[2024] 2 S.C.R. 371 : 2024 INSC 119
Chandigarh Housing Board
v.
Tarsem Lal
(Civil Appeal No. 1788 of 2024)
07 February 2024
[B.V. Nagarathna and Augustine George Masih, JJ.]
Issue for Consideration
Whether a notification issued by the appellant-Chandigarh Housing
Board calling for applications from both Schedule Castes and
Scheduled Tribes confer any benefit on the respondent (who
belonged to the Schedule Tribes community as recognised in the
State of Rajasthan and was living in Chandigarh for twenty years)
when there is no Presidential Order u/Art. 342 of the Constitution
of India issued with regard to Scheduled Tribes insofar as Union
Territory of Chandigarh is concerned.
Headnotes
Chandigarh Housing Board (Allotment, Management and Sale
of Tenements) Regulations, 1979 – Reservation – Allotment
of houses – Exclusively for Schedule Castes and Schedule
Tribes – The respondent herein had sought for allotment of
HIG house reserved for Scheduled Tribes category in terms of
the advertisement issued by the appellant-Chandigarh Housing
Board; that being aggrieved by non-allotment of a house, a
suit was filed by the respondent – The suit was decreed by
the Trial Court and judgment and decree was affirmed by the
First Appellate Court as well as in the second appeal by the
High Court – Propriety:
Held: The Presidential notification of a tribe or tribal community as
a Scheduled Tribe by the President of India u/Art. 342 is a sine qua
non for extending any benefits to the said community in any State
or U.T. – This implies that a person belonging to a group that is
recognized as a Scheduled Tribe in a State would be recognized a
Scheduled Tribe only within the said State and not in a U.T. where he
migrates if no such Presidential notification exists in the said U.T. – In
the instant case, merely because the appellant herein had issued a
Notification calling for applications from both Scheduled Castes and
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Scheduled Tribes did not confer any benefit by that Notification on
the respondent herein when there is no Presidential Order u/Art. 342
of the Constitution of India issued with regard to Scheduled Tribes
insofar as Union Territory of Chandigarh is concerned – The said
basic foundational fact goes against the respondent herein and the
invitation given by the appellant/Housing Board to Scheduled Tribes
was in fact contrary to the said basic tenets as well as the prevalent
law and by that reason, the respondent herein cannot also seek any
estoppel as against the appellant herein – The impugned judgment
of the High Court affirming the judgment of the First Appellate Court,
which in turn affirms the judgment of the Trial Court are all liable to
be set aside. [Paras 26, 31]
Case Law Cited
Bhaiya Lal v. Harikishan Singh, [1965] 2 SCR 877 : AIR
1965 SC 1557; State of Maharashtra v. Milind, [2000]
Suppl. 5 SCR 65 : (2001) 1 SCC 4; Action Committee
on Issue of Caste Certificate to Scheduled Castes and
Scheduled Tribes in the State of Maharashtra vs. Union
of India [1994] Suppl. 1 SCR 714 : (1994) 5 SCC 244
– followed.
Marri Chandra Shekhar Rao vs. Dean, Seth G. S.
Medical College, [1990] 2 SCR 843 : (1990) 3 SCC
130 – relied on.
Bir Singh vs. Delhi Jal Board, [2018] 10 SCR 513 :
(2018) 10 SCC 312; Director, Transport Department,
Union Territory Administration of Dadra and Nagar
Haveli, Silvassa vs. Abhinav Dipakbhai Patel, (2019) 6
SCC 434 – held inapplicable.
List of Acts
Constitution of India; Punjab Reorganization Act, 1966; Chandigarh
Housing Board (Allotment, Management and Sale of Tenements)
Regulations, 1979.
List of Keywords
Advertisement for dwelling units; Reservation; Allotment of
houses exclusively for Schedule Castes and Schedule Tribes;
Presidential Order u/Art. 342; Presidential notification of a tribe
[2024] 2 S.C.R. 373
Chandigarh Housing Board v. Tarsem Lal
or tribal community; Recognition of Scheduled Tribe in a State;
Migration of Schedule Tribe person to another State or Union
Territory; Claim of Schedule Tribe status in another State or
Union Territory.
Case Arising From
CIVIL APPELLATE JURISDICTION : Civil Appeal No.1788 of 2024
From the Judgment and Order dated 10.08.2018 of the High Court of
Punjab & Haryana at Chandigarh in RSA No. 1570 of 1991
Appearances for Parties
Mrs. Rachana Joshi Issar, Svarit Uniyal Mishra, Ms. Nidhi Tewari,
Advs. for the Appellant.
Shivendra Singh, Bikram Dwivedi, Puneett Singhal, Sanjeev
Chaudhary, Advs. for the Respondent.
Judgment / Order of the Supreme Court
Judgment
Leave granted.
2. Being aggrieved by judgment dated 10.08.2018 passed by the High
Court of Punjab and Haryana at Chandigarh, the appellant/Chandigarh
Housing Board has preferred this appeal.
3. Briefly stated, the facts pertinent to the adjudication of the present
appeal are that the appellant herein, vide advertisement dated
28.06.1983, had called for applications for allotment of houses
exclusively for Scheduled Castes and Scheduled Tribes and a total
of 35 houses in the HIG (Upper) and HIG (Lower) categories were
reserved for that purpose. This advertisement was issued pursuant
to Regulation 25 of the Chandigarh Housing Board (Allotment,
Management and Sale of Tenements) Regulations, 1979 which
makes a provision for reservation of 12.5 % of the total number of
dwelling units for Scheduled Castes and Scheduled Tribes. One of
the conditions stipulated for the applicants was that they should be
a domicile of Union Territory (U.T.) of Chandigarh or should have
been a bona fide resident of U.T. of Chandigarh for a period of at
least three years on the date of submission of the application. The
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respondent submitted his application and the draw of lots was held
on 09.09.1983. The list of successful applicants was published on
12.09.1983 wherein thirty houses were allotted.
4. Due to administrative confusion about the separate reservation for
the Scheduled Tribes within the reserved dwelling units, four houses,
two each in HIG(Upper) and HIG(Lower) categories were kept in
abeyance out of 35 houses since there were only four applicants
from the Scheduled Tribes category. A clarification was sought from
the Chandigarh Administration by the appellant owing to the fact
there was no Scheduled Tribe community which had been notified
by the President of India with regard to U.T. of Chandigarh under
Article 342 even though a notification under Article 341 for the
Scheduled Castes in Chandigarh had been issued. Thus, it was
enquired as to whether the Scheduled Tribes category could be
entitled to a minimum reservation of 5%. In response to the request
of the Appellant, the clarification issued by the Research Officer
to the Finance Secretary of the Chandigarh Administration vide
letter dated 21.09.1983 referred to the Brochure on Reservation for
Scheduled Castes and Scheduled Tribes and noted that even if the
population of the Scheduled Tribe community was less than 5%, a
minimum reservation of 5% could be made even for the Scheduled
Tribes in respect of all built houses/dwelling units. Being aggrieved
by the non-allotment of a house, the respondent-plaintiff approached
the civil Court.
5. The respondent instituted Civil Suit No. 327/1984 in the Court
of Senior Sub Judge, Chandigarh seeking a declaration that the
appellant’s decision to not allot houses earmarked for Scheduled
Tribes was mala fide. It was stated that he belongs to the Scheduled
Tribes community as recognized in the State of Rajasthan and had
been permanently residing in Chandigarh for twenty years.
6. The suit was contested by the appellant herein by averring that
no right much less a legal right to allotment of four houses kept in
abeyance could accrue to the Scheduled Tribes in the absence of
the notification of any Scheduled Tribe by the President of India in
so far as Union Territory of Chandigarh was concerned.
7. By judgment and decree of the trial court dated 09.01.1986, the
suit was decreed by the trial Court on the basis of the letter of
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Chandigarh Housing Board v. Tarsem Lal
clarification dated 21.09.1983 from which the trial court inferred that
the Appellant was obliged to reserve a minimum of 5% dwelling units
for Scheduled Tribes. The said letter was found to be ‘good for all
purpose’ and all the four applicants belonging to the Schedules Tribe
category were held to be entitled to the allotment. While noting that
Article 342 of the Constitution had not been ‘made applicable to the
U.T. Chandigarh’, the trial court concluded that it would not mean
that Scheduled Tribes cannot get any benefit from the Chandigarh
Administration. The trial court reasoned that the advertisement dated
28.06.1983 did not stipulate that only members of the Scheduled
Tribes of Chandigarh could apply. Therefore, the respondent was
decreed to be entitled to allotment of the house at the price fixed
on the date of draw of lots dated 09.09.1983.
8. Being aggrieved by the judgment and decree of the trial Court,
the appellant herein preferred Civil Appeal No. 295/1990 before
the First Appellate Authority (Additional District Judge), which was
also dismissed. Hence, the appellant herein preferred Regular
Second Appeal No. 1570/1991 (O&M) before the High Court. By
the impugned judgment, the Regular Second Appeal has also been
dismissed. The High Court placed reliance on the Chandigarh
Administration’s letter of clarification dated 21.09.1983 (Exhibit
D-3) and the Ministry of Home Affairs’ Letter No. BC.12017/9/85
SC & BCD I dated 21.05.1985 (Exhibit P-8) to conclude that
it leaves no manner of doubt that Chandigarh Administration
instructed the Chandigarh Housing Board to keep the reservation
for allotment of dwelling units as aforementioned. Thus, issuance
of notification under Article 342 of the Constitution of India, pales
into insignificance. That the appellant is also a Scheduled Tribe
and holder of such certificate, even though from another State
(Rajasthan) and was not debarred as per the contents of the letter.
Hence, this appeal.
9. We have heard Mrs. Rachana Joshi Issar, learned counsel appearing
for the appellant and Shri Shivendra Singh, learned counsel for
respondent and perused the impugned order as well as the material
on record.
10. During the course of submissions, learned counsel for the appellant
drew our attention to three Constitution Bench judgments of this Court
in the case of Marri Chandra Shekhar Rao vs. Dean, Seth G. S.
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Medical College (1990) 3 SCC 130 (Marri Chandra Shekhar Rao);
Action Committee on Issue of Caste Certificate to Scheduled
Castes and Scheduled Tribes in the State of Maharashtra vs.
Union of India (1994) 5 SCC 244 (Action Committee) and Bir
Singh vs. Delhi Jal Board (2018) 10 SCC 312 (Bir Singh) in
order to contend that insofar as the Union Territory of Chandigarh
is concerned, firstly, there is no specific Presidential Order issued
insofar as Scheduled Tribes are concerned and secondly, that it is only
by a Presidential Order issued under Article 342 of the Constitution
of India that Scheduled Tribes could be recognized in an Union
Territory or a State could be issued. Admittedly, no such Presidential
Order with regard to Scheduled Tribes has been issued vis-a-vis the
Union Territory of Chandigarh. In this regard, reliance was placed on
Exhibit D-3 communication. Therefore, the applications inviting for
the allotment of flats insofar as Scheduled Tribes were concerned,
were sought to be clarified. That in the absence of there being any
such Presidential Order insofar as Scheduled Tribes communities are
concerned, the advertisement inviting applicants from the Scheduled
Tribes was not at all correct.
Further, it was contended that the respondent herein claims to belong
to Scheduled Tribes category insofar as the State of Rajasthan is
concerned. He had migrated to Union Territory of Chandigarh for
his employment and, therefore, having regard to judgment of this
Court in the case of Marri Chandra Shekhar Rao followed by
other judgments, respondent is not entitled to place reliance on his
caste status insofar as the State of Rajasthan is concerned and
enforce the same in the Union Territory of Chandigarh. It was further
submitted that the High Court was not right in interpreting letters
dated 21.09.1983 and 21.05.1985 by ignoring the fact that the caste
status could be claimed insofar as the State or Union Territory of
a person’s origin only and not carried to a State or Union Territory
to which the person migrates. Therefore, the impugned judgments
may be set aside and the suit filed by the respondent herein may
be dismissed.
11. Per contra, learned counsel for the respondent with reference to
the counter affidavit strenuously contended that the impugned
judgments and decrees are just and proper, which would not call
for any interference at the hands of this Court. It was submitted that
although there may be no Presidential Order issued with regard
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Chandigarh Housing Board v. Tarsem Lal
to Scheduled Tribes under Article 342 of the Constitution of India
insofar as Union Territory of Chandigarh is concerned, Annexure
P-9 (colly) letter dated 25.11.1985 issued by the Ministry of Welfare,
Government of India was relied upon. The said document would
clearly indicate that insofar as a migrant, such as the respondent
herein is concerned, he could derive the benefits having regard to
his status in the State of origin; that the reference in the said letter
is only to State and not to any Union Territory. Therefore, by that
logic it was contended that if a person migrates from a State to an
Union Territory, it would imply that even if there is no Presidential
Order issued in terms of Article 342 of the Constitution, the migrant
is entitled to place reliance on his status as Scheduled Tribe in
the State of his origin and, therefore, seek the benefit in the Union
Territory to which he migrates.
In support of his submissions, learned counsel for the respondent
placed reliance on judgment of this Court in Director, Transport
Department, Union Territory Administration of Dadra and Nagar
Haveli, Silvassa vs. Abhinav Dipakbhai Patel (2019) 6 SCC 434
(Abhinav Dipakbhai Patel). Further, this Court in paragraph 66 of
the judgment Bir Singh while dealing with the case which arose from
Delhi Jal Board, did not express any view with regard to question
as far as other Union Territories were concerned and confined
the decision only with regard to National Capital Territory of Delhi.
Therefore, there is no judgment of this Court which states that if a
person migrates from a State where he is recognised as a Scheduled
Tribe to an Union Territory in which there is no Presidential Order
recognising any Scheduled Tribe nevertheless placing reliance on
the Presidential Order vis-a-vis the State of origin of the migrant,
benefit must be given to such a person. He therefore, submitted that
there is no merit in this appeal.
12. We have considered the arguments advanced at the bar in relation
to the facts of the case and the judgments of this Court.
13. It is not in dispute that the respondent herein had sought for allotment
of HIG house reserved for Scheduled Tribes category in terms of the
advertisement issued by the appellant herein; that being aggrieved
by non-allotment of a house, the suit which was decreed by the Trial
Court and which judgment and decree was affirmed by the First
Appellate Court as well as in the second appeal by the High Court.
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14. At the outset, we may refer to Articles 341 and 342 which read as
under:
“341. Scheduled Castes.-
(1) The President may with respect to any State or Union
territory, and where it is a State after consultation with
the Governor thereof, by public notification, specify
the castes, races or tribes or parts of or group within
castes, races or tribes which shall for the purposes
of this Constitution be deemed to be Scheduled
Castes in relation to that State or Union territory, as
the case may be.
(2) Parliament may by law include in or exclude from the
list of Scheduled Castes specified in a notification
issued under clause (1) any caste, race or tribe or
part of or group within any caste, race or tribe, but
save as aforesaid a notification issued under the
said clause shall not be varied by any subsequent
notification.
342. Scheduled Tribes. –
(1) The President may with respect to any State or Union
territory, and where it is a State after consultation with
the Governor thereof, by public notification, specify
the tribes or tribal communities or parts of or groups
within tribes or tribal communities which shall for
the purposes of this Constitution be deemed to be
Scheduled Tribes in relation to that State or Union
territory, as the case may be.
(2) Parliament may by law include in or exclude from
the list of Scheduled Tribes specified in a notification
issued under clause (1) any tribe or tribal community
or part of or group within any tribe or tribal community,
but save as aforesaid a notification issued under the
said clause shall not be varied by any subsequent
notification.”
15. Thus, the public notification of ‘tribes or tribal communities’ by the
President of India, upon consultation with the Governor, is a sine qua
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Chandigarh Housing Board v. Tarsem Lal
non for deeming such tribes or tribal communities to be ‘Scheduled
Tribes’ in relation to that State or Union Territory for the purposes
of the Constitution.
16. With respect to the Union Territory of Chandigarh, we find that the
Parliament, vide the Punjab Reorganization Act, 1966 had created the
Union Territory of Chandigarh and made provision for amendment of
the Scheduled Castes and Schedules Tribes Orders. Section 27(2) of
the said Act provided for amendment of the Constitution (Scheduled
Castes) (Union Territories) Order, 1951, to include, with respect to
Chandigarh, 36 castes enlisted in Part V of the Ninth Schedule of
the said Act. A similar provision is also made for amendment of the
Constitution (Scheduled Tribes) (Union Territories) Order, 1951,
as directed in the Eleventh Schedule but the said Schedule does
not include any part or entry with respect the Union Territory of
Chandigarh.
In this context, it is apposite to refer to what the Constitution Bench
of this Court, speaking through Chief Justice Gajendragadkar, in
Bhaiya Lal v. Harikishan Singh, AIR 1965 SC 1557, held as it
expounded on the object of issuance of public notification under
Article 341 of the Constitution.
“10. … The object of Article 341(1) plainly is to provide
additional protection to the members of the Scheduled
Castes having regard to the economic and educational
backwardness from which they suffer. It is obvious that in
specifying castes, races or tribes, the President has been
expressly authorised to limit the notification to parts of or
groups within the castes, races or tribes, and that must
mean that after examining the educational and social
backwardness of a caste, race or tribe, the President
may well come to the conclusion that not the whole caste,
race or tribe but parts of or groups within them should
be specified. Similarly, the President can specify castes,
races or tribes or parts thereof in relation not only to the
entire State, but in relation to parts of the State where he is
satisfied that the examination of the social and educational
are backwardness of the race, caste or tribe justifies
such specification. In fact, it is well known that before a
notification is issued under Article 341(1), an elaborate
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enquiry is made and it is as a result of this enquiry that
social justice is sought to be done to the castes, races or
tribes as may appear to be necessary, and in doing justice,
it would obviously be expedient not only to specify parts
or groups of castes, races or tribes, but to make the said
specification by reference to different areas in the State.
Educational and social backwardness in regard to these
castes, races or tribes may not be uniform or of the same
intensity in the whole of the State; it may vary in degree or
in kind in different areas and that may justify the division
of the State into convenient and suitable areas for the
purpose of issuing the public notification in question.”
17. The absolute necessity of a public notification in terms of Articles 341
and 342 was explicated by a Constitution Bench of this Court in State
of Maharashtra v. Milind, (2001) 1 SCC 4 (‘Milind’) which held that
de hors a specific mention in the entry concerned in the Constitution
(Scheduled Tribes) Order, 1950 (as amended by Parliament), it was
impermissible to hold an inquiry and declare that any tribe or tribal
community to be included in the list of Scheduled Tribes.
While holding that Article 341(2) did permit anyone to seek such
modification and that it is not open to any judicial body to modify
or vary the Constitution (Scheduled Tribes) Order, 1950, this
Court expounded on the salutary purpose of deferring to the
Presidential order, as amended by Parliament while considering
the grant of any benefit to members of the Scheduled Tribe
community:
“11. By virtue of powers vested under Articles 341 and 342
of the Constitution of India, the President is empowered
to issue public notification for the first time specifying
the castes, races or tribes or part of or groups within
castes, races, or tribes which shall, for the purposes of
the Constitution be deemed to be Scheduled Castes or
Scheduled Tribes in relation to a State or Union Territory,
as the case may be. The language and terms of Articles
341 and 342 are identical. What is said in relation to
Article 341 mutatis mutandis applies to Article 342. The
laudable object of the said articles is to provide additional
protection to the members of the Scheduled Castes and
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Chandigarh Housing Board v. Tarsem Lal
Scheduled Tribes having regard to social and educational
backwardness from which they have been suffering since a
considerable length of time. The words “castes” or “tribes”
in the expression “Scheduled Castes” and “Scheduled
Tribes” are not used in the ordinary sense of the terms
but are used in the sense of the definitions contained in
Articles 366(24) and 366(25). In this view, a caste is a
Scheduled Caste or a tribe is a Scheduled Tribe only if
they are included in the President’s Orders issued under
Articles 341 and 342 for the purpose of the Constitution.
Exercising the powers vested in him, the President has
issued the Constitution (Scheduled Castes) Order, 1950
and the Constitution (Scheduled Tribes) Order, 1950.
Subsequently, some orders were issued under the said
articles in relation to Union Territories and other States
and there have been certain amendments in relation to
Orders issued, by amendment Acts passed by Parliament.
x x x
35. In order to protect and promote the less fortunate
or unfortunate people who have been suffering from
social handicap, educational backwardness besides
other disadvantages, certain provisions are made in
the Constitution with a view to see that they also have
the opportunity to be on par with the others in the
society. Certain privileges and benefits are conferred
on such people belonging to Scheduled Tribes by way
of reservations in admission to educational institutions
(professional colleges) and in appointments in services
of State. The object behind these provisions is noble
and laudable besides being vital in bringing a meaningful
social change. But, unfortunately, even some better-placed
persons by producing false certificates as belonging to
Scheduled Tribes have been capturing or cornering seats
or vacancies reserved for Scheduled Tribes defeating the
very purpose for which the provisions are made in the
Constitution. The Presidential Orders are issued under
Articles 341 and 342 of the Constitution recognising and
identifying the needy and deserving people belonging
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to Scheduled Castes and Scheduled Tribes mentioned
therein for the constitutional purpose of availing benefits of
reservation in the matters of admissions and employment. If
these benefits are taken away by those for whom they are
not meant, the people for whom they are really meant or
intended will be deprived of the same and their sufferings
will continue. Allowing the candidates not belonging to
Scheduled Tribes to have the benefit or advantage of
reservation either in admissions or appointments leads
to making mockery of the very reservation against the
mandate and the scheme of the Constitution.”
(underlining by us)
18. Learned counsel for the appellant has drawn our attention to the
judgment of this Court in Marri Chandra Shekhar Rao by placing
reliance on the following paragraphs:-
“13. It is trite knowledge that the statutory and constitutional
provisions should be interpreted broadly and harmoniously.
It is trite saying that where there is conflict between two
provisions, these should be so interpreted as to give
effect to both. Nothing is surplus in a Constitution and no
part should be made nugatory. This is well settled. See
the observations of this Court in Venkataramana Devaru
v. State of Mysore [1958 SCR 895, 918 : AIR 1958 SC
255] , where Venkatarama Aiyer, J. reiterated that the rule
of construction is well settled and where there are in an
enactment two provisions which cannot be reconciled with
each other, these should be so interpreted that, if possible,
effect could be given to both. It, however, appears to us
that the expression ‘for the purposes of this Constitution’
in Article 341 as well as in Article 342 do imply that the
Scheduled Caste and the Scheduled Tribes so specified
would be entitled to enjoy all the constitutional rights that
are enjoyable by all the citizens as such. Constitutional
right, e.g., it has been argued that right to migration or
right to move from one part to another is a right given to
all — to Scheduled Castes or Tribes and to non-scheduled
castes or tribes. But when a Scheduled Caste or Tribe
migrates, there is no inhibition in migrating but when
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Chandigarh Housing Board v. Tarsem Lal
he migrates, he does not and cannot carry any special
rights or privileges attributed to him or granted to him in
the original State specified for that State or area or part
thereof. If that right is not given in the migrated State it
does not interfere with his constitutional right of equality
or of migration or of carrying on his trade, business or
profession. Neither Article 14, 16, 19 nor Article 21 is
denuded by migration but he must enjoy those rights in
accordance with the law if they are otherwise followed in
the place where he migrates. There should be harmonious
construction, harmonious in the sense that both parts or
all parts of a constitutional provision should be so read
that one part does not become nugatory to the other or
denuded to the other but all parts must be read in the
context in which these are used. It was contended that the
only way in which the fundamental rights of the petitioner
under Articles 14, 19(1)(d), 19(1)(e) and 19(1)(f) could be
given effect to is by construing Article 342 in a manner by
which a member of a Scheduled Tribe gets the benefit of
that status for the purposes of the Constitution throughout
the territory of India. It was submitted that the words “for
the purposes of this Constitution” must be given full effect.
There is no dispute about that. The words “for the purposes
of this Constitution” must mean that a Scheduled Caste
so designated must have right under Articles 14, 19(1)(d),
19(1)(e) and 19(1)(f) inasmuch as these are applicable
to him in his area where he migrates or where he goes.
The expression “in relation to that State” would become
nugatory if in all States the special privileges or the
rights granted to Scheduled Castes or Scheduled Tribes
are carried forward. It will also be inconsistent with the
whole purpose of the scheme of reservation. In Andhra
Pradesh, a Scheduled Caste or a Scheduled Tribe may
require protection because a boy or a child who grows in
that area is inhibited or is at disadvantage. In Maharashtra
that caste or that tribe may not be so inhibited but other
castes or tribes might be. If a boy or a child goes to that
atmosphere of Maharashtra as a young boy or a child and
goes in a completely different atmosphere or Maharashtra
where this inhibition or this disadvantage is not there,
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then he cannot be said to have that reservation which will
denude the children or the people of Maharashtra belonging
to any segment of that State who may still require that
protection. After all, it has to be borne in mind that the
protection is necessary for the disadvantaged castes or
tribes of Maharashtra as well as disadvantaged castes or
tribes of Andhra Pradesh. Thus, balancing must be done as
between those who need protection and those who need
no protection, i.e., who belong to advantaged castes or
tribes and who do not. Treating the determination under
Articles 341 and 342 of the Constitution to be valid for all
over the country would be in negation to the very purpose
and scheme and language of Article 341 read with Article
15(4) of the Constitution.”
19. The rationale for the aforesaid interpretation was further explained
by another Constitution Bench in Action Committee wherein this
Court relied upon the Constituent Assembly Debates to hold that
the list of Scheduled Castes, Scheduled Tribes and backward
classes in a given State would correspond to the disadvantages
and social hardships existing in the specific social context for a
particular caste, tribe or class in that State. Given the variance of
social context, the list of such castes, tribes or classes would be
totally non est in another State to which persons belonging thereto
may migrate. Thus, the learned judges wholly agreed with the
reasoning and conclusion in Marri Chandra Shekhar Rao and
observed as under:
“16. We may add that considerations for specifying a
particular caste or tribe or class for inclusion in the list of
Scheduled Castes/Schedule Tribes or backward classes
in a given State would depend on the nature and extent
of disadvantages and social hardships suffered by that
caste, tribe or class in that State which may be totally non
est in another State to which persons belonging thereto
may migrate. Coincidentally it may be that a caste or tribe
bearing the same nomenclature is specified in two States
but the considerations on the basis of which they have
been specified may be totally different. So also the degree
of disadvantages of various elements which constitute
the input for specification may also be totally different.
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Chandigarh Housing Board v. Tarsem Lal
Therefore, merely because a given caste is specified
in State A as a Scheduled Caste does not necessarily
mean that if there be another caste bearing the same
nomenclature in another State the person belonging to
the former would be entitled to the rights, privileges and
benefits admissible to a member of the Scheduled Caste
of the latter State “for the purposes of this Constitution”.
This is an aspect which has to be kept in mind and which
was very much in the minds of the Constitution-makers
as is evident from the choice of language of Articles 341
and 342 of the Constitution.”
20. Thereafter, the Constitution Bench of this Court in Bir Singh, being
seized of the dispute pertaining to SC/ST reservation for persons
who had migrated to the National Capital Territory of Delhi, reiterated
the well-settled principles enunciated in Marri Chandra Shekhar Rao
and Action Committee in the following words:
“34. Unhesitatingly, therefore, it can be said that a person
belonging to a Scheduled Caste in one State cannot be
deemed to be a Scheduled Caste person in relation to
any other State to which he migrates for the purpose of
employment or education. The expressions “in relation
to that State or Union Territory” and “for the purpose
of this Constitution” used in Articles 341 and 342 of
the Constitution of India would mean that the benefits
of reservation provided for by the Constitution would
stand confined to the geographical territories of a State/
Union Territory in respect of which the lists of Scheduled
32 Castes/Scheduled Tribes have been notified by the
Presidential Orders issued from time to time. A person
notified as a Scheduled Caste in State ‘A’ cannot claim
the same status in another State on the basis that he is
declared as a Scheduled Caste in State ‘A’.
x x x
36. The upshot of the aforesaid discussion would lead
us to the conclusion that the Presidential Orders issued
under Article 341 in regard to Scheduled Castes and
under Article 342 in regard to Scheduled Tribes cannot be
varied or altered by any authority including the Court. It is
386 [2024] 2 S.C.R.
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Parliament alone which has been vested with the power
to so act, that too, by laws made. Scheduled Castes and
Scheduled Tribes thus specified in relation to a State or a
Union Territory does not carry the same status in another
State or Union Territory. Any expansion/deletion of the list of
Scheduled Castes/Scheduled Tribes by any authority except
Parliament would be against the constitutional mandate
under Articles 341 and 342 of the Constitution of India.”
21. Learned counsel for the respondent placed reliance on the Constitution
Bench judgment of this Court in Bir Singh concerning the services
in the NCT of Delhi. In the said judgment in paragraph 68, it has
been categorically recorded as under:–
“68. The Affidavit of the Union does not touch upon the
details of Subordinate Services in other Union Territories.
Neither the authorities of the other Union Territories have
laid before the Court any relevant material in this regard.
We, therefore, refrain from addressing the issue in question
as far as other Union Territories are concerned and have
confined our discussions and the consequential views only
to the National Capital Territory of Delhi.”
22. In view of the aforesaid observations, we do not think that the
respondent can draw any parity from what the position is, insofar
as NCT of Delhi is concerned with regard to availing of benefits
by Scheduled Tribes, even though, there is no Presidential Order
with regard to Scheduled Tribes issued insofar as NCT of Delhi is
concerned. Further, the observations made above are in the context
of services. In the circumstances, we find that the respondent cannot
rely upon the judgment of this Court in Bir Singh.
23. This court, in Abhinav Dipakbhai Patel sustained the High Court’s
direction to appoint a person who had migrated to the Union Territory
of Dadra and Nagar Haveli and was a member of the Scheduled
Tribe ‘Dhodia’ community as an Assistant Motor Vehicle Inspector.
This Court noted that the Presidential notification issued for the
Union Territory of Dadra and Nagar Haveli extended the benefit of
reservation to the Scheduled Tribes mentioned therein. Therefore,
the reservation for Scheduled Tribes in the Union Territory of Dadra
and Nagar Haveli was held to be available to migrant Scheduled
Tribes. The significant fact is that there was a Presidential notification
[2024] 2 S.C.R. 387
Chandigarh Housing Board v. Tarsem Lal
for Scheduled Tribes insofar as the aforesaid Union Territory was
concerned.
24. In view of the aforesaid observations, we do not think that the
respondent can rely upon Abhinav Dipakbhai Patel. This is for the
simple reason that there is no Presidential notification for Scheduled
Tribes in Chandigarh unlike in the case of Dadra & Nagar Haveli.
25. In view of the aforesaid, we find that the appellant had erroneously
issued the advertisement inviting applications for allotment of houses
from both Scheduled Castes as well as Scheduled Tribes persons
because no such reservation for Scheduled Tribes could have
been made without strict compliance with Article 342. The effect of
the finding that the advertisement was issued without necessary
jurisdiction and authority would lead to the setting aside of the
impugned judgment and decrees on that ground alone.
26. The upshot of the above discussion is that:
i. The Presidential notification of a tribe or tribal community as a
Scheduled Tribe by the President of India under Article 342 is a
sine qua non for extending any benefits to the said community
in any State or U.T.
ii. This implies that a person belonging to a group that is recognized
as a Scheduled Tribe in a State would be recognized a
Scheduled Tribe only within the said State and not in a U.T.
where he migrates if no such Presidential notification exists in
the said U.T.
27. As far as the Annexure R-9, produced by the respondent herein
is concerned, it is noted firstly, that the said document is dated
25.11.1985 and the same was issued prior to the judgment of this
Court in Marri Chandra Shekhar Rao which is contrary to the said
judgment and wherein the position of law has been clearly enunciated.
Secondly, the reading of the said document would clearly indicate
that what has been emphasized there is with regard to the Scheduled
Tribes and Scheduled Castes persons migrating from the State of
his origin to another State, to which he has migrated. There is no
reference whatsoever to a case where a person claiming to be a
Scheduled Caste or Scheduled Tribe migrating from a State to a Union
Territory as such. By that logic, it would not imply that a person who
is recognized as a Scheduled Tribe in a State has to be Scheduled
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Tribe in an U.T. also wherein he migrates and can rely on his status
in the State of his origin. The said letter is also contrary to Article
342 of the Constitution and the spirit of the dictum of this court in
the case of Marri Chandra Shekhar Rao and, therefore, the same
would hold no water. Merely because in the said letter there is no
reference to migration of a person claiming to belong to Scheduled
Tribe in a State to a Union Territory, it does not, by that logic mean
that such a person would be entitled to claim benefit on the basis
of his status as a Scheduled Tribe in the State of his origin. For
immediate reference, letter dated 25.11.1985 is extracted as under–
“No. BC-12017/9/85-SC&BCD.I
Government of India/Bharat Sarkar
Ministry of Welfare/Kalyan Mantralaya
New Delhi: 25th November, 1985.
To
The Chairman,
Chandigarh Housing Board,
8-Jan Marg, Sector–9, Chandigarh – 160009
Subject : Entitlement of Scheduled Tribe persons for
allotment of houses by the Chandigarh Housing
Board – Clarification of -
…
Sir,
I am directed to invite your attention to the Ministry of Home
Affair’s letter of even number dated 21st May 1985 on the
above subject and to say that the contents appearing at
the end of line 23 to 28 i.e. “It has ……………… migrated.”
may please be read as under:
“It has also been made clear in the latter that the migrated
person will be entitled to derive benefits admissible to the
Scheduled Castes/ Tribes from the State of his origin only
and not from the State to which he has migrated.”
2. A copy of the Ministry of Home Affairs letter No. BC16014-I/9/82-SC&BCD.I dated 22.2.85 containing the
instructions about issue of certificates to the migrants has
[2024] 2 S.C.R. 389
Chandigarh Housing Board v. Tarsem Lal
already been sent to you with our letter dated 21.5.85
referred to above.
Yours faithfully,
Sd/-
(Y.P. MARWAHA)
Assistant Director”
28. It is also unclear whether the aforesaid letter was at all marked in
evidence in the Suit.
29. In view of the judgments of this Court in the aforesaid cases, we
hold that insofar as a person claiming benefit having regard to his
status as a Scheduled Tribe in a State, when he migrates to a Union
Territory where a Presidential Order has not been issued at all
insofar Scheduled Tribe is concerned, or even if such a Notification
is issued, such an identical Scheduled Tribe does not find a place in
such a Notification, the person cannot claim his status on the basis
of his being noted as a Scheduled Tribe in the State of his origin.
30. Reliance placed on the judgment of this Court in Bir Singh by the
learned counsel for the respondent is also of no assistance since
the said case concerned granting of benefits to Scheduled castes
and Scheduled Tribes in the matter of employment and education
in a particular State and Union Territory and that a migrant to that
particular State or Union Territory cannot place reliance on his or
her status in the State of origin for the purpose of claiming similar
benefit in a State to which he or she has migrated. Reliance was
placed on paragraph 68 of the said judgment wherein this Court
noted that it had refrained from addressing the issue in question as
far as other Union Territories apart from the National Capital Territory
of Delhi are concerned, would not in any way further the case of
the respondent when the significant fact is that there has been no
notification issued by the President of India vis-à-vis Scheduled Tribe
in the Union Territory of Chandigarh is concerned.
31. In the instant case, merely because the appellant herein had issued
a Notification calling for applications from both Scheduled Castes and
Scheduled Tribes did not confer any benefit by that Notification on the
respondent herein when there is no Presidential Order at all under
Article 342 of the Constitution of India issued with regard to Scheduled
Tribes insofar as Union Territory of Chandigarh is concerned. The
390 [2024] 2 S.C.R.
Digital Supreme Court Reports
said basic foundational fact goes against the respondent herein and
the invitation given by the appellant/Housing Board to Scheduled
Tribes was in fact contrary to the said basic tenets as well as the
prevalent law and by that reason, the respondent herein cannot also
seek any estoppel as against the appellant herein.
32. The High Court lost sight of the aforesaid facts and instead placed
reliance on Exhibit P-8 letter dated 21.09.1983 and Exhibit D-3
letter dated 21.05.1985 to hold that there was reservation made
for Scheduled Tribe applicants also for allotment of dwelling units
of flats. In fact, in the letter dated 21.09.1983 (Exhibit P-8) it has
been expressly noted that there are no Scheduled Tribes notified
for Union Territory of Chandigarh but there are general instructions
on reservation for Scheduled Tribes enunciated in Appendix-3
Note 2 on the Brochure on Reservation of Scheduled Castes and
Scheduled Tribes. The said Brochure cannot override Article 342 of
the Constitution of India which empowers the President of India to
notify the Scheduled Tribes either for a State or for an Union Territory.
33. In the circumstances, we find that the impugned judgment of the
High Court affirming the judgment of the First Appellate Court, which
in turn affirms the judgment of the Trial Court are all liable to be set
aside and are hence set aside.
The Appeal is allowed in the aforesaid terms. No costs.
Headnotes prepared by: Ankit Gyan Result of the case:
Appeal allowed.
