled Castes/Scheduled Tribe candidates irrespective of their nativity, are eligible for reservation to the civil posts under Govt. of NCT of Delhi, which are reserved for SC/ST candidates and appropriate action for recruitment may be taken accordingly.
Subsequently, in view of order dated 04.08.2009 of Hon’ble Supreme Court in the matter of Sarv Rural & Urban Welfare Society vs. Union of India & Ors. and of the Hon’ble High Court dated 12.09.2012 in WP(C) No.5390/2010 under consideration in the Ministry of Home Affairs, Govt. of India.
Now, Ministry of Home Affairs, Govt. of India, vide its letter 155 No.14012/09/2012-Delhi-I dated 03.04.2013 has informed that the subject matter has been re-examined in consultation with Ministry of Law & Justice. In this matter Learned Attorney General for India has given his opinion dated 18.02.2013 (copy enclosed), which is self-explanatory and has been approved by the Hon’ble Minister of Law & Justice, Govt. of India. The opinion, inter alia, states that having regard to the order in the State of Uttaranchal’s case, till this issue is resolved by a larger bench, the decision in S. Pushpa case cannot be ignored. Ministry of Home Affairs has conveyed that it has been decided to proceed according to this opinion.
Copy of above mentioned letter of the Ministry of Home Affairs is circulated for information & necessary action accordingly.
Yours faithfully, (Kailash Chandra) Spl. Secretary (Services) Dated: 10-05-2013 …..”
70. PAN India reservation probably is followed by NCT of Delhi in its recruitment based on the above letter dated 10.05.2013. Since I have taken the view that the decision in Pushpa’s case is not a correct decision extending PAN India reservation for the reserved posts recruited by NCT of Delhi or any other Union Territories is against the Presidential Orders issued under Articles 341 and 342 of the Constitution of India and against the constitutional scheme.
71. As discussed earlier in para (8), in case of Union Territories, though administrative control to certain extent is exercised by the 156 Union of India, Union Territories do not lose their identity as an entity.
The existing practice of PAN INDIA reservation followed in Delhi and Chandigarh is against the constitutional scheme and also against the executive instructions dated 06.08.1984 and 22.02.1985 issued by the Ministry of Home Affairs.
72. As pointed our earlier, the Ministry of Home Affairs in its circular dated 06.08.1984 addressed to all the State Governments and Union Territories administration stated that SCs and STs on migration from the State of his origin to other State will not loose his status as SCs/STs; but will be entitled to the concession/benefits to the SCs/STs from the State of his origin and not from the State where he has migrated. The same thing was reiterated in the letter dated 22.02.1985 of the Ministry of Home Affairs, Government of India. If PAN India reservation is to be extended to the Union Territories like Delhi, Chandigarh, Puducherry, Andaman & Nicobar Islands or Daman & Diu for Group ‘C’ and ‘D’ services for which recruitment are made by the respective Union Territories, the very object of the 157 Constitutional Scheme of upliftment of the SCs/STs of these Union Territories will be defeated. All India reservation to the services under the Union Territories including the Union Territory of Delhi will be against the mandate of Articles 341 and 342 of the Constitution and against the Constitutional Scheme.
73. Marri Chandra Shekhar Rao and Action Committee are applicable to the States and they are applicable with equal force to the Union Territories including Union Territory of Delhi. There cannot be any distinction between the States and the Union Territories. Likewise, there can be no distinction between Union Territory of Delhi and other Union Territories. When Presidential Orders of Scheduled Castes/Scheduled Tribes are notified for various Union Territories including Union Territory of Delhi extending PAN India reservation to the employment falling under the services of Union Territories including Union Territory of Delhi, will be against the Constitutional scheme and the law laid down in Marri Chandra Shekhar Rao and Action Committee.
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74. Article 16(4) of the Constitution has to yield to the constitutional mandate of Articles 341 and 342 of the Constitution. The Presidential Order issued under Article 341 in regard to Scheduled Castes and Article 342 in regard to Scheduled Tribes cannot be varied by anyone or by the Court. Only the Parliament by law include or exclude from the list of Scheduled Castes or Scheduled Tribes specified in the notification issued under Article 341 (1) and Article 342(1) respectively any caste, race or tribe or parts or group within any caste, race or tribe. The Scheduled Castes or Scheduled Tribes thus specified in relation to one State or Union Territory does not carry the status in another State or Union Territory. When the Scheduled Castes or Scheduled Tribes are specified for each State in relation to one State or Union Territory, neither the State legislature, the administration of the Union Territories and nor the courts can include or exclude other Scheduled Castes or Scheduled Tribes so notified in the Presidential Order. Providing all India reservation to the services of Union Territories 159 including Union Territory of Delhi, would be against the mandate of Articles 341 and 342 and the Presidential Orders issued thereon. If that is permitted, it would amount to addition or alteration of the Presidential Order which is impermissible and violative of the Constitutional Scheme.
75. It is the responsibility of each State/Union Territory to provide for such reservation/affirmative action by positive discretion to bring backward classes/Scheduled Castes and Scheduled Tribes in the respective States/areas to provide socio-economic empowerment. If the reservation to the Scheduled Castes and Scheduled Tribes are to be extended to all categories of Scheduled Castes and Scheduled Tribes all over India or to the migrants then there is every possibility of the Scheduled Castes and Scheduled Tribes of other developed States and Union Territories squandering reservations to the Scheduled Castes and Scheduled Tribes who are disadvantaged in the respective States/Union Territories including Union Territory of Delhi. If this is permitted, it would defeat the very object of providing 160 reservation to the disadvantaged Scheduled Castes and Scheduled Tribes in a particular State or Union territory. The enabling provision of Article 16(4) of the Constitution has to yield to the constitutional scheme of Article 341 and Article 342 of the Constitution.
76. Conclusion:-
Insofar as the States, I agree with the majority view that a person who is recognised as a member of Scheduled Castes/Scheduled Tribes in his original State, will be entitled to all the benefits of reservation under the Constitution in that State only and not in other States/Union Territories and not entitled to the benefits of reservation in the migrated State/Union Territory.
Marri Chandra Shekhar Rao and Action Committee are applicable to the States and they are applicable with equal force to the Union Territories including Union Territory of Delhi. There cannot be 161 any distinction between the States and the Union Territories. Likewise, there can be no distinction between Union Territory of Delhi and other Union Territories. When Presidential Orders of Scheduled Castes/Scheduled Tribes are notified for various Union Territories including Union Territory of Delhi extending PAN India reservation to the employment falling under the services of Union Territories including Union Territory of Delhi, will be against the Constitutional scheme and the law laid down in Marri Chandra Shekhar Rao and Action Committee. Since there is centralised recruitment upto Group ‘B’ (Gazetted) services conducted by UPSC for the Central Civil Services posts in the States/Union Territories of India, there has to be necessarily PAN India reservation for Scheduled Castes/Scheduled Tribes for those recruitment conducted by UPSC.
Sofaras Group ‘B’ and Group ‘C’ posts falling under 162 services of Union Territories including Union Territory of Delhi for which recruitment is conducted by the respective Union Territories, benefit of reservation in employment (Article 16(4)) is to be extended only to those Scheduled Castes/Scheduled Tribes specified in the Presidential Order of the respective Union Territories. Insofar as the posts recruited by the Staff Selection Board of the respective Union Territories including the Union Territory of Delhi, there cannot be PAN India reservation for Group ‘B’, Group ‘C’ and Group ‘D’ posts falling under the services of various Union Territories and such PAN India reservation would be against the constitutional scheme and Marri Chandra Shekhar Rao and Action Committee.
…………….……………J. [R. BANUMATHI] New Delhi;
August 30, 2018 163