published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40822
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.8225 of 2013
(Arising out of SLP(C) No.33724 of 2011)
Ranjana Kumari ... Appellant
Versus
State of Uttaranchal and others
...Respondents
J U D G M E N T
G.S. SINGHVI, J.
1. Leave granted.
2. The appellant has questioned correctness of order dated 29.8.2011 by
which the Uttarakhand High Court dismissed the writ petition filed by her
in the matter of appointment as District Information Officer against the
post reserved for Scheduled Caste.
3. In response to an advertisement issued by Public Service Commission,
Uttaranchal (now Uttarakhand) (for short, ‘the Commission’), which was
published in newspaper Amar Ujala dated 25.8.2002 for recruitment against
833 posts in different cadres, the appellant submitted an application for
appointment as District Information Officer mentioning therein that she is
a member of Scheduled Caste. She cleared the Combined Civil Services
Examination, 2002, preliminary as well as main. She was interviewed by the
Commission in May, 2005. During the interview, the appellant was asked to
indicate her preferences for various advertised posts. She gave her 15th
preference for the post of District Information Officer.
She was
provisionally selected but her candidature was cancelled by the Commission vide Office Memorandum dated 4.10.2005 on the ground that she cannot take benefit of reservation in the State of Uttarakhand because she is a Scheduled Caste (Valmiki of Punjab).
The other ground indicated by the
Commission was that the appellant was not eligible to be appointed against
the advertised post because the mark sheet of her examination of Diploma in
Journalism was issued on 26.10.2002, i.e., after the last date fixed for
receipt of application.
4. The appellant challenged the decision of the Commission in Writ
Petition No.1281(M/B)/2005 (re-numbered as Writ Petition No.297/2007). The
Division Bench of the High Court dismissed the same by observing that right
to be treated as a member of reserved category is directly attributable to
birth and a person can claim the benefit of reservation only in the State
in which he/she is born and not the State to which such person may migrate
after marriage or otherwise. The Division Bench held that after migration
from Punjab, the appellant cannot be treated as a member of Scheduled Caste
in the State of Uttarakhand and she is not entitled to be appointed against
the post reserved for Scheduled Caste.
5. Ms. Priya Hingorani, learned counsel for the appellant argued that
the impugned order is liable to be set aside because the view taken by the
High Court on the appellant’s entitlement to be treated as Scheduled Caste
of Uttarakhand is not only erroneous, but is also contrary to the law laid
down by this Court. She pointed out that the appellant had married Shri
Rajesh Gill, who is Valmiki by caste and is a resident of Dehradun since
1988 and argued that the Commission committed an error by rejecting her
plea for appointment against the post reserved for Scheduled Caste despite
the fact that Valmiki is recognised as a Scheduled Caste in the States of
Uttar Pradesh and Uttarakhand. Ms. Hingorani also invited our attention to
certificates dated 10.9.2002 and 13.6.2005 issued by Tahsildar, Dehradun
showing the appellant as Valmiki of Uttar Pradesh and Uttaranchal and a
resident of Dehradun and argued that as on the last date of application,
the appellant could not be treated as a person belonging to Punjab because
she is a permanent resident of Dehradun (Uttarakhand). Learned counsel
also assailed the other ground on which the Commission rejected the
appellant’s candidature by pointing out that result of the examination held
by Rajrshi Tandon Open University, Allahabad was declared on 15.9.2002,
i.e., one day before the last date fixed for receipt of application and she
had produced all the documents at the time of interview.
6. Ms. Rachana Srivastava, learned counsel for the respondents supported
the impugned order and argued that the High Court did not commit any error
by negating the appellant’s challenge to the decision of the Commission to
cancel her candidature because she cannot be treated as a Scheduled Caste
of Uttarakhand. In support of her argument, Ms. Srivastava relied upon the
judgments of the Constitution Bench in Marri Chandra Shekhar Rao v. Dean,
Seth G. S. Medical College and others (1990) 3 SCC 130, Action Committee on
Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the
State of Maharashtra and another v. Union of India and another (1994) 5 SCC
244 and Subhash Chandra and another v. Delhi Subordinate Services Selection
Board and others (2009) 15 SCC 458.
7. We have considered the respective arguments and scrutinized the
record.
8. Articles 341 and 342, which have bearing on the decision of the
question arising in this appeal, 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 groups within castes, races or tribes
which shall for the purposes of this Constitution be deemed to be
Scheduled Castes in relation to that State or Union territory, as the
case may be.
(2) Parliament may by law include in or exclude from the list of
Scheduled Castes specified in a notification issued under clause (1)
any caste, race or tribe or part of or group within any caste, 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 purpose 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.”
9. The above reproduced articles enjoin that the President after
consultation with the Governor where the States are concerned, by public
notification, may specify the tribes or tribal communities or parts of or
groups of tribes or tribal communities, which shall be deemed to be
Scheduled Castes in relation to that State under Article 341 or Scheduled
Tribes in relation to that State under Article 342.
10. In Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College and
others (supra), the Constitution Bench of this Court was called upon to
consider whether the petitioner, who was a member of Scheduled Tribe in the
State of Andhra Pradesh was entitled to admission in MBBS course in
Maharashtra against the quota reserved for Scheduled Tribes. The
petitioner was born in Tenali in the State of Andhra Pradesh and belonged
to the Gouda community also known as “Goudu” which is recognised as
“Scheduled Tribe” in the State of Andhra Pradesh. The father of the
petitioner was issued a Scheduled Tribe Certificate by the Tahsildar,
Tenali, Andhra Pradesh. He was appointed in the Fertilizer Corporation of
India, a public sector undertaking. On the 19th June, 1978, the
petitioner's father joined Rashtriya Chemicals and Fertilizers Ltd., a
Government of India undertaking, under the quota reserved for Scheduled
Tribes. He was posted in Bombay. As a consequence, the petitioner started
living in Bombay. He completed his education in Bombay. For the academic
year 1989-90, he submitted applications for admission in three medical
colleges run by the Bombay Municipal Corporation and one medical college
run by the State of Maharashtra and sought the benefit of reservation in
favour of Scheduled Tribes. His claim was not accepted on the ground that
he does not belong to Scheduled Tribe of Maharashtra. After examining the
scheme of the relevant Constitutional provisions, this Court observed:
“It appears that Scheduled Castes and Scheduled Tribes in some States
had to suffer the social disadvantages and did not have the facilities
for development and growth. It is, therefore, necessary in order to
make them equal in those areas where they have so suffered and are in
the state of underdevelopment to have reservations or protection in
their favour so that they can compete on equal terms with the more
advantageous or developed sections of the community. Extreme social
and economic backwardness arising out of traditional practices of
untouchability is normally considered as criterion for including a
community in the list of Scheduled Castes and Scheduled Tribes. The
social conditions of a caste, however, varies from State to State and
it will not be proper to generalise any caste or any tribe as a
Scheduled Tribe or Scheduled Caste for the whole country. This,
however, is a different problem whether a member or the Scheduled
Caste in one part of the country who migrates to another State or any
other Union territory should continue to be treated as a Scheduled
Caste or Scheduled Tribe in which he has migrated. That question has
to be judged taking into consideration the interest and well-being of
the Scheduled Castes and Scheduled Tribes in the country as a whole.
It has, however, to be borne in mind that a man does not cease to
belong to his caste by migration to a better or more socially free and
liberal atmosphere. But if sufficiently long time is spent in socially
advanced area then the inhibitions and handicaps suffered by belonging
to a socially disadvantageous community do not continue and the
natural talent of a man or a woman or a boy or girl gets full scope to
flourish. These, however, are problems of social adjustment i.e. how
far protection has to be given to a certain segment of socially
disadvantaged community and for how long to become equal with others
is a matter of delicate social adjustment. These must be so balanced
in the mosaic of the country’s integrity that no section or community
should cause detriment or discontentment to other community or part of
community or section. Scheduled Castes and Scheduled Tribes belonging
to a particular area of the country must be given protection so long
as and to the extent they are entitled in order to become equal with
others. But equally those who go to other areas should also ensure
that they make way for the disadvantaged and disabled of that part of
the community who suffer from disabilities in those areas. In other
words, Scheduled Castes and Scheduled Tribes say of Andhra Pradesh do
require necessary protection as balanced between other communities.
But equally the Scheduled Castes and Scheduled Tribes say of
Maharashtra in the instant case, do require protection in the State of
Maharashtra, which will have to be in balance to other communities.”
11. In Action Committee on Issue of Caste Certificate to Scheduled Castes
and Scheduled Tribes in the State of Maharashtra and another v. Union of
India and another (supra), another Constitution Bench considered a similar
issue. The question framed in that case was:
“Where a person belonging to a caste or tribe specified for the
purposes of the Constitution to be a Scheduled Caste or a Scheduled
Tribe in relation to State A migrates to State B where a caste or
tribe with the same nomenclature is specified for the purposes of the
Constitution to be a Scheduled Caste or a Scheduled Tribe in relation
to that State B, will that person be entitled to claim the privileges
and benefits admissible to the persons belonging to the Scheduled
Castes and/or Scheduled Tribes in State B.”
The aforesaid question was considered in the backdrop of certificate,
circulars and letters issued by the Government of India and consequential
instructions issued by the State of Maharashtra indicating that members
belonging to the Scheduled Castes and Scheduled Tribes of other States
shall not be entitled to the benefits and privileges accorded by the State
of Maharashtra unless he or she is shown to be permanent resident of the
State of Maharashtra on 10.8.1950 in the case of Scheduled Castes and
6.9.1950 in the case of Scheduled Tribes. The Constitution Bench referred
to the relevant Constitutional provisions including Articles 341 and 342,
the judgment of the earlier Constitution Bench in Marri Chandra Shekhar
Rao’s case and observed:
“We may add that considerations for specifying a particular caste or
tribe or class for inclusion in the list of Scheduled Castes/Schedule
Tribes or backward classes in a given State would depend on the nature
and extent of disadvantages and social hardships suffered by that
caste, tribe or class in that State which may be totally non est in
another State to which persons belonging thereto may migrate.
Coincidentally it may be that a caste or tribe bearing the same
nomenclature is specified in two States but the considerations on the
basis of which they have been specified may be totally different. So
also the degree of disadvantages of various elements which constitute
the input for specification may also be totally different. Therefore,
merely because a given caste is specified in State A as a Scheduled
Caste does not necessarily mean that if there be another caste bearing
the same nomenclature in another State the person belonging to the
former would be entitled to the rights, privileges and benefits
admissible to a member of the Scheduled Caste of the latter State “for
the purposes of this Constitution”.
12. The issue was again considered in S. Pushpa and others v
Sivachanmugavelu and others (2005) 3 SCC 1. The facts of that case were
that the Directorate of Education, Government of Pondicherry had issued
an advertisement for making recruitment of 350 General Central Service
Group "C" posts of Secondary Grade of which 56 posts were reserved for
Scheduled Castes. In response to the advertisement, the employment exchange
sponsored the names of candidates of various categories including Scheduled
Caste. The employment exchange also sponsored some names of Scheduled Caste
candidates from neighbouring employment exchanges as sufficient number of
Scheduled Caste candidates were not available in Yanam and Mahe region of
the Union territory of Pondicherry. Out of 55 selected candidates of
Scheduled Caste, 29 produced community certificates from the Governments of
Tamil Nadu, Andhra Pradesh and Kerala, based on which the revenue authority
of Pondicherry had issued community certificates to them. The remaining 26
candidates produced community certificates from the revenue authority of
Pondicherry. The respondents challenged the selection of aforesaid
Scheduled Caste candidates mainly on the ground that a migrant Scheduled
Caste candidate belonging to another State is not eligible for appointment
on a post which is reserved for Scheduled Caste candidate of the Union
Territory of Pondicherry. The Central Administrative Tribunal relied upon
the judgments in Marri Chandra Shekhar Rao’s case and Action Committee on
Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the
State of Maharashtra and another v. Union of India and another (supra) and
held that the Scheduled Castes who migrated to the Union Territory of
Pondicherry after the issuance of Presidential notification, which has
specified Scheduled Castes in terms of Article 341 of the Constitution
cannot claim the benefit of reservation in the services of the Government
of Pondicherry. Accordingly, the selection and appointment of migrant
Scheduled Caste candidates was set aside and a direction was issued to
review the selection process. The three Judge Bench of this Court referred
to the judgments of the Constitution Bench in Marri Chandra Shekhar Rao’s
case and the Action Committee’s case and observed:
“Part XVI of the Constitution deals with special provisions relating
to certain classes and contains Articles 330 to 341. Articles 330 and
332 make provision for reservation of seats in the House of the People
and Legislative Assemblies of the States respectively, for Scheduled
Castes and Scheduled Tribes. Similar provisions have been made for
Anglo-Indian community in Articles 331 and 333. Article 338 provides
that there will be a Commission for the Scheduled Castes to be known
as National Commission for the Scheduled Castes and it also provides
for its composition, powers and duties. Clause (2) of Article 330
provides that the number of seats reserved in the States or Union
Territories for Scheduled Castes or Scheduled Tribes shall bear, as
nearly as may be, the same proportion to the number of seats allotted
to that State or Union Territory in the House of the People as the
population of the Scheduled Castes in the State or Union Territory or
of the Scheduled Tribes in the State or Union Territory, as the case
may be, in respect of which seats are so reserved, bears to the total
population of the State or Union Territory. Similar provision for
reservation of seats in favour of SC/ST in the Legislative Assembly of
any State is contained in clause (3) of Article 332 of the
Constitution. Therefore, in order to ascertain the number of seats
which have to be reserved for Scheduled Castes or Scheduled Tribes in
the House of the People or in the Legislative Assembly, it is
absolutely essential to ascertain precisely the population of the
Scheduled Castes or Scheduled Tribes in the State or Union Territory.
A fortiori, for the purpose of identification, it becomes equally
important to know who would be deemed to be Scheduled Caste in
relation to that State or Union Territory. This exercise has to be
done strictly in accordance with the Presidential Order and a migrant
Scheduled Caste of another State cannot be taken into consideration
otherwise it may affect the number of seats which have to be reserved
in the House of the People or Legislative Assembly. Though, a migrant
SC/ST person of another State may not be deemed to be so within the
meaning of Articles 341 and 342 after migration to another State but
it does not mean that he ceases to be an SC/ST altogether and becomes
a member of a forward caste.
Clauses (1) and (2) of Article 16 guarantee equality of opportunity to
all citizens in the matter of appointment to any office or of any
other employment under the State. Clauses (3) to (5), however, lay
down several exceptions to the above rule of equal opportunity.
Article 16(4) is an enabling provision and confers a discretionary
power on the State to make reservation in the matter of appointments
in favour of “backward classes of citizens” which in its opinion are
not adequately represented either numerically or qualitatively in
services of the State. But it confers no constitutional right upon the
members of the backward classes to claim reservation. Article 16(4) is
not controlled by a Presidential Order issued under Article 341(1) or
Article 342(1) of the Constitution in the sense that reservation in
the matter of appointment on posts may be made in a State or Union
Territory only for such Scheduled Castes and Scheduled Tribes which
are mentioned in the Schedule appended to the Presidential Order for
that particular State or Union Territory. This article does not say
that only such Scheduled Castes and Scheduled Tribes which are
mentioned in the Presidential Order issued for a particular State
alone would be recognised as backward classes of citizens and none
else. If a State or Union Territory makes a provision whereunder the
benefit of reservation is extended only to such Scheduled Castes or
Scheduled Tribes which are recognised as such in relation to that
State or Union Territory then such a provision would be perfectly
valid. However, there would be no infraction of clause (4) of Article
16 if a Union Territory by virtue of its peculiar position being
governed by the President as laid down in Article 239 extends the
benefit of reservation even to such migrant Scheduled Castes or
Scheduled Tribes who are not mentioned in the Schedule to the
Presidential Order issued for such Union Territory. The UT of
Pondicherry having adopted a policy of the Central Government
whereunder all Scheduled Castes or Scheduled Tribes, irrespective of
their State are eligible for posts which are reserved for SC/ST
candidates, no legal infirmity can be ascribed to such a policy and
the same cannot be held to be contrary to any provision of law.”
13. In the case of Subhash Chandra and another v. Delhi Subordinate
Services Selection Board and others (supra),
private respondents and/or their parents are migrants to Delhi.
In their native places, they were
declared to be the members of the Scheduled Castes.
The Ministry of Home
Affairs issued a circular on or about 2.5.1975, in terms whereof the manner
in which the claim of a person belonging to Scheduled Castes or Scheduled
Tribes is required to be verified was laid down.
Such verification was to
be made having regard to the Presidential order specifying the Scheduled
Castes and Scheduled Tribes in relation to the concerned State.
National
Capital Territory of Delhi issued clarification by way of two circulars.
Pursuant to directions issued by the Union Territory, an advertisement was
issued by the State Subordinate Selection Board containing general
instructions that Scheduled Caste and OBC candidates must furnish
certificates issued by the competent authority of Government of NCT of
Delhi issued on or before the closing date of receipt of application forms.
The appellants questioned the legality and/or validity of the circulars
issued by the National Capital Territory of Delhi by claiming that they are
entitled to the benefits of the Presidential Notification declaring their
caste to be Scheduled Castes but keeping in view the nature of verification
specified by reason of the aforementioned circulars.
The Government of
National Capital Territory contended that the notification involved two
sets of castes/categories certificate one in relation to the original
inhabitants and the other relating to the migrants.
The petitioners filed
Writ Petition challenging circulars before the High Court.
By relying upon
the ratio of Marri Chandra Shekhar Rao’s case and Action Committee on Issue
of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State
of Maharashtra v. Union of India (supra), the High Court dismissed the writ
petition. A two Judge Bench of this Court reversed the order of the High
Court and declared that the migrants are not entitled to the benefit of
reservation in the Union Territories. The two Judge Bench also declared
that the view expressed by the three Judge Bench in S. Pushpa v.
Sivachanmugavelu (supra) was per incuriam.
14. The matter again came up for consideration before a two Judge Bench
in State of Uttaranchal v. Sandeep Kumar Singh (2010) 12 SCC 794. The two
Judge Bench did not approve the approach adopted by another two Judge bench
in Subhash Chandra’s case and referred the matter to larger Bench by making
the following observations:
“In our view, a two Judge Bench of this Court could not have held the
decision rendered by a three Judge Bench in S. Pushpa case to be
obiter and per incuriam.
A very important question of law as to interpretation of Articles
16(4), 341 and 342 arises for consideration in this appeal.
Whether
Presidential Order issued under Article 341(1) or Article 342(1) of the Constitution has any bearing on the State’s action in making provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State?
The extent
and nature of interplay and interaction among Articles 16(4), 341(1)
and 342(1) of the Constitution is required to be resolved.
For the aforesaid reasons, therefore, in our view, it would be
appropriate that this case is placed before the Hon’ble the Chief
Justice of India for constituting a Bench of appropriate strength. The
registry is, accordingly, directed to place the papers before the
Hon’ble the Chief Justice of India for appropriate directions.”
15. The question arising in this appeal is
whether a person like the
appellant, who is a Scheduled Caste in the State where she was born will not be entitled to the benefit of reservation after marriage in the State where her husband is living despite the fact that the husband also belongs to Scheduled Caste and the particular Caste falls in the same reserved category in the State of migration and that she is a permanent resident of that State.
16. Since the other related matter has been referred to a larger Bench,
we think that it would be just and proper to refer this matter also to the larger Bench. Ordered accordingly.
17. The Registry is directed to place the papers before the Hon’ble the
Chief Justice of India for consideration and appropriate order.
…………………………..J.
(G.S. SINGHVI)
New Delhi; ………………………….J.
September 23, 2013. (V. GOPALA GOWDA)
-----------------------
14
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.8225 of 2013
(Arising out of SLP(C) No.33724 of 2011)
Ranjana Kumari ... Appellant
Versus
State of Uttaranchal and others
...Respondents
J U D G M E N T
G.S. SINGHVI, J.
1. Leave granted.
2. The appellant has questioned correctness of order dated 29.8.2011 by
which the Uttarakhand High Court dismissed the writ petition filed by her
in the matter of appointment as District Information Officer against the
post reserved for Scheduled Caste.
3. In response to an advertisement issued by Public Service Commission,
Uttaranchal (now Uttarakhand) (for short, ‘the Commission’), which was
published in newspaper Amar Ujala dated 25.8.2002 for recruitment against
833 posts in different cadres, the appellant submitted an application for
appointment as District Information Officer mentioning therein that she is
a member of Scheduled Caste. She cleared the Combined Civil Services
Examination, 2002, preliminary as well as main. She was interviewed by the
Commission in May, 2005. During the interview, the appellant was asked to
indicate her preferences for various advertised posts. She gave her 15th
preference for the post of District Information Officer.
She was
provisionally selected but her candidature was cancelled by the Commission vide Office Memorandum dated 4.10.2005 on the ground that she cannot take benefit of reservation in the State of Uttarakhand because she is a Scheduled Caste (Valmiki of Punjab).
The other ground indicated by the
Commission was that the appellant was not eligible to be appointed against
the advertised post because the mark sheet of her examination of Diploma in
Journalism was issued on 26.10.2002, i.e., after the last date fixed for
receipt of application.
4. The appellant challenged the decision of the Commission in Writ
Petition No.1281(M/B)/2005 (re-numbered as Writ Petition No.297/2007). The
Division Bench of the High Court dismissed the same by observing that right
to be treated as a member of reserved category is directly attributable to
birth and a person can claim the benefit of reservation only in the State
in which he/she is born and not the State to which such person may migrate
after marriage or otherwise. The Division Bench held that after migration
from Punjab, the appellant cannot be treated as a member of Scheduled Caste
in the State of Uttarakhand and she is not entitled to be appointed against
the post reserved for Scheduled Caste.
5. Ms. Priya Hingorani, learned counsel for the appellant argued that
the impugned order is liable to be set aside because the view taken by the
High Court on the appellant’s entitlement to be treated as Scheduled Caste
of Uttarakhand is not only erroneous, but is also contrary to the law laid
down by this Court. She pointed out that the appellant had married Shri
Rajesh Gill, who is Valmiki by caste and is a resident of Dehradun since
1988 and argued that the Commission committed an error by rejecting her
plea for appointment against the post reserved for Scheduled Caste despite
the fact that Valmiki is recognised as a Scheduled Caste in the States of
Uttar Pradesh and Uttarakhand. Ms. Hingorani also invited our attention to
certificates dated 10.9.2002 and 13.6.2005 issued by Tahsildar, Dehradun
showing the appellant as Valmiki of Uttar Pradesh and Uttaranchal and a
resident of Dehradun and argued that as on the last date of application,
the appellant could not be treated as a person belonging to Punjab because
she is a permanent resident of Dehradun (Uttarakhand). Learned counsel
also assailed the other ground on which the Commission rejected the
appellant’s candidature by pointing out that result of the examination held
by Rajrshi Tandon Open University, Allahabad was declared on 15.9.2002,
i.e., one day before the last date fixed for receipt of application and she
had produced all the documents at the time of interview.
6. Ms. Rachana Srivastava, learned counsel for the respondents supported
the impugned order and argued that the High Court did not commit any error
by negating the appellant’s challenge to the decision of the Commission to
cancel her candidature because she cannot be treated as a Scheduled Caste
of Uttarakhand. In support of her argument, Ms. Srivastava relied upon the
judgments of the Constitution Bench in Marri Chandra Shekhar Rao v. Dean,
Seth G. S. Medical College and others (1990) 3 SCC 130, Action Committee on
Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the
State of Maharashtra and another v. Union of India and another (1994) 5 SCC
244 and Subhash Chandra and another v. Delhi Subordinate Services Selection
Board and others (2009) 15 SCC 458.
7. We have considered the respective arguments and scrutinized the
record.
8. Articles 341 and 342, which have bearing on the decision of the
question arising in this appeal, 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 groups within castes, races or tribes
which shall for the purposes of this Constitution be deemed to be
Scheduled Castes in relation to that State or Union territory, as the
case may be.
(2) Parliament may by law include in or exclude from the list of
Scheduled Castes specified in a notification issued under clause (1)
any caste, race or tribe or part of or group within any caste, 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 purpose 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.”
9. The above reproduced articles enjoin that the President after
consultation with the Governor where the States are concerned, by public
notification, may specify the tribes or tribal communities or parts of or
groups of tribes or tribal communities, which shall be deemed to be
Scheduled Castes in relation to that State under Article 341 or Scheduled
Tribes in relation to that State under Article 342.
10. In Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College and
others (supra), the Constitution Bench of this Court was called upon to
consider whether the petitioner, who was a member of Scheduled Tribe in the
State of Andhra Pradesh was entitled to admission in MBBS course in
Maharashtra against the quota reserved for Scheduled Tribes. The
petitioner was born in Tenali in the State of Andhra Pradesh and belonged
to the Gouda community also known as “Goudu” which is recognised as
“Scheduled Tribe” in the State of Andhra Pradesh. The father of the
petitioner was issued a Scheduled Tribe Certificate by the Tahsildar,
Tenali, Andhra Pradesh. He was appointed in the Fertilizer Corporation of
India, a public sector undertaking. On the 19th June, 1978, the
petitioner's father joined Rashtriya Chemicals and Fertilizers Ltd., a
Government of India undertaking, under the quota reserved for Scheduled
Tribes. He was posted in Bombay. As a consequence, the petitioner started
living in Bombay. He completed his education in Bombay. For the academic
year 1989-90, he submitted applications for admission in three medical
colleges run by the Bombay Municipal Corporation and one medical college
run by the State of Maharashtra and sought the benefit of reservation in
favour of Scheduled Tribes. His claim was not accepted on the ground that
he does not belong to Scheduled Tribe of Maharashtra. After examining the
scheme of the relevant Constitutional provisions, this Court observed:
“It appears that Scheduled Castes and Scheduled Tribes in some States
had to suffer the social disadvantages and did not have the facilities
for development and growth. It is, therefore, necessary in order to
make them equal in those areas where they have so suffered and are in
the state of underdevelopment to have reservations or protection in
their favour so that they can compete on equal terms with the more
advantageous or developed sections of the community. Extreme social
and economic backwardness arising out of traditional practices of
untouchability is normally considered as criterion for including a
community in the list of Scheduled Castes and Scheduled Tribes. The
social conditions of a caste, however, varies from State to State and
it will not be proper to generalise any caste or any tribe as a
Scheduled Tribe or Scheduled Caste for the whole country. This,
however, is a different problem whether a member or the Scheduled
Caste in one part of the country who migrates to another State or any
other Union territory should continue to be treated as a Scheduled
Caste or Scheduled Tribe in which he has migrated. That question has
to be judged taking into consideration the interest and well-being of
the Scheduled Castes and Scheduled Tribes in the country as a whole.
It has, however, to be borne in mind that a man does not cease to
belong to his caste by migration to a better or more socially free and
liberal atmosphere. But if sufficiently long time is spent in socially
advanced area then the inhibitions and handicaps suffered by belonging
to a socially disadvantageous community do not continue and the
natural talent of a man or a woman or a boy or girl gets full scope to
flourish. These, however, are problems of social adjustment i.e. how
far protection has to be given to a certain segment of socially
disadvantaged community and for how long to become equal with others
is a matter of delicate social adjustment. These must be so balanced
in the mosaic of the country’s integrity that no section or community
should cause detriment or discontentment to other community or part of
community or section. Scheduled Castes and Scheduled Tribes belonging
to a particular area of the country must be given protection so long
as and to the extent they are entitled in order to become equal with
others. But equally those who go to other areas should also ensure
that they make way for the disadvantaged and disabled of that part of
the community who suffer from disabilities in those areas. In other
words, Scheduled Castes and Scheduled Tribes say of Andhra Pradesh do
require necessary protection as balanced between other communities.
But equally the Scheduled Castes and Scheduled Tribes say of
Maharashtra in the instant case, do require protection in the State of
Maharashtra, which will have to be in balance to other communities.”
11. In Action Committee on Issue of Caste Certificate to Scheduled Castes
and Scheduled Tribes in the State of Maharashtra and another v. Union of
India and another (supra), another Constitution Bench considered a similar
issue. The question framed in that case was:
“Where a person belonging to a caste or tribe specified for the
purposes of the Constitution to be a Scheduled Caste or a Scheduled
Tribe in relation to State A migrates to State B where a caste or
tribe with the same nomenclature is specified for the purposes of the
Constitution to be a Scheduled Caste or a Scheduled Tribe in relation
to that State B, will that person be entitled to claim the privileges
and benefits admissible to the persons belonging to the Scheduled
Castes and/or Scheduled Tribes in State B.”
The aforesaid question was considered in the backdrop of certificate,
circulars and letters issued by the Government of India and consequential
instructions issued by the State of Maharashtra indicating that members
belonging to the Scheduled Castes and Scheduled Tribes of other States
shall not be entitled to the benefits and privileges accorded by the State
of Maharashtra unless he or she is shown to be permanent resident of the
State of Maharashtra on 10.8.1950 in the case of Scheduled Castes and
6.9.1950 in the case of Scheduled Tribes. The Constitution Bench referred
to the relevant Constitutional provisions including Articles 341 and 342,
the judgment of the earlier Constitution Bench in Marri Chandra Shekhar
Rao’s case and observed:
“We may add that considerations for specifying a particular caste or
tribe or class for inclusion in the list of Scheduled Castes/Schedule
Tribes or backward classes in a given State would depend on the nature
and extent of disadvantages and social hardships suffered by that
caste, tribe or class in that State which may be totally non est in
another State to which persons belonging thereto may migrate.
Coincidentally it may be that a caste or tribe bearing the same
nomenclature is specified in two States but the considerations on the
basis of which they have been specified may be totally different. So
also the degree of disadvantages of various elements which constitute
the input for specification may also be totally different. Therefore,
merely because a given caste is specified in State A as a Scheduled
Caste does not necessarily mean that if there be another caste bearing
the same nomenclature in another State the person belonging to the
former would be entitled to the rights, privileges and benefits
admissible to a member of the Scheduled Caste of the latter State “for
the purposes of this Constitution”.
12. The issue was again considered in S. Pushpa and others v
Sivachanmugavelu and others (2005) 3 SCC 1. The facts of that case were
that the Directorate of Education, Government of Pondicherry had issued
an advertisement for making recruitment of 350 General Central Service
Group "C" posts of Secondary Grade of which 56 posts were reserved for
Scheduled Castes. In response to the advertisement, the employment exchange
sponsored the names of candidates of various categories including Scheduled
Caste. The employment exchange also sponsored some names of Scheduled Caste
candidates from neighbouring employment exchanges as sufficient number of
Scheduled Caste candidates were not available in Yanam and Mahe region of
the Union territory of Pondicherry. Out of 55 selected candidates of
Scheduled Caste, 29 produced community certificates from the Governments of
Tamil Nadu, Andhra Pradesh and Kerala, based on which the revenue authority
of Pondicherry had issued community certificates to them. The remaining 26
candidates produced community certificates from the revenue authority of
Pondicherry. The respondents challenged the selection of aforesaid
Scheduled Caste candidates mainly on the ground that a migrant Scheduled
Caste candidate belonging to another State is not eligible for appointment
on a post which is reserved for Scheduled Caste candidate of the Union
Territory of Pondicherry. The Central Administrative Tribunal relied upon
the judgments in Marri Chandra Shekhar Rao’s case and Action Committee on
Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the
State of Maharashtra and another v. Union of India and another (supra) and
held that the Scheduled Castes who migrated to the Union Territory of
Pondicherry after the issuance of Presidential notification, which has
specified Scheduled Castes in terms of Article 341 of the Constitution
cannot claim the benefit of reservation in the services of the Government
of Pondicherry. Accordingly, the selection and appointment of migrant
Scheduled Caste candidates was set aside and a direction was issued to
review the selection process. The three Judge Bench of this Court referred
to the judgments of the Constitution Bench in Marri Chandra Shekhar Rao’s
case and the Action Committee’s case and observed:
“Part XVI of the Constitution deals with special provisions relating
to certain classes and contains Articles 330 to 341. Articles 330 and
332 make provision for reservation of seats in the House of the People
and Legislative Assemblies of the States respectively, for Scheduled
Castes and Scheduled Tribes. Similar provisions have been made for
Anglo-Indian community in Articles 331 and 333. Article 338 provides
that there will be a Commission for the Scheduled Castes to be known
as National Commission for the Scheduled Castes and it also provides
for its composition, powers and duties. Clause (2) of Article 330
provides that the number of seats reserved in the States or Union
Territories for Scheduled Castes or Scheduled Tribes shall bear, as
nearly as may be, the same proportion to the number of seats allotted
to that State or Union Territory in the House of the People as the
population of the Scheduled Castes in the State or Union Territory or
of the Scheduled Tribes in the State or Union Territory, as the case
may be, in respect of which seats are so reserved, bears to the total
population of the State or Union Territory. Similar provision for
reservation of seats in favour of SC/ST in the Legislative Assembly of
any State is contained in clause (3) of Article 332 of the
Constitution. Therefore, in order to ascertain the number of seats
which have to be reserved for Scheduled Castes or Scheduled Tribes in
the House of the People or in the Legislative Assembly, it is
absolutely essential to ascertain precisely the population of the
Scheduled Castes or Scheduled Tribes in the State or Union Territory.
A fortiori, for the purpose of identification, it becomes equally
important to know who would be deemed to be Scheduled Caste in
relation to that State or Union Territory. This exercise has to be
done strictly in accordance with the Presidential Order and a migrant
Scheduled Caste of another State cannot be taken into consideration
otherwise it may affect the number of seats which have to be reserved
in the House of the People or Legislative Assembly. Though, a migrant
SC/ST person of another State may not be deemed to be so within the
meaning of Articles 341 and 342 after migration to another State but
it does not mean that he ceases to be an SC/ST altogether and becomes
a member of a forward caste.
Clauses (1) and (2) of Article 16 guarantee equality of opportunity to
all citizens in the matter of appointment to any office or of any
other employment under the State. Clauses (3) to (5), however, lay
down several exceptions to the above rule of equal opportunity.
Article 16(4) is an enabling provision and confers a discretionary
power on the State to make reservation in the matter of appointments
in favour of “backward classes of citizens” which in its opinion are
not adequately represented either numerically or qualitatively in
services of the State. But it confers no constitutional right upon the
members of the backward classes to claim reservation. Article 16(4) is
not controlled by a Presidential Order issued under Article 341(1) or
Article 342(1) of the Constitution in the sense that reservation in
the matter of appointment on posts may be made in a State or Union
Territory only for such Scheduled Castes and Scheduled Tribes which
are mentioned in the Schedule appended to the Presidential Order for
that particular State or Union Territory. This article does not say
that only such Scheduled Castes and Scheduled Tribes which are
mentioned in the Presidential Order issued for a particular State
alone would be recognised as backward classes of citizens and none
else. If a State or Union Territory makes a provision whereunder the
benefit of reservation is extended only to such Scheduled Castes or
Scheduled Tribes which are recognised as such in relation to that
State or Union Territory then such a provision would be perfectly
valid. However, there would be no infraction of clause (4) of Article
16 if a Union Territory by virtue of its peculiar position being
governed by the President as laid down in Article 239 extends the
benefit of reservation even to such migrant Scheduled Castes or
Scheduled Tribes who are not mentioned in the Schedule to the
Presidential Order issued for such Union Territory. The UT of
Pondicherry having adopted a policy of the Central Government
whereunder all Scheduled Castes or Scheduled Tribes, irrespective of
their State are eligible for posts which are reserved for SC/ST
candidates, no legal infirmity can be ascribed to such a policy and
the same cannot be held to be contrary to any provision of law.”
13. In the case of Subhash Chandra and another v. Delhi Subordinate
Services Selection Board and others (supra),
private respondents and/or their parents are migrants to Delhi.
In their native places, they were
declared to be the members of the Scheduled Castes.
The Ministry of Home
Affairs issued a circular on or about 2.5.1975, in terms whereof the manner
in which the claim of a person belonging to Scheduled Castes or Scheduled
Tribes is required to be verified was laid down.
Such verification was to
be made having regard to the Presidential order specifying the Scheduled
Castes and Scheduled Tribes in relation to the concerned State.
National
Capital Territory of Delhi issued clarification by way of two circulars.
Pursuant to directions issued by the Union Territory, an advertisement was
issued by the State Subordinate Selection Board containing general
instructions that Scheduled Caste and OBC candidates must furnish
certificates issued by the competent authority of Government of NCT of
Delhi issued on or before the closing date of receipt of application forms.
The appellants questioned the legality and/or validity of the circulars
issued by the National Capital Territory of Delhi by claiming that they are
entitled to the benefits of the Presidential Notification declaring their
caste to be Scheduled Castes but keeping in view the nature of verification
specified by reason of the aforementioned circulars.
The Government of
National Capital Territory contended that the notification involved two
sets of castes/categories certificate one in relation to the original
inhabitants and the other relating to the migrants.
The petitioners filed
Writ Petition challenging circulars before the High Court.
By relying upon
the ratio of Marri Chandra Shekhar Rao’s case and Action Committee on Issue
of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State
of Maharashtra v. Union of India (supra), the High Court dismissed the writ
petition. A two Judge Bench of this Court reversed the order of the High
Court and declared that the migrants are not entitled to the benefit of
reservation in the Union Territories. The two Judge Bench also declared
that the view expressed by the three Judge Bench in S. Pushpa v.
Sivachanmugavelu (supra) was per incuriam.
14. The matter again came up for consideration before a two Judge Bench
in State of Uttaranchal v. Sandeep Kumar Singh (2010) 12 SCC 794. The two
Judge Bench did not approve the approach adopted by another two Judge bench
in Subhash Chandra’s case and referred the matter to larger Bench by making
the following observations:
“In our view, a two Judge Bench of this Court could not have held the
decision rendered by a three Judge Bench in S. Pushpa case to be
obiter and per incuriam.
A very important question of law as to interpretation of Articles
16(4), 341 and 342 arises for consideration in this appeal.
Whether
Presidential Order issued under Article 341(1) or Article 342(1) of the Constitution has any bearing on the State’s action in making provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State?
The extent
and nature of interplay and interaction among Articles 16(4), 341(1)
and 342(1) of the Constitution is required to be resolved.
For the aforesaid reasons, therefore, in our view, it would be
appropriate that this case is placed before the Hon’ble the Chief
Justice of India for constituting a Bench of appropriate strength. The
registry is, accordingly, directed to place the papers before the
Hon’ble the Chief Justice of India for appropriate directions.”
15. The question arising in this appeal is
whether a person like the
appellant, who is a Scheduled Caste in the State where she was born will not be entitled to the benefit of reservation after marriage in the State where her husband is living despite the fact that the husband also belongs to Scheduled Caste and the particular Caste falls in the same reserved category in the State of migration and that she is a permanent resident of that State.
16. Since the other related matter has been referred to a larger Bench,
we think that it would be just and proper to refer this matter also to the larger Bench. Ordered accordingly.
17. The Registry is directed to place the papers before the Hon’ble the
Chief Justice of India for consideration and appropriate order.
…………………………..J.
(G.S. SINGHVI)
New Delhi; ………………………….J.
September 23, 2013. (V. GOPALA GOWDA)
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