BIR SINGH versus DELHI JAL BOARD & ORS.

[2018] 10 S.C.R. 513

BIR SINGH

DELHI JAL BOARD & ORS.

(Civil Appeal No.1085 of 2013)

AUGUST 30, 2018

[RANJAN GOGOI, N. V. RAMANA, R. BANUMATHI,MOHAN M. SHANTANAGOUDAR AND

S. ABDUL NAZEER, JJ.]

Constitution of India – Arts. 16(4), 341(1) and 342(1) –Interplay and interaction amongst – Extent and nature of – Whetherthe Presidential Order issued u/Art.341(1) or Art.342(1) has anybearing on the State’s action in making provision for the reservationof appointments or posts in favour of any Backward Class of citizenswhich, in the opinion of the State, is not adequately represented inthe services under the State – Held: [Per Ranjan Gogoi, J.(for himself, N. V. Ramana, Mohan M. Shantanagoudar andS. Abdul Nazeer, JJ.)] Art.16(4) is an enabling provision enablingthe State to provide to backward classes including SCs and STsreservation in appointments to public services – Art.16(4) providesreservation only to the classes or categories of SCs/STs enumeratedin the Presidential orders for particular State/Union Territorywithin the geographical area of that State and not beyond –Operation of the lists of SCs and STs beyond the classes orcategories enumerated under the Presidential Order for particularState/Union Territory by exercise of the enabling power vested byArt.16(4) would have the obvious effect of circumventing the specificconstitutional provisions in Arts.341/342 – Thus, person belongingto Scheduled Caste in one State cannot be deemed to be ScheduledCaste person in relation to any other State to which he migrates forthe purpose of employment or education – So far as the NationalCapital Territory of Delhi is concerned, the pan India ReservationRule in force is in accord with the constitutional scheme relating toservices under the Union and the States/Union Territories –[Per Banumathi, J.(Partly Dissenting)] given caste or tribe canbe SC or ST in relation to that State or Union Territory for which itis specified – Person notified as Schedule Caste in State ‘A’ cannotclaim the same status in another State – Art.16(4) has to yield to the

Amandate of Arts.341 and 342 – Though the services under the UnionTerritories are Central Government services, but they are servicesunder the respective Union Territories and not under the directcontrol of Union of India/different ministries – Such services cannotbe said to be Central Civil Services under Union of India so as toextend the benefit of pan India reservation for recruitment to servicesBunder the respective Union Territories including Union Territory ofDelhi.

Constitution of India – Arts.341(1) and 342(1) – PresidentialOrders issued under – Challenge to – Permissibility of – Held:[PerRanjan Gogoi, J. (for himself, N.V. Ramana,CMohan M. Shantanagoudar and S. Abdul Nazeer, JJ.)] PresidentialOrders issued u/Art.341 in regard to Scheduled Castes and u/Art.342in regard to Scheduled Tribes cannot be varied or altered by anyauthority including the Court – It is the Parliament alone which hasbeen vested with the power to so act, that too, by laws made –D(Per Banumathi, J.) Until the Presidential Notification issuedu/Arts.341(1) and 342(1) is modified by appropriate amendment byParliament in exercise of the power u/Arts. 341(2) or 342(2), thePresidential Notification is final and conclusive – No caste or groupcan be added to it or subtracted by any action either by the StateGovernment or by Court.E

Interpretation of Statutes – Harmonious construction – Held:Inter-related statutory as well as constitutional provisions have tobe harmoniously construed and understood so as to avoid makingany provision nugatory and redundant.[Per Ranjan Gogoi, J.(for himself, N. V. Ramana, Mohan M. Shantanagoudar andFS. Abdul Nazeer, JJ.)].

Words & Phrases – “in relation to that State or UnionTerritory” and “for the purpose of this Constitution” – Meaning of– Held: Said expression used in Arts. 341 and 342 would mean thatthe benefits of reservation provided for by the Constitution wouldGstand confined to the geographical territories of State/UnionTerritory in respect of which the lists of Scheduled Castes/ScheduledTribes have been notified by the Presidential Orders issued fromtime to time – Constitution of India – Arts. 341 and 342.[PerRanjan Gogoi, J. (for himself, N.V. Ramana,HMohan M. Shantanagoudar and S. Abdul Nazeer, JJ.)].

Central Civil Services (Classification, Control and Appeal)Rules, 1965 [CCS Rules, 1965] – Central Civil Services under –Discussed.

National Capital Territory of Delhi, Andaman and NicobarIslands, Lakshadweep, Daman and Diu and Dadra and Nagar–Haveli (Civil Service) Rules, 2003 Union Territory Services under– Discussed – National Capital Territory of Delhi, Andaman andNicobar Islands, Lakshadweep, Daman and Diu and Dadra andNagar Haveli (Police Service) Rules, 2003 – Delhi AdministrationSubordinate Services Rules, 1967.

Answering the referred question, the Court

HELD: Per Ranjan Gogoi, J. (for himself, N. V. Ramana,Mohan M. Shantanagoudar and S. Abdul Nazeer, JJ.]

1.1 Article 341(1) of the Constitution empowers thePresident with respect to any State or Union Territory, and whereit is State, after consultation with the Governor thereof, by publicnotification, to specify the castes, races or tribes or parts of orgroups within castes, races or tribes which shall for the purposesof the Constitution be deemed to be Scheduled Castes in relationto that State or Union Territory, as the case may be. In case ofScheduled Tribes the President has been similarly empoweredunder Article 342(1) of the Constitution. Sub-clause (2) of Article341 and Article 342 empowers the Parliament by law to includein or exclude from the list of Scheduled Castes/Scheduled Tribesspecified in the Notification issued under clause (1) thereof anycaste, race or tribe/tribal community or part of or group withinany caste, race or tribe/tribal community. It is further providedthat except as provided i.e. by Parliament by law(s) made, thenotification issued under Article 341(1) or Article 342(1) shallnot be varied by any subsequent notification. The constitutionalmandate, therefore, appears to be that any caste, race or tribe/tribal community or part of or group within any caste, race ortribe/tribal community as has been specified in the PresidentialOrder under clause (1) of Article 341 or Article 342 can be alteredonly by Parliament by law(s) made. Article 341 and Article 342also makes it clear that the caste, race or tribe or part of or groupwithin any caste, race or tribe as specified in the Presidential

AOrder under Article 341(1) or tribe or tribal community as maybe specified in the Presidential Order under Article 342(1) shallbe deemed to be Scheduled Castes/Scheduled Tribes for thepurposes of the Constitution in relation to that State or UnionTerritory, as the case may be. [Paras 15-17] [542-C-G]

B1.2 There are various parameters by which caste/race isrecognized as ‘Scheduled Caste/Scheduled Tribe’ in State/UnionTerritory or particular part thereof. There is no doubt thatbefore the Presidential Orders were issued under Article 341(1)or under Article 342(1), elaborate enquiries were made and onlyafter such enquiries that the Presidential Orders were issued.CWhile doing so, the Presidential Orders not only provided thateven specified parts or groups of castes, races or tribes/tribalcommunity could be Scheduled Castes/Tribes in particular State/Union Territory but also made it clear that certain castes or tribesor parts/groups thereof could be Scheduled Castes/Tribes onlyDin specified/particular areas/districts of State/Union Territory.The reason for such an exercise by reference to specific areas ofa State is that judged by standards of educational, socialbackwardness, etc. races or tribes may not stand on the samefooting throughout the State. The consideration for specifying aparticular caste or tribe or class for inclusion in the list of ScheduledECastes and Scheduled Tribes or Backward Classes in any givenState depends on the nature and extent of the disadvantages andsocial hardships suffered by the concerned members of the classin that State. These may be absent in another State to which thepersons belonging to some other State may migrate. TheFPresidential Orders which enumerate lists of castes/races, tribesrecognized as ‘Scheduled Caste/Scheduled Tribe’ cannot bechallenged or agitated in court of law except, perhaps, on thelimited ground. Whenever States’ reorganization had taken placein the past, Parliament had exercised its powers under Article341(2) and Article 342(2) and provided for specific Castes/TribesGthat were entitled to be recognised as Scheduled Castes andScheduled Tribes in relation to the reorganized States/UnionTerritories. The Scheme of the Constitution (Scheduled Castes)and (Scheduled Tribes) Orders makes it clear that Parliament’sintention was to extend the benefits of reservation in relation toHthe States/Union Territories only to the castes, races or tribes as

mentioned in the Presidential Orders. [Paras 18-20] [543-E-G;544-A; 545-C-D]

1.3 If the special privileges or the rights granted toscheduled castes or scheduled tribes in particular State are tobe made available in all the States and if such benefits are to becarried from State ‘A’ to State ‘B’ on migration, the mandate ofArticle 341/342 would get compromised. Such consequencemust be avoided for it is fundamental rule of interpretation, beit of statutory enactment or of the Constitution, that whereverand whenever there is conflict between two provisions, the sameshould be so interpreted as to give effect to both. The issue hasto be viewed from another perspective. If member of aScheduled Caste/ Scheduled Tribe of Andhra Pradesh who hadmigrated to Maharashtra is to be given the benefit of reservationit will amount to depriving member of Scheduled Caste/Scheduled Tribe of Maharashtra by reducing the reservationearmarked for them. Therefore, it can be said that personbelonging to Scheduled Caste in one State cannot be deemedto be Scheduled Caste person in relation to any other State towhich 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 342of the Constitution of India would mean that the benefits ofreservation provided for by the Constitution would stand confinedto the geographical territories of State/Union Territory in respectof which the lists of Scheduled Castes/Scheduled Tribes havebeen notified by the Presidential Orders issued from time to time.

person notified as Scheduled Caste in State ‘A’ cannot claimthe same status in another State on the basis that he is declaredas Scheduled Caste in State ‘A’. [Paras 28-30] [550-B-D;551-B-D]

1.4 The Presidential Orders issued under Article 341 inregard to Scheduled Castes and under Article 342 in regard toScheduled Tribes cannot be varied or altered by any authorityincluding the Court. It is the Parliament alone which has beenvested with the power to so act, that too, by laws made. ScheduledCastes and Scheduled Tribes thus specified in relation to Stateor Union Territory does not carry the same status in another

AState or Union Territory. Any expansion/deletion of the list ofScheduled Castes/Scheduled Tribes by any authority exceptParliament would be against the constitutional mandate underArticles 341 and 342 of the Constitution of India. Article 16(4) isan enabling provision. It enables the State to provide to backwardclasses including Scheduled Castes and Scheduled TribesBreservation in appointments to public services. Such reservationis to be provided on the basis of quantifiable data indicating theadequacy or inadequacy, as may be, of the representation of suchclasses in Government service. The data which is the basis ofthe satisfaction of the State being verifiable, is open to judicialCscrutiny on the limited ground of relevance of the circumstanceson which the satisfaction is moulded. The policy decision toprovide reservation, of course, is beyond the pale of judicialreview. It is an unquestionable principle of interpretation thatinterrelated statutory as well as constitutional provisions haveto be harmoniously construed and understood so as to avoidDmaking any provision nugatory and redundant. If the list ofScheduled Castes/Scheduled Tribes in the Presidential Ordersunder Article 341/342 is subject to alteration only by laws madeby Parliament, operation of the lists of Scheduled Castes andScheduled Tribes beyond the classes or categories enumeratedEunder the Presidential Order for particular State/Union Territoryby exercise of the enabling power vested by Article 16(4) wouldhave the obvious effect of circumventing the specific constitutionalprovisions in Articles 341/342. In this regard, it must also benoted that the power under Article 16(4) is not only capable ofbeing exercised by legislative provision/enactment but also byFan Executive Order issued under Article 166 of the Constitution.It will, therefore, be in consonance with the constitutional schemeto understand the enabling provision under Article 16(4) to beavailable to provide reservation only to the classes or categoriesof Scheduled Castes/Scheduled Tribes enumerated in theGPresidential orders for particular State/Union Territory withinthe geographical area of that State and not beyond. If in the opinionof State it is necessary to extend the benefit of reservation to aclass/category of Scheduled Castes/Scheduled Tribes beyondthose specified in the Lists for that particular State, constitutionaldiscipline would require the State to make its views in the matterH

prevail with the central authority so as to enable an appropriateparliamentary exercise to be made by an amendment of the Listsof Scheduled Castes/Scheduled Tribes for that particular State.Unilateral action by States on the touchstone of Article 16(4) ofthe Constitution could be possible trigger point of constitutionalanarchy and therefore must be held to be impermissible underthe Constitution. [Paras 32-34] [553-A-H; 554-A-C]

1.5 The State Civil Services may be Administrative Services,Forest Services etc. [illustratively, in case of Himachal Pradesh,Himachal Pradesh Administrative Service (HPAS) is type ofservice, so is, Himachal Pradesh Forest Service (HPFS). Therecruitment to these services is conducted by way of CivilServices Examinations organised by the State-specific PublicService Commission. Persons inducted into the State Service ofa particular State cannot be transferred to any other State. Theseofficers are concerned with only the affairs of the state in whichthey are appointed. These services (like HPAS, HPFS) may, forconvenience, be called as Superior Services/Higher Services withreference to State. But in addition to these higher services,there are also services that may, again for convenience, be calledas Subordinate Services/Lower Level Jobs. The posts in theseservices are like those of Clerks, School Teachers; Drivers,Attendants, Safai Workers, etc. For the purpose of recruitmentof Subordinate Servants, States have in place State-specificSelection Commissions. [Para 42] [557-B-D]

Dr. D.D. Basu in “Commentary on the Constitution ofIndia” 8[th] Edition, 2011, Volume 9, pp. 9858 and 9860– referred to.

1.6 At the Federal Level, civil administration is carried outby the members of – (1) All India Services (specifically providedfor in Article 312); (2) Central Civil Services (although, notspecifically provided for in the Constitution but are regulated bycreation of statutory Rules framed under the proviso to Article309). These are again Superior Services and the selection/recruitment is by the Union Public Service Commission. Thereare three All India Services (AIS) – (a) Indian AdministrativeService (IAS); (b) Indian Forest Service (IFoS); (c) Indian PoliceService (IPS). Therefore, the members of the All India Services

Aare common to the Union and the States and they serve, by turn,both the Union and State Governments. The members of theseservices although recruited by the Centre their services areplaced under various State cadres. [Paras 43, 44] [557-E-G;559-B]

B2.1 Though the members of the Central Civil Services(CCS) are concerned only with the affairs of the Union/Centrethey discharge such duties in the offices and establishments ofthe Union Government as may be located in the States and theUnion Territories. The Central Civil Services (Classification,Control and Appeal) Rules, 1965 [CCS Rules, 1965] (enactedCunder the proviso to Article 309) are the governing statutoryRules with reference to these services. [Para 47] [560-F; 561-A]

2.2 Insofar as the services in connection with the affairs ofthe Union is concerned (Central Services), wherever theestablishment may be located i.e. in the National Capital TerritoryDof Delhi or in State or within the geographical areas of UnionTerritory, recruitment to all positions is on an All India basis andreservation provided for is again pan- India reservation. Thisby itself, from one perspective, may appear to be in departurefrom the rule set out in Part XVI of the Constitution of India(Articles 341 and 342). However, such position is fully in accordEwith the constitutional structure of federal polity.[Para 56][565-D-E]2.3 Subordinate services in the National Capital Territoryof Delhi are clearly Central Civil Services. combined readingof the provisions of the Delhi Administration Subordinate ServiceFRules, 1967’ (DASS Rules) and The Central Civil Services(Classification, Control and Appeal) Rules, 1965 (CCS Rules,1965) more than adequately explains the nature of SubordinateServices in the NCT of Delhi. These clearly are General CentralServices. [Paras 57, 58] [566-D, F]

G3. Accordingly, the question referred is answered in termsof the views expressed in para 34 of this opinion. It is furtherheld that so far as the National Capital Territory of Delhi isconcerned the pan India Reservation Rule in force is in accordwith the constitutional scheme relating to services under theUnion and the States/Union Territories. [Para 61] [568-B]H

Bhaiya Lal v. Harikishan Singh AIR 1965 SC 1557 :[1965] 2 SCR 877 – followed.

State of Uttaranchal v. Sandeep Kumar Singh andOthers (2010) 12 SCC 794 ; Marri Chandra ShekharRao v. Dean, Seth G. S. Medical College and Others(1990) 3 SCC 130 : [1990] 2 SCR 843 ; ActionCommittee on Issue of Caste Certificate to ScheduledCastes and Scheduled Tribes in the State of Maharashtraand Another v. Union of India and Another (1994) 5SCC 244 : [1994] 1 Suppl. SCR 714 ; S. Pushpa andOthers v. Sivachanmugavelu and Others (2005) 3 SCC1 : [2005] 1 SCR 1158 ; Subhash Chandra and Anotherv. Delhi Subordinate Services Selection Board andOthers (2009) 15 SCC 458 : [2009] 12 SCR 978 ;Central Board of Dawoodi Bohra Community andAnother v. State of Maharashtra and Another (2005) 2SCC 673 : [2004] 6 Suppl. SCR 1054 ; M. Nagarajand Others v. Union of India and Others (2006) 8 SCC212 : [2006] 7 Suppl. SCR 336 ; M.C.D. v. Veena andOrs. (2001) 6 SCC 571 : [2001] 1 Suppl. SCR 493 ;Dr. Jagdish Saran and Others v. Union of India(1980) 2 SCC 768 : [1980] 2 SCR 831 – referred to.

Per R. Banumathi, J. (Partly Dissenting):

HELD: 1.1 person belonging to Scheduled Caste/Scheduled Tribe in State ‘A’ cannot claim the same status inanother State ‘B’ on the ground that he is declared as ScheduledCaste/Scheduled Tribe in State ‘A’. The expressions “in relationto that State or Union Territory” and “for the purpose of thisConstitution” used in Articles 341 and 342 of the Constitution ofIndia are to be meaningfully interpreted. given caste or tribecan be Scheduled Caste or Scheduled Tribe in relation to thatState or Union Territory for which it is specified. Thus, the personnotified as Scheduled Caste in State ‘A’ cannot claim the samestatus in another State on the basis that he was declared ScheduledCaste in State ‘A’. Article 16(4) has to yield to the Constitutionalmandate of Articles 341 and 342. [Para 29] [583-D-F]

A1.2 Article 341 empowers the President “with respect toany State or Union Territory, and where it is State, afterconsultation with the Governor thereof, by public notification,specify the castes, races or tribes or parts of or groups withincastes, races or tribes which shall for the purposes of thisConstitution, be deemed to be Scheduled Caste in relation toBthat State or Union Territory as the case may be.” Equally Article342(1) empowers the President “with respect to any State orUnion Territory, and where it is State, after consultation withthe Governor thereof, by public notification, specify the tribes ortribal communities or parts of or groups within tribes or tribalCcommunities which shall for the purposes of the Constitution bedeemed to be Scheduled Tribes in relation to that State or UnionTerritory, as the case may be”. Articles 341(2) and 342(2) of theConstitution empower the Parliament alone by law to include orexclude from the list of Scheduled Castes/Scheduled Tribesspecified by notification issued under Articles 341(1) and 342(1)Dof the Constitution of India. Until the Presidential Notification ismodified by appropriate amendment by Parliament in exercise ofthe power under Articles 341(2) or 342(2) of the Constitution,the Presidential Notification issued under Articles 341(1) and342(1) of the Constitution is final and conclusive. No caste orEgroup can be added to it or subtracted by any action either by theState Government or by Court on adducing of evidence. Articles341 and 342 of the Constitution do not make any distinctionbetween ‘State’ or ‘Union Territory’. [Para 32] [584-D-H]

1.3 The Union Territories are centrally administered by theFPresident acting through an administrator. Though the UnionTerritories are centrally administered under the provisions ofArticle 239, they do not become merged with the CentralGovernment. They are centrally administered; but they retaintheir independent identity. The Union Territory does not entirely

lose its existence as an entity though large control is exercisedGby the Union of India. [Para 36] [586-B, D-E]

1.4 In Pushpa’s case, the principle that “when members ofScheduled Castes/Scheduled Tribes migrate to another State, theydo not carry with them the special privileges and advantages”, washeld not applicable in case of Union Territories. The observationH

in Pushpa’s case is not correct view. Clause (2) of Article 341 ofthe Constitution empowers Parliament alone by law to include orexclude from the lists of Scheduled Castes specified in anotification issued under clause (1) of Article 341. No executiveaction or order or modification or variance of the same is possibleand any such variance would be against the constitutional scheme.In Pushpa’s case, the posts advertised were of Selection GradeTeachers under the Pondicherry Services and not for CentralGovernment jobs. It may be that Pondicherry is Union Territory;but the posts/services exclusively coming under Pondicherryadministration is meant only for the Scheduled Castes/ScheduledTribes as notified under the Presidential Order for Pondicherry.[Paras 37-39] [587-C; 588-D-F]

Whether there can be PAN India reservation of SCs andSTs to services under various Union Territories of India

2.1 Under Central Civil Services (Classification, Controland Appeal) Rules, 1965 [CCS(CCA) Rules, 1965], there are fourcategories of services namely:- (i) Central Civil Services, GroupA; (ii) Central Civil Services, Group B; (iii)Central CivilServices, Group C; and (iv) Central Civil Services, Group D.[Para 45] [592-B-C]

2.2 There is centralised recruitment conducted by UPSCfor the Central Civil Services in Group ‘A’ and Group ‘B’. Forthis centralised recruitment, applications are invited fromcandidates across the country and Scheduled Castes/ScheduledTribes of all the States/Union Territories are entitled to apply forthe reserved posts. Recruitment to various posts in Group ‘A’and Group ‘B’ (Gazetted) categories for services in States/UnionTerritories are presently filled only through UPSC by centralisedrecruitment. After recruitment, the Group ‘A’ and Group ‘B’officers are posted across the country wherever there are officesof Central Government. [Paras 52] [599-F]

2.3 Since there is centralised recruitment conducted byUPSC for Group ‘B’ (Gazetted), naturally applications are invitedfrom the candidates across the country including reservedcandidates of Scheduled Castes/Schedules Tribes from all theStates/Union Territories. Up to the level of Group ‘B’ (Gazetted)

Aof Central Civil Services, since there is centralised recruitmentfor which there is PAN INDIA reservation of Scheduled Castesand Scheduled Tribes, Scheduled Castes/Scheduled Tribes fromany State/Union Territory are entitled to apply for the reservedposts for Group ‘B’ examinations conducted by UPSC. When itcomes to services under Union Territories, there are so manyBother 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 thecorporations in the Union Territories and various other servicesCwhich are concerned with the administration of Union Territories.These services under the Union Territories would fall underGroup ‘B’, Group ‘C’ and Group ‘D’ and their recruitment iswithin the exclusive domain of the respective Union Territories.Though the government servants under the Union Territoriesare governed by Central Civil Services Rules, the services underDthe Union Territories are essentially different from All IndiaServices. For recruitment to services under respective UnionTerritories, there are different modes of recruitment for thedifferent Union Territories. [Paras 55, 56] [601-D-G]

2.4 When there are Presidential Orders notifying theEScheduled Castes/Scheduled Tribes for Union Territories ofChandigarh, Dadra and Nagar Haveli, calling for application fromthe Scheduled Castes/Scheduled Tribes candidates from all overIndia for the reserved posts of services under various UnionTerritories, be it Group ‘B’ or Group ‘C’, is not in accordanceFwith the constitutional scheme. For Group ‘B’ and Group ‘C’posts falling within the services of the Union Territories,recruitment is made by the Staff Selection Board of respectiveUnion Territories. Even assuming that there is such PAN Indiareservation for recruitment of Group ‘B’ conducted by the Union

Territory of Daman and Diu, when there are Scheduled Castes/GScheduled Tribes as notified in the Presidential Order(Reorganisation Act, 1987 in respect of SCs/STs), there cannotbe PAN India reservation as it is not in accordance with theconstitutional scheme. [Paras 57-59] [602-G; 603-A, F]

2.5 The subordinate services in the National CapitalTerritory of Delhi though “Central Civil Services”, they areneither All India Services nor services under Union of India soas to attract Pan India Reservation. For recruitment of otheremployees in the Union Territory of Delhi, there is DelhiAdministrative Subordinate Services (DASS) and the recruitingagency is Delhi Subordinate Staff Selection Board (DSSSB).Members of Delhi Administrative Subordinate Services are statedto be the feeder cadre for Central Civil Services – Group ‘B’(DANICS). Merely because members of Delhi AdministrativeSubordinate Services are the feeder category for DANICS, PANIndia reservation cannot be extended to Delhi SubordinateServices or to services under various Union Territories.Likewise, merely because, DANICS and DANIPS are the feedercategory for IAS and IPS, it cannot be said that the Pan IndiaReservation is applicable to services under National CapitalTerritory of Delhi. So far as Group ‘B’ and Group ‘C’ posts fallingunder the services of the Union Territories, recruitment is doneby the respective Staff Selection Board of respective UnionTerritories. Merely because the posts in the Union Territoriesand 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 Tribesof all the States/Union Territories. For recruitment of Group ‘B’and Group ‘C’ posts of services under the respective UnionTerritories, since the examination is conducted by the respectiveUnion Territories like Delhi Subordinate Staff Selection Boardand other Union Territories Staff Selection Boards of respectiveUnion Territories, reservation of posts of Scheduled Castes/Scheduled Tribes must be confined only to those ScheduledCastes/Scheduled Tribes as notified in the Presidential Order ofthe respective Union Territories. For recruitment of Group ‘B’and Group ‘C’ posts under various Union Territories includingUnion Territory of Delhi, there cannot be PAN INDIA reservationof Scheduled Castes/Scheduled Tribes, lest, it would defeat thevery object of the Presidential Orders issued specifying theScheduled Castes/Scheduled Tribes for respective UnionTerritories. Services under the Union Territories though they

DEFG

[2018] 10 S.C.R.

Aare Central Government services, they are services under therespective Union Territories and not under the direct control ofUnion of India/different Ministries. [Paras 61-64] [604-G, H;605-A-H]

2.6 Procedure for recruitment to the various posts for theBservices of Union Territories are different as followed byrespective Union Territories. The persons appointed for theservices 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 theadministration of Union Territories and not under the MinistriesCof Union of India. Central Civil Services are the services directlyunder Union of India. Contrarily, various services under the UnionTerritories are the services under the respective UnionTerritories. Such services under Union Territories cannot besaid to be Central Civil Services that is services under Union ofDIndia to extend the benefit of PAN India reservation forrecruitment to the services under respective Union Territoriesincluding Union Territory of Delhi. [Para 64] [605-H; 606-A-C]2.7 In exercise of the powers conferred by clause (1) ofArticle 341, the President issued the Constitution (ScheduledECastes) Union Territories Order, 1951 in the Presidential Orderspecifying Scheduled Castes in relation to Delhi and the thirty-six castes/groups were notified. In relation to Delhi, there arethirty-six castes notified as Scheduled Castes in the PresidentialOrder. The members of the Scheduled Castes in Delhi are drawnfrom castes, races and by virtue of the Presidential OrderFpertaining to Delhi, they attain the status of the Scheduled Caste.In view of the Presidential Order issued for the Scheduled Castesto Delhi, only those Scheduled Castes can claim the benefit ofreservation in the employment under the Union Territory of Delhiwho are notified in the Presidential Order. Neither the DelhiGGovernment nor the court can add any caste or group to the listof Scheduled Castes notified in the Presidential Order. Once aPresidential Order has been issued under Article 341(1) of theConstitution, any addition or deletion to the Presidential Ordercan only be made by the Parliament by law as provided underArticle 341(2) and in no other manner. Merely because, DelhiH

Subordinate Services is feeder category for DANICS, therecannot be Pan India Reservation of the SCs and STs for theservices under Group ‘C’ and ‘D’ categories, for whichrecruitment are made by the Delhi Subordinate Staff SelectionBoard (DSSSB). Likewise, the Presidential Order has notifiedthe Scheduled Castes for the Union Territory of Chandigarh,Daman and Diu, Puducherry and Dadra and Nagar Haveli.[Paras 65, 66] [606-C; 607-A-E]

2.8 The Constitution (Andaman and Nicobar Islands)Scheduled Tribes Order, 1959 notified the tribes or tribalcommunities who have been included in the Schedule for theAndaman & Nicobar Islands. When Andaman & Nicobar Islandsis recruiting persons to the services of Group ‘B’, ‘C’ and ‘D’under its administration, it has to necessarily follow the policy ofrecruiting members from amongst the Scheduled Tribes who arenotified as Scheduled Tribes in the Presidential Notification forAndaman and Nicobar Islands. It will not be appropriate to extendthe benefit of reservation to the SCs and STs from other States/Union Territories, lest it would deprive the notified ScheduledTribes of the Andaman and Nicobar Islands. It may be that thecandidates recruited by the respective Union Territories forGroup ‘B’ and Group ‘C’ may become the feeder categories forfurther promotion in Group ‘A’ and Group ‘B’ of All India Servicesrespectively in the Central Civil Services. The fact that thecandidates who are recruited by the respective Union Territoriesbecome the feeder categories for further promotion in the CentralCivil Services is not ground for extending the benefit of allIndia reservation to the Scheduled Castes/Scheduled Tribes forthe reserved posts in the respective Union Territories. Be itnoted that the candidates recruited by the various StateGovernments under Group ‘A’ of respective State servicesbecome the feeder category for IAS and IPS. The personsrecruited for Group ‘B’ and Group ‘C’ by the respective UnionTerritories stand on the same footing as that of the candidates sorecruited by the various States where only the Scheduled Castes/Scheduled Tribes of the respective States can apply. ExtendingPAN India reservation for the reserved posts recruited by NCTof Delhi or any other Union Territories is against the Presidential

AOrders issued under Articles 341 and 342 of the Constitution ofIndia and against the constitutional scheme. In case of UnionTerritories, though administrative control to certain extent isexercised by the Union of India, Union Territories do not losetheir identity as an entity. The existing practice of PAN INDIAreservation followed in Delhi and Chandigarh is against theBconstitutional scheme and also against the executive instructionsdated 06.08.1984 and 22.02.1985 issued by the Ministry of HomeAffairs. [Paras 67, 68, 70 and 71] [609-A, D-G; 611-G-H; 612-A]2.9 If PAN India reservation is to be extended to the UnionTerritories like Delhi, Chandigarh, Puducherry, Andaman &CNicobar Islands or Daman & Diu for Group ‘C’ and ‘D’ servicesfor which recruitment are made by the respective UnionTerritories, the very object of the Constitutional Scheme ofupliftment of the SCs/STs of these Union Territories will bedefeated. All India reservation to the services under the UnionDTerritories including the Union Territory of Delhi will be againstthe mandate of Articles 341 and 342 of the Constitution and againstthe Constitutional Scheme. Marri Chandra Shekhar Rao and ActionCommittee are applicable to the States and they are applicablewith equal force to the Union Territories including Union Territoryof Delhi. There cannot be any distinction between the States andEthe Union Territories. Likewise, there can be no distinctionbetween Union Territory of Delhi and other Union Territories.When Presidential Orders of Scheduled Castes/Scheduled Tribesare notified for various Union Territories including UnionTerritory of Delhi extending PAN India reservation to theFemployment falling under the services of Union Territoriesincluding Union Territory of Delhi, will be against theConstitutional scheme and the law laid down in Marri ChandraShekhar Rao and Action Committee. Article 16(4) of theConstitution has to yield to the constitutional mandate of Articles341 and 342 of the Constitution. The Presidential Order issuedGunder Article 341 in regard to Scheduled Castes and Article 342in regard to Scheduled Tribes cannot be varied by anyone or bythe Court. Only the Parliament by law include or exclude fromthe list of Scheduled Castes or Scheduled Tribes specified in thenotification issued under Article 341 (1) and Article 342(1)H

respectively any caste, race or tribe or parts or group within anycaste, race or tribe. The Scheduled Castes or Scheduled Tribesthus specified in relation to one State or Union Territory doesnot carry the status in another State or Union Territory. Whenthe Scheduled Castes or Scheduled Tribes are specified for eachState in relation to one State or Union Territory, neither the Statelegislature, the administration of the Union Territories and northe courts can include or exclude other Scheduled Castes orScheduled Tribes so notified in the Presidential Order. Providingall India reservation to the services of Union Territories includingUnion Territory of Delhi, would be against the mandate of Articles341 and 342 and the Presidential Orders issued thereon. If thatis permitted, it would amount to addition or alteration of thePresidential Order which is impermissible and violative of theConstitutional Scheme. [Paras 72-74] [612-C-G; 613-A-C]

3. It is the responsibility of each State/Union Territory toprovide for such reservation/affirmative action by positivediscretion to bring backward classes/Scheduled Castes andScheduled Tribes in the respective States/areas to provide socio-economic empowerment. If the reservation to the ScheduledCastes and Scheduled Tribes are to be extended to all categoriesof Scheduled Castes and Scheduled Tribes all over India or tothe migrants then there is every possibility of the ScheduledCastes and Scheduled Tribes of other developed States and UnionTerritories squandering reservations to the Scheduled Castesand Scheduled Tribes who are disadvantaged in the respectiveStates/Union Territories including Union Territory of Delhi. Ifthis is permitted, it would defeat the very object of providingreservation to the disadvantaged Scheduled Castes and ScheduledTribes in particular State or Union territory. The enablingprovision of Article 16(4) of the Constitution has to yield to theconstitutional scheme of Article 341 and Article 342 of theConstitution. [Para 75] [613-D-F]

4. In conclusion, it is held as follows-

(i) Insofar as the States, the majority view is agreed withthat person who is recognised as member of Scheduled Castes/Scheduled Tribes in his original State, will be entitled to all the

Abenefits of reservation under the Constitution in that State onlyand not in other States/Union Territories and not entitled to thebenefits of reservation in the migrated State/Union Territory.

(ii) Marri Chandra Shekhar Rao and Action Committee areapplicable to the States and they are applicable with equal forceBto the Union Territories including Union Territory of Delhi. Therecannot be any distinction between the States and the UnionTerritories. Likewise, there can be no distinction between UnionTerritory of Delhi and other Union Territories. WhenPresidential Orders of Scheduled Castes/Scheduled Tribes arenotified for various Union Territories including Union TerritoryCof Delhi extending PAN India reservation to the employmentfalling under the services of Union Territories including UnionTerritory of Delhi, will be against the Constitutional scheme andthe law laid down in Marri Chandra Shekhar Rao and ActionCommittee.

D(iii) Since there is centralised recruitment upto Group ‘B’(Gazetted) services conducted by UPSC for the Central CivilServices posts in the States/Union Territories of India, there hasto be necessarily PAN India reservation for Scheduled Castes/Scheduled Tribes for those recruitment conducted by UPSC.ESofaras Group ‘B’ and Group ‘C’ posts falling under services ofUnion Territories including Union Territory of Delhi for whichrecruitment is conducted by the respective Union Territories,benefit of reservation in employment (Article 16(4) is to beextended only to those Scheduled Castes/Scheduled Tribesspecified in the Presidential Order of the respective UnionFTerritories. Insofar as the posts recruited by the Staff SelectionBoard of the respective Union Territories including the UnionTerritory of Delhi, there cannot be PAN India reservation forGroup ‘B’, Group ‘C’ and Group ‘D’ posts falling under theservices of various Union Territories and such PAN IndiaGreservation would be against the constitutional scheme and MarriChandra Shekhar Rao and Action Committee. [Para 76][613-G: 614-A-C, D-F]

S. Pushpa and Ors. v. Shivachanmugavelu and Ors.(2005) 3 SCC 1 : [2005] 1 SCR 1158 ; ChandigarhAdministration and Another v. Surinder Kumar andH

Others (2004) 1 SCC 530 : [2003] 6 Suppl. SCR 283– held not correct view.

Marri Chandra Shekhar Rao v. Dean, Seth G.S. MedicalCollege and Ors. (1990) 3 SCC 130 : [1990] 2 SCR843 ; Action Committee on issue of caste certificate toScheduled Castes and Scheduled Tribes in the State ofMaharashtra and Anr. v. Union of India and Anr. (1994)5 SCC 244 : [1994] 1 Suppl. SCR 714 – followed.State of Maharashtra v. Milind and Ors. (2001) 1SCC 4 : [2000] 5 Suppl. SCR 65 ; New Delhi MunicipalCouncil v. State of Punjab & Ors. (1997) 7 SCC 339 :[1996] 10 Suppl. SCR 472 ; Satya Dev Bushahri v.Padam Dev and Ors. AIR 1954 SC 587: [1955] SCR549 ; Chandigarh Administration and Anr. v. SurinderKumar and Ors. (2004) 1 SCC 530 : [2003] 6 Suppl.SCR 283; Government of NCT Delhi v. All India CentralCivil Accounts, Jao’s Association and Ors. (2002) 1 SCC344 : [2001] 3 Suppl. SCR 494 ; Subhash Chandraand Another v. Delhi Subordinate Service SelectionBoard and Others (2009) 15 SCC 458 : [2009] 12 SCR978 – relied on.State of Uttaranchal v. Sandeep Kumar Singh and Ors.(2010) 12 SCC 794 ; Bhaiya Lal v. Harikishan SinghAIR 1965 SC 1557 : [1965] 2 SCR 877 ; E. P. Royappav. State of Tamil Nadu and Anr. (1974) 4 SCC 3 :[1974] 2 SCR 348 ; Indra Sawhney and Ors. v. Unionof India and Ors. (1992) 3 Suppl. SCC 217 : [1992] 2Suppl. SCR 454 ; Chattar Singh and Ors. v. State ofRajasthan and Ors. (1996) 11 SCC 742 : [1996] 6Suppl. SCR 696 ; State of Kerala and Anr. v.N.M. Thomas and Ors. (1976) 2 SCC 310 : [1976] 1SCR 906 ; Shree Surat Valsad Jilla K.M.G. Parishadv. Union of India and Ors. (2007) 5 SCC 360 : [2007]6 SCR 257; Puducherry Scheduled Caste PeopleWelfare Association v. Chief Secretary to Government,Union Territory of Pondicherry and Ors. (2014) 9 SCC236 – referred to.

Commentary on the Constitution of India 8[th] Edition byDurga Das Basu, pp.44 & 53 – referred to.

Case Law Reference

[2005] 1 SCR 1158 held not correct view Para 37A(2014) 9 SCC 236 referred to Para 39[2003] 6 Suppl. SCR 283 held not correct view Para 41

[2009] 12 SCR 978 relied on Para 60

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1085of 2013.

From the Judgment and Order dated 12.09.2012 of the High Courtof Delhi at New Delhi in Writ Petition (Civil) No. 1513 of 2011

WITH

Civil Appeal Nos. 9935-9937, 10081 and 8141 of 2014, Civil AppealNo. 8802 of 2012, Civil Appeal No. 1086 of 2013 and Civil AppealNo. 9048 of 2018.

P. S. Narasimha, ASG, Ms. V. Mohana, Krishnan Venugopal,K. Radhakrishna, Colin Gonsalves, Ms. Geeta Luthra, Sr. Advs.,Ms. Rekha Pandey, Ms. Rashmi Malhotra, Ravindera Kumar Verma,B. V. Balaram Das, V. C. Shukla, M. K. Maroria, S. Chatterjee,Ms. Asha Gopalan Nair, Ms. Nivedita Nair, Ms. Dimple Nagpal,Shivendra Singh, Ms. Deepanshi Ishar, Ravindera Kumar Verma, RajBahadur, Ms. Aditi Gupta, Ms. Jyoti Mendiratta, Ujjwal Jain, PrateekYadav, D. N. Goburdhan, Pranav Vashishtha, Pranav Malhotra,Ms. Supriya Juneja, Ms. Pallavi Chopra, Sudhanshu S. Choudhari,Ms. Jaikriti S. Jadeja, Shakul R. Ghatole, Ms. Surabhi Guleria, SushilKaranjkar, Nishant Ramakantrao Katneshwarkar, Dr. Krishan SinghChauhan, Ajit Kumar Ekka, Ravi Prakash, R. S. M. Kalky, Chand Kiran,Aurneshwar Gupta, Varun Dewan, Bijan Kumar Ghosh, Naresh Kaushik,Vardhaman Kaushik, Nishant Gautam, Manoj Joshi, Omung Raj Gupta,Devik. Singh, K. Deo Baghel, Ms. Lalita Kaushik, Abhinav Mukerji,Praneet Ranjan, Bankey Bihari Sharma, Bhupesh Narula,K. V. Jagdishvaran, Ms. G. Indira, Gaurav Agrawal, P. Parmeswaran,Mrs. Anil Katiyar, Ajay Bansal, Praveen Swarup, Gaurav Yadava,Ms. Veena Bansal, Ms. Sushma Suri, B. Krishna Prasad, Annam D. N.Rao, Annam Venkatesh, Sudipto Sircar, Rahul Mishra, Ms. Tulika Chikker,Ms. Binu Tamta, Jatinder Kumar Bhatia, Manish Kumar, Advs. for theappearing parties.

AThe Judgment of the Court was delivered by

RANJAN GOGOI, J. 1. Leave granted in Special Leave Petition(Civil) No.36324 of 2017.

2. In State of Uttaranchal vs. Sandeep Kumar Singh andothers[1] (Civil Appeal No.4494 of 2006) the following question arose forBconsideration of this Court:

“Whether person belonging to Scheduled Caste in relation to aparticular State would be entitled or not, to the benefits orconcessions allowed to Scheduled Caste candidate in the matterof employment, in any other State?”

3. In the course of the deliberations that took place this Courtnoticed the Constitution Bench judgments of this Court in Marri ChandraShekhar Rao vs. Dean, Seth G.S. Medical College and others[2]andAction Committee on Issue of Caste Certificate to Scheduled Castesand Scheduled Tribes in the State of Maharashtra and another vs.DUnion of India and another[3]. The view of three Judge Bench ofthis Court in S. Pushpa and others vs. Sivachanmugavelu and others[4]was also noticed and the same was perceived to be somewhat contraryto the view expressed by the Constitution Bench in the above two cases.This Court also took note of the fact that two judge Bench of thisCourt in Subhash Chandra and another vs. Delhi Subordinate ServicesESelection Board and others[5] held that the dicta in S. Pushpa (supra) isan obiter and does not lay down any binding ratio. The Bench hearingthe case i.e. State of Uttaranchal vs. Sandeep Kumar Singh and others(supra) took the view that “it was not open to two judge Bench tosay that the decision of three judge Bench rendered following theFConstitution Bench judgments to be per incuriam”. In this regard,the canons of judicial discipline carved out by this Court in Central Boardof Dawoodi Bohra Community and another vs. State of Maharashtraand another[6] were recalled and eventually in paragraph 13 of the opinionrendered in State of Uttaranchal vs.Sandeep Kumar Singh and others(supra) the reference of the question noted below was made to largerGBench:

1(2010) 12 SCC 7942(1990) 3 SCC 1303(1994) 5 SCC 2444(2005) 3 SCC 15(2009) 15 SCC 458H6(2005) 2 SCC 673

“13. very important question of law as to interpretation of Articles16(4), 341 and 342 arises for consideration in this appeal. Whetherthe Presidential Order issued under Article 341(1) or Article 342(1)of the Constitution has any bearing on the State’s action in makingprovision for the reservation of appointments or posts in favour ofany 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 Articles16(4), 341(1) and 342(1) of the Constitution is required to beresolved.”

4. The said Civil Appeal No.4494 of 2006 (State of Uttaranchalvs. Sandeep Kumar Singh and others) was disposed of by the largerBench of this Court by order dated 6[th] August, 2014, in the light of thefindings of the High Court recorded in paragraph 4 of the High Courtorder to the effect that the order impugned suffers from an apparentillegality as the appointing authority of the petitioner therein is theUniversity and the University had acted at the dictate of the StateGovernment, which has no power to ask for cancellation of anappointment made in accordance with the advertisement. In the aforesaidorder dated 6[th] August, 2014 this Court took the view that the conclusionsrecorded in paragraph 4 of the High Court order cannot be said to belegally flawed and accordingly closed the said Civil Appeal (No. 4494 of2006) on the aforesaid basis. The question referred was not answered.5. However, the question arising and referred to in the State ofUttaranchal vs. Sandeep Kumar Singh and others (supra) was felt tobe surviving and subsisting in the present appeals also. Accordingly, byan order of the Court dated 7[th] August, 2014, the very same question asformulated in paragraph 13 of the judgment in State of Uttaranchalvs.Sandeep Kumar Singh and others(supra), as extracted above, hasbeen referred for an answer by five judge Bench of this Court. Thatis how we are in seisin of the matters.

6. The factual matrix need not detain us and brief resume willsuffice.

The question as to whether policy in furtherance of the enablingprovision contained in Article 16(4) of the Constitution of India couldextend to giving of benefits beyond the Scheduled Castes and Scheduled

ATribes of State/Union Territory enumerated in the Presidential Ordersframed/issued under Articles 341 and 342 of the Constitution of Indiahad arisen in the bunch of writ petitions filed before the High Court ofDelhi against the order/orders of the Central Administrative Tribunal.The learned Tribunal following Marri Chandra Shekhar Rao(supra) andAction Committee(supra), in preference to the view expressed in S.BPushpa (supra) (three judge Bench) held that insofar as the UnionTerritory of Delhi is concerned, migrant Scheduled Caste person wouldnot be entitled to the benefits conferred on members of the ScheduledCastes enumerated in the list for the Union Territory of Delhi by thePresidential Order (i.e. the Scheduled Castes and Scheduled Tribes ListsC(Modification) Order, 1956) in question. The Delhi High Court sitting ina Full Bench (perhaps in view of the importance of the question) foundthe decision in S. Pushpa (supra) to be more directly relatable to theissue at hand i.e. being one of 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 paragraphD66 of the judgment emphasised on the necessity of an authoritativepronouncement on the issue(s) arising. Accordingly, certificate to appealunder Article 134-A of the Constitution was granted by the High Court.Paragraph 66 of the judgment of the Full Bench of the Delhi High Courtwill require specific notice and is, therefore, reproduced below:E“66. This court summarizes its conclusions, as follows: (1) Thedecisions in Marri, Action Committee, Milind and Channaiah haveall ruled that scheduled caste and tribe citizens moving from oneState to another cannot claim reservation benefits, whether or nottheir caste is notified in the state where they migrate to, since theFexercise of notifying scheduled castes or tribes is region (state)specific, i.e “ in relation” to the state of their origin. Thesejudgments also took note of the Presidential Notifications, whichhad enjoined such citizens to be “residents” in relation to the statewhich provided for such reservations.

G(2) The considerations which apply to Scheduled Caste and Tribecitizens who migrate from state to state, apply equally in respectof those who migrate from state to union territory, in view ofthe text of Articles 341 (1) and 342 (1), i.e. only those castes andtribes who are notified in relation to the concerned UnionTerritory, 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 othercastes, or tribes, in view of Articles 341 (2), Article 342(2) whichis also reinforced by Article 16(3). States cannot legislate on this-aspect; nor can the executive Union or state, add to or alter thecastes, or tribes in any notification in relation to state or UnionTerritory, either through state legislation or through policies orcirculars. Differentiation between residents of states, whomigrate to states, and residents of states who migrate to UnionTerritories would result in invidious discrimination andover-classification thus denying equal access to reservationbenefits, to those who are residents of Union Territories, and whosecastes or tribes are included in the Presidential Order in respectof such Union Territories. The Pushpa interpretation has led topeculiar consequences, whereby:

(i) The resident of state, belonging to scheduled caste, notifiedin that state, cannot claim reservation benefit, if he takes upresidence in another state, whether or not his caste is included inthe latter State’s list of scheduled castes;

(ii) However, the resident of state who moves to UnionTerritory would be entitled to carry his reservation benefit, andstatus as member of scheduled caste, even if his caste is notincluded as scheduled caste, for that Union Territory;

(iii) The resident of Union Territory would however, be deniedthe benefit of reservation, if he moves to State, because he isnot resident scheduled caste of that State.

(iv) The resident of Union Territory which later becomes 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 state which isconverted into Union Territory, cannot protest against thetreatment of scheduled caste residents of other states asmembers of scheduled caste of the Union Territory, even thoughtheir castes are not included in the list of such castes, for theUnion Territory.

(3) The ruling in Pushpa is clear that if the resident of state,whose caste is notified as Scheduled caste or scheduled tribe,moves to Union Territory, he carries with him the right to claimthat benefit, in relation to the Union Territory, even though if hemoves to another state, he is denied such benefit (as result ofthe rulings in Marri and Action Committee). The ruling in Pushpa,being specific about this aspect vis-à-vis Union Territories, isbinding; it was rendered by Bench of three judges. (4) The laterruling in Subhash Chandra doubted the judgment in Pushpa,holding that it did not appreciate the earlier larger Benchjudgments in the correct perspective. Yet, Subhash Chandracannot be said to have overruled Pushpa, since it was renderedby smaller Bench of two judges. This approach of SubhashChandra has been doubted, and the question as to the correctview has been referred to Constitution Bench in the State ofUttaranchal case.

(5) By virtue of the specific ruling applicable in the case of UnionTerritories, in Pushpa, whatever may be the doubts entertained asto the soundness of its reasoning, the High Courts have to applyits ratio, as it is by formation of three judges; the said decisiondid notice the earlier judgments in Marri and Action Committee.Article 141 and the discipline enjoined by the doctrine ofprecedent compels this Court to follow the Pushpa ruling.

(6) In matters pertaining to incidence of employment, such asseniority, promotion and accelerated seniority or promotionalbenefits, flowing out of Articles 16 (4A) and (4B) of theConstitution, there may be need for clarity, whichever rule isultimately preferred - i.e the Pushpa view or the Marri and ActionCommittee view. In such event, it may be necessary for theguidance of decision makers and High Courts, to spell out whetherthe correct view should be applied prospectively. Furthermore, itmay be also necessary to clarify what would be meant byprospective application of the correct rule, and whether suchemployment benefits flowing after recruitment, would be alteredif the Marri view is to be preferred.”

7. Civil Appeal Nos.9935-9937 of 2014 from the decision of theCalcutta High court pertain to claims made by persons belonging to Uraonsand Mundas members of the Scheduled Tribes communities who havemigrated to the Union Territory of Andaman & Nicobar Island. TheHigh Court rejected the claim of reservation made by the aforesaidmigrants Scheduled Tribes communities confining such benefits to theScheduled Castes communities enumerated in the list appearing in thePresidential Order pertaining to the Union Territory of Andaman &Nicobar Island.

8. Before delving into the constitutional provisions which wouldbe necessary to be dealt with for answering the reference brief look atthe pre-constitutional position on the issue would throw considerablelight and provide sound insight to the multi-faceted questions that thereference has given rise to.

9. The caste system in India, which is the bane of just socialorder, has long history which can be traced to the earliest times. AncientHindu religious scriptures refer to the practice. Division of Society basedon birth and the calling/profession of person has continued to dominateHindu thinking and way of life and is perhaps one of the thorny problemsinherited by the British Administration which had tried to resolve thesame by giving legal recognition to what came to be termed as the“depressed classes”. Such recognition was in the form of protectiveregime which extended to representation in the Legislature and in theservices under the State. Exercises in finding out the numerical strengthof the depressed class in the early 20[th] Century (By SouthboroughCommittee) revealed grim picture indicating such number to be ashigh as 20 per cent of the majority population (Hindu) in eight (08) IndianProvinces of Madras, Bombay, Bengal, United Provinces, Punjab, Biharand Orissa, Central Provinces and Assam. The above figure did notinclude primitive or aboriginal tribes who later came to be known as theScheduled Tribes and included in the list of Scheduled Tribes under thedifferent Presidential Orders issued from time to time.

10. The Government of India Act, 1935 (hereinafter referred toas “1935 Act”) (also referred to as “the Constitution Act”) brought intoforce the expression “Scheduled Castes” for the first time in IndianConstitutional history. Entry 26 Part I of the First Schedule to the 1935

AAct stipulates that “the Scheduled Castes mean such castes, races ortribes or parts of or groups within the castes, races or tribes, beingcastes, races, tribes, parts or groups, which appear to His Majestyin Council to correspond to the classes of persons formerly knownas ‘the depressed classes’, as His Majesty in Council may specify”.

B11. Thereafter 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 ScheduledCastes” across the territory of India. look at the Schedule whichconsisted of nine (09) parts i.e. Madras, Bombay, Bengal, UnitedProvinces, Punjab, Bihar, Central Provinces, Assam, Orissa would indicateCthat identification of the different castes for inclusion as Scheduled Castesin the Schedule to the 1935 Act was based on an elaborate exerciseconducted for each of the Provinces so much so that while some casteshave been identified as Scheduled Castes throughout Province, othershave been so identified to limited areas within province. The postDconstitutional exercise by the Constitution (Scheduled Castes) Order,1950 and the Constitution (Scheduled Tribes) Order, 1950, as originallyenacted under Articles 341 and 342 of the Constitution, was basically anexercise in re-casting the Schedule to the 1935 Act. The subsequentamendments to the aforesaid two Orders, from time to time, have beennecessitated to bring the position in tune with the amendments to theEFirst Schedule to the Constitution made at different points of time bycreation of new States and alterations in the area and boundaries ofexisting States.

12. Article 366 of the Constitution which defines expressionsappearing in the Constitution specifically defines ‘Scheduled Castes’F[clause (24)] to mean “such castes, races or tribes or parts of orgroups within such castes, races or tribes as are deemed underArticle 341 to be Scheduled Castes for the purposes of thisConstitution”. Similarly, clause (25) of Article 366 defines “ScheduledTribes” to mean “such tribes or tribal communities or parts of orGgroups within such tribes or tribal communities as are deemed underArticle 342 to be Scheduled Tribes for the purposes of thisConstitution”.

13. Part XVI of the Constitution of India deals with specialprovisions relating to certain classes. Article 330 provides for reservation

of seats for Scheduled Castes and Scheduled Tribes in the House of thePeople (Lok Sabha) whereas Article 332 contains similar provisions sofar as the Legislative Assemblies of the States are concerned. Article335 of the Constitution provides that “the claims of the members of theScheduled Castes and Scheduled Tribes shall be taken intoconsideration, consistently with the maintenance of efficiency ofadministration, in the making of appointments to services and postsin connection with the affairs of the Union or of State”. By theConstitution (Eighty-Second) Amendment Act, 2000 proviso to Article335 was added to provide that the members of the Scheduled Castesand Scheduled Tribes may be granted relaxation in qualifying marks inany examination or standards of evaluation can be lowered in matters ofpromotion to any class or classes of services or posts in connection withthe affairs of the Union or of State. Article 338 of the Constitutionprovides for National Commission for Scheduled Cates which is investedwith the following duties:

“(a) to investigate and monitor all matters relating to the safeguardsprovided for the Scheduled Castes under this Constitution or underany other law for the time being in force or under any order of theGovernment and to evaluate the working of such safeguards;

(b) to inquire into specific complaints with respect to the deprivationof rights and safeguards of the Scheduled Castes;

(c) to participate and advise on the planning process of socio-economic development of the Scheduled Castes and to evaluatethe progress of their development under the Union and any State;the Scheduled Castes and to evaluate the progress of theirdevelopment under the Union and any State;

(d) to present to the President, annually and at such other timesas the Commission may deem fit, reports upon the working ofthose safeguards; deem fit, reports upon the working of thosesafeguards;

(e) to make in such reports recommendations as to the measuresthat should be taken by the Union or any State for the effectiveimplementation of those safeguards and other measures for theprotection, welfare and socio-economic development of theScheduled Castes; and

A(f) to discharge such other functions in relation to the protection,welfare and development and advancement of the ScheduledCastes as the President may, subject to the provisions of any lawmade by Parliament, by the rule specify.”

14. Similarly, Article 338A provides for National CommissionBfor Scheduled Tribes which is vested with similar duties as in the case ofthe Commission for the Scheduled Castes.

15. Article 341(1) of the Constitution empowers the Presidentwith respect to any State or Union Territory, and where it is State,after consultation with the Governor thereof, by public notification, toCspecify the castes, races or tribes or parts of or groups within castes,races or tribes which shall for the purposes of the Constitution be deemedto be Scheduled Castes in relation to that State or Union Territory, as thecase may be.

16. In case of Scheduled Tribes the President has been similarlyDempowered under Article 342(1) of the Constitution. Sub-clause (2) ofArticle 341 and Article 342 empowers the Parliament by law to includein or exclude from the list of Scheduled Castes/Scheduled Tribes specifiedin the Notification issued under clause (1) thereof any caste, race ortribe/tribal community or part of or group within any caste, race or tribe/tribal community. It is further provided that except as provided i.e. byEParliament by law(s) made, the notification issued under Article 341(1)or Article 342(1) shall not be varied by any subsequent notification. Theconstitutional mandate, therefore, appears to be that any caste, race ortribe/tribal community or part of or group within any caste, race or tribe/tribal community as has been specified in the Presidential Order underFclause (1) of Article 341 or Article 342 can be altered only by Parliamentby 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 specifiedin the Presidential Order under Article 341(1) or tribe or tribalGcommunity as may be specified in the Presidential Order under Article342(1) shall be deemed to be Scheduled Castes/Scheduled Tribes forthe purposes of the Constitution in relation to that State or Union Territory,as the case may be. The 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 ortribes or parts of, or groups within, castes or tribes specified inParts I to XXV of the Schedule to this Order shall, in relation tothe States to which those Parts respectively relate, be deemed tobe Scheduled Castes so far as regards member thereof residentin the localities specified in relation to them in those Parts of thatSchedule.

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 theSchedule to this Order shall, in relation to the States to whichthose Parts respectively relate, be deemed to be Scheduled Tribesso far as regards members thereof residents in the localitiesspecified in relation to them respectively in those Parts of thatSchedule.”

18. There are various parameters by which caste/race isrecognized as ‘Scheduled Caste/Scheduled Tribe’ in State/UnionTerritory or particular part thereof. There is no doubt that before thePresidential Orders were issued under Article 341(1) or under Article342(1), elaborate enquiries were made and only after such enquiriesthat the Presidential Orders were issued. While doing so, the PresidentialOrders not only provided that even specified parts or groups of castes,races or tribes/tribal community could be Scheduled Castes/Tribes in aparticular State/Union Territory but also made it clear that certain castesor tribes or parts/groups thereof could be Scheduled Castes/Tribes onlyin specified/particular areas/districts of State/Union Territory. Thereason for such an exercise by reference to specific areas of State isthat judged by standards of educational, social backwardness, etc. racesor tribes may not stand on the same footing throughout the State. Theconsideration for specifying particular caste or tribe or class for inclusionin the list of Scheduled Castes and Scheduled Tribes or Backward Classesin any given State depends on the nature and extent of the disadvantagesand social hardships suffered by the concerned members of the class inthat State. These may be absent in another State to which the personsbelonging to some other State may migrate.

A19. The Presidential Orders which enumerate lists of castes/races,tribes recognized as ‘Scheduled Caste/Scheduled Tribe’ cannot bechallenged or agitated in court of law except, perhaps, on the limitedground as held in M. Nagaraj and othersvs. Union of India andothers[7]. few illustrations may clarify the position. The question whetherDohar caste is sub-caste of Chamar caste which is recognized as aBscheduled caste came up for consideration in Bhaiya Lal vs. HarikishanSingh[8]. This Court held that the court cannot enquire into whetherDohar caste is sub-caste of Chamar caste and whether the samemust be deemed to have been included in the Presidential Order. InBhaiya Lal (supra), this Court held that before issuing notificationsCunder Articles 341 and 342, an elaborate enquiry is made and as resultof the enquiry social justice is sought to be done to the castes, races ortribes as may appear to be necessary. It was further held that onlyParliament 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 notification issued under the said clause shallDnot be varied by any subsequent notification” occurring in each ofthe said provisions. In Bhaiya Lal (supra),this Court held as under:-

“10...The object of Article 341(1) plainly is to provide additionalprotection to the members of the Scheduled Castes having regardto the economic and educational backwardness from which theyEsuffer. It is obvious that in specifying castes, races or tribes, thePresident has been expressly authorised to limit the notification toparts of or groups within the castes, races or tribes, and that mustmean that after examining the educational and socialbackwardness of caste, race or tribe, the President may wellFcome to the conclusion that not the whole caste, race or tribe butparts of or groups within them should be specified. Similarly, thePresident can specify castes, races or tribes or parts thereof inrelation not only to the entire State, but in relation to parts of theState where he is satisfied that the examination of the social andeducational are backwardness of the race, caste or tribe justifiesGsuch specification.In fact, it is well known that before notificationis issued under Article 341(1), an elaborate enquiry is made and itis as result of this enquiry that social justice is sought to be doneto the castes, races or tribes as may appear to be necessary, and

in doing justice, it would obviously be expedient not only to specifyparts or groups of castes, races or tribes, but to make the saidspecification 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 thewhole of the State; it may vary in degree or in kind in differentareas and that may justify the division of the State into convenientand suitable areas for the purpose of issuing the public notificationin question...”

[Underlining added]

20. Whenever States’ reorganization had taken place in the past,Parliament had exercised its powers under Article 341(2) and Article342(2) and provided for specific Castes/Tribes that were entitled to berecognised as Scheduled Castes and Scheduled Tribes in relation to thereorganized States/Union Territories. The Scheme of the Constitution(Scheduled Castes) and (Scheduled Tribes) Orders makes it clear thatParliament’s intention was to extend the benefits of reservation in relationto the States/Union Territories only to the castes, races or tribes asmentioned in the Presidential Orders.

21. The Orders of 1950 was amended by the Constitution(Scheduled Castes and Scheduled Tribes Order), by the AmendmentAct, 1956 (Act 63/1956). Another amending Act was enacted byparliament in 1976. Earlier, orders had been made for the first time inrelation to certain territories, such as the Constitution (Andaman andNicobar Islands) Scheduled Tribes Order, 1959. Further, amendmentshad taken place as and when parliament reorganized states, throughseparate Reorganisation Acts, which led to large scale modification ofthe Presidential Orders. Illustratively, when new States/UnionTerritories were formed such as, Nagaland, Pondicherry, or Sikkim, theScheduled Castes or Scheduled Tribes Orders were made in relation tothe new States/Union Territories, for instance, the Constitution (Nagaland)Scheduled Tribes Order, 1970- after the reorganisation of Assam; theConstitution (Sikkim) Scheduled Castes Order, 1978; the Constitution(Sikkim) Scheduled Tribes Order, 1978) upon creation of the State ofSikkim; the recent ones being upon creation of the States of Uttarakhand,Chhattisgarh, and Jharkhand. Likewise, when previous UnionTerritories (such as Goa, Mizoram and Arunachal Pradesh) were

Aconstituted into States, consequential amendments were made to theScheduled Castes and Tribes Orders. All such amendments/enactmentswere made by Parliament.

22. Though in different context i.e. in relation to BackwardClasses this Court in M.C.D. v. Veena and Ors.[9], has specifically heldBthat migrants are not entitled for reservation as Other Backward Classes(OBCs) in the States/Union Territories where they have migrated. Therelevant portion of the judgment that may be noticed is as hereunder:-

“6. Castes or groups are specified in relation to given State orUnion Territory, which obviously means that such caste wouldCinclude caste belonging to an OBC group in relation to that Stateor Union Territory for which it is specified. The matters that areto be taken into consideration for specifying particular caste in aparticular group belonging to OBCs would depend on the natureand extent of disadvantages and social hardships suffered by thatcaste or group in that State. However, it may not be so in anotherDState to which person belonging thereto goes by migration. Itmay also be that caste belonging to the same nomenclature isspecified in two States but the considerations on the basis of whichthey had been specified may be totally different. So the degree ofdisadvantages of various elements which constitute the data forEspecification may also be entirely different. Thus, merely becausea given caste is specified in one State as belonging to OBCs doesnot necessarily mean that if there be another group belonging tothe same nomenclature in another State, person belonging tothat group is entitled to the rights, privileges and benefitsadmissible to the members of that caste. These aspects have toFbe borne in mind in interpreting the provisions of the Constitutionwith reference to application of reservation to OBCs.”

23. Constitution Bench of this Court in Marri Chandra ShekharRao (supra) had the occasion to consider the question as to whether amember of the Gouda community which is recognised as “ScheduledGTribe” in the Constitution (Scheduled Tribes) Order, 1950 for the Stateof Andhra Pradesh would be entitled to admission in medical institutionsituated in the State of Maharashtra. This Court noticed the fact that thefather of the petitioner in Marri Chandra Shekhar Rao (supra)wasan employee in Fertilizer Corporation of India, public sector undertakingHand thereafter in Rashtriya Chemicals and Fertilizers Limited,

Government of India undertaking. He belonged to the Gouda community,a recognized Scheduled Tribe of Andhra Pradesh. On his appointmenthe was stationed at Bombay. The petitioner came to Bombay at the ageof nine years. He completed his studies in Bombay; he submitted anapplication for his admission in the medical institutions run by BombayMunicipal Corporation which was denied. This denial of admission wasbased on the Government of India circular dated 22[nd] February, 1985,according to which person who migrates from one State to another isentitled to the benefit of being Scheduled Castes/Scheduled Tribes in theState of origin and not in the State to which he or she migrates. Theappellant was held not entitled to be admitted to the Medical College onthe basis that he belonged to Scheduled Tribe in his original State i.e.Andhra Pradesh.

24. After referring to various provisions of the Constitution ofIndia, the background in which the Presidential Orders were issued andseveral earlier judgments of this Court, it was held as under:-

“9. It appears that Scheduled Castes and Scheduled Tribes insome States had to suffer the social disadvantages and did nothave the facilities for development and growth. It is, therefore,necessary in order to make them equal in those areas where theyhave so suffered and are in the state of underdevelopment tohave reservations or protection in their favour so that they cancompete on equal terms with the more advantageous or developedsections of the community. Extreme social and economicbackwardness arising out of traditional practices of untouchabilityis normally considered as criterion for including community inthe list of Scheduled Castes and Scheduled Tribes. The socialconditions of caste, however, varies from State to State and itwill not be proper to generalise any caste or any tribe as aScheduled Tribe or Scheduled Caste for the whole country. This,however, is different problem whether member or the ScheduledCaste in one part of the country who migrates to another State orany other Union territory should continue to be treated as aScheduled Caste or Scheduled Tribe in which he has migrated.That question has to be judged taking into consideration the interestand well-being of the Scheduled Castes and Scheduled Tribes inthe country as whole.”

[underlining is ours]

25. In Marri Chandra Shekhar Rao (supra), rejecting thecontention that member of Scheduled Castes/Scheduled Tribes shouldget the benefit of the status ‘for the purpose of the Constitutionthroughout the territory of India’, it was observed that if suchcontention is to be accepted the expression “In relation of that State”would become nugatory.

26. Marri Chandra Shekhar Rao (supra)was followed by anotherConstitution Bench of this Court in Action Committee (supra). Afterreferring to Articles 14, 15(1), 15(4), 16(4) and 19 and Part XVI of theConstitution of India and the decisions governing the field and also Articles341 and 342, it was held as under:-

“3. On plain reading of clause (1) of Articles 341 and 342 it ismanifest that the power of the President is limited to specifyingthe castes or tribes which shall, for the purposes of the Constitution,be deemed to be Scheduled Castes or Scheduled Tribes in relationto State or Union Territory, as the case may be. Once anotification is issued under clause (1) of Articles 341 and 342 ofthe Constitution, Parliament can by law include in or exclude fromthe list of Scheduled Castes or Scheduled Tribes, specified in thenotification, any caste or tribe but save for that limited purposethe notification issued under clause (1), shall not be varied by anysubsequent notification. What is important to notice is that thecastes or tribes have to be specified in relation to given State orUnion Territory. That means given caste or tribe can be aScheduled Caste or Scheduled Tribe in relation to the State orUnion Territory for which it is specified. These are the relevantprovisions with which we shall be concerned while dealing withthe grievance made in this petition.

16.We may add that considerations for specifying particularcaste or tribe or class for inclusion in the list of Scheduled Castes/Schedule Tribes or backward classes in given State would dependon the nature and extent of disadvantages and social hardshipssuffered by that caste, tribe or class in that State which may betotally non estin another State to which persons belonging theretomay migrate. Coincidentally it may be that caste or tribe bearingthe same nomenclature is specified in two States but theconsiderations on the basis of which they have been specifiedmay be totally different. So also the degree of disadvantages ofvarious elements which constitute the input for specification mayalso be totally different. Therefore, merely because given casteis specified in State as Scheduled Caste does not necessarilymean that if there be another caste bearing the same nomenclaturein another State the person belonging to the former would beentitled to the rights, privileges and benefits admissible to memberof the Scheduled Caste of the latter State “for the purposes ofthis Constitution”. This is an aspect which has to be kept in mindand which was very much in the minds of the Constitution-makersas is evident from the choice of language of Articles 341 and 342of the Constitution....”

[underlining is ours]

27. Marri Chandra Shekhar Rao (supra)and Action Committee(supra) were followed in Subhash Chandra and another (supra). Afterreferring to various judgments on the point and also the various circulars,this Court in Subhash Chandra and another (supra) held as under:-

“69. Both the Central Government and the State Governmentindisputably may lay down policy decision in regard to reservationhaving regard to Articles 15 and 16 of the Constitution of Indiabut such policy cannot violate other constitutional provisions. Apolicy cannot have primacy over the constitutional scheme. If forthe purposes of Articles 341 and 342 of the Constitution of India,State and the Union Territory are on par on the ground ofadministrative exigibility (sic) or in exercise of the administrativepower, the constitutional interdict contained in clause (2) of Article341 or clause (2) of Article 342 of the Constitution of India cannotbe got rid of.

.......

75. If caste or tribe is notified in terms of the Scheduled CastesOrder or the Scheduled Tribes Order, the same must be done interms of clause (1) of Article 341 as also that of Article 342 of theConstitution of India, as the case may be. No deviation from theprocedure laid down therein is permissible in law. If anyamendment/alteration thereto is required to be made, recourse tothe procedure laid down under clause (2) thereof must be resortedto.”

A28. In Marri Chandra Shekhar Rao (supra), the ConstitutionBench observed that the expression “in relation to that State”must beread meaningfully and harmoniously. It was observed that if memberof Scheduled Castes/Scheduled Tribes gets the benefit of that statusthroughout the territory of India, the expression “in relation to thatState”would become nugatory. If the special privileges or the rightsBgranted to scheduled castes or scheduled tribes in particular State areto be made available in all the States and if such benefits are to becarried from State ‘A’ to State ‘B’ on migration, the mandate of Article341/342 would get compromised. Such consequence must be avoidedfor it is fundamental rule of interpretation, be it of statutory enactmentCor of the Constitution, that wherever and whenever there is conflictbetween two provisions, the same should be so interpreted as to giveeffect to both. “…….Nothing is surplus in Constitution and no partshould be made nugatory…..”. [Marri Chandra Shekhar Rao (supra)]

29. The issue has to be viewed from another perspective. If aDmember of Scheduled Caste/ Scheduled Tribe of Andhra Pradesh whohad migrated to Maharashtra is to be given the benefit of reservation itwill amount to depriving member of Scheduled Caste/ScheduledTribe of Maharashtra by reducing the reservation earmarked for them.It is in this context, in Marri Chandra Shekhar Rao (supra), thattheConstitution Bench observed as under:-E

“14. ....But having regard to the purpose, it appears to us thatharmonious construction enjoins that we should give to eachexpression —”in relation to that State” or “for the purposes ofthis Constitution” — its full meaning and give their full effect.This must be so construed that one must not negate the other.FThe construction that reservation made in respect of the ScheduledCaste or Tribe of that State is so determined to be entitled to allthe privileges and rights under the Constitution in that State wouldbe the most correct way of reading, consistent with the language,purpose and scheme of the Constitution. Otherwise, one has toGbear in mind that if reservations to those who are treated asScheduled Caste or Tribe in Andhra Pradesh are also given to aboy or girl who migrates and gets deducted (sic inducted) in theState of Maharashtra or other States where that caste or tribe isnot treated as Scheduled Caste or Scheduled Tribe then eitherreservation will have the effect of depriving the percentage to the

member of that caste or tribe in Maharashtra who would be entitledto protection or it would denude the other non-Scheduled Castesor non-Scheduled Tribes in Maharashtra to the proportion thatthey are entitled to. This cannot be logical or correct result designedby the Constitution.”

30. Unhesitatingly, therefore, it can be said that person belongingto Scheduled Caste in one State cannot be deemed to be ScheduledCaste person in relation to any other State to which he migrates for thepurpose of employment or education. The expressions “in relation tothat State or Union Territory” and “for the purpose of thisConstitution”used in Articles 341 and 342 of the Constitution of Indiawould mean that the benefits of reservation provided for by theConstitution would stand confined to the geographical territories of aState/Union Territory in respect of which the lists of Scheduled Castes/Scheduled Tribes have been notified by the Presidential Orders issuedfrom time to time. person notified as Scheduled Caste in State ‘A’cannot claim the same status in another State on the basis that he isdeclared as Scheduled Caste in State ‘A’.

31. In S. Pushpa (supra),thePondicherry Government hadappointed Selection Grade Teachers in 1995 under the Scheduled Castesquota from amongst the scheduled castes candidates registered in theemployment exchange in Pondicherry but also extended the benefit ofreservation to scheduled castes candidates of other States and UnionTerritories. The Chennai Bench of Central Administrative Tribunal(“CAT” for short) quashed the selection process holding that migrantScheduled Castes/Scheduled Tribes candidates could not be consideredfor appointment for posts within the union territory of Pondicherry. InS.Pushpa (supra)the issue was with regard to the extent of benefit thatScheduled Castes candidates of other States/Union Territories would beentitled to in Pondicherry. This Court held that in the matter of providingreservation, it was open to the Pondicherry Government to apply oradopt policy to give the benefit of reservation to migrant ScheduledCastes 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 ofany constitutional provision in such policy. The principle enunciatedin Marri Chandra Shekhar Rao cannot have application hereas UT of Pondicherry is not State. As shown above, Union

Territory is administered by the President through an Administratorappointed by him. In the context of Article 246, Union Territoriesare excluded from the ambit of the expression “State” occurringtherein. This was clearly explained by Constitution Bench inT.M. Kanniyan v. ITO. In New Delhi Municipal Council v.State of Punjab the majority has approved the ratio of T.M.Kanniyan and has held that the Union Territories are not Statesfor the purpose of Part XI of the Constitution (para 145). TheTribunal has, therefore, clearly erred in applying the ratio of MarriChandra Shekhar Rao in setting aside the selection andappointment of migrant SC candidates.

(underlining is ours)

*** *** ***

21. ....Article 16(4) is not controlled by Presidential Order issuedunder Article 341(1) or Article 342(1) of the Constitution in thesense that reservation in the matter of appointment on posts maybe made in State or Union Territory only for such ScheduledCastes and Scheduled Tribes which are mentioned in the Scheduleappended to the Presidential Order for that particular State orUnion Territory. This article does not say that only such ScheduledCastes and Scheduled Tribes which are mentioned in thePresidential Order issued for particular State alone would berecognised as backward classes of citizens and none else. If aState or Union Territory makes provision whereunder the benefitof reservation is extended only to such Scheduled Castes orScheduled Tribes which are recognised as such in relation to thatState or Union Territory then such provision would be perfectlyvalid. However, there would be no infraction of clause (4) of Article16 if Union Territory by virtue of its peculiar position beinggoverned by the President as laid down in Article 239 extends thebenefit of reservation even to such migrant Scheduled Castes orScheduled Tribes who are not mentioned in the Schedule to thePresidential Order issued for such Union Territory. The UT ofPondicherry having adopted policy of the Central Governmentwhereunder all Scheduled Castes or Scheduled Tribes, irrespectiveof their State are eligible for posts which are reserved for SC/STcandidates, no legal infirmity can be ascribed to such policy andthe same cannot be held to be contrary to any provision of law.”

32. The upshot of the aforesaid discussion would lead us to theconclusion that the Presidential Orders issued under Article 341 in regardto Scheduled Castes and under Article 342 in regard to Scheduled Tribescannot be varied or altered by any authority including the Court. It is theParliament alone which has been vested with the power to so act, thattoo, by laws made. Scheduled Castes and Scheduled Tribes thus specifiedin relation to State or Union Territory does not carry the same statusin another State or Union Territory. Any expansion/deletion of the list ofScheduled Castes/Scheduled Tribes by any authority except Parliamentwould be against the constitutional mandate under Articles 341 and 342of the Constitution of India.

33. Article 16(4) is an enabling provision. It enables the State toprovide to backward classes including Scheduled Castes and ScheduledTribes reservation in appointments to public services. Such reservationis to be provided on the basis of quantifiable data indicating the adequacyor inadequacy, as may be, of the representation of such classes inGovernment service. The data which is the basis of the satisfaction ofthe State being verifiable, is open to judicial scrutiny on the limited groundof relevance of the circumstances on which the satisfaction is moulded.The policy decision to provide reservation, of course, is beyond the paleof judicial review.34. It is an unquestionable principle of interpretation thatinterrelated statutory as well as constitutional provisions have to beharmoniously construed and understood so as to avoid making anyprovision nugatory and redundant. If the list of Scheduled Castes/Scheduled Tribes in the Presidential Orders under Article 341/342 issubject to alteration only by laws made by Parliament, operation of thelists of Scheduled Castes and Scheduled Tribes beyond the classes orcategories enumerated under the Presidential Order for particular State/Union Territory by exercise of the enabling power vested by Article16(4) would have the obvious effect of circumventing the specificconstitutional provisions in Articles 341/342. In this regard, it must alsobe noted that the power under Article 16(4) is not only capable of beingexercised by legislative provision/enactment but also by an ExecutiveOrder issued under Article 166 of the Constitution. It will, therefore, bein consonance with the constitutional scheme to understand the enablingprovision under Article 16(4) to be available to provide reservation onlyto the classes or categories of Scheduled Castes/Scheduled Tribes

Aenumerated in the Presidential orders for particular State/UnionTerritory within the geographical area of that State and not beyond. If inthe opinion of State it is necessary to extend the benefit of reservationto class/category of Scheduled Castes/Scheduled Tribes beyond thosespecified in the Lists for that particular State, constitutional disciplinewould require the State to make its views in the matter prevail with theBcentral authority so as to enable an appropriate parliamentary exerciseto be made by an amendment of the Lists of Scheduled Castes/ScheduledTribes for that particular State. Unilateral action by States on thetouchstone of Article 16(4) of the Constitution could be possible triggerpoint of constitutional anarchy and therefore must be held to beCimpermissible under the Constitution.

35. The decision in S. Pushpa (supra) may now be taken up tounderstand the basis on which the conclusion recorded therein wasrecorded. In S. Pushpa (supra) distinction was found by this Court inthe constitutional status of Union Territory and State in relation to theDUnion/Central Government. The provisions of Article 239 and 239A ofthe Constitution; Section 3(8) of the General Clauses Act, 1897 defining‘Central Government’ and the provisions of the Government of UnionTerritories Act, 1963 were considered to arrive at the followingconclusion:E“14. The effect of these provisions is also that the Administrator(Lt Governor of Pondicherry) and his Council of Ministers actunder the general control of and are under an obligation to complywith any particular direction issued by the President. Further, theAdministrator (Lt Governor of Pondicherry) while acting underthe scope of the authority given to him under Article 239 of theFConstitution would be the Central Government.”

36. It is on the aforesaid basis that the concerned Notification/Government Order dated 16[th] February, 1974 by which it was providedthat Scheduled Castes/Scheduled Tribes candidates from outside theUnion Territory of Pondicherry should also be considered for appointmentGto posts reserved for Scheduled Castes/Scheduled Tribes in the UnionTerritory Administration and the communication of the Government ofIndia dated 6[th] 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’ andH

Part ‘C’ States to comprise the territory of India. The StatesReorganization Act, 1956 and the consequential Constitution (SeventhAmendment) Act, 1956 drastically altered the provisions of the FirstSchedule to the Constitution by establishment of new States; alterationin the area and boundaries of existing States and also by abolition of thethree (03) categories of States; and by classification of certain areas asUnion Territories. Pursuant thereto the Government of Union TerritoriesAct, 1963 was enacted to provide for Legislative Assemblies and Councilsof Ministers for certain Union Territories and for certain other incidentalmatters. It will not be necessary to specifically deal with the provisionsof the aforesaid Act in any great detail except to say that in course oftime most of the Union Territories (except for Pondicherry), which hadbeen provided with their own Legislatures and Councils of Ministershave graduated to become full-fledged States on the basis of enactmentof several State Reorganisation Acts details of which have been mentioned(para 21). The Union Territory of Pondicherry, as on date, stands out assole Union Territory which has Legislature and Council of Ministers,apart from Delhi.

38. Delhi, which was one of the original Union Territories, cameto be called as “National Capital Territory of Delhi”. This change wasintroduced by the Constitution (Sixty-Ninth Amendment) Act, 1991 witheffect from 1[st] February, 1992 by insertion of Article 239-AA in PartVIII of the Constitution (i.e. Special provisions with respect to Delhi).Article 239-AA(3)(a) empower the Legislative Assembly of the NationalCapital Territory of Delhi to make laws with respect to any mattersenumerated in the State List or in the Concurrent List (i.e. List II andList III of the Seventh Schedule to the Constitution of India) subject tocertain exceptions. It is here that the Union Territory of Delhi i.e. NationalCapital Territory of Delhi is enjoined special status inasmuch as powerto enact laws on any of the subjects in List II and List III is constitutionalconferment as opposed to the position in the erstwhile Union Territoriesand the present day Union Territory of Pondicherry where the power toframe/make laws has been conferred on the Union Territory Legislaturesby Parliamentary enactment i.e. Section 18 of the Government ofUnion Territories Act, 1963. The above narration has been considerednecessary only to make the discussion complete. We make it clear thatwe are not entering into any discussion as to the special position/statusof Delhi, if any, by virtue of the provisions contained in Article 239AA asthe said issue does not arise for consideration in the present reference.

A39. The above view coupled with the scope and ambit of thepresent reference may also not require us to go into the correctness ofthe view expressed by this Court in paragraph 14 of the decision in S.Pushpa (supra) (as already extracted). The resolution of the questionformulated for an answer is capable of being reached by adopting anentirely different perspective which we intend to do hereinafter.B

40. The federal nature of the Constitution finds broad manifestationin two principal areas i.e. division of legislative power and exercisethereof by the Union and the constituent States and secondly, which ismore relevant and important to the subject in hand, is the constitutionalprovisions relating to services under the Union and the States as dealtCwith 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 ownpublic services, (vide Entry 70 of List I and Entry 41 of List II)Dthere is no clear-cut bifurcation in the administration of the Unionand the State laws as in the U.S.A. The State officials administerthe State laws as well the Union laws applicable within that Satewhereas the members of the Union Services while working within aState, also carry out State laws, insofar as they may be applicable.EThe second peculiarity of the Indian federal system of administrationis that though the federal and State Governments have civil servicesof their own to manage their own households, there are certainservices known as the All-India Services, which are common to boththe federal and State Governments.

FThe organisation of the Civil services in the Indian federalsystem may be demonstrated as thus:

All India Services

Central Civil Services State Civil ServicesCentral Secretariat Services” Subordinate ServicesG

42. At the State Level, as Dr. D.D. Basu points out, “the StateCivil Services administer the subject solely belonging to the StateGovernments, according to the federal distribution of subjects thusincluding the Judicial, Executive, Medical, Engineering, Police,

H10 8th Edition, 2011, Volume 9, Page 9858

Education branches. Their members are under the exclusivecontrol of the respective State Governments and their duties areconfined to the territories of the State by which they have beenappointed, unless sent on deputation to the Union Government”.[11]These State Civil Services may be Administrative Services, ForestServices etc. [illustratively, in case of Himachal Pradesh, HimachalPradesh Administrative Service (HPAS) is type of service, so is,Himachal Pradesh Forest Service (HPFS). The recruitment to theseservices is conducted by way of Civil Services Examinations organisedby the State-specific Public Service Commission e.g. in case of HimachalPradesh, it is Himachal Pradesh Public Service Commission. As statedearlier, persons inducted into the State Service of particular Statecannot be transferred to any other State. These officers are concernedwith only the affairs of the state in which they are appointed. Theseservices (like HPAS, HPFS) may, for convenience, be called asSuperior Services/Higher Services with reference to State. But inaddition to these higher services, there are also services that may, againfor 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 recruitmentof Subordinate Servants, states have in place State-specific SelectionCommissions.

43. At the Federal Level, civil administration is carried out by themembers of – (1) All India Services (specifically provided for inArticle 312); (2) Central Civil Services (although, not specificallyprovided for in the Constitution but are regulated by creation of statutoryRules framed under the proviso to Article 309). These are againSuperior Services and the selection/recruitment is by the Union PublicService Commission.

ALL INDIA SERVICES

There are three All India Services (AIS) – (a) IndianAdministrative 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 of serviceare determined by the Union Government, they have to administer

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Aboth Union and the State subjects, accordingly as their services areplaced at the disposal of the Union or State Government, inconnection with the affairs of the Union or the State, as the casemay be.

(b) While serving in State, they are controlled by the StateBGovernment, except as regards the imposition of the penalty ofdismissal, removal or compulsory retirement, which can be awardedonly by the Union Government.

(c) In sense, this system is an exception to the usual federalprecedent inasmuch as it is intended to fill up the strategic postsCboth under the Union and State Governments by men of superiorcalibre, recruited on uniform basis, through the UPSC. Thus, whilea Deputy Collector may be member of the State Civil Service, theAdditional Collector and the Collector may be members of theIndian Administrative Service. The category of AIS thus breaksthrough the federal division so far as the administrative services inDIndia are concerned. In fact, the principal agents of Sateadministration are members of the AIS and it would be mistake tosuppose that the AIS exist for the administration of the Unionsubjects. Broadly, speaking, the administration of State is runboth by the members of the AIS and State Services, the latterEsupplying only the intermediate and subordinate tiers.(d) Though the bulk of recruitment to the AIS is bycompetitive examination, certain proportion is selected bypromotion from amongst members of the State Civil Services.

(e) Though member of AIS may be required to serveFanywhere in India, on recruitment, he is usually assigned to Stateor States jointly, or, in technical language, is included in Statecadre or Joint cadre and continues to serve there until or unless heis called upon to serve the Union Government, in any of itsDepartments.G(f) While employed under State, again, the members of the

(f) While employed under State, again, the members of theAIS do not have to work only in the Secretariat of the State but alsoin the Districts as already stated and members of these services areexpected to acquire experience of the business in the district aswell as Secretariat administration and there is constant

interchange of officers between the Secretariat and the Districts,just as there is such an interchange between the States and the UnionSecretariats on the other hand.”

44. Therefore, the members of the All India Services arecommon to the Union and the States and they serve, by turn, both theUnion and State Governments. The members of these services althoughrecruited by the Centre their services are placed under various Statecadres. “It is evident from Article 312(1) that the members of theAIS are common to the Union and the States. Curiously, however,there is cadre for the Indian Administrative Service only in theStates, according to the Indian Administrative Service (Cadre)Rules, 1954 and there is no separate cadre for members of thisservice in the Government of India. Each members of the IndianAdministrative Service therefore, belongs to the cadre of one Stateor the other.”[13]

45. There are many State Cadres e.g. Bihar Cadre, RajasthanCadre and Joint Cadres like AGMUT (for Arunachal Pradesh + Goa +Mizoram + the 7 Union Territories). These officers remain in theallotted Cadres till they retire. They are not normally to be transferredfrom one State Cadre to another State Cadre though they have theaccountability to serve both under the State and the Centre.

46. At this juncture, the Union of India’s Affidavit may also bereferred to, which states with reference to AIS that, “the conditions ofservice of these services (AIS) are regulated by the DoPT by way ofexecutive and statutory instructions, statutory rules formulatedunder Article 309 of the Constitution and Act of Parliament etc. Thefunctional control of some of the services rests with other Ministriesand Departments also. The Ministry of Home Affairs exercisesfunctional control on IPS and the Ministry of Environment &Forest & Climate Change exercises functional control on IFoS.Members of these services are allocated cadre under State orUnion Territory and they serve the Union as well as the State,whichever is allotted to them. Thus their services are All IndiaServices. Their recruitment is by the Union Public ServiceCommission and as they serve the Union as well as the States, theirrecruitment is on pan India basis. Every citizen of this countryhaving the required qualification is eligible to be considered for the

13D.D. Basu, 8th Edition, 2011, Volume 9, Page 10585.

Aappointment. It is pertinent to note that before selection in the AIS,there is no specification or indication of the cadre in Union, UnionTerritory or State, which they may serve. Upon selection alone, theywould be allocated cadre depending upon the merit and thepreferences they would have made at the time of applying. Uponselection they could be allocated to serve through any of the 25Bstates or 7 Union Territories of Delhi; Puducherry; Chandigarh;Daman & Diu; Dadra & Nagar Haveli; Andaman & Nicobar;Lakshadweep coupled with the states of Arunachal Pradesh, Goa”[14]and Mizoram.

47. CENTRAL CIVIL SERVICESC

The Central Civil Services (CCS), as Dr. D.D. Basu points out,“are engaged in administering the Union subjects, such as the Postsand Telegraphs, Customs and Excise, Income Tax. In short, theseconstitute all the administrative services in the Central Departmentswhich have not so far been included in the list of All India Services.DThey are under the exclusive control of the Union Government.Besides the Central Services, there are other Services intended forwork solely in the Central Secretariat, or, in other words, those whoare to manage the offices of the Central Departments. Both theCentral Civil Services and Central Secretariat Services areEsub-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 ordeputation to States where offices relating to the Union subjects orPublic Sector Undertakings relating thereto are located.”[16] All thatwe would like to add is that though the members of these services areFconcerned only with the affairs of the Union/Centre they discharge suchduties in the offices and establishments of the Union Government as

14 Para 5 of the Affidavit.

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, ClassGI, Class II, Class III and Class IV in all Rules, Orders, Schedules, Notifications,Regulations, Instructions in force, immediately before the commencement of these rulesshall 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 orClasses” therein in this context shall be construed as reference to “Group or Groups”,as the case may be.”H16 8th Edition. Volume 9, Page 9859.may be located in the States and the Union Territories. The CentralCivil Services (Classification, Control and Appeal) Rules, 1965 [CCSRules, 1965] (enacted under the proviso to Article 309) are thegoverning statutory Rules with reference to these services. Rule 4 ofCCS Rules, 1965 classifies the Central Civil Services into four types –

(i) Central Civil Services, Group (45 services as per theSchedule to the Rules);

(ii) Central Civil Services, Group (33 services as per theSchedule to the Rules);

(iii) Central Civil Services, Group (5 services as per theSchedule to the Rules);

(iv) Central Civil Services, Group (1 serviceas per theSchedule to the Rules)[17].

48. CCS Group A:

The Affidavit of the Union of India says that, “recruitment toGroup services is made by UPSC. The recruitment is again on allIndia basis. This is the reason the personnel belonging to these 45services work in the posts of Union and the Union Territories (UT)across the length and breadth of the country. The Cadre ControllingAuthority of Group services are the respective ministries of theGovernment of India. For example, the first service being theArchaeological Service, the Cadre Controlling Authority is theMinistry of Culture, Central Government. Another example, the12[th] service being the Indian Foreign Service and this is controlledby Ministry of External Affairs. No. 16 is the Indian Revenue Serviceand it is controlled by the Ministry of Finance. The members ofthese services being recruited pursuant to the Central Service Examsconducted 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 UPSCaccordingly advertises for the post in Group A. Every citizen ofIndia is eligible to apply as per the qualifications and requirementsin the notification. DOPT is the nodal Ministry for regulating theconditions of service of all Central Civil Services as per Allocationof Business Rules. As per the conditions of service, every employee

17 Para 6 of the Affidavit.

Ais required to give an undertaking agreeing to the conditions of allIndia transfer liability at the time of joining service. Central CivilServices employees belonging to Group serve the Union of Indiaand that is the reason why these services are across the length andbreadth of the country, wherever there is an office of the CentralGovernment. Member of the Groups service are governed by CCSBRules of 1965 as well as Central Civil Services (Conduct) Rules1972; Central Civil Services (Pension) Rules 1972 and such otherRules made by the Central Ministries.”

49. CCS Group B:

CAs mentioned earlier, there are 33 Group Services. Amongstthese, are the Union Territory Services listed at No. 28 and No. 29 andknown as the ‘Delhi and Andaman and Nicobar Islands Civil Service’abbreviated as ‘DANICS’ and ‘Delhi and Andaman and Nicobar IslandsPolice Service’ (Grade II) abbreviated as ‘DANIPS’. While at thisstage we may have also look at Union Territory services in someDdetail.

UNION TERRITORY SERVICES

50. The Government of India (Ministry of Home Affairs) by wayof notification dated 6[th] August, 2003, and in the exercise of theEproviso to Article 309, enacted ‘the National Capital Territory of Delhi,Andaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadraand Nagar Havel (Civil Service) Rules, 2003 [DANICS Rules, 2003].As also, ‘the National Capital Territory of Delhi, Andaman and NicobarIslands, Lakshadweep, Daman and Diu and Dadra and Nagar Havel(Police Service) Rules, 2003 [DANIPS Rules, 2003].F

51. The DANICS/DANIPS Rules, 2003 define:-

· ‘Administration’ to mean the Government of the NationalCapital Territory of Delhi in respect National Capital Territory of Delhiand Union Territory Administration in respect of the Union Territories of– Andaman & Nicobar Islands; Lakshadweep; Daman & Diu; DadraG& 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 samemeaning as are assigned to them by Articles 366(24) and 366(25) [underRule 2(n)].

The DANICS/DANIPS Rules, 2003, further, state that posts inJunior Administrative Grade-I, Junior Administrative Grade-II, SelectionGrade will be Central Civil Services (Group A), whereas Entry Gradeshall be Central Civil Services (Group B) [Rule 3]. The vacancies inDANICS/DANIPS shall be filled in on the basis of the Civil ServicesExamination conducted by UPSC [Rule 7]. Every member of DANICS/DANIPS allocated to an Administration shall be posted against dutypost[18] under the Administration by the Administrator [Rule 12]. Moreimportantly, the Government of India shall, from time to time, allocate amember of DANICS/DANIPS to any Administration for posting [Rule12]. Nothing in the Rules affects reservations, relaxation in age-limitand other concessions required to be provided for the Scheduled Castes,the Scheduled Tribes, Other Backward Classes and other specialcategories of persons in accordance with the orders issued by theGovernment of India from time to time in this regard [Rule 17: the Savingclause]. The Sanctioned Strength for DANICS and DANIPS is in theDANICS/DANIPS Rules, 2003 (approximately 398 DANICS;approximately 355 DANIPS).

52. As per the Union of India’s Affidavit, DANICS and DANIPSare ‘Union Territory Services’[19]. The Affidavit says, “...at Serial 28and 29 of the Schedule (to CCS Rules, 1965), we have the UnionTerritory 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 forthese Group posts are common. They are also centralised andthe Appointing Authority is none other than the Ministry of HomeAffairs (Joint Secretary). For the recruitment to these services, it is

18 Duty Posts are mentioned in the Schedule to these Rules. To name few, these are -Joint Director of Social Welfare/Delhi; Joint Director of Education/Delhi; Deputy MedialSuperintendent of Lok Nayak Jai Prakash Narain Hospital/Delhi; Registrar ofCooperative Societies/Port Blair; Assistant Commissioner of Police/Delhi; DeputySuperintendent of Police/Andaman & Nicobar; Chief of Police/Dadra & Nagar Havelietc.

19 Page 4, Para (ii)(a) of the Affidavit.

Athe very same examination meant for AIS and CCS Group A. Anycitizen of India is eligible to apply, subject to the conditions prescribed.As per the Service Rules, transfer undertakings throughout theUnion Territories covered under DANICS/DANIPS is taken fromthese officers. This is the reason why the Union of India while invitingapplications for recruitment considers all candidates, includingBreserved candidates on all India basis. Group 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 reachinghigh positions in the Central Government. Recruitment to AIS; CCSGroup A; CCS Group (Gazetted) is conducted through UPSC. InCthe Civil Services Examination, the applicants are common whenthe applications are made. Every aspirant seeks recruitment to theservices and it is only as per the marks and ranking that allocationsare made eventually to AIS; CCS Group A; CCS Group B. Therefore,when UPSC undertakes the recruitment, it is naturally pan Indiarecruitment and therefore, it is necessary to seek applicationsD”[20]including from reserved candidates from all over India.53. But it is not the Members of the All India Services (AGMUTCadre); Central Civil Services (Group ‘A’ and ‘B’) and the ‘DANICS’and ‘DANIPS’ who alone are the public servants in the States and theUnion Territories engaged in the discharge of duties in connection withEthe affairs of the Union. There are and bound to be public servants thatwork the subordinate services.

CCS Group C:

54. At the subordinate level these are the Group ‘C’ posts. In theFSchedule to CCS Rules, 1965, there are 5 such services. The Union ofIndia’s Affidavit says that, “These posts, in so far, as they relate toservices under the Union of India are concerned are recruited bythe Staff Selection Commission (which is the Recruiting Agencyunder the DoPT). The members of CCS Group get promoted toCCS Group B. Recruitment to posts in this group arise out ofGrequisition made by the concerned ministries all over India. Theserequisitions, upon reaching, the Staff Selection Commission areprocessed 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 Governmentand these employees are liable to transferred anywhere in the countryand the recruitment being centralised for all such posts in thecountry, it has been consistent policy of the Union of India to havepan India eligibility.”

55. With regard to CCS Group posts, in the affidavit of theUnion it is stated that “the posts under this category are primarilyof what used to be Class IV employees now referred to as theMulti Tasking staff. In recent years, Central Pay Commissionhas recommended against any further recruitment to these postsin Group D. Further it has also been recommended that theexisting posts will be merged with Group C. Hence, this is now avanishing cadre[21].”

56. The broad picture that emanates from the above discussionand narration is that insofar as the services in connection with the affairsof the Union is concerned (Central Services), wherever the establishmentmay be located i.e. in the National Capital Territory of Delhi or in Stateor within the geographical areas of Union Territory, recruitment to allpositions is on an All India basis and reservation provided for is again apan- India reservation. This by itself, from one perspective, may appearto be in departure from the rule set out in Part XVI of the Constitution ofIndia (Articles 341 and 342). However, the close look undertakenhereinbefore indicates such position is fully in accord with theconstitutional structure of federal polity.

NATIONAL CAPITAL TERRITORY OF DELHI

57. In case of National Capital Territory of Delhi, especially, tomake the picture even clearer, reference may be made to ‘DelhiAdministration Subordinate Service Rules, 1967’. Rule 3 of the aforesaidRules is to the following effect:

“3. Constitution of service and its classification.- (1) On andfrom the date of commencement of these Rules, there shall beconstituted one Central Civil Service, known as the SubordinateService of the Delhi Administration.

(2) The Service shall have four Grades, namely—

21 Page 6, para iv.a. of the Affidavit

Grade III

Grade IV

(3) The posts in Grade I shall be Central Civil posts, Class IIBGroup ‘B’ (Gazetted) and those in Grades II, III and IV shall beCentral Civil posts Group ‘C’ (Non-Gazetted).

(4) Members of the service shall, in the normal course be eligiblefor appointment to various Grades of the service to which theybelong and not to the other service.”

(underlining is ours)

Subordinate services in the National Capital Territory of Delhiare, therefore, clearly Central Civil Services. The Affidavit of the Unionalso points out this feature by stating that, “The posts in CCS GroupC are in the subordinate services.The equivalent in the UnionDTerritory of Delhi is the Delhi Administrative Subordinate Services

(DASS) and the Recruiting Agency in the place of Staff SelectionCommission is the Delhi Subordinate Service Selection Board(DSSSB). Members of the Delhi Administrative Subordinate Servicesare the Feeder Cadre for Central Civil Services Group (DANICS).EIt is for these reasons that the policy (of pan India eligibility)consistently adopted.”[22]

58. combined reading of these provisions of the DASS Rules,1967 and CCS Rules, 1965, therefore, more than adequately explainsthe nature of Subordinate Services in the NCT of Delhi. These clearlyare General Central Services and perhaps, it is owing to this state ofFaffairs that the Union of India in its Affidavit has stated that, “Membersof the Delhi Administrative Subordinate Services are the FeederCadre for Central Civil Services Group (DANICS). It is for thesereasons that the policy (of pan India eligibility) is consistentlyadopted.”

59. While examining the validity of reservation of seats in medicalcolleges for local candidates in Delhi, this Court in Dr. Jagdish Saranand OthersVs. Union of India[23] had made certain observations withregard to the special status that the capital city enjoys, which today, has

22 Page 6, Para (b) of the Affidavit.H23 (1980) 2 SCC 768

come to be known as the National Capital Territory of Delhi. Theobservations of this Court in paragraphs 10 and 56 may be usefullyrecapitulated and, therefore, is set out below:

“10. The capital city is not just part of India. It is miniaturisedIndia, fact often forgotten by the administration in the field ofculture and education, especially vis-a-vis regional, minorities. Itis magapolitan and people from all parts flock to this outsized city.But we cannot exaggerate this factor, for the presence of thefarther regions like the South and the North-east, population-wise,is minimal and precarious. Shri Balakrishnan insisted that theUniversity was sustained by Central Government finances,collected from the whole country, and the benefits must likewisebelong to all qualified students from everywhere. These arevaluable aspects to shape policy but the court must testconstitutionality and no more. To that extent alone we will weighthese factors in moulding our verdict.

xxx xxx xxx

56. We may wind-up by articulating the core thought that vitalisesour approach. Anyone who lives inside India can never beconsidered an ‘outsider’ in Delhi. The people in the States arecaught in happy network of mutuality, woven into lovelygarment of humanity, whose warp and woof is India. This is theunderlying fundamental of the preambular resolve registered inour National Parchment. So we insist that blind and bigoted localpatriotism in xenophobic exclusivism is destructive of our Freedomand only if compelling considerations of gross injustice, desperatebackwardness and glaring inequality desiderate such purposefulcourse can protective discrimination gain entrance into the portalsof college campuses. The Administration has constitutionalresponsibility not to be mere thermometer where mercury riseswith populist pressure but to be thermostat that transforms themores of groups to stay in the conscience of the nation viz. theConstitution.”

60. The Affidavit of the Union does not touch upon the details ofSubordinate Services in other Union Territories. Neither the authoritiesof the other Union Territories have laid before the Court any relevant

ABC

Amaterial in this regard. We, therefore, refrain from addressing the issuein question as far as other Union Territories are concerned and haveconfined our discussions and the consequential views only to the NationalCapital Territory of Delhi.

61. Accordingly, we answer the question referred in terms of theBviews expressed in para 34 of this opinion. We further hold that so faras the National Capital Territory of Delhi is concerned the pan IndiaReservation Rule in force is in accord with the constitutional schemerelating to services under the Union and the States/Union Territories.

62. In view of the conclusions reached as above, it will not beCnecessary to remit Civil Appeal Nos. 1085 of 2013, 10081 of 2014, 8141of 2014, 8802 of 2012, 1086 of 2013 and Civil Appeal arising out ofSpecial Leave Petition (Civil) No.36324 of 2017 (pertaining to Delhi) forfurther consideration by the appropriate Bench. Accordingly, wedispose of the said appeals (pertaining to Delhi) in terms of the presentorder.D

So far as Civil Appeal Nos.9935-9937 of 2014 pertaining to theU.T. of Andaman and Nicobar Island are concerned the issue may bedecided by the appropriate Bench in the light of the views expressedherein on adequate and sufficient materials being placed before the Benchby the contesting parties.E

R. BANUMATHI, J.

Reference Order:-

I have gone through the judgment proposed by His Lordship JusticeFRanjan Gogoi. I agree with the following conclusions arrived at in paras(30) and (34) and the reasonings thereon.

“A person notified as Scheduled Caste in State ‘A’ cannotclaim the same status in another State on the basis that he isdeclared as Scheduled Caste in State ‘A’......”.

“.......It will, therefore, be in consonance with the constitutionalscheme to understand the enabling provision under Article16(4) to be available to provide reservation only to the classesor categories of Scheduled Castes/Scheduled Tribes

enumerated in the Presidential orders for particular State/Union Territory within the geographical area of that State/Union Territory (Union Territory added by me) and notbeyond.”

With due respect, I do not agree with the conclusion arrived at inpara (61) and the reasonings thereon.

“......So far as the National Capital Territory of Delhi isconcerned the pan-India Reservation Rule in force is in accordwith the constitutional scheme relating to services under theUnion 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 reasoningsthereon, I have given my own reasonings.

2. The extent and nature of interplay and interaction under Articles16(4), 341(1) and 342(1) of the Constitution of India was referred to theConstitution Bench in State of Uttaranchal v. Sandeep Kumar Singhand Ors., (2010) 12 SCC 794, with the following reference:-

“13. very important question of law as to interpretation ofArticles 16(4), 341 and 342 arises for consideration in this appeal.Whether the Presidential Order issued under Article 341(1) orArticle 342(1) of the Constitution has any bearing on the State’saction in making provision for the reservation of appointments orposts in favour of any Backward Class of citizens which, in theopinion of the State, is not adequately represented in the servicesunder the State? The extent and nature of interplay and interactionamong Articles 16(4), 341(1) and 342(1) of the Constitution isrequired to be resolved.”

3. Territory of India:- Article 1(1) of the Constitution of Indiadeclares that India, that is Bharat, shall be Union of States. As amendedby the Constitution Seventh (Amendment) Act, 1956. Article 1 of theConstitution reads as under:-

1. Name and territory of the Union.- (1) India, that is Bharat,shall be Union of States.

(2) The States and the territories thereof shall be as specifiedin 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 Stateswere divided into Part States, Part States, Part States and theterritories in Part D. Substantial changes were made by the Constitution(Seventh Amendment) Act, 1956 which incorporated therecommendations of the States Reorganisation Commission and was toChave effect in concert with the States Reorganisation Act, 1956. Thefour categories of States that existed were reduced to two categories.The first of these categories - Part and Part States comprised oneclass, called “States”. The second category comprised the areas whichhad earlier been included in Part and Part States; these areas werecalled “Union Territories”. Some additions and deletions were made toDthe existing lists. Now as per Schedule I, there are twenty-nine Statesand Seven Union Territories.

5. The expression “State” is not defined in the Constitution. It isdefined in the General Clauses Act, 1897 which is made applicable tothe interpretation of the Constitution by Article 367. As on the date ofEthe commencement of the Constitution, clause (58) in Section 3 of theGeneral Clauses Act, 1897 defined “State” in the following words:-

“3. (58) ‘State’, — shall mean Part State, Part State or aPart State.”

The said definition was amended by the Adaptation of Laws OrderFNo. 1 of 1956 issued by the President in exercise of the power conferredupon him by Article 372-A of the Constitution introduced by theConstitution Seventh (Amendment) Act, 1956. The amended definition‘State’ reads thus:-

“3. (58) ‘State’, —

(a) as respects any period before the commencement ofthe Constitution (Seventh Amendment) Act, 1956, shall mean aPart State, Part State or Part State; and

(b) as respects any period after such commencement,shall mean State specified in the First Schedule to the Constitutionand shall include Union Territory.”

6. Clause (30) in Article 366 defines the “Union Territory” inthe following words:-

“366. (30) ‘Union Territory’ means any Union Territory specifiedin the First Schedule and includes any other territory comprisedwith the territory of India but not specified in that Schedule.”

7. Clause (24) of Article 366 defines “Scheduled Castes” andclause (25) of Article 366 defines “Scheduled Tribes”. The latter means“such tribes or tribal communities or parts of or groups within suchtribes or tribal communities as are deemed under Article 342 to be‘Scheduled Tribes’ for the purposes of this Constitution”. Article341(1) of the Constitution empowers the President, in consultation withthe Governor of the State concerned, to specify Scheduled Castes bypublic notification. Equally, Article 342(1) of the Constitution empowersthe President “with respect to any State or Union Territory, and whereit is State, after consultation with the Governor thereof, by publicnotification, specify the tribes or tribal communities or parts of orgroups within tribes or tribal communities which shall for thepurposes of this Constitution be deemed to be ‘Scheduled Tribes’ inrelation to that State or Union Territory, as the case may be”. Article342(2) of the Constitution empowers “Parliament, by law, to includein or exclude from the list of ‘Scheduled Tribes’ specified in anotification issued under clause (1), any tribe or tribal communityor part of or group within any tribe or tribal community, but save asaforesaid notification issued under the said clause shall not bevaried by any subsequent notification.” Until the PresidentialNotification is modified by appropriate amendment by Parliament inexercise of the power under Article 341(2) of the Constitution, thePresidential Notification issued under Article 341(1) is final and conclusiveand any caste or group cannot be added to it or subtracted by any actioneither by the State Government or by Court on adducing of evidence.In other words, it is the constitutional mandate that the tribes or tribalcommunities or parts of or groups within such tribes or tribal communitiesspecified by the President, after consultation with the Governor in the

CDE

Apublic notification, will be ‘Scheduled Tribes’ subject to the law madeby Parliament alone, which may, by law, include in or exclude from thelist of ‘Scheduled Tribes’ specified by the President. Thereafter, it cannotbe varied except by law made by the Parliament.

8. The President of India alone is competent or authorized toBissue an appropriate Notification in terms of Article 341(1) and Article342(1). Cumulative reading of Articles 338, 341 and 342 indicate that:-

a) Only the President could notify castes/tribes as ScheduledCastes/Tribes and also indicate conditions attaching to suchdeclaration. public Notification by the President specifyingCthe particular castes or tribes as SC/ST shall be final for thepurpose of Constitution and shall be exhaustive.

b) Once notification is issued under clause (1) of Articles 341and 342 of the Constitution, the Parliament can by law includein or exclude from the list of Scheduled Castes or ScheduledDTribes, specified in the notification, any caste or tribe but savefor that limited purpose the notification issued under clause (1),shall not be varied by any subsequent notification[1].

9. It is stated that before notification was issued under Article341(1) and Article 342(1) notifying certain caste/race or group asEScheduled Caste/Scheduled Tribe, an elaborate enquiry was made andalso after such enquiry, the Presidential Order was issued. While doingso, Presidential Order not only specified parts or groups of caste, racesor tribes but also made the said specification by reference to differentareas in the State. By perusal of the Presidential Order, it is clear thatsome caste/race is actually confined with reference to particular area;Ffor instance, confined to particular taluk in district. The reason forsuch specification by reference to different areas in the State beingeducational, social backwardness, races or tribes cannot be the samethroughout the State. The consideration for specifying particular casteor tribe or class for inclusion in the list of Scheduled Castes andGScheduled Tribes or Backward Classes in given State would dependon the nature and extent of the disadvantages and social hardshipssuffered in that State. These may be absent in another State to whichthese persons belonging to other States may migrate.

1 Ref. Action Committee on Issue of Caste Certificate to Scheduled Castes and ScheduledTribes in the State of Maharashtra and Anr. v. Union of India (UOI) and Anr. (1994) 5HSCC 244.

10. Whenever States’ reorganization took place in the past,Parliament exercised its powers under Articles 341(2) and 342(2) andprovided for specific Castes/Tribes that had to be Scheduled Castes andScheduled Tribes in relation to the reorganized States/Union Territories.The Constitution Scheduled Caste Orders and the Constitution ScheduledCastes (Union Territories) Order, also clarify that Parliament’s intentionwas to extend benefits of reservation in relation to the States/UnionTerritories in terms of the castes, races or tribes mentioned as per thePresidential Orders themselves.

11. Presidential Order which provided for castes/races, tribesrecognized as ‘Scheduled Caste/Scheduled Tribe’ and theirinterpretation cannot be challenged or agitated in court of law. Thequestion whether Dohar caste is sub-caste of Chamar caste which isrecognized as Scheduled Caste came up for consideration in BhaiyaLal v. Harikishan Singh, AIR 1965 SC 1557, wherein this Court heldthat the court cannot enquire into whether Dohar caste is sub-casteof Chamar caste and whether the same must be deemed to have beenincluded in the Presidential Order. In Bhaiya Lal’s case, this Courtheld “...that before notification is issued under Article 341(1), anelaborate enquiry is made and it is as result of this enquiry thatsocial justice is sought to be done to the castes, races or tribes asmay appear to be necessary, and in doing justice...” and while doingso, the notification not only to specify parts or groups of castes, races ortribes but to make specification by reference to different areas in theState. In Bhaiya Lal’s case, the Supreme Court held that only theParliament is empowered to amend the 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 (ScheduledCastes) Order 1950. The Presidential Notifications of 1950 and 1951(as amended) in relation to Scheduled Castes and Scheduled Tribes ofvarious States, very importantly provided that:-

“2. Subject to the provisions of this Order, the castes, races ortribes 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

Athe States to which those Parts respectively relate, be deemed tobe Scheduled Castes so far as regards members thereof residentin the localities specified in relation to them respectively in those”Parts of that Schedule.

The Presidential Notification of 1950 was amended by theBConstitution (Scheduled Castes and Scheduled Tribes Order),Amendment Act, 1956, (Act No.63 of 1956). Another amending Actwas enacted by Parliament in 1976. Further, amendments had takenplace as and when Parliament reorganized States like Bombay, AndhraPradesh, Uttarakhand, Chhattisgarh and Jharkhand through separate Acts.All these were Parliamentary enactments. Presidential NotificationCpertaining to Union Territories, Scheduled Castes (Union Territories)Order, 1951 specifies Scheduled Castes resident in the Union Territoriesof Delhi, Chandigarh and Daman and Diu. When new UnionTerritories were formed such as Pondicherry, Sikkim, Goa, Daman andDiu, Arunachal Pradesh, Mizoram, the Scheduled Castes or ScheduledDTribes Orders were made in relation to those new Union Territories.

13. The Constitution (Scheduled Tribes) Order, 1950[2]:-In exercise of the powers conferred by clause (1) of Article 342 of theConstitution of India the President has, after consultation with theGovernors of the States concerned, made the Constitution (ScheduledTribes) Order, 1950, specifying the tribes or communities which shall beEdeemed to be Scheduled Tribes in the States mentioned therein. ThisOrder has been amended by the Scheduled Castes and Scheduled TribesOrders (Amendment) Act, 1976 (Act No.108 of 1976), the Constitution(Scheduled Tribes) Order (Amendment) Act, 1991 (16 of 1991), theConstitution (Scheduled Tribes) Order (Second Amendment) Act, 1991F(39 of 1991), the Scheduled Castes and Scheduled Tribes Orders(Amendment) Act, 2002 (32 of 2002), the Scheduled Castes andScheduled Tribes Orders (Amendment) Act, 2002 (10 of 2003), theConstitution (Scheduled Tribes) Order (Amendment) Act, 2003 (47 of2003), the Constitution (Scheduled Tribes) Order (Amendment) Act 2006(48 of 2006), the Constitution (Scheduled Tribes) Order (Amendment)GAct, 2008 (14 of 2008) and the Constitution (Scheduled Tribes) UnionTerritories Order (Amendment) Act, 2008 (2 of 2009). As it standsamended, it specifies the Scheduled Tribes resident in the States of Andhra

2 Ref. Election Manual (1984), p.44 quoted in Commentary on the Constitution ofHIndia 8[th] Ed. by Durga Das Basu.

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 reservationto backward classes. Clause (4) of Article 16 of the Constitution cannotbe made applicable for the purpose of grant of benefit of reservation forScheduled Castes or Scheduled Tribes in State or Union Territory,who have migrated to another State or Union Territory and they are notmembers of the Scheduled Castes and Scheduled Tribes in the State towhich they have migrated. The Presidential Orders made under Article341 and Article 342 have an overriding status. The presence of Articles338, 338A, 341, 342 of the Constitution clearly shows that it precludesany tinkering or deviation from the list of castes or tribes notified in thePresidential Order which are reserved for that State or that Unionterritory.15. India is huge. There is Unity in Diversity. Diversity in termsof language, culture, demography, geographical area, development ofregions, opportunities available to individuals for education and to makesocial and economical advancement etc. Some States are well-developed;some other States are developing; few other States are under-developed.All the affirmative action of the States is to provide equality of opportunityto the socially and economically disadvantaged group. Under Article15(4) of the Constitution, State is empowered to make special provisionsfor the advancement of any socially and educationally backward classof citizens or for the Scheduled Castes or Scheduled Tribes. Article 16of the Constitution of India lays down that there shall be equality ofopportunity for all citizens in matters relating to employment orappointment to any office under the State. Article 16(4) of the Constitutionempowers the State to make provisions to provide reservation to thebackward classes in employment or appointment to any posts and therebyto create equally opportunities for their socio-economic empowermentand their emancipation. Article 16(4) speaks of one type of reservationnamely reservation of appointments/posts.

16. Article 16(4) of the Constitution is an enabling provisiondirected towards achieving equality of opportunity in services under theState. Observing that Article 14 of the Constitution is the genus while

AArticle 16 is the species, in E. P. Royappa v. State of Tamil Nadu andAnr., (1974) 4 SCC 3, it was held that:-

“85. .........Article 16 embodies the fundamental guarantee thatthere shall be equality of opportunity for all citizens in mattersrelating to employment or appointment to any office under theState. Though enacted as distinct and independent fundamentalright because of its great importance as principle ensuringequality of opportunity in public employment which is so vital tothe building up of the new classless egalitarian society envisagedin the Constitution, Article 16 is only an instance of the applicationof the concept of equality enshrined in Article 14. In other words,Article 14 is the genus while Article 16 is species. Article 16gives effect to the doctrine of equality in all matters relating topublic employment. The basic principle which, therefore, informsboth Articles 14 and 16 is equality and inhibition againstdiscrimination. Now, what is the content and reach of this greatequalising principle? It is founding faith, to use the words ofBose. J., “a way of life”, and it must not be subjected to narrowpedantic or lexicographic approach. We cannot countenance any-attempt to truncate its allembracing scope and meaning, for to doso would be to violate its activist magnitude. Equality is dynamicconcept with many aspects and dimensions and it cannot be“cribbed, cabined and confined” within traditional and doctrinairelimits........” [Underlining added]

17. The Constitution Bench of nine Judges in Indra Sawhneyand Ors. v. Union of India and Ors., (1992) Supp 3 SCC 217, observedthat 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. Bothare directed towards achieving equality of opportunity in servicesunder the State. One is broader in sweep and expansive in reach.Other is limited in approach and narrow in applicability. Formerapplies to ‘all’ citizens whereas latter is available to ‘any’ in Article16(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 citizen whereas Article16(4) is an obligation of the State. The former is enforceable in

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 theextent 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 liftingto backward classes’, but if Article 16(1) is the positive aspect ofequality of opportunity’, Article 16(4) is complete Code forreservation for backward class of citizens as it not only providesfor exercise of power but also lays down the circumstances, inwhich the power can be exercised, and the purpose and extent orits exercise. One is mandatory and operates automatically whereasthe other comes into play on identification of backward class ofcitizens and their inadequate representation.” [Underliningadded]

18. Article 16(4) of the Constitution is not an exception; but afacet of Article 14 and Article 16(1) of the Constitution; it enables theState to effectuate equality of opportunity to any backward class. Asheld 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 stateto effectuate the opportunity of equality to any backward class ofcitizens. ……..The object of reservation for the Scheduled Castsand Scheduled Tribes is to bring them into the mainstream of nationallife, while the objective in respect of the backward classes is toremove their social and educational handicaps. Therefore, they arealways treated dissimilar and they do not form an integrated classwith 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 anddisparities exist among men and things and they cannot be treatedalike by the application of the same laws but the law has to come interms with life and must be able to recognize the genuine differencesand disparities that exist in human nature. Legislature has also toenact legislation to meet specific ends by making reasonable andrational classification..”.

20. Constitution Bench of this Court in Marri Chandra ShekharRao v. Dean, Seth G.S. Medical College and Ors., (1990) 3 SCC 130

Ahad the occasion to consider the question as to whether member ofGouda community which is recognised as “Scheduled Tribe” in theConstitution (Scheduled Tribes) Order, 1950 would be entitled to admissionin medical institution situated in the State of Maharashtra. Based onthe Government of India circular dated 22.02.1985, the appellant wasdenied admission to the Medical College on the ground that Marri ChandraBShekhar Rao was not ‘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 earlierjudgments, in Marri Chandra Shekhar Rao’s case, it was held as under:-C

“9. It appears that Scheduled Castes and Scheduled Tribes insome States had to suffer the social disadvantages and did nothave the facilities for development and growth. It is, therefore,necessary in order to make them equal in those areas where theyhave so suffered and are in the state of underdevelopment toDhave reservations or protection in their favour so that they cancompete on equal terms with the more advantageous or developedsections of the community. Extreme social and economicbackwardness arising out of traditional practices of untouchabilityis normally considered as criterion for including community inEthe list of Scheduled Castes and Scheduled Tribes. The socialconditions of caste, however, varies from State to State and itwill not be proper to generalise any caste or any tribe as aScheduled Tribe or Scheduled Caste for the whole country. This,however, is different problem whether member or the ScheduledCaste in one part of the country who migrates to another State orFany other Union territory should continue to be treated as aScheduled Caste or Scheduled Tribe in which he has migrated.That question has to be judged taking into consideration the interestand well-being of the Scheduled Castes and Scheduled Tribes inthe country as whole.”

22. Marri Chandra Shekhar Rao case was followed by anotherConstitution Bench of this Court in Action Committee on issue of castecertificate to Scheduled Castes and Scheduled Tribes in the State ofMaharashtra and Anr. v. Union of India and Anr. (1994) 5 SCC 244.In Action Committee’s case, it was held as under:-

“3. On plain reading of clause (1) of Articles 341 and 342 it ismanifest that the power of the President is limited to specifyingthe castes or tribes which shall, for the purposes of the Constitution,be deemed to be Scheduled Castes or Scheduled Tribes in relationto State or Union Territory, as the case may be. Once anotification is issued under clause (1) of Articles 341 and 342 ofthe Constitution, Parliament can by law include in or exclude fromthe list of Scheduled Castes or Scheduled Tribes, specified in thenotification, any caste or tribe but save for that limited purposethe notification issued under clause (1), shall not be varied by anysubsequent notification. What is important to notice is that thecastes or tribes have to be specified in relation to given State orUnion Territory. That means given caste or tribe can be aScheduled Caste or Scheduled Tribe in relation to the State orUnion Territory for which it is specified. These are the relevantprovisions with which we shall be concerned while dealing withthe grievance made in this petition.

16. We may add that considerations for specifying particularcaste or tribe or class for inclusion in the list of Scheduled Castes/Schedule Tribes or backward classes in given State would dependon the nature and extent of disadvantages and social hardshipssuffered by that caste, tribe or class in that State which may betotally non est in another State to which persons belonging theretomay migrate. Coincidentally it may be that caste or tribe bearingthe same nomenclature is specified in two States but theconsiderations on the basis of which they have been specifiedmay be totally different. So also the degree of disadvantages ofvarious elements which constitute the input for specification mayalso be totally different. Therefore, merely because given casteis specified in State as Scheduled Caste does not necessarilymean that if there be another caste bearing the same nomenclaturein another State the person belonging to the former would beentitled to the rights, privileges and benefits admissible to memberof the Scheduled Caste of the latter State “for the purposes ofthis Constitution”. This is an aspect which has to be kept in mindand which was very much in the minds of the Constitution-makers

ABC

Aas is evident from the choice of language of Articles 341 and 342of the Constitution....”

Marri Chandra Shekhar Rao’s case and Action Committee’scase were followed in Subhash Chandra and Anr. v. DelhiSubordinate Services Selection Board and Ors., (2009) 15 SCC 458.BIn Subhash Chandra case, the Supreme Court reiterated that “If casteor tribe is notified in terms of the Scheduled Castes Order or theScheduled Tribes Order, the same must be done in terms of clause(1) of Article 341 as also that of Article 342 of the Constitution ofIndia, as the case may be. No deviation from the procedure laiddown therein is permissible in law. If any amendment/alterationCthereto is required to be made, recourse to the procedure laid downunder clause (2) thereof must be resorted to.”

23. In Marri Chandra Shekhar Rao’s case, it was held that aScheduled Caste or Scheduled Tribe of any State which depends on thenature and extent of disadvantages and social hardships suffered by theDcaste, tribe or class in that State or area may be non-existent in anotherState. The inclusion of the castes, races or tribes is mainly based on thedegree of disadvantages or hardships faced by the castes, races or tribesin 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 casteEKanikaran, Kanikkar (in Kanyakumari District and Shenkottah andAmbasaundram taluks of Tirunelveli district) are notified as ScheduledCastes. This shows that the President can specify castes, races ortribes or parts thereof in relation not only to the entire State but in relationto the parts of the State. The President has been authorised to limit thenotification to parts of the State or groups within castes, races or tribes.FIn Marri Chandra Shekhar Rao case, the Constitution Bench thereforeheld that the expression “in relation to that State” must be readmeaningfully; otherwise the expression “in relation to that State” wouldcome nugatory.

24. The Presidential Order issued under Article 341 of theGConstitution in regard to Scheduled Castes and Article 342 of theConstitution in regard to Scheduled Tribes cannot be varied by anyoneor by the Court. Only the Parliament by law include or exclude from thelist of Scheduled Castes or Scheduled Tribes specified in notificationissued under Article 341(1) and Article 342(1) of the ConstitutionH

respectively any caste, race or tribe or parts or group within any caste,race or tribe. The Scheduled Castes or Scheduled Tribes thus specifiedin relation to one State or Union Territory does not carry their status inanother State or Union Territory. When the Scheduled Castes orScheduled Tribes are specified for each State and in some cases, specificareas of the State or Union Territory, neither the State legislature nor thecourts can include or exclude other Scheduled Castes or Scheduled Tribesso specified in some States or Union Territories which would be againstthe mandate of Articles 341 and 342 of the Constitution and thePresidential Orders issued thereon. If that is permitted, it would amountto addition or alteration of the Presidential Order which is violative ofthe Constitutional Scheme.

25. State of Maharashtra v. Milind and Ors. (2001) 1 SCC 4,dealt with question as to whether the notified Scheduled Tribe beingHalba or Halbi as contained in item 19 of the Presidential Order wouldinclude “Halba-Koshti”. This Court held that addition of “Halba-Koshti”in the Presidential Order would amount to amendment thereto which isimpermissible in law. In Milind’s case, it was held as under:-

“33......The jurisdiction of the High Court would be much morerestricted while dealing with the question whether particularcaste or tribe would come within the purview of the notifiedPresidential Order, considering the language of Articles 341 and342 of the Constitution. These being the parameters and in thecase in hand, the Committee conducting the inquiry as well as theAppellate Authority, having examined all relevant materials andhaving recorded finding that Respondent 1 belonged to “Koshti”caste and has no identity with “Halba/Halbi” which is the ScheduledTribe under Entry 19 of the Presidential Order, relating to theState of Maharashtra, the High Court exceeded its supervisoryjurisdiction by making roving and in-depth examination of thematerials afresh and in coming to the conclusion that “Koshtis”could be treated as “Halbas”. In this view the High Court couldnot upset the finding of fact in exercise of its writ jurisdiction.Hence, we have to essentially answer Question 2 also in thenegative. Hence it is answered accordingly.”

26. When the Parliament restricts the benefit of reservation byinclusion of caste as Scheduled Caste to State or part of State i.e.

EFG

Acertain specified districts in State, the Court cannot express any opinionas to its correctness. Hence, as regards the inclusion of caste“Mochi” in the list of Scheduled Castes within particular area asper Constitution (Scheduled Castes) Order (Second Amendment) Act,2002, it was held that it was not for the Court to render any opinionin regard to the correctness of the same. [vide Shree Surat ValsadBJilla K.M.G. Parishad v. Union of India and Ors. (2007) 5 SCC360].

27. The executive instructions/circulars issued by the Governmentof 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 HomeCAffairs addressed to all State Governments and UT Administration statesthat SC and ST on migration from the State of his origin to anotherState will not lose his status as SC/ST; but will be entitled to theconcession/benefits admissible to the SC/ST from the State of his originand not from the State where he has migrated. The relevant portion ofDthe 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 6[th] August, 1984

ETo,

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 migrantsFfrom other States/Union Territories-Form of certificate - Amendment to.

Sir,

G2. The instructions issued in this Ministry’s letter of even numberdated the 18.11.1982 will continue. It is, however, clarified thatthe Scheduled Caste/Scheduled Tribe person on migration fromthe State of his origin to another State will not lose his status asScheduled Caste/Scheduled Tribes but he will be entitled to theconcessions/benefits admissible to the Scheduled Castes/Scheduled

Tribes from the State of his origin and not from the State wherehe has migrated…… (Underlining added)

Yours faithfully

Sd/-Joint Secretary to Govt. of India

28. The same thing was reiterated in the circular dated 22.02.1985issued by the Ministry of Home Affairs which has also clarified that aScheduled Caste/Scheduled Tribe person who has migrated from theState of origin to some other State for the purpose of seeking education,employment, etc. will be deemed to be Scheduled Caste/Tribe of theState of his origin and will be entitled to derive benefits from the State oforigin 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 person belonging to ScheduledCaste/Scheduled Tribe in State ‘A’ cannot claim the same status in anotherState ‘B’ on the ground that he is declared as Scheduled Caste/ScheduledTribe in State ‘A’. The expressions “in relation to that State or UnionTerritory” and “for the purpose of this Constitution”used in Articles341 and 342 of the Constitution of India are to be meaningfully interpreted.A given caste or tribe can be Scheduled Caste or Scheduled Tribe inrelation to that State or Union Territory for which it is specified. Thus,the person notified as Scheduled Caste in State ‘A’ cannot claim thesame status in another State on the basis that he was declared ScheduledCaste in State ‘A’. Article 16(4) has to yield to the Constitutional mandateof Articles 341 and 342.

Union Territories:

30. Part VIII of the Constitution of India deals with UnionTerritories. Article 239 provides that the Union Territory shall beadministered by the President acting through an Administrator to beappointed by him. Article 239 reads as follows:-

“239. Administration of Union Territories

(1) Save as otherwise provided by Parliament by law, every UnionTerritory shall be administered by the President acting, to suchextent as he thinks fit, through an administrator to be appointed byhim with such designation as he may specify.

A(2) Notwithstanding anything contained in Part VI, the Presidentmay appoint the Governor of State as the administrator of anadjoining Union Territory, and where Governor is so appointed,he shall exercise his functions as such administrator independentlyof his Council of Ministers.”

B31. Article 239A was inserted by the Constitution (FourteenthAmendment) Act, 1962. Article 239A of the Constitution of Indiaempowers the Parliament to create by law legislatures and Council ofMinisters in the then Union Territories of Himachal Pradesh, Manipur,Goa, Daman & Diu and Pondicherry. Arunachal Pradesh and Mizoramwere added later. With Himachal Pradesh, Manipur, Tripura, Goa andCMizoram all becoming full-fledged States, the only Union Territory leftunder Article 239A is Pondicherry. Now, Union Territory of Pondicherry(Puducherry) also has legislature and Council of Ministers.32. Article 341 empowers the President “with respect to any Stateor Union Territory, and where it is State, after consultation with theDGovernor thereof, by public notification, specify the castes, races ortribes or parts of or groups within castes, races or tribes which shall forthe purposes of this Constitution, be deemed to be Scheduled Caste inrelation to that State or Union Territory as the case may be.” EquallyArticle 342(1) empowers the President “with respect to any State orEUnion Territory, and where it is State, after consultation with theGovernor thereof, by public notification, specify the tribes or tribalcommunities or parts of or groups within tribes or tribal communitieswhich shall for the purposes of the Constitution be deemed to be ScheduledTribes in relation to that State or Union Territory, as the case may be”.Articles 341(2) and 342(2) of the Constitution empower the ParliamentFalone 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 Notificationis modified by appropriate amendment by Parliament in exercise of thepower under Articles 341(2) or 342(2) of the Constitution, the PresidentialGNotification issued under Articles 341(1) and 342(1) of the Constitutionis final and conclusive. No caste or group can be added to it or subtractedby any action either by the State Government or by Court on adducingof evidence. Articles 341 and 342 of the Constitution do not make anydistinction between ‘State’ or ‘Union Territory’.

33. Constitution (Scheduled Castes) (Union Territories)Order, 1951:- In exercise of powers under Clause (1) of Articles 341and 342 of the Constitution, the Presidential Notifications were issuedspecifying Scheduled Castes in relation to various Union Territories. Listof Scheduled Castes are declared in relation to each Union Territoryseparately. Presidential Notification pertaining to Union Territories,Scheduled Castes (Union Territories) Order, 1951 specifies ScheduledCastes resident in the Union Territories of Delhi, Chandigarh and Damanand Diu. The Presidential Order provided that:-

“Subject to the provisions of this Order, the castes, races or tribesor parts of, or groups within, castes or tribes, specified in *[PartsI to III] of the Schedule to this Order shall, in relation to the *[Unionterritories] to which those parts respectively relate, be deemed tobe Scheduled Castes so far as regards members thereof residentin the localities specified in relation to them respectively in those”Parts of that Schedule.

As and when there is reorganisation of the Union Territories, inexercise 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, 1951[3 ]:- In exercise of the powers conferred by clause (1) ofArticle 342 of the Constitution of India, as amended by the Constitution(First Amendment) Act, 1951, the President made the Constitution(Scheduled Tribes) (Part States) Order, 1951, specifying the tribes orcommunities which shall be deemed to be ‘Scheduled Tribes’ in Part CState. This Order was adapted for the Union Territories by the ScheduledCastes and Scheduled Tribes Lists (Modification) Order, 1956.

35. When new territories were formed, such as Pondicherry(Puducherry), or Sikkim, the Scheduled Castes or Scheduled Tribes Orderswere made in relation to the new territories. In exercise of the powersunder 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 TribesOrder, 1962; The Constitution (Pondicherry) Scheduled Castes Order,1964; The Constitution (Goa, Daman and Diu) Scheduled Caste Order,

3 Ref. Ibid., p.53, quoted in Article 342 of commentary on the Constitution of India8[th] Ed. by Durga Das Basu.

A1968; 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 Castesand Scheduled Tribes Orders.

36. Union Territories do not become merged with theBCentral Government:- The Union Territories are centrally administeredby the President acting through an administrator. As held by this Courtin New Delhi Municipal Council v. State of Punjab & Ors. (1997) 7SCC 339, the President, who is the executive head of Union Territorywhile administering the Union Territory, does not function as the head ofthe Central Government, but as the head of the Union Territory underCpowers specially vested in him under Article 239 of the Constitutionthereby occupying position analogous to that of Governor in State.Though the Union Territories are centrally administered under theprovisions of Article 239, they do not become merged with the CentralGovernment as has been held by this Court in Satya Dev Bushahri v.DPadam Dev and Ors. AIR 1954 SC 587. They are centrallyadministered; but they retain their independent identity [ChandigarhAdministration and Anr. v. Surinder Kumar and Ors. (2004) 1 SCC530]. The Union Territory does not entirely lose its existence as an entitythough large control is exercised by the Union of India. [Governmentof NCT Delhi v. All India Central Civil Accounts, Jao’s AssociationEand Ors. (2002) 1 SCC 344]

37. View taken in Pushpa and Chandigarh Administration –

not correct view:- Reliance was placed upon Pushpa’s case to contendthat Article 16(4) is not controlled by the Presidential Order issued underArticle 341(1) or Article 342(1) to the Officers appointed to the post inFthe Union Territories need not be confined to only such Schedule Castes/Schedule Tribes of the particular Union Territory. In Pushpa’s case, theSupreme Court was confined with the question as to whether, selectionand appointment already made to migrants’ Schedule Caste candidatesof other States against the quota reserved for the Schedule CasteGcandidates in the Union Territory of Pondicherry was legal and valid. InS. Pushpa and Ors. v. Shivachanmugavelu and Ors. (2005) 3 SCC1, Pondicherry Government appointed Selection Grade Teachers in 1995under the Scheduled Castes quota not only from the Scheduled Castescandidates of Pondicherry but also such candidates of Scheduled Castes

from other States. In Pushpa’s case, this Court upheld the policy of thePondicherry Government extending the benefit of reservation of SC/STseats even to those candidates who came from other States. ThePondicherry Government proceeded on the basis that since CentralGovernment jobs were open to all SC/ST candidates irrespective of originof their States, the same may apply to jobs with Union Territory aswell. In Pushpa’s case, this Court held that in the matter of providingreservation, it was open to the Pondicherry Government to extend thebenefit of reservation to migrant Scheduled Caste and Scheduled Tribecandidates and that the same will not be an infraction of clause (4) ofArticle 16 of the Constitution of India.

38. In Pushpa’s case, the principle that “when members ofScheduled Castes/Scheduled Tribes migrate to another State, theydo not carry with them the special privileges and advantages”, washeld not applicable in case of Union Territories. In para (21) of Pushpa’scase, it was held as under:-

“21.....Article 16(4) is not controlled by Presidential Order issuedunder Article 341(1) or Article 342(1) of the Constitution in thesense that reservation in the matter of appointment on posts maybe made in State or Union Territory only for such ScheduledCastes and Scheduled Tribes which are mentioned in the Scheduleappended to the Presidential Order for that particular State orUnion Territory. This article does not say that only such ScheduledCastes and Scheduled Tribes which are mentioned in thePresidential Order issued for particular State alone would berecognised as backward classes of citizens and none else. If aState or Union Territory makes provision whereunder the benefitof reservation is extended only to such Scheduled Castes orScheduled Tribes which are recognised as such in relation to thatState or Union Territory then such provision would be perfectlyvalid. However, there would be no infraction of clause (4) of Article16 if Union Territory by virtue of its peculiar position beinggoverned by the President as laid down in Article 239 extends thebenefit of reservation even to such migrant Scheduled Castes orScheduled Tribes who are not mentioned in the Schedule to thePresidential Order issued for such Union Territory. The UT ofPondicherry having adopted policy of the Central Government

Awhereunder all Scheduled Castes or Scheduled Tribes, irrespectiveof their State are eligible for posts which are reserved for SC/STcandidates, no legal infirmity can be ascribed to such policy and”the same cannot be held to be contrary to any provision of law.(Underlining added)

BIn my considered view, the above observation in Pushpa’s caseis not correct view. The judgment in Pushpa’s case is contrary to theviews taken in Marri Chandra Shekhar Rao’s case. The judgment inPushpa’s case is contrary to the views taken in Marri Chandra ShekharRao’s case. Facts of Pushpa’s case disclose that the Government ofPondicherry had throughout proceeded on the basis that being UnionCTerritory all orders regarding reservation for SC/ST in respect of post/services under the Central Government were applicable to post/servicesas under the Pondicherry administration. The decision in Pushpa’s casetherefore cannot be taken to be an authoritative pronouncement. Clause(2) of Article 341 of the Constitution empowers Parliament alone by lawDto include or exclude from the lists of Scheduled Castes specified in anotification issued under clause (1) of Article 341. No executive actionor order or modification or variance of the same is possible and any suchvariance would be against the constitutional scheme.

39. In Pushpa’s case, the posts advertised were of SelectionEGrade Teachers under the Pondicherry Services and not for CentralGovernment jobs. It may be that Pondicherry is Union Territory; butthe posts/services exclusively coming under Pondicherry administrationis meant only for the Scheduled Casts/Scheduled Tribes as notified underthe Presidential Order for Pondicherry. In fact, Pondicherry (UnionTerritory) itself by referring to Subhash Chandra’s case has taken theFdecision that reservation benefits to posts/services arising under the UnionTerritory of Pondicherry will be confined only to the Scheduled Castes/Scheduled Tribes notified by virtue of Presidential Order. The saidGovernment Order of the Pondicherry Government was upheld by thisCourt in Puducherry Scheduled Caste People Welfare Association v.GChief Secretary to Government, Union Territory of Pondicherry andOrs. (2014) 9 SCC 236, wherein this Court held as under:-

“13. It is important to bear in mind that it is by virtue of thenotification of President under Article 341(1) that the ScheduledCastes come into being. The members of the Scheduled Castes

are drawn from castes, races or tribes, they attain new statusby virtue of Presidential Order. Clause (2) of Article 341 empowersParliament alone by law to include or exclude from the list ofScheduled Castes specified in notification issued under clause(1) by the President. By no executive power, amendment,modification, alteration or variance in the Presidential Order ispermissible.It is not open to the executive to do anything directlyor indirectly which may lead to any change in the PresidentialOrder. Once Presidential Order has been issued under Article341(1) or Article 342(1), any amendment in the Presidential Ordercan only be made by Parliament by law as provided in Article341(2) or Article 342(2), as the case may be, and in no othermanner. The interpretation of “resident” in the Presidential Orderas “of origin” amounts to altering the Presidential Order.”

40. The principle in Pushpa’s case was not accepted in SubhashChandra’s case. It was held that although Union Territory isadministered by the Union Government, socio-political aspect of the UnionTerritory cannot be mixed up with administrative aspect. In SubhashChandra’s case, it was held that if the principle applied in Pushpa’scase is to be given logical extension, it will lead to an absurdity, that theScheduled Castes Order in State/Union Territory brought under thecontrol of the President under Article 341 of the Constitution could bealtered by virtue of notification issued in pursuance of Article 16(4) ofthe Constitution, which is not in consonance with the ConstitutionalScheme.

41. Let us refer to the facts of Chandigarh Administration andAnother v. Surinder Kumar and Others (2004) 1 SCC 530. Ministryof Home Affairs, Government of India issued various circulars pertainingto the Scheduled Castes and Scheduled Tribes. The circular dated22.02.1985 regarding “Issue of Scheduled Caste/Scheduled Tribecertificate to migrants from other States/Union Territories”, issuedby the Ministry of Home Affairs clarified that Scheduled Caste/Tribeperson who has migrated from the State of origin to some other Statefor the purpose of seeking education, employment, etc. will be deemedto be Scheduled Caste/Tribe of the State of his origin and will beentitled to derive benefits from the State of origin and not from the State

Ato which he has migrated. Based on the aforesaid circular of theGovernment of India, the Home Secretary, Chandigarh Administrationvide his letter dated 28.07.1986 sought clarification from the Governmentof India, Ministry of Home Affairs, as to whether, these instructions areapplicable in the Union Territory of Chandigarh. Chandigarh Administrationreceived the reply dated 26.08.1986 from Ministry of Welfare statingBthat there is no discrimination in the employment under the CentralGovernment between the Schedule Caste/Schedule Tribes of one Stateor another and Union Territories and that the same may be followed bythe Chandigarh Administration. The letter dated 26.08.1986 stated thatScheduled Castes/Scheduled Tribes of any other State/Union TerritoryCwould be entitled to the benefits and facilities provided in the servicesunder the Union Territory of Chandigarh. Further the said circular leavesit to the Chandigarh Administration to seek further clarification. Theabove letter of Government of India is in clear violation of Constitutionalscheme.D42. Pursuant to the said letter, Chandigarh Administration soughtclarification from the Department of Personnel and Training. However,they have not received any response. The clarification was issued bythe Home Secretary, Chandigarh Administration vide letter dated07.09.1999. The said letter had given clarification based on theEGovernment of India circular dated 02.02.1985 stating that ScheduleCaste/Schedule Tribe of any other State or Union Territory would not beentitled to the benefits of reservation in the services in the ChandigarhAdministration and that the benefit of reservation to persons belongingto reserved categories in other States in the Chandigarh Administrationis to be discontinued with effect from 07.09.1999. In ChandigarhFAdministration case, the Supreme Court took the view that the standtaken by Chandigarh Administration discontinuing the benefits ofreservation with effect from 07.09.1999 was untenable. With due respect,I am not in agreement with the view taken in ChandigarhAdministration case. The letter dated 26.08.1986 sent by the MinistryGof Welfare/Kalyan Mantralaya is contrary to the letter dated 22.02.1985sent by the Ministry of Home Affairs and also against the Constitutionalscheme.

43. It was held in Subhash Chandra that ChandigarhAdministration and Pushpa proceeded on the basis that MarriChandra Shekhar Rao and Action Committee would have noapplication in relation to Union Territories. Observing that both Articles341 and 342 not only refer to the State but also to the Union Territory. Inpara (64) of Subhash Chandra’s case, it was held as under:-

“64. Although Union Territories are administered by the CentralGovernment, yet it is difficult to conceive that the socio-politicalaspect can be mixed up with the administrative aspect. Article341 leads to grant of constitutional rights upon person whoseaffinity to caste/tribe would attract the Constitution (ScheduledCastes) Order or the Constitution (Scheduled Tribes) Order. Oncea person comes within the purview of presidential promulgation,he would be entitled to constitutional and other statutory oradministrative benefits attached thereto. In our opinion, such socio-political rights created in our Constitution cannot be segregatedkeeping in view the administrative exigencies.”

44. As per the scheme of the Constitution under Articles 341, 342and 239 of the Constitution, only those Scheduled Castes/Scheduled Tribesas notified in the Presidential Notification for the respective UnionTerritory can legitimately claim the benefit of reservation in that UnionTerritory. Even though the Union Territories are centrally administered,though the administrator/Lieutenant Governor so far as the administrativeaspects of the Union Territories, each Union Territory has its own identity.Each of the Union Territories would be bound by their respectivePresidential Order of Scheduled Castes/Scheduled Tribes for givingbenefit of reservation to Scheduled Castes/Scheduled Tribes inemployment. Only those persons, who come within the purview of thePresidential Notification, would be entitled to constitutional and otherstatutory benefits of reservation in the respective Union Territory. If thebenefit of reservation is to be extended to Scheduled Castes/ScheduledTribes from all over the country then it would amount to inclusion ofcaste, races or tribes to the Presidential Order pertaining to that UnionTerritory. As discussed earlier, such inclusion or exclusion in thePresidential Order can be done only by the Parliament in the manner asindicated in Articles 341(2) and 342(2) of the Constitution of India. Byno executive order, amendment, alteration or variance in the PresidentialOrder is permissible.

AWhether there can be PAN India reservation of SCs and STs toservices under various Union Territories of India

45. Under Central Civil Services (Classification, Control andAppeal) Rules, 1965 [CCS(CCA) Rules, 1965], there are four categoriesof 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

CCentral 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 (SerialNo.5); (iii) Indian Defence Accounts Service (Serial No.11); (iv) IndianDForeign Service (Serial No.12); (v) Indian Meteorological Service (SerialNo.13); (vi) Indian Postal Service (Serial No.14); (vii) Indian Posts andTelegraphs Traffic Service (Serial No.15); (viii) Indian Revenue Service(Serial No.16); (ix) Indian Salt Service (Serial No.17); (x) DirectorateGeneral of Mines Safety (Serial No.19); (xi) Indian TelecommunicationEService (Serial No.22); (xii) Central Legal Service (Grades I,II, III andIV) (Serial No.25); (xiii) Delhi and Andaman and Nicobar Islands CivilService, Grade I (DANICS) (Serial No.28); (xiv) Delhi and Andamanand Nicobar Islands Police Service, Grade II (DANIPS) (Serial No.29);(xv) Company Law Board Service (Serial No.38); (xvi) Labour Officersof the Central Pool (Serial No.39); and (xvii) Armed Forces HeadquartersFCivil Services (Serial No.44).

47. By reading of the categories of services, the said services ofGroup ‘A’ are concerned only with the services of the Union of Indiaand the appointment to Group ‘A’ services are made by the President.The Cadre Controlling Authority of Group ‘A’ services are the respectiveGministries of the Government of India. Recruitment to Group ‘A’ servicesis made by the Union Public Service Commission (UPSC) and therecruitment is on all-India basis. So far as the recruitment to Group ‘A’services is concerned, Union of India in its counter affidavit has statedas under:-

[R. BANUMATHI, J.]

“a. ……… Recruitment to Group services is made by the UPSC.This recruitment is again on all India basis…………

b. Whichever ministry seeks recruitment to the service in thisGroup sends requisition to UPSC as per procedure prescribedand UPSC accordingly advertises for the post in Group A. Everycitizen of India is eligible to apply as per the qualifications andBrequirements in the notification.

c. DoPT is the nodal ministry for regulating the conditions ofservice of all Central Civil Services as per Allocation of BusinessRules. As per the conditions of service, every employee isrequired to give an undertaking agreeing to the conditions ofthe all India transfer liability at the time of joining the service.

d. Central Civil Services employees belonging to Group servethe Union of India and that is the reason why these servicesare across the length and breadth of the country, whereverthere is an office of the Central Government.

e. Member of the Group service are governed by Central CivilServices (Class, Control & Appeal) Rules, 1965 as well asCentral Civil Services (Conduct) Rules, 1972 & Central CivilServices (Pension) Rules, 1972 and such other rules made bythe central ministries.”[ 4]

Central Civil Services – Group B:-

48. Under Rule 5, the Central Civil Services – Group ‘B’ arespecified in the Schedule and there are thirty-two such servicesmentioned. Some of the thirty-two services of Group ‘B’ and theirappointing authorities are as under:-

PART II - Central Civil Services, Group ‘B’

(Except for Civilians in Defence Services)

Description of serviceAppointingDescription of serviceAppointing(2) Authority (2) Authority (3) (3) Section Officer Grade of President Postal Director-the Central Secretariat Superintendents' General Posts Service excluding Section Service, Group 'B' Officers with Group 'A' (Serial No.7) status.(Serial No.1)Postmasters' Service, Director-General Customs Preventive Collector of Group 'B' (Serial No.8) Posts Service, Group 'B'- Customs Chief Inspectors (Serial No.15)

4 Para No. 6(i) of the Counter Affidavit filed by the Union of India at Pg. No.3-4

Botanical Survey of India, Chief Botanist, Income Tax Commissioner of Group 'B' (Serial No.18) Botanical Survey Service, Group 'B' Income Tax of India(Serial No.17)Geological Survey of India, Director-General Survey of India, Surveyor Group 'B' (Serial No.19) Geological, Group 'B' (Serial General of India BSurvey of India No.20) Zoological Survey of India, Zoological Central Electrical Director General Group 'B' (Serial No.21) Survey of India Engineering (Works), Central Service Group 'B' Public Works (Serial No.22)DepartmentCentral Engineering Service, Indian Salt Service, Joint Secretary, Group 'B': (Serial No.24) Group 'B' (Serial Ministry of CNo.26) Production (i) Posts in the Ministry of Joint Secretary, Irrigation and Power. Chairman, (ii) Posts in the Central Water Central Water Dand Power Commission and Power Commission Joint Secretary, (iii) Posts in the Chambal Ministry of Control Board Irrigation and Power ECommissioner (iv) Posts in the Farakka (Ganga Basin), Barrage Control Board Ministry of Irrigation and Power FCommissioner (v) Posts in the Ganga (Ganga Basin), Discharge Circle Ministry of Irrigation and Power Delhi and Andaman and Joint Secretary, Delhi and Joint Secretary, Nicobar Islands Civil Ministry of Andaman and Ministry of GService, Grade II. Home Affairs Nicobar Islands Home Affairs (DANICS) Police Service, (Serial No.28) Grade II. (DANIPS) (Serial No.29)

[R. BANUMATHI, J.]

AGeneral Central Service, All Group 'B' Chief Controller of Group 'B'- (Serial No.32) posts of the Accounts or Joint (i) Post in any Ministry of Secretary in the DepartmentaliseController General Department of Government Ministry or Accounts of Accounts in of India, other than the post Department Offices of the Ministry or in respect of which specific Government of Department where Bprovision has been made by India. (Serial there is no Chief general or special order of the No.33) Controller of President. Accounts In respect of posts (i-a) Posts outside Ministry in an office under or Department of the control of Government of India, other Head of Cthan the posts in respect of Department which specific provision has directly under the been made by general or Government. special order of the president. -Head of the Department DIn respect of other posts - Secretary in the Ministry or Department (ii) Posts in Union Territories other than Delhi EAdministration, the Administrator Andaman and Nicobar Islands and the Laccadive, Minicoy and Amindive Islands F(iii)Delhi Administration-Chief Secretary All posts (iv) The Andaman and Chief Nicobar Islands-All Posts Commissioner G(v) The Lakshadweep AdministratorAdministration-All Posts

ARecruitment to Group ‘B’ services are conducted by the UPSC.The appointing authority to various Group ‘B’ services is the Presidentof India/respective Ministries/respective Heads like Ministry of HomeAffairs, Collector of Customs, Commissioner of Customs etc.

49. In Serial Nos. 28 and 29 of the Schedule, we have the UnionBTerritories 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, AndamanC& Nicobar Islands, Lakshdweep, Daman & Diu and Dadra &Nagar Haveli. The recruitment to all the Union Territories forthese Group posts are common. They are also centralisedand the appointing authority is none other than Ministry of HomeAffairs, Government of India. The recruitment to these servicesDis the very same examination meant for the All India Services(IAS/IPS) on the one hand and the Central Civil Services GroupA on the other. Any citizen of India is eligible to apply, subjectto the conditions prescribed. As per service rules, transferundertakings throughout the Union Territories covered underDANICS/DANIPS is taken from these officers.Eb. This is the reason why the Union of India while invitingapplications for recruitment considers all candidates, includingreserved candidates on all India basis. Group cadre ofDANICS and DANIPS is the feeder cadre for IAS and IPSrespectively. They retire invariably in these offices, some ofFthem reaching high positions in the central government.

c. As indicated above recruitment to the All India Services, CCSGroup as well as CCS Group (Gazetted) is conductedthrough UPSC in the Civil Services Examination, the applicantsare common when the applications are made, every aspirantGseeks recruitment to the services and it is only as per the marksand ranking that allocations are made eventually to All IndiaServices, Group and Group B. Therefore, when UPSCundertakes the recruitment, it is naturally PAN Indiarecruitment and therefore it is necessary to seek applicationsincluding from reserved candidates from all over India.”[5]H5 Para No. 6(ii) of the Counter Affidavit filed by the Union of India at Pg. No.4-5

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’ andtheir appointing authorities are as under:-

PART III - Central Civil Services, Group 'C' (Except for Civilians in Defence Services)

(Except for Civilians in Defence Services) BDescription of AppointinDescription of service Appointing service (2) Authority (2) Authority (3) (3) Central Secretariat Deputy General Central Service, CClerical Service, Secretary Group ‘C’ (Serial No.4) Upper Division or and Lower Director, (i)Posts in the Division Grade Cadre Ministry/Department of Deputy Secretary (Serial No.1) Authority Government other than or Director in the the posts in respect of Ministry/Departmwhich specific provision ent of Government Dhas been made by general or special order of the President (ii) Posts in non-Secretariat Head of Office Office other than posts in respect of which specific Eprovision has been made by general or special Head of Office of order of the President such other authority as may (iii) Posts in Union be specified by Territories the Administrator. F(iv) All Group ‘C’ posts of the Controller of Departmentalized Accounts or Accounts Office of the Deputy Controller Government of India General of Accounts in GMinistry or Department where there is no Controller of Accounts.

AInsofar as Group ‘C’ services of Union of India are concerned,they are recruited by the Staff Selection Commission (SSC) which is therecruiting agency under DoPT. Members of these services get promotedto CCS – Group ‘B’. In the counter affidavit filed by the Union of India,it is stated as under:-

“a. ……Recruitment to posts in Group arise out of requisitionmade by the concerned ministries all over India. Theserequisitions upon reaching the Staff Selection Commission areprocessed and selection takes place and appointments aremade. Even from these appointees undertaking for all IndiaCtransfer liability is taken. As these are posts under CentralGovernment and these employees are liable to be transferredanywhere in the country and the recruitment being centralisedfor all such posts in the country, it had been consistent policyof the Union of India to have PAN India eligibility.

b. The posts in CCS Group are in the subordinate services.The equivalent in the Union Territory of Delhi is the DelhiAdministrative Subordinate Services (DASS) and therecruiting agency in the place of Staff Selection Commissionis the Delhi Subordinate Service Selection Board (DSSSB).EMembers of Delhi Administrative Subordinate Services arethe feeder cadre for Central Civil Services Group B(DANICS). It is for these reasons that the policy is consistentlyadopted.”[6]

FCentral Civil Services – Group D:-

51. Class IV employees now referred to as Multi-TaskingStaff (MTS) come under this category. Some ofthe posts noted in Group ‘D’ and their appointing authoritiesare as under:-G

6 Para No. 6(iii) of the Counter Affidavit filed by the Union of India at Pg. No.5-6

[R. BANUMATHI, J.]

P R T IV - ntral ivil S ervices, Gro u p 'D ' (Ex cept for ivilian s in efen ce Services)

escrip tion o servi ce Ap po int ing (2 ) u tho rit y (3) eneral Cent ral Se rvice, ro up ‘D ’ (Ser ialN o.1 ) (i)Post s i n Mi nistries or ep art m ents o U n der S ecretary Go vernm ent o th er th an p osts in resp ect of w ich s pecific pro visio n has bee n made by enera l o r sp ec ial o rder o th Pre si de nt. (ii) Post s in n on -Se cret ariat O ffic es o the r ad o O ffice than p osts in resp ect o w hich spe cific prov isio n has bee n m ade y gen ral o r spe cial order of the Presi dent. (iii) Po sts in Un ion T errito ries ead o O ffic o r suc o th er authority as m y be specified by the m i ni str tor (iv) Al l rou p ‘D ’ po sts of th pu ty on troller of De p artm entalized Ac co un ts O ffice s o cou nts or ssis ta nt the ov ern m ent o Ind ia ont ro ller en eral of cou nts in M inistry or partmen t w ere th ere is no ep uty Co ntroll er o cou nts .

52. As pointed out earlier, there is centralised recruitment conductedby UPSC for the Central Civil Services in Group ‘A’ and Group ‘B’.For this centralised recruitment, applications are invited from candidatesacross the country and Scheduled Castes/Scheduled Tribes of all theStates/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 filledonly through UPSC by centralised recruitment. After recruitment, theGroup ‘A’ and Group ‘B’ officers are posted across the country whereverthere are offices of Central Government.

53.Services mentioned at Serial No.28 that isGDelhi and Andaman and Nicobar Islands Civil Service,Grade-II(DANICS) are Group ‘B’ civil services. DANICS officersare posted at Delhi, Andaman and Nicobar Islands, Lakshadweep, Damanand Diu and Dadra and Nagar Haveli. DANICS - Group ‘B’ civilservice officers are directly recruited through the Central Civil ServicesHexamination conducted by UPSC. Since DANICS is centralised

Arecruitment conducted through UPSC naturally applications are invitedfrom the candidates across the country including reserved candidates ofScheduled Castes/Scheduled Tribes.

54. Delhi, Andaman and Nicobar Islands Police Services(DANIPS) are recruited directly through centralised civil servicesBexamination conducted by UPSC. DANIPS are posted at Delhi andother Union Territories – Andaman and Nicobar Islands, LakshadweepIslands, Daman and Diu and Dadar and Nagar Haveli. The cadre strengthis controlled by the Ministry of Home Affairs, Government of India.Two-thirds of DANIPS are filled by direct recruitment and remainingare promoted from non-gazetted police officers of Union Territory ofCDelhi and other Union Territories. Since, DANIPS officers are recruitedthrough centralised recruitment conducted through UPSC, applicationsare invited from candidates from across the country including reservedcandidates of Scheduled Castes and Scheduled Tribes of all the Statesand Union Territories. Thus, up to Group ‘B’ (Gazetted) of Central CivilDServices including the Group ‘B’ (Gazetted) services of Union Territories,there is Centralised Civil Services Examination conducted by UPSCwith PAN INDIA reservation.

55. Serial No.32, Group ‘B’ of CCS (CCA) Rules refers to GeneralCentral Services. At the risk of repetition, we may usefully refer toSerial No.32 which reads as under:-ESerial General entral Service, Gro up 'B'-N o.

32 (i) Post in ny Ministry o Departm ent of Go vernment o India, other than the post in respect o which specific provisio n has been made by general or special order o the President.

Secretary in the M inistry or epartment

In respect of posts in an office under the control of Head o epartment directly under the Go vernment.

(i-a) Posts outside M inistry or FD epartment of Governm ent of India, o the r tha n t he posts in respect of w hich specific provisio n has been made by ener al or specia l order o the president.

-Head of the Department

In respect of other post s - Secretary in the M inistry or epartment

G(ii) Posts in U nio n Territories other than elhi dministration, the Andaman and N icobar Islands and the Lacca div e, M inicoy and mindive Islands

dministr ator

(iii) Delhi Administration-A ll posts

hief Secretary

hief om missio ner

(iv) The Anda man and Nicobar Islands-A ll Po sts H(v) The Lakshadw eep Ad ministra tion-All P osts

dministr ator

As seen from the above, Serial No.32(i) and (i-a) relates to theposts under the Government of India for which the appointing authorityis the Secretary in the Ministry or Department/Head of the Departmentrespectively. Serial No.32 (ii) of Central Civil Services (CCA) Rules,1965 relates to “Posts in Union Territories other than DelhiAdministration, the Andaman and Nicobar Islands and theLaccadive, Minicoy and Amindive Islands”. The appointing authorityis shown to be the ‘Administrator’. Serial No.32 (iii) to (v) relate to ‘Allposts’ in Delhi administration, Andaman and Nicobar Islands and theLakshadweep administration respectively. Serial No.32(ii) posts in theUnion 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. Sincethere is centralised recruitment conducted by UPSC for Group ‘B’(Gazetted), naturally applications are invited from the candidates acrossthe country including reserved candidates of Scheduled Castes/SchedulesTribes from all the States/Union Territories. Up to the level of Group ‘B’(Gazetted) of Central Civil Services, since there is centralised recruitmentfor which there is PAN INDIA reservation of Scheduled Castes andScheduled 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 areso many other services like teaching, clerical cadre, police services,Medical Officers, Health Services, Stenographers, Typists, services underthe Revenue department, services under public-sector undertakings,services under the municipalities and the corporations in the UnionTerritories and various other services which are concerned with theadministration of Union Territories. These services under the UnionTerritories would fall under Group ‘B’, Group ‘C’ and Group ‘D’ andtheir recruitment is within the exclusive domain of the respective UnionTerritories. Though the government servants under the Union Territoriesare governed by Central Civil Services Rules, the services under theUnion Territories are essentially different from All India Services. Forrecruitment to services under respective Union Territories, there aredifferent modes of recruitment for the different Union Territories.

For the above response that there is PAN India reservation of thereserved candidates for recruitment by Union Territories of Chandigarh,Dadra and Nagar Haveli and NCT of Delhi, no authenticated documentswere produced to substantiate the same. When there are PresidentialGOrders notifying the Scheduled Castes/Scheduled Tribes for UnionTerritories of Chandigarh, Dadra and Nagar Haveli, calling for applicationfrom the Scheduled Castes/Scheduled Tribes candidates from all overIndia for the reserved posts of services under various Union Territories,be it Group ‘B’ or Group ‘C’, is not in accordance with the constitutionalscheme.

58. For Group ‘B’ and Group ‘C’ posts falling within the servicesof the Union Territories, recruitment is made by the Staff Selection Boardof respective Union Territories. For instance, let me refer to the StaffSelection Board of UT Administration of Daman and Diu whose homepage reads as under:-

“In exercise of the powers conferred by the provision of Article239 of the Constitution of India, the Administrator of Daman &Diu is pleased to make following rules to regulate the method ofrecruitment to all Group ‘B’ and ‘C’ categories of posts under theAdministration of Daman & Diu.

It aims to “ensure uniform and transparent process andprocedures for recruitment of all Group ‘B’ and ‘C’ categories ofposts under the Administration of Daman and Diu through anautonomous body, without disturbing the existing recruitmentprocesses and procedures and for ensuring that cumulativeoutcome of the recruitment is to provide just and fair opportunitiesto all the candidates and for matters connected therewith orincidental thereto[7].”

59. In response to the question posed by the court, Union of Indiafiled response affidavit stating that in Union Territories Daman and Diuand Dadra and Nagar Haveli, for Group ‘B’, it is opened to candidatesfrom all over India. Local candidates with domicile certificate getadditional twenty per cent marks. Response filed by the Union of Indiathat there is PAN India reservation for Group ‘B’ services of Damanand Diu and Dadra and Nagar Haveli, no authenticated documents/formatof any application for Group ‘B’ posts conducted by Daman and Diuwas produced before us. Even assuming that there is such PAN Indiareservation for recruitment of Group ‘B’ conducted by the Union Territoryof Daman and Diu, when there are Scheduled Castes/Scheduled Tribesas notified in the Presidential Order (Reorganisation Act, 1987 in respectof SCs/STs), there cannot be PAN India reservation as it is not inaccordance with the constitutional scheme.

60. Pointing out that services in the Union Territories are differentfrom All India Services and that the mode of recruitment are also different,in para (29) of Subhash Chandra and another v. Delhi SubordinateService Selection Board and others (2009) 15 SCC 458, it was held asunder:-

7 https://daman.nic.in/staff-selection-board-daman-diu.aspx#downloads(27.06.2018)

“29. Concededly, in respect of education or service, there existsa distinction between State Services and State-run institutionsincluding the Union Territory Services and Union Territory-runinstitutions on the one hand, and the Central Civil Services andthe institutions run by the Central Government on the other.Whereas in the case of the former, the reservation whether foradmission or appointment in an institution and employment orappointment in the services or posts in State or Union Territorymust confine to the members of the Scheduled Castes andScheduled Tribes as notified in the Presidential Orders but inrespect of All India Services, Central Civil Services or admissionto an institution run and founded by the Central Government, themembers of the Scheduled Castes and Scheduled Tribes and otherreserved category candidates irrespective of their State for whichthey have been notified are entitled to the benefits thereof. It isnot denied or disputed that services in the Union Territory isessentially different from All India Services. It is also beyond anycontroversy that machinery for recruitment is also different.Indisputably again, not only the conditions of recruitment but alsoconditions of service differ.”

I am in full agreement with the view taken by Justice Sinha inSubhash Chandra case.E

61. Rule 3 of Delhi Administration Subordinate Services(DASS) Rules, 1967 deals with constitution of services and itsclassification in Delhi Administration. As per Rule 3(3) of DASS Rules,the post in Grade-I, Class-II Group ‘B’ (Gazetted) and those in GradesII, III and IV shall be Central Civil Services Posts. But as noted earlier,Fas per Serial No.32 – General Central Service, Group ‘B’, insofaras Delhi Administration – All Posts (Serial No. 32 (iii)), theAppointing Authority is the Chief Secretary. The subordinateservices in the National Capital Territory of Delhi though “Central CivilServices”, they are neither All India Services nor services under UnionGof India so as to attract Pan India Reservation.

62. Even in the counter affidavit filed by the Union of India, byreferring to Group ‘C’ services, it is stated that CCS – Group ‘C’ are inthe subordinate services and there are equivalent services in the UnionTerritory of Delhi. For recruitment of other employees in the UnionHTerritory of Delhi, there is Delhi Administrative Subordinate Services

(DASS) and the recruiting agency is Delhi Subordinate Staff SelectionBoard (DSSSB). Members of Delhi Administrative Subordinate Servicesare stated to be the feeder cadre for Central Civil Services – Group ‘B’(DANICS).[31] Merely because members of Delhi AdministrativeSubordinate Services are the feeder category for DANICS, PAN Indiareservation cannot be extended to Delhi Subordinate Services or toservices 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 PanIndia Reservation is applicable to services under National Capital Territoryof Delhi.

63. So far as Group ‘B’ and Group ‘C’ posts falling under theservices of the Union Territories, recruitment is done by the respectiveStaff Selection Board of respective Union Territories. Serial No.4 (iii)– ‘Posts in Union Territories’ of Group ‘C’ in CCS (CCA) Rulesis shown and the appointing authority is stated as Head of the Office ofsuch other authority as may be specified by the Administrator.Merely because the posts in the Union Territories and the appointingauthority are shown in Group ‘C’ in CCS (CCA) Rules, that does notmean that those Group ‘C’ and Group ‘D’ posts are available for theScheduled Castes and Scheduled Tribes of all the States/Union Territories.For recruitment of Group ‘B’ and Group ‘C’ posts of services under therespective Union Territories, since the examination is conducted by therespective Union Territories like Delhi Subordinate Staff Selection Boardand other Union Territories Staff Selection Boards of respective UnionTerritories, reservation of posts of Scheduled Castes/Scheduled Tribesmust be confined only to those Scheduled Castes/Scheduled Tribes asnotified in the Presidential Order of the respective Union Territories.For recruitment of Group ‘B’ and Group ‘C’ posts under various UnionTerritories including Union Territory of Delhi, there cannot be PANINDIA reservation of Scheduled Castes/Scheduled Tribes, lest, it woulddefeat the very object of the Presidential Orders issued specifying theScheduled Castes/Scheduled Tribes for respective Union Territories.

64. As pointed out earlier, services under the Union Territoriesthough they are Central Government services, they are services underthe respective Union Territories and not under the direct control of Unionof India/different Ministries. Procedure for recruitment to the variousposts for the services of Union Territories are different as followed by

Arespective Union Territories. The persons appointed for the services ofUnion Territories might be governed by CCS (CCA) Rules; but they areemployees of respective Union Territories. The appointing authoritiesare the authorities under the administration of Union Territories and notunder the Ministries of Union of India. Central Civil Services are theservices directly under Union of India. Contrarily, various services underBthe Union Territories are the services under the respective UnionTerritories. Such services under Union Territories cannot be said to beCentral Civil Services that is services under Union of India to extend thebenefit of PAN India reservation for recruitment to the services underrespective Union Territories including Union Territory of Delhi.

65. In exercise of the powers conferred by clause (1) of Article341, the President issued the Constitution (Scheduled Castes) UnionTerritories Order, 1951 in the Presidential Order specifying ScheduledCastes in relation to Delhi and the thirty-six castes/groups notified areas under:-

Part 1 – Delhi Throughout the Union Territory

[R. BANUMATHI, J.]

In relation to Delhi, there are thirty-six castes notified as ScheduledCastes in the Presidential Order. The members of the Scheduled Castesin Delhi are drawn from castes, races and by virtue of the PresidentialOrder pertaining to Delhi, they attain the status of the Scheduled Caste.In view of the Presidential Order issued for the Scheduled Castes toDelhi, only those Scheduled Castes can claim the benefit of reservationin the employment under the Union Territory of Delhi who are notified inthe Presidential Order. Neither the Delhi Government nor the court canadd any caste or group to the list of Scheduled Castes notified in thePresidential Order. Once Presidential Order has been issued underArticle 341(1) of the Constitution, any addition or deletion to thePresidential Order can only be made by the Parliament by law as providedunder Article 341(2) and in no other manner. Merely because, DelhiSubordinate Services is feeder category for DANICS, there cannotbe Pan India Reservation of the SCs and STs for the services underGroup ‘C’ and ‘D’ categories, for which recruitment are made by theDelhi Subordinate Staff Selection Board (DSSSB).

66. Likewise, the Presidential Order has notified the followingScheduled Castes for the Union Territory of Chandigarh, Daman andDiu, Puducherry and Dadra and Nagar Haveli:-

Part II – Chandigarh 1.Adi Dharmi19.Khatik2. Bangali 20. Kori or Koli 3. Barar, Burar or Berar 21. Marjia or Marecha 4.Batwal, Barwala22.Mazhabi5. Bauria or Bawaria 23. Megh 6. Bazigar 24. Nat 7.Balmiki, Chura or 25.OdBhangi 8.Bhanjra26.Pasi9. Chamar, Jatia 27. Perna Chamar, Rehgar, Raigar, Ramdasi or Ravidasi 10.Chanal 28. Pherera

ABC

The Schedule – Dadra and Nagar Haveli

BIR SINGH v. DELHI JAL BOARD & ORS.

[R. BANUMATHI, J.]

67. Let me take the case of Andaman & Nicobar Islands. TheConstitution (Andaman and Nicobar Islands) Scheduled Tribes Order,1959 has notified the following tribes or tribal communities who havebeen included in the Schedule for the Andaman & Nicobar Islands:-

The Schedule

1.The Andamanese 4.Sentinelese (including Chariar or Chari, Kora, Tabo or Bo, Yere, Kede, Bea Balawa, Bojigiyab, Juwai and Kol 2.Jarawas5.The Nicoberese3.Onges 6.The Shompens

When Andaman & Nicobar Islands is recruiting persons to theservices of Group ‘B’, ‘C’ and ‘D’ under its administration, it has tonecessarily follow the policy of recruiting members from amongst theScheduled Tribes who are notified as Scheduled Tribes in the PresidentialNotification for Andaman and Nicobar Islands. It will not be appropriateto extend the benefit of reservation to the SCs and STs from other States/Union Territories, lest it would deprive the notified Scheduled Tribes ofthe Andaman and Nicobar Islands.

68. It may be that the candidates recruited by the respective UnionTerritories for Group ‘B’ and Group ‘C’ may become the feedercategories for further promotion in Group ‘A’ and Group ‘B’ of All IndiaServices respectively in the Central Civil Services. The fact that thecandidates who are recruited by the respective Union Territories becomethe feeder categories for further promotion in the Central Civil Servicesis not ground for extending the benefit of all India reservation to theScheduled Castes/Scheduled Tribes for the reserved posts in therespective Union Territories. Be it noted that the candidates recruitedby the various State Governments under Group ‘A’ of respective Stateservices become the feeder category for IAS and IPS. The personsrecruited for Group ‘B’ and Group ‘C’ by the respective Union Territoriesstand on the same footing as that of the candidates so recruited by thevarious States where only the Scheduled Castes/Scheduled Tribes ofthe respective States can apply.

A69. letter dated 10.05.2013 by Special Secretary (Services)addressed to all the Secretaries/Heads of Departments of NCT of Delhihas been filed by the Union of India. The letter relates to the subject“Reservation policy to be followed with regard to SCs/STs in civilposts under GNCTD”. The said letter refers to the judgment in Pushpa’scase and states that the Ministry of Law and Justice has opined that theBlaw declared by the Supreme Court in Pushpa’s case applies to theNCT of Delhi and that Pushpa’s case cannot be ignored. Relevantportion of the said letter reads as under:-

“GOVERNMENT OF NATIONAL CAPITALTERRITORY OF DELHI

(SERVICES DEPARTMENT BRANCH-IV) 7[TH] 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 followsthe guidelines and instructions issued by the Government of Indiafrom time to time in matters regarding reservation to ScheduledCastes and Scheduled Tribes in recruitment to various civil postsin Government of Delhi.

Ministry of Home Affairs, Govt. of India, in the context of orderdated 11.02.2005 of Hon’ble Supreme Court of India in case titledS. Pushpa & Ors. Vs. Sivachanmugavelu & Ors. stated videtheir letter dated 01.06.2005 that the matter has been examined inconsultation with the Ministry of Law & Justice (Department ofLegal Affairs). That the Ministry had opined that the lawdeclared by the Supreme Court of India cited above, appliesto the National Capital Territory of Delhi. This wasaccordingly conveyed to the departments vide thisdepartment’s letter No.F.16(73)/97-S-III/710 dated30.06.2005, stating that all the Scheduled Castes/ScheduledTribe candidates irrespective of their nativity, are eligiblefor reservation to the civil posts under Govt. of NCT ofDelhi, which are reserved for SC/ST candidates andappropriate action for recruitment may be taken accordingly.Subsequently, in view of order dated 04.08.2009 of Hon’bleSupreme Court in the matter of Sarv Rural & Urban WelfareSociety vs. Union of India & Ors. and of the Hon’ble High Courtdated 12.09.2012 in WP(C) No.5390/2010 under consideration inthe Ministry of Home Affairs, Govt. of India.

Now, Ministry of Home Affairs, Govt. of India, vide its letterNo.14012/09/2012-Delhi-I dated 03.04.2013 has informed that thesubject matter has been re-examined in consultation with Ministryof Law & Justice. In this matter Learned Attorney General forIndia has given his opinion dated 18.02.2013 (copy enclosed), whichis self-explanatory and has been approved by the Hon’ble Ministerof Law & Justice, Govt. of India. The opinion, inter alia, statesthat having regard to the order in the State of Uttaranchal’scase, till this issue is resolved by larger bench, the decisionin S. Pushpa case cannot be ignored. Ministry of Home Affairshas conveyed that it has been decided to proceed according tothis opinion.

Copy of above mentioned letter of the Ministry of Home Affairsis 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 Delhiin its recruitment based on the above letter dated 10.05.2013. Since Ihave taken the view that the decision in Pushpa’s case is not correctdecision extending PAN India reservation for the reserved posts recruitedby NCT of Delhi or any other Union Territories is against the PresidentialOrders issued under Articles 341 and 342 of the Constitution of Indiaand 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 Unionof India, Union Territories do not lose their identity as an entity. Theexisting practice of PAN INDIA reservation followed in Delhi and

AChandigarh is against the constitutional scheme and also against theexecutive instructions dated 06.08.1984 and 22.02.1985 issued by theMinistry of Home Affairs.

72. As pointed our earlier, the Ministry of Home Affairs in itscircular dated 06.08.1984 addressed to all the State Governments andBUnion Territories administration stated that SCs and STs on migrationfrom 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 fromthe 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 Ministryof Home Affairs, Government of India. If PAN India reservation is toCbe 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 UnionTerritories, the very object of the Constitutional Scheme of upliftment ofthe SCs/STs of these Union Territories will be defeated. All IndiaDreservation to the services under the Union Territories including the UnionTerritory of Delhi will be against the mandate of Articles 341 and 342 ofthe Constitution and against the Constitutional Scheme.

73. Marri Chandra Shekhar Rao and Action Committee areapplicable to the States and they are applicable with equal force to theEUnion Territories including Union Territory of Delhi. There cannot beany distinction between the States and the Union Territories. Likewise,there can be no distinction between Union Territory of Delhi and otherUnion Territories. When Presidential Orders of Scheduled Castes/Scheduled Tribes are notified for various Union Territories including UnionTerritory of Delhi extending PAN India reservation to the employmentFfalling under the services of Union Territories including Union Territoryof Delhi, will be against the Constitutional scheme and the law laid downin Marri Chandra Shekhar Rao and Action Committee.74. Article 16(4) of the Constitution has to yield to theconstitutional mandate of Articles 341 and 342 of the Constitution.GThe Presidential Order issued under Article 341 in regard to ScheduledCastes and Article 342 in regard to Scheduled Tribes cannot be variedby anyone or by the Court. Only the Parliament by law include or excludefrom the list of Scheduled Castes or Scheduled Tribes specified in thenotification 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 toone State or Union Territory does not carry the status in another State orUnion Territory. When the Scheduled Castes or Scheduled Tribes arespecified for each State in relation to one State or Union Territory, neitherthe State legislature, the administration of the Union Territories and northe courts can include or exclude other Scheduled Castes or ScheduledTribes so notified in the Presidential Order. Providing all India reservationto the services of Union Territories including Union Territory of Delhi,would be against the mandate of Articles 341 and 342 and the PresidentialOrders issued thereon. If that is permitted, it would amount to additionor alteration of the Presidential Order which is impermissible and violativeof the Constitutional Scheme.

75. It is the responsibility of each State/Union Territory to providefor such reservation/affirmative action by positive discretion to bringbackward classes/Scheduled Castes and Scheduled Tribes in therespective States/areas to provide socio-economic empowerment. If thereservation to the Scheduled Castes and Scheduled Tribes are to beextended to all categories of Scheduled Castes and Scheduled Tribes allover India or to the migrants then there is every possibility of the ScheduledCastes and Scheduled Tribes of other developed States and UnionTerritories squandering reservations to the Scheduled Castes andScheduled Tribes who are disadvantaged in the respective States/UnionTerritories including Union Territory of Delhi. If this is permitted, itwould defeat the very object of providing reservation to the disadvantagedScheduled Castes and Scheduled Tribes in particular State or Unionterritory. The enabling provision of Article 16(4) of the Constitution hasto yield to the constitutional scheme of Article 341 and Article 342 of theConstitution.

76. Conclusion:-

· Insofar as the States, I agree with the majority view that aperson who is recognised as member of Scheduled Castes/Scheduled Tribes in his original State, will be entitled to all thebenefits of reservation under the Constitution in that State onlyand not in other States/Union Territories and not entitled to thebenefits of reservation in the migrated State/Union Territory.

· Marri Chandra Shekhar Rao and Action Committee areapplicable to the States and they are applicable with equal forceto the Union Territories including Union Territory of Delhi. Therecannot be any distinction between the States and the UnionTerritories. Likewise, there can be no distinction between UnionTerritory of Delhi and other Union Territories. When PresidentialOrders of Scheduled Castes/Scheduled Tribes are notified forvarious Union Territories including Union Territory of Delhiextending PAN India reservation to the employment falling underthe services of Union Territories including Union Territory of Delhi,will be against the Constitutional scheme and the law laid down inMarri Chandra Shekhar Rao and Action Committee.· Since there is centralised recruitment upto Group ‘B’(Gazetted) services conducted by UPSC for the Central CivilServices posts in the States/Union Territories of India, there hasto 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 services ofUnion Territories including Union Territory of Delhi for whichrecruitment is conducted by the respective Union Territories,benefit of reservation in employment (Article 16(4)) is to beextended only to those Scheduled Castes/Scheduled Tribesspecified in the Presidential Order of the respective UnionTerritories. Insofar as the posts recruited by the Staff SelectionBoard of the respective Union Territories including the UnionTerritory of Delhi, there cannot be PAN India reservation forGroup ‘B’, Group ‘C’ and Group ‘D’ posts falling under theservices of various Union Territories and such PAN Indiareservation would be against the constitutional scheme and MarriChandra Shekhar Rao and Action Committee.

Divya Pandey

Referred question.answered.