Full Judgement
Subhash Chandra & Anr. V. Delhi Subordinate Ser.Sel.Board & Ors. [2009] INSC 1391 (4 August 2009)
Judgment
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2009 (Arising out of SLP (C) No.24327 of 2005) Subhash Chandra & Anr. ... Appellants Versus Delhi Subordinate Services Selection Board & Ors. ... Respondents WITH WRIT PETITION (C) NO.507 OF 2006 Sarv Rural & Urban Welfare Society through its President ...Petitioner Versus Union of India & ors. ...Respondents
S.B. Sinha, J.
1. Leave granted in SLP (C) No.24327 of 2005.
2. Interpretation and/ or application of the notifications and/or the circulars issued by the National Capital Territory of Delhi in terms of clause (1) of Article 341 of the Constitution of India is involved herein.
3. It arises out of a judgment and order dated 13.05.2005 passed by a Division Bench of the High Court of Delhi dismissing an appeal preferred from an order passed by a learned Single Judge of the said Court.
The writ petition was filed by the appellant society which is registered under the Societies Registration Act, with its objects amongst others `up lift ment of Backwards, Scheduled Castes and others of Delhi in education, social and cultural fields and to apply for and get all kinds of facilitation and relaxation and for safeguarding their interest in Government jobs'.
4. The background facts involving filing of this appeal are as follows :
The members of Scheduled Casts and Scheduled Tribes have an important place in our constitutional scheme. Article 341 of the Constitution empowers the President to specify the castes, races or tribes or part of or groups within castes, races or tribes with respect to any State or Union Territory for the purposes of the Constitution deemed to be Scheduled Castes in relation to that State or Union Territory as the case may be.
Similar provision is contained in Article 342 of the Constitution of India with regard to the members of the Scheduled Tribes. Clause (2) of Article 341 which is relevant for our purpose reads as under :
3 "(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification."
5. Private respondents and/or their parents are migrants to Delhi. In their native places, they were declared to be the members of the Scheduled Castes.
6. Indisputably, the Ministry of Home Affairs issued a circular on or about 2.5.1975, in terms whereof the manner in which the claim of a person as being belonging to Scheduled Castes or Scheduled Tribes is required to be verified was laid down. Such verification was to be made having regard to the Presidential order specifying the Scheduled Castes and Scheduled Tribes in relation to the concerned State.
In the matter of verification of the caste of migrants, it was laid down:
"1. General (Applications in all cases):- Where a person claims to belong to a Scheduled Castes and Scheduled Tribes by birth it could be verified:- 4 (i) That the person and his parents actually belong to the community claimed.
(ii) That this community includes in the Presidential Orders specifying the Scheduled Caste and Scheduled Tribes in relation to the concerned State.
(iii) That the person belongs to that State and to the area within that State in respect of which the community has been scheduled.
(iv) If the person claims to be a Scheduled Caste, he should profess either the Hindu or the Sikh religion.
(v) If the person claims to be a Scheduled Tribe, he may profess any religion.
2. Case of Migration:- (i) Where a person migrates from the portion of the State in respect of which his community is scheduled to another part of the same State in respect of which his community is not scheduled he will continue to be deemed to be a member of the Scheduled Caste or the Scheduled Tribe as the case may be in relation to that State.
(ii) Where a person migrates from one State to another, he can claim to belong to a Scheduled Caste or Scheduled Tribe only in relation to the State to which he originally belonged and not in respect of the State to which he has migrated."
7. Yet again, by way of a clarification issued by the National Capital Territory of Delhi dated 22.3.1977, it was, inter alia, stated :
"2. As required under Article 341 and 342 of the Constitution, the President has, with respect to every State and Union Territory and where it is State after consultation with the Governor of the concerned State, issued orders notifying various Castes and Tribes as Scheduled Castes and Scheduled Tribes in relation that State or Union Territory from time tome. The inter State area restrictions have been deliberately imposed so that the people belonging to the specific community residing in a specific area, which has been assessed to qualify for Scheduled Castes or Scheduled Tribes status, only benefit from the facility provided for them. Since the people belonging to the same caste but living in different State/Union Territories may not necessarily suffer from the such disabilities, it is possible that two persons belonging to the same caste but living in different State/Union Territories may not both be treated to belong Scheduled Caste/Tribes or vice versa. Thus the residence of a particular person a particular locality assumes a special significance. The residence has not been understood in the literal or ordinary sense of the word. On the other hand it connotes the permanent residence of a person on the date of the notification of the Presidential Order scheduling his caste/tribe in relation to that locality. Thus a person who is temporarily away from his permanent place of abode at the time of the notification of the Presidential Order applicable in his case say for example to earn a living or seek education etc. can also be regarded as Scheduled Caste or a Scheduled Tribe, as the case may be, with regard to his relation to his State U.T. but he cannot be treated as such in relation to the place of 6 his temporary residence notwithstanding the fact that the name of his caste/tribe has been scheduled in respect of that area in any Presidential Order."
8. Despite the same, however, on or about 8.4.1994, yet again a circular letter was issued; the relevant portions whereof read as under :
"Subject: Issuing of other Backward Class certificates to migrants from other States/UT.
Sir,
1. In continuation of the DEPT's letter of 36012/22/93- Estt./SCT) dated 15th November, 1993, I am directed to say that it has been represented to this Department that persons belonging to OBCS who have migrated from one State to another for the purpose of employment, education etc. experience great difficulty in obtaining caste certificates from the States from which they have migrated, in order to remove this difficulty it has been decided that the prescribed authority of a State/UT Administration in terms of the DEPT letter aNo.16012/22/93-Estt. (SCT) dated 15th November, 1993 may issue the OBCS certificates to a person who has migrated from another States on the production of a genuine certificate issued to his father by the prescribed authority of the State his father's origin except where the prescribed authority feels that a detailed enquiry is necessary through the state of origin before the issue of the certificate.
2. The certificates will be issued irrespectively of whether the OBC candidate in question is included in the list of OBC pertaining to the State/U.T. to which the person has migrated. The facility does not alter the OBC status of the person in relation to the one at the other State/U.T. The OBC person on migration 7 from the State/U.T. of his origin in another State/U.T.
where his caste is not in the OBC list is entitled to the concession/benefits admissible to the OBCS from the state of his origin and Union Government but not from the State where he has migrated."
9. Keeping in view the aforementioned directions issued by the Union Territory, an advertisement was issued by the State Subordinate Selection Board. General instructions issued therein, inter alia, read as under :
"(2) SC and OBC candidates must furnish certificates issued by the competent authority of Government of NCT of Delhi issued on or before the closing date of receipt of application forms.
(Illegible)"
10. Questioning the legality and/or validity of the said circular, Shri Kunwar Pal and 22 others, claiming themselves to be entitled to the benefits of the aforementioned Presidential Notification declaring their caste to be Scheduled Castes but keeping in view the nature of verification specified by reason of the aforementioned circulars, filed writ petition in the High Court of Delhi at New Delhi which was registered as Civil Writ Petition No.5061 of 2001 praying, inter alia, for the following reliefs :
"(i) certiorari quashing the entire action of the respondents in not considering the Scheduled Castes certificates of the petitioners (Annexure P3) collectively and stating them not to be valid certificates:
8 (ii) mandamus directing the respondents to consider and appoint the petitioners to be posts of Assistant Teachers (Primary)-Hindi under reserved categories of Scheduled Castes as per petitioners' Scheduled castes certificates (Annexure P3) Collectively.
11. The Government of National Capital Territory having been served with a notice in the said writ application filed a counter affidavit contending, inter alia, that the notification involved two sets of castes/categories certificate' one in relation to the original inhabitants and the other relating to the migrants and stating :
"In other words candidates belonging to SC/ST/OBC Castes/communities whose state/UT of origin is other than the NCT of Delhi are not at all, eligible for benefit of reservation in the services/posts under the Govt. Of Delhi and the Local/Autonomous Bodies sub-ordinate to the said Government. The benefit of reservation in the services/posts in Government of Delhi and Local/Autonomous bodies is legally available to only those candidates who fall in the first category.
The candidates falling in the second category can claim the benefit of reservation in the services/posts under the Central Government as well as Govt. of the state/U.T. of their origin.
Such candidates are not, at all, entitled for grant of benefit of reservation in the services/posts under the Government of Delhi and Local/Autonomous bodies subordinate to the said Govt."
12. A learned Single Judge of the said Court, however, upon construction of clause (2) of the circular letter dated 2.5.1975, held as under:
"A reading of the aforesaid clause, however, shows that the same relates to a person who migrates from one State to another. In the present case the candidates are the progenies of person who had migrated. In my considered view there is a difference between the first generation migrant and the progenies of the said migrant. The benefit may be denied to the first generation migrant on the basis of the said circular but it cannot be denied to his progenies who are born and brought up in the migrated State."
13. Taking note of the fact that Delhi is an amalgam of people from various parts of the country and, thus, the benefit of the aforementioned Presidential notification, may not be extended to those who had migrated from other States, inter alia, raised a question as to what should be the cut off date to determine as to who is a Delhite.
Opining that the circular letters had been issued with the object of protecting the rights of the persons who may be away from his State would fall in the category of that State and that only with a view to prevent injustice to such persons that the said circular had been issued. Referring to 10 the decisions in Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College & Ors. [(1990) 3 SCC 130] and Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra & anr. [(1994) 5 SCC 244], it was held :
"In my considered view the aforesaid judgment would not come to the aid to the respondents since the present case is not one of a similar nature. The benefit of reservation is sought by such of the petitioners who are born and brought up in Delhi but whose father or forefathers happened to migrate to Delhi over the last number of years."
The writ petitioners before the High Court, however, strongly relied upon the decision of this Court in K. Balakrishnan v. K. Kamalam & Ors. [(2004) 1 SCC 580] and S.Pushpa & Ors. v. Sivachanmugavelu & Ors. [(2005) 3 SCC 1].
Noticing the dictionary meaning of the words `domicile' and `residents', as noticed by this Court in Union of India & Ors. v. Dudh Nath Prasad [(2000) 2 SCC 20], the learned Judge was held that widest amplitude for granting benefits of reservations should be given to the said circulars.
Holding that there is no rationale as to why the respondents suddenly sought to bring in the restriction now, it was opined :
11 "In view of the aforesaid a writ of mandamus is issued to appoint such of the petitioners in the present writ petitions who are born and brought up in Delhi, the caste is notified as a reserved caste in Delhi but the certificate issued to them is on the basis of the certificate issued to their fathers who were the migrants from other States."
14. The Division Bench of the said court dismissed the intra court appeal preferred thereagainst by the Delhi Subordinate Service Selection Board and another, holding :
"Therefore, it is clear that for States inter se, the matters are considered differently. In the instant case, it is an accepted position that the original petitioners were born in the State of Delhi.
Therefore, they are Scheduled Tribes in Delhi and the Tribe/Caste is also recognised in Delhi as a reserved category. There is no dispute that the same caste to which their parents belonged in other State is also recognized as a reserved category."
15. Mr. U.U. Lalit, learned senior counsel appearing on behalf of the appellants, would contend :
(1) a person belonging to a caste notified as Scheduled Castes in one State cannot automatically claim the benefit of any notification specifying a similar caste in another State or Union Territory.
12 (2) Although a distinction lies between a State Civil Service and a Central Civil Service, and inasmuch as in the latter, people from all over the country are entitled to be considered for appointment keeping in view the plain language contained in clause (1) of Article 341 of the Constitution of India, such a benefit cannot be conferred on a person who had migrated from one State to another State/Union Territory.
(3) In interpreting such a notification, the High Court should have used the principle of contextual interpretation and not a beneficent legislation.
16. Mr. Mariarputham, learned Senior Counsel appearing on behalf of the Union of India, Mr. Rakesh Kumar Khanna, learned Senior Counsel appearing on behalf of the New Delhi Municipal Corporation and Dr. Krishan Singh Chauhan, learned counsel appearing on behalf of the private respondents, on the other hand, urged :
(i) The Central Government being within the administrative control of Union Territory in terms of Article 239 of the Constitution of India is entitled to lay down policies involving Union Territory Services wherefor executive instructions can be issued.
(ii) Direction of this nature being in regard to the classes of people who would be eligible to enter into Union Territory Service which is akin to Central Civil Services being for the purpose of achieving the constitutional goal provided for under clause (4) of Article 16 of the Constitution of India is permissible in law.
(iii) The State may take such policy decisions which would advance the cause of the backward class as envisaged under clause (4) of Article 16 of the Constitution of India and clause (4) of Article 15 thereof.
(iv) Doctrine of protective discrimination envisaged in Article 16 would bring within its ambit all such people who are backward not only in a State or Union Territory but also throughout the length and breadth of the country as envisaged under clause (1) of Article 16 thereof.
(v) For the purpose of considering the validity of the circular letters impugned in the writ petitions, the preamble of the Constitution of India as also the provisions relating to reservation should be allowed to have its full play particularly in view of the binding precedents of this Court in Chandigarh Administration & Anr. vs. Surinder Kumar & ors. [(2004) 1 SCC 530] and S. Pushpa & ors. vs. Sivachanmugavelu & ors. [(2005) 3 SCC 1].
(vi) Although at one point of time the stand of the Union Territory of Delhi which was impugned in the writ petition before the Delhi High Court by the private respondents was in the light of the law laid down by this Court in Marri Chandra Shekhar Rao (supra) and Action Committee (supra) but in view of the later decisions of this Court in Chandigarh Administration (supra) and S. Pushpa (supra), the Union of India as also the N.C.T. of Delhi must be held to be bound thereby, being law declared under Article 141 of the Constitution of India.
(vii) Migrants from other States who are members of Scheduled Castes and Scheduled Tribes in their State must be allowed to take the benefit of the said status particularly those who had been residing in Delhi for a period of more than five years and those who are born and brought up in Delhi.
17. Ms. Shashi Kiran, learned counsel appearing on behalf of the N.C.T. of Delhi would submit that having regard to the provisions contained in Article 239 of the Constitution of India, the N.C.T. of Delhi has no other 15 option but to follow the directives issued by the Central Government from time to time.
18. In view of the rival contentions of the parties, the questions which arise for our consideration are :
(1) Having regard to the decisions of this Court in Marri Chandra Shekhar Rao (supra) and Action Committee (supra), the specification of a particular Caste or Tribe to be a Scheduled Caste and Scheduled Tribe being in relation to that State or Union Territory, whether a person on his migration to another State would carry the same status with him? (2) Whether in view of the decisions of this Court in Action Committee (supra) even where the similar Caste bearing the same name having been declared to be the Scheduled Caste both in the State to which he originally belonged and the State and/or Union Territory to which he has migrated would make any difference in view of the provisions contained in Article 341 of the Constitution of India? (3) Whether in view of the decisions of the Constitution Bench of this Court in State of Maharashtra vs. Milind & ors. [(2001) 1 SCC 4] and E.V. Chinnaiah vs. State of A.P. & ors. [(2005) 1 SCC 394] extension of notification even to a migrant would amount to modification and/or 16 alteration of the notification which is impermissible in law in view of clause (2) of Article 341 and clause (2) of Article 342 of the Constitution of India? (4) Whether having regard to the provisions contained in Articles 239 and 239AA of the Constitution in relation to Union Territory it is permissible for the Central Government to direct recruitment to the Union Territory Services treating it to be akin to Central Civil Services in view of the decisions of this Court in Chandigarh Administration (supra) and S. Pushpa (supra)? (5) Whether the ratio laid down by this Court in Chandigarh Administration (supra) and S. Pushpa (supra) having not taken into consideration the binding precedents in Constitution Bench in Milind (supra), Chinnaiah (supra) and M.C.D. vs. Veena & ors. [(2001) 6 SCC 571] would constitute binding precedents?
19. The Constitution of India is suprema lex. The Preamble of the Constitution of India envisages `Sovereign Socialist Secular Democratic Republic'. In terms of Article 1 of the Constitution of India, that is, Bharat, shall be a Union of States as specified in the First Schedule.
17 The First Schedule contains two lists; (1) the list of States, and (2) the list of Union Territories. They together constitute geographical and political territory of India.
The equality clause contained in Articles 14, 15 and 16 constitutes a set of fundamental rights of all persons whether they are citizens of India or not. Whereas in terms of Article 14 of the Constitution of India all persons similarly situated are entitled to enforcement of their fundamental right of equality before the law and equal protection of the laws. Articles 15 and 16 although aim at equality but also provide for certain exceptions.
20. In terms of the aforementioned provisions, enabling provisions have been made so as to enable the State to make any special provision for the advancement of any socially and educationally backward classes of citizens or for Scheduled Castes and Scheduled Tribes as provided for in clause (4) of Article 15 of the Constitution of India and for making any 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 of the State as provided for in clause (4) of Article 16 thereof.
21. We may at the outset notice the distinction between clause (4) of Article 15 and clause (4) of Article 16 of the Constitution. The words 18 `backward classes' and `Scheduled Castes and Scheduled Tribes' find place in clause (4) of Article 15 but only the words `backward class of citizens' find place in clause (4) of Article 16.
It is, however, beyond any doubt or dispute that the term `backward class of citizens' contained in clause (4) of Article 16 includes Scheduled Castes and Scheduled Tribes for all intent and purport. Therefore, the protection sought to be accorded to a section of the citizenry must not only be to backward class but may also be to Scheduled Castes and Scheduled Tribes for whom a special provision can be made.
Article 341 of the Constitution of India, which finds place in Part XVI thereof provides for special provisions relating to certain classes of citizens.
It reads as under:
"341. Scheduled Castes.- (1) The President may 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 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 Castes in relation to that State or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, 19 race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification."
The terms `Scheduled Castes' and `Scheduled Tribes' have been defined in clauses (24) and (25) of Article 266 of the Constitution, which read as under:
"(24) "Scheduled Castes" means 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;
(25) "Scheduled Tribes" 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 342 in identical terms deals with the cases of members of Scheduled Tribes.
22. Part VIII of the Constitution of India provides for the Union Territories stating that every Union Territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify. Special 20 provisions with respect to Delhi has been made by inserting Article 239AA to the Constitution; Clause (1) whereof provides that despite coming into force of the Constitution (Sixty-ninth Amendment) Act, 1991, the Union Territory of Delhi shall be called the National Capital Territory of Delhi and shall be administered by an Administrator appointed under Article 239 who shall be designated as the Lieutenant Governor.
23. The President of India promulgated the Constitution (Scheduled Tribes) Order in the year 1950 specifying the Tribes which would be deemed to be the Scheduled Tribes. Similarly, in the year 1951, Constitution (Scheduled Castes) Order was promulgated. The names of several Tribes and Castes were added, deleted and altered subsequently by notifications issued by the President of India from time to time.
24. It may be advantageous to notice the relevant provisions of the Constitution (Scheduled Castes) Order, 1950 and the Constitution (Scheduled Tribes) Order, 1950 made by the President of India in exercise of powers conferred by Article 341(1) and Article 342(1) respectively of the Constitution. In the order first mentioned Clause (2) provides as under:
"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 XXIV of the 21 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 the Schedule."
Clause (2) of the second mentioned Order reads as under:
"2. The Tribes or tribal communities, or part of, or groups within, tribes or tribal communities, specified in Parts I to XXII of the Schedule to this Orders shall, in relation to the State 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 Scheduled."
25. Indisputably, having regard to clause (2) of Article 341 as also of Article 342 of the Constitution tinkering with the said list is impermissible, save and except by a law made by the Parliament.
Concededly, in respect of education or service, there exists a distinction between State Service and State run institutions including 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 22 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 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 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.
Before us, it has furthermore been conceded that for the purpose of Union Territory of Delhi no separate notification in respect of Scheduled Tribe has been issued.
The Constitution (Scheduled Castes) (Union Territories) Order, 1951, is a Presidential Notification, issued under Article 341 of the Constitution of India specifying Scheduled Castes in relation to the Union Territory of Delhi. However, no such notification exists under Article 342 of the 23 Constitution of India, listing scheduled tribes for the Union Territory of Delhi.
The question therefore is, whether in the absence of a Presidential Notification, listing any group of persons as a Scheduled Tribe in Delhi, can by policy, the benefit of reservation in services be accorded to migrant Scheduled Tribes in the Union Territory of Delhi? We may, however, notice that a learned Single Judge of the Delhi High Court had rejected extension of such benefit of reservation to migrant Scheduled Tribes but a Division Bench of High Court applied the ratio of this Court in S. Pushpa (supra) to extend such benefits to members belonging to Scheduled Tribes. The correctness of the said view is also in question before us.
It is in the aforementioned context, the constitutional provisions as noticed by us heretobefore call for interpretation.
When a Caste or a Tribe is designated as a Scheduled Caste or Scheduled Tribe, the members belonging thereto derive a bunch of benefits.
Such benefits may not only be confined to admission in educational institutions, appointment in State or Central Civil Services, but also for contesting elections to the seats reserved for them in the Panchayats and 24 Municipalities in lieu of the provisions of 73rd and 74th Amendments to the Constitution. Benefits to the members of the Scheduled Castes and Scheduled Tribes and other backward classes may also be conferred by means of schemes formulated by the Central Government or the State Government.
Article 341 of the Constitution of India does not make any distinction between a State and Union Territory except for the purpose of consultation with the Governor or the Administrator, as the case may be.
Such consultation is necessary in view of the fact that it is for the State machinery to identify such Caste or Tribe who had suffered the centuries old ignominy and/ or suffered other disadvantages. It is possible for a State to point out that although a group of people may be belonging to a caste or Tribe which is otherwise backward but having regard to the social and economic advancement made by that group, they should be excluded.
Persons belonging to a particular Caste or Tribe may suffer some disadvantages in one State but may not suffer the same disadvantages in the other. Our constitutional scheme, therefore, seeks to identify the social and economic backwardness of people having regard to the State or Union Territory as a unit. The same principle applies even to the minorities as has 25 been laid down by an Eleven Judge Bench of this Court in T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors [(2002) 8 SCC 481]
26. It is also a trite law that a study has to be undertaken before a section of the people can be identified as being belonging to backward class people.
In our constitutional scheme backward class people are divided into three categories, namely, Scheduled Castes, Scheduled Tribes and other backward classes. Scheduled Caste and Scheduled Tribe would be backward but the same would not mean that the converse is true, i.e., all backwards would be members of the Scheduled Castes or Scheduled Tribes.
Why we say so is that the reservation in terms of clause (4) of Article 16 of the Constitution of India is fixed on a percentage basis. The advertisement issued by the Delhi Subordinate Services Selection Board clearly shows that the percentage of reservation having regard to the Central Government Rules which are applicable to the National Capital Territory of Delhi would be 7.5% for Scheduled Tribes, 15% for Scheduled Castes and 27.5% for other backward classes.
No Scheduled Tribe has been identified in the Union Territory. The Presidential Order in regard to the Scheduled Castes speaks of the residents of Delhi alone.
26 Some of the Castes identified as Scheduled Castes in some other States also find place in the Presidential Order issued for Delhi.
What would be the effect is the question.
27. With the aforementioned backdrop in mind, we may notice a few decisions of this Court.
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 Gouda community which is recognized 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. This Court noticed the fact that the father of the petitioner therein was an employee in Fertilizer Corporation of India, a public sector undertaking, in the Scheduled Tribes quota and thereafter in the Rashtriya Chemicals and Fertilizers Limited, a Government of India undertaking under the quota reserved for Scheduled Tribes whereafter he was stationed at Bombay. The petitioner therein 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 in view of Circular dated 22.2.1985 issued by the Government of India.
27 The Circular dated 22.2.1985 issued by the Government of India, inter alia, read as under :
"It is also clarified that a Scheduled Caste/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."
The question which was posed was the effect of specification by the President of the Scheduled Castes or Scheduled Tribes, as the case may be, for the State or Union territory or part of the State. Noticing that the specification was "for the purposes of this Constitution", it was found to be necessary to determine what the expression `in relation to that State' seeks to convey.
28. This Court noticed not only the various provisions of the Constitution but also the earlier decisions governing the field as well as the views of Dr. B.R. Ambedkar in the Constituent Assembly, to hold:
"22. In that view of the matter, we are of the opinion that the petitioner is not entitled to be admitted to the medical college on the basis of Scheduled Tribe Certificate in Maharashtra. In the view we have taken, the question of petitioner's 28 right to be admitted as being domicile does not fall for consideration."
Marri Chandra Shekhar Rao (supra) was followed by another Constitution Bench of this Court in Action Committee (supra).
The question posed therein was:
"Where a person belonging to a caste or tribe specified for the purposes of the Constitution to be a Scheduled Caste or a Scheduled Tribe in relation to State A migrates to State B where a caste or tribe with the same nomenclature is specified for the purposes of the Constitution to be a Scheduled Caste or a Scheduled Tribe in relation to that State B, will that person be entitled to claim the privileges and benefits admissible to persons belonging to the Scheduled Castes and/or Scheduled Tribes in State B?"
While interpreting clause (1) of Articles 341 and 342, this Court held:
"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."
Noticing that the persons belonging to Scheduled Castes/Scheduled Tribes who migrate from their State of origin to another State in search of 29 employment or for educational purposes had experienced great difficulty in obtaining Caste or Tribe Certificates wherefor the Circular letters were issued, this Court held:
"14. It is a matter of common knowledge that before and during the British Rule also the social order in India was of graded inequality. During the freedom struggle some of our leaders strived to bring about social integration to give a fillip to the independence movement. The need to bring about equality was strongly felt. After independence when the Constitution was being framed for free India, considerable emphasis was laid on the need to secure equality. The debates of the constituent Assembly bear testimony to this felt need."
29. This Court also noticing Articles 14, 15(1), 15(4), 16(1), 16(4), 19, Part XVI of the Constitution of India and the decisions governing the field as also Articles 341 and 342 thereof opined that Marri Chandra Shekhar Rao lays down the correct law, holding :
"15. We may add that considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/Scheduled Tribes or backward classes in a given State would depend on the nature and extent of disadvantages and social hardships suffered by that caste, tribe or class in that State which may be totally non-est in another State to which persons belonging thereto may migrate. Coincidentally it may be that a caste or tribe bearing the same nomenclature is specified in two States but the considerations on the basis of 30 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."
30. Whereas Marri Chandra Shekhar Rao (supra) was a case where no notification had been issued for the State of Maharashtra specifying the Caste to which the petitioner therein belonged to; in the case of Action Committee (supra), the question related to a situation where coincidently some Castes were notified in both the States, i.e., a fortuitous circumstance arose therein that some classes had been notified in both the States.
31. In Veena (supra), a Division Bench of this Court in a case arising out of the National Capital Territory of Delhi, noticing Marri Chandra Shekhar Rao (supra) held as under:
31 "6. Castes or groups are specified in relation to a given State or Union Territory, which obviously means that such caste would include caste belonging to an OBC group in relation to that State or Union Territory for which it is specified. The matters that are to be taken into consideration for specifying a particular caste in a particular group belonging to OBCs would depend on the nature and extent of disadvantages and social hardships suffered by that caste or group in that State.
However, it may not be so in another State to which a person belongs thereto goes by migration.
It may also be that a caste belonging to the same nomenclature is specified in two States but the consideration on the basis of which they been specified may be totally different. So the degree of disadvantages of various elements which constitute the date for specification may also be entirely different. Thus, merely because a given caste is specified in one State as belonging to OBCs does not necessarily mean that if there be another group belonging to the same nomenclature in other State and a person belonging to that group is entitled to the rights, privileges and benefits admissible to the members of that caste. These aspects have to be borne in mind in interpreting the provisions of the Constitution with reference to application of reservation to OBCs."
Upon noticing the Circular letter dated 15.11.1993 specifying two model forms of the certificate to be furnished by the OBC candidates seeking benefit of reservations and the form appended thereto, it was held:
"A careful reading of this notification would indicate that the OBCs would be recognised as 32 such in the Government of National Capital Territory of Delhi as notified in the Notification dated 20.01.1995 and further for the purpose of verification of claims for belonging to castes/communities in Delhi as per the list notified by the National Capital Territory of Delhi the certificates will have to be issued only by the specified authorities and certificates issues by any other authority could not be accepted."
This Court opined:
"The only additional aspects stated by them in their respective applications or in the Certificates supported thereto is that they belong to OBC categories. Hence, their cases ought to have been considered in the general category as if they do not belong to OBC categories in the circumstances arising in this case."
There the candidature of those candidates were directed to be considered as a general category candidate.
32. The said principle was reiterated in U.P. Public Service Commission, Allahabad vs. Sanjay Kumar Singh reported in (2003) 7 SCC 657, wherein a boy belonging to Scheduled Tribe `Naga' and hailing from Nagaland sought admission in a medical college at Kanpur. This Court upon considering Marri Chandra Shekhar Rao (supra), Action Committee (supra) as also Veena (supra) opined that the appellant therein could not be treated as 33 Scheduled Tribe candidate so as to qualify himself to claim reservation against the vacancy reserved for Scheduled Tribes in public services in the State of U.P.
33. At this juncture, we may also notice two other Constitution Bench decisions of this Court, namely, Milind (supra), Chinnaiah (supra) as also a judgment of this Court in Shree Surat Valsad Jilla K.M.G. Parishad vs. Union of India &ors. [(2007) 5 SCC 360].
Milind (supra) dealt with a question as to whether the notified Scheduled Tribe being Halba or Halbi as contained in Item No. 19 of the Presidential Order would include "Halba-Koshti" or not. Indisputably, beginning from the decision of the Nagpur High Court rendered in 1956 in Sonabai vs. Lakhmibai reported in 1956 Nagpur LJ 725, several other judgments as also circular letters issued by the State of Maharashtra from time to time, acknowledging that "Halba-Koshti" come within the definition of Halba and/or Halbi; the Constitution Bench opined that the rule of stare decisis will have no application in a case of this nature. It was opined that addition of "Halba-Kosthi" in the Presidential Order would amount to amendment thereto which is impermissible in law, stating:
"The jurisdiction of the High Court would be much more restricted while dealing with the question 34 whether a particular caste or tribe would come within the purview of the notified Presidential 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 No.
1 belong to 'Koshti' caste and has no identity with the 'Halba/Halbi', which is the Scheduled Tribe under Entry 19 of the Presidential Order, relating to 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 the question no. 2 also in the negative.
Hence it is answered accordingly."
Milind (supra), therefore, is an authority for the proposition that neither practice prevailing in a State nor the decisions of the High Court which are otherwise binding on the State would create a right in a person to obtain the benefit of reservation in the teeth of provisions of Articles 341 and 342 of the Constitution. It was furthermore stated:
"35. The arguments advanced before the High Court on behalf of an intervener relying on Articles 162, 256 to 258 and 339(2) of the Constitution of India that instructions issued by the Central Government in the matter have overriding effect over the instructions issued by the State Government, was lightly brushed aside on the 35 ground that this aspect assured little importance in the view taken by the High Court that the State Government was bound by the circulars issued by it. We have already expressed above the view in the light of Articles 341 and 342 of the Constitution that a Scheduled Tribes Order can be amended only by the Parliament. Hence it is not possible to accept that orders/circulars issued by the State Government, which have the effect of amending Scheduled Tribes Order, were binding on the Government or other affected parties."
34. Another Constitution Bench of this Court in Chinnaiah (supra) while considering the question as to whether any sub-classification within a class is permissible having regard to the constitutional provision, answered it, thus:
"26. Thus from the scheme of the Constitution, Article 341 and above opinions of this Court in the case of N.M. Thomas (supra), it is clear that the castes once included in the Presidential List, form a class by themselves. If they are one class under the Constitution, any division of these classes of persons based on any consideration would amount to tinkering with the Presidential List."
xxx xxx xxx
37. We have already held that the members of Scheduled Castes form a class by themselves and any further sub- classification would be impermissible while applying the principle of reservation.
xxx xxx xxx 36 111. The Constitution provides for declaration of certain castes and tribes as Scheduled Castes and Scheduled Tribes in terms of Articles 341 and 342 of the Constitution of India. The object of the said provisions is to provide for grant of protection to the backward class of citizens who are specified in the Scheduled Castes Order and Scheduled Tribes Order having regard to the economic and educationally backwardness wherefrom they suffer. The President of India alone in terms of Article 341(1) of the Constitution of India is authorized to issue an appropriate notification therefor. The Constitution (Scheduled Castes) Order, 1950 made in terms of Article 341(1) is exhaustive."
As regards the question as to whether such a sub-classification is permissible having regard to clause (4) of Article 16 of the Constitution of India, it was held:
"43. The very fact that the members of the Scheduled Castes are most backward amongst the backward classes and the impugned legislation having already proceeded on the basis that they are not adequately represented both in terms of Clause (4) of Article 15 and Clause (4) of Article 16 of the Constitution of India, a further classification by way of micro classification is not permissible.
Such classification of the members of different classes of people based on their respective castes would also be violative of the doctrine of reasonableness. Article 341 provides that exclusion even of a part or a group of castes from the Presidential List can be done only by the Parliament. The logical corollary thereof would be 37 that the State Legislatures are forbidden from doing that. A uniform yardstick must be adopted for giving benefits to the members of the Scheduled Castes for the purpose of Constitution.
The impugned legislation being contrary to the above constitutional scheme cannot, therefore, be sustained."
In a separate but concurring judgment, one of us (S.B. Sinha, J.) opined as under:
"62. It is true that by reason of Article 341 of the Constitution of India no benefit other than expressly provided for in the Constitution, as, for example, Article 320 or Article 322, had been conferred on a member of Scheduled Caste. It is also not in doubt or dispute that the State has the legislative competence to provide for reservations both in the field of public services as also education. Article 15(4) and Article 335 expressly refer to the Scheduled Castes and Scheduled Tribes. Clause (4) of Article 16 although does not refer to Scheduled Castes or Scheduled Tribes, having regard to the expressions "backward class of citizens" contained therein, it is judicially interpreted that Scheduled Castes and Scheduled Tribes would come within the purview thereof.
Scheduled Caste indisputably is treated to be more backward than the backward class people."
The said principle had been applied by a Division Bench of this Court in Shree Surat Valsad Jilla K.M.G. Parishad (supra).
38 Recently, a Constitution Bench of this Court in Ash
