Service Law – Recruitment – Allocation of marks for additional qualifications – An Institute issued an advertisement in March 2016 calling applications for appointment to the post of primary school teachers – For the allocation of marks, additional qualifications 10 marks had been prescribed – The appellant herein is aggrieved by the denial of 6 marks for the additional qualification of PG Degree that he held, on the ground that his PG Degree was not “in the relevant subject” – Propriety:

* Author

[2024] 2 S.C.R. 409 : 2024 INSC 126

Manoj Kumar

v.

Union of India & Ors.

(Civil Appeal No. 2679 of 2024)

20 February 2024

[Pamidighantam Sri Narasimha* and Sandeep Mehta, JJ.]

Issue for Consideration

The appellant sought appointment as a primary school teacher.

The issue arising for consideration in the present case relates the

allocation of marks for additional qualifications, for which 10 marks

had been prescribed.

Headnotes

Service Law – Recruitment – Allocation of marks for additional

qualifications – An Institute issued an advertisement in March

2016 calling applications for appointment to the post of primary

school teachers – For the allocation of marks, additional

qualifications 10 marks had been prescribed – The appellant

herein is aggrieved by the denial of 6 marks for the additional

qualification of PG Degree that he held, on the ground that

his PG Degree was not “in the relevant subject” – Propriety:

Held: It is evident from the record that a candidate possessing a

Post Graduate Diploma and a Post Graduate Degree would be

entitled to allocation of 5 and 6 marks respectively for their additional

qualification – However, a person possessing an MPhil degree or a

professional qualification in the field would be entitled to allocation of

7 marks for their additional qualification – The additional qualifications

provided under clauses ‘a’ to ‘d’ are under two categories – While

‘a’, ‘b’, and ‘d’ relating to PG Diploma, PG Degree, and PhD are

general qualifications providing for 5, 6, and 10 marks respectively,

the category under ‘c’ relates to Professional Qualification in the

field – This is where specialization is prescribed – If one adds the

requirement of specialization to category ‘b’, i.e., PG Degree, then

that category becomes redundant – The whole purpose of providing

PG Degree independently and allocating a lesser quantum of 6

marks will be completely lost if such an interpretation is adopted

– This can never be the purpose of prescribing distinct categories 

410 [2024] 2 S.C.R.

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– The Single Judge as well as the Division Bench of the High Court

did not really analyse the prescription of additional qualifications

and the distinct marks allocated to each of them, but confined their

decision to restraint in judicial review and dismissed the appellant’s

prayer – When a citizen alleges arbitrariness in executive action, the

High Court must examine the issue, of course, within the context of

judicial restraint in academic matters – While respecting flexibility

in executive functioning, courts must not let arbitrary action pass

through – For the reasons stated, this Court is of the opinion that

the decisions of the Single Judge and the Division Bench are not

sustainable. [Paras 12, 13]

Administration of Justice – Primary duty of constitutional

courts – Addressing injurious consequences arising from

arbitrary and illegal administrative actions:

Held: While the primary duty of constitutional courts remains

the control of power, including setting aside of administrative

actions that may be illegal or arbitrary, it must be acknowledged

that such measures may not singularly address repercussions of

abuse of power – It is equally incumbent upon the courts, as a

secondary measure, to address – The injurious consequences

arising from arbitrary and illegal actions – This concomitant duty to

take reasonable measures to restitute the injured is overarching

constitutional purpose – This is how one has to read constitutional

text – In public law proceedings, when it is realised that the

prayer in the writ petition is unattainable due to passage of time,

constitutional courts may not dismiss the writ proceedings on the

ground of their perceived futility – In the life of litigation, passage

of time can stand both as an ally and adversary – It is the duty

of the Court to transcend the constraints of time and perform the

primary duty of a constitutional court to control and regulate the

exercise of power or arbitrary action – By taking the first step,

the primary purpose and object of public law proceedings will be

subserved. [Paras 19, 20]

Administration of Justice – Restitution of the wrongful action

– discussed.

Administration of Justice – Alternative restitutory measure –

Monetary compensation:

Held: In the instant case, in exercise of primary duty, the action

of the respondents are set aside as being illegal and arbitrary – In

furtherance of duty to provide a reasonable measure for restitution, 

[2024] 2 S.C.R. 411

Manoj Kumar v. Union of India & Ors.

the possibility was explored of directing the Institute to appoint the

appellant as a primary teacher in any other school run by them –

However, it seems that the only primary school run by the Institute

is the one for which they sought to fill vacancies and it is closed

since 2023 – In this situation, an alternative restitutory measure

in the form of monetary compensation is considered – Thus, the

Institute (respondent no. 2) is directed to pay an amount of Rs.

1,00,000/- as compensation. [Paras 25 and 26]

Case Law Cited

University Grants Commission v. Neha Anil Bobde,

[2013] 9 SCR 521 : (2013) 10 SCC 519; Tamil

Nadu Education Department Ministerial and General

Subordinate Services Association v. State of Tamil Nadu,

[1980] 1 SCR 1026 : (1980) 3 SCC 97; All India Council

for Technical Education v. Surinder Kumar Dhawan,

[2009] 3 SCR 859 : (2009) 11 SCC 726 – referred to.

Books and Periodicals Cited

Sir Clive Lewis, Judicial Remedies in Public Law (5th

edn, Sweet and Maxwell 2015); HWR Wade and CF

Forsyth, Administrative Law (11th edn, Oxford University

Press 2014) 596-597; Peter Cane, ‘Damages in Public

Law’ (1999) 9(3) Otago Law Review 489; Henry Woolf

and others, De Smith’s Judicial Review (8th edn, Sweet

and Maxwell 2018) 1026-1027.

List of Keywords

Service Law; Recruitment; Allocation of marks for additional

qualifications; Arbitrariness in executive action; Judicial review;

Academic matters; Judicial restraints; Administration of Justice;

Primary duty of constitutional courts; Transcending constraints

of time; Control and regulation of the arbitrary action; Restitution

of the wrongful action; Alternative restitutory measure; Monetary

compensation.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2679 of 2024

From the Judgment and Order dated 16.10.2018 of the High Court

of Delhi at New Delhi in LPA No. 158 of 2018

412 [2024] 2 S.C.R.

Digital Supreme Court Reports

Appearances for Parties

Ranjit Kumar Sharma, Adv. for the Appellant.

K. M. Nataraj, A.S.G., Amrish Kumar, Shailesh Madiyal, Navanjay

Mahapatra, Apoorv Kurup, T.A. Khan, T.S. Sabarish, Arun Kanwa,

Purnendu Bajpai, Advs. for the Respondents.

Judgment / Order of the Supreme Court

Judgment

Pamidighantam Sri Narasimha, J.

1. Leave granted.

2. This appeal is by the appellant seeking appointment as a primary

school teacher. He is aggrieved by the judgment of the Division Bench

of the High Court of Delhi dismissing the writ appeal,1

 which was filed

against the order of the Single Judge dismissing his writ petition.2

3. Pt. Deendayal Upadhyaya Institute for the Physically Handicapped,

hereinafter referred to as the ‘Institute’, issued an advertisement

in March 2016 calling applications for appointment to the post of

primary school teachers. The vacancy circular issued for this purpose

provided the qualifications and the procedure for selection. The

basic qualification was senior secondary with a two-year diploma

or certificate course in ETE/JBT or B.EI.Ed. The candidates were

required to have passed the secondary level with Hindi as a subject.

The final selection was to be made after conducting an interview

of qualified candidates. The Institute reserved its right to evaluate,

review the process of selection, and shortlist candidates at any stage,

and its decision would be final and binding. This discretionary power

is notified under Clauses 14 and 19 of the vacancy circular. The

relevant clauses relied on by the Institute are as follows:

“14. Decision of the institute in all matters regarding

eligibility of the candidate, the stages at which such

scrutiny of eligibility is to be undertaken, the documents

to be produced for the purpose of conduct of interview,

selection and any other matter relating to recruitment will

1 L.P.A. No. 158/2018 dated 16.10.2018.

2 W.P. (C) No. 5279/2017 and C.M. 22382/2017 dated 24.01.2018.

[2024] 2 S.C.R. 413

Manoj Kumar v. Union of India & Ors.

be final and binding on the candidate. Further, the institute

reserves the right to stall/ cancel the recruitment partially/

fully at any stage during the recruitment process at its

discretion, which will be final and binding on the candidate.

19. Fulfilment of conditions of minimum qualification

shall not necessarily entitle any applicant to be called for

further process of recruitment, in case of large number

of applications, Institute reserves the right to short-list

applications in any manner as may be considered appropriate

and no reason for rejection shall be communicated and no

claim for refund of fee shall be entertained in any case.”

4. On 27.04.2016, the Institute deviated from the procedure prescribed

in the original advertisement/vacancy circular and issued a notification

dispensing with the interview requirement, which was a part of the

selection process for Group ‘B’ and ‘C’ posts. Instead, it prescribed

allocation of additional marks for essential qualifications, additional

qualifications, essential experience, and the written test.

5. The issue arising for consideration in the present case relates the

allocation of marks for additional qualifications, for which 10 marks

had been prescribed. The break-up of the 10 allocable marks is as

under:

SL Particulars Marks

2. Marks for Additional Qualifications (Maximum) 10

a PG Diploma 5

b PG Degree 6

c MPhil/ Professional Qualification in the Field 7

d PhD 10

6. It is evident from the above that a candidate possessing a Post

Graduate Diploma and a Post Graduate Degree would be entitled

to allocation of 5 and 6 marks respectively for their additional

qualification. However, a person possessing an MPhil degree or a

professional qualification in the field would be entitled to allocation

of 7 marks for their additional qualification.

7. When the results were declared on 22.05.2017, the appellant got an

aggregate of 57.5 marks, and respondent no. 3 got 58.25 marks. On

enquiry, the appellant came to know that marks of respondent no. 

414 [2024] 2 S.C.R.

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3 are inclusive of the 7 marks that she was entitled to for holding

the professional qualification of Masters in Education (M.Ed.). The

appellant has no complaint against the allocation of 7 additional

qualification marks to respondent no. 3. He was however surprised

by the denial of 6 marks for the additional qualification of PG Degree

that he held, on the ground that his PG Degree was not “in the

relevant subject”.

8. The appellant’s simple case is that had he been allocated 6 marks

for the PG Degree that he possessed, he would be the highest in

the list by aggregating a total of 63.5 marks. Denial of 6 marks on

a new ground that the PG Degree held by him is not in the relevant

subject, he says, is illegal and arbitrary. He made a representation on

26.05.2017 for allocation of 6 marks. Due to inaction, he approached

the Delhi High Court by way of a writ of mandamus to the Union

and the Institute to remedy the injustice.

9. The learned Single Judge of the High Court refused to interfere by

following the principle laid down in the judgment of this Court in

University Grants Commission v. Neha Anil Bobde (Gadekar),

3 where

it was held that in academic matters, the qualifying criteria must be

left to the discretion of the concerned institution. The appellant then

preferred a Writ Appeal, and the Division Bench also followed the

principle in Neha Anil Bobde, as reiterated in other decisions,4

 and

held that in academic matters, the interference of the Court should

be minimum.In para 13 of its judgment, the High Court also relied on

Clauses 14 and 19 of the vacancy circular to hold that the Institute in

any event reserves the right to shortlist applications as it considers

appropriate. Thus, the appellant approached this Court in 2019 itself.

10. At the outset, we note that the procedure for selection was provided

in the vacancy circular issued in March 2016. Instead of following

the said procedure, the Institute chose to adopt a new method by its

notification dated 27.04.2016, wherein it dispensed with the interview

and prescribed the allocation of marks for additional qualifications. We

make it clear at this very stage that the appellant has not challenged

the variation in the original selection process of an interview and its

3 (2013) 10 SCC 519.

4 Tamil Nadu Education Department Ministerial and General Subordinate Services Association v. State

of Tamil Nadu (1980) 3 SCC 97; All India Council for Technical Education v. Surinder Kumar Dhawan

(2009) 11 SCC 726.

[2024] 2 S.C.R. 415

Manoj Kumar v. Union of India & Ors.

replacement with allocation of marks for additional qualifications.

The only challenge is that the denial of 6 marks for the additional

qualification of a PG Degree that he possesses is illegal and arbitrary.

On the other hand, the respondents raised the standard defence by

invoking Clauses 14 and 19 to submit that they have reserved the

right of shortlisting candidates as is considered appropriate. They

also submit that the appellant cannot be given the benefit of 6 marks

for additional qualifications as he did not possess the PG Degree in

the “relevant subject”.

11. Analysis: The standard argument made consistently and successfully

before the Single Judge and Division Bench must fail before us.

Clauses 14 and 19 of the vacancy circular do nothing more than

reserving flexibility in the selection process. They cannot be read

to invest the Institute with unbridled discretion to pick and choose

candidates by supplying new criteria to the prescribed qualification.

This is a classic case of arbitrary action. The submission based on

Clauses 14 and 19 must fail here and now.

12. The other submission of the respondent about restricting a “PG

Degree” to a “PG Degree in Relevant Subject” must also be rejected.

The illegality in adopting and applying such an interpretation is

evident from a simple reading of the notification dated 27.04.2016

providing for additional qualifications. The additional qualifications

provided under clauses ‘a’ to ‘d’ are under two categories. While

‘a’, ‘b’, and ‘d’ relating to PG Diploma, PG Degree, and PhD are

general qualifications providing for 5, 6, and 10 marks respectively,

the category under ‘c’ relates to Professional Qualification in the field.

This is where specialization is prescribed. If we add the requirement

of specialization to category ‘b’, i.e., PG Degree, then that category

becomes redundant. The whole purpose of providing PG Degree

independently and allocating a lesser quantum of 6 marks will be

completely lost if such an interpretation is adopted. This can never

be the purpose of prescribing distinct categories. No further analysis

is necessary. We reject this submission also.

13. The Single Judge as well as the Division Bench did not really analyse

the prescription of additional qualifications and the distinct marks

allocated to each of them, but confined their decision to restraint

in judicial review and dismissed the appellant’s prayer. When a

citizen alleges arbitrariness in executive action, the High Court must 

416 [2024] 2 S.C.R.

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examine the issue, of course, within the context of judicial restraint in

academic matters. While respecting flexibility in executive functioning,

courts must not let arbitrary action pass through. For the reasons

stated above, we are of the opinion that the decisions of the Single

Judge and the Division Bench are not sustainable, and we hereby

set aside their judgments.

14. The story does not end here.

15. While reserving the judgment, we directed the respondents to file an

additional affidavit with respect to the availability of a vacant position.

Following the direction, respondents 1 and 2 have filed an affidavit.

Paragraph 3 and 4 of the affidavit read as under:

“3. I state that the applications were invited to fill up the

vacancy for Primary School Teacher at the Model Integrated

Primary School [hereinafter the ‘School’] which was run

by the Respondent No. 2 Institute. The Petitioner and the

Respondent had applied in the SC category for which there

was single post. The School has been closed on 01.04.2023

with the approval of the 128th Standing Committee held on

13.05.2022 and 49th General Council held on 26.05.2022.

I further state that the Respondent No. 3 who was select

in pursuance of aforementioned application had joined

the post of Primary Teacher on 02.04.2018 and has since

resigned on 24.10.2019.

4. I therefore state that on account of the closure of the

School, there is no vacancy in the post of Primary Teacher

to which the Petitioner and the Respondent No. 3 had

applied and which is the subject matter of the Special Leave

Petition. The letter dated 13/14.12.2023 of the Pt. Deendayal

Upadhyay National Institute for Persons with Physical

Disabilities (Divyangjan) to the Ministry of Law and Justice

is also annexed herewith for reference as Annexure A1.”

16. It is evident from the above that the school for which the advertisement

was issued was closed on 01.04.2023. In view of the closure of

the school, we cannot direct the respondent Institute to employ

the appellant as a primary school teacher. This is an unfortunate

situation where the Court finds that the action of the respondent

was arbitrary, but the consequential remedy cannot be given due to 

[2024] 2 S.C.R. 417

Manoj Kumar v. Union of India & Ors.

subsequent developments. One stark reality of the situation is the

time that has passed between the order of 2018 impugned herein

and the judgment that we pronounce in 2024.

17. Judicial review of administrative action in public law is qualitatively

distinct from judicial remedies in civil law. In judicial review,

constitutional courts are concerned with the exercise of power by

the State and its instrumentalities.

18. Within the realm of judicial review in common law jurisdictions,

it is established that constitutional courts are entrusted with the

responsibility of ensuring the lawfulness of executive decisions, rather

than substituting their own judgment to decide the rights of the parties,

which they would exercise in civil jurisdiction.5

 It has been held that

the primary purpose of quashing any action is to preserve order in

the legal system by preventing excess and abuse of power or to set

aside arbitrary actions. Wade on Administrative Law states that the

purpose of quashing is not the final determination of private rights,

for a private party must separately contest his own rights before the

administrative authority.6

 Such private party is also not entitled to

compensation merely because the administrative action is illegal.7

 A

further case of tort, misfeasance, negligence, or breach of statutory

duty must be established for such person to receive compensation.8

19. We are of the opinion that while the primary duty of constitutional courts

remains the control of power, including setting aside of administrative

actions that may be illegal or arbitrary, it must be acknowledged that

such measures may not singularly address repercussions of abuse

of power. It is equally incumbent upon the courts, as a secondary

measure, to address the injurious consequences arising from

arbitrary and illegal actions. This concomitant duty to take reasonable

measures to restitute the injured is our overarching constitutional

purpose. This is how we have read our constitutional text, and this

is how we have built our precedents on the basis of our preambular

objective to secure justice.9

5 Sir Clive Lewis, Judicial Remedies in Public Law (5th edn, Sweet and Maxwell 2015).

6 HWR Wade and CF Forsyth, Administrative Law (11th edn, Oxford University Press 2014) 596-597.

7 Peter Cane, ‘Damages in Public Law’ (1999) 9(3) Otago Law Review 489.

8 Henry Woolf and others, De Smith’s Judicial Review (8th edn, Sweet and Maxwell 2018) 1026-1027.

9 The Preambular goals are to secure Justice, Liberty, Equality, and Fraternity for all citizens. 

418 [2024] 2 S.C.R.

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20. In public law proceedings, when it is realised that the prayer in the

writ petition is unattainable due to passage of time, constitutional

courts may not dismiss the writ proceedings on the ground of their

perceived futility. In the life of litigation, passage of time can stand both

as an ally and adversary. Our duty is to transcend the constraints of

time and perform the primary duty of a constitutional court to control

and regulate the exercise of power or arbitrary action. By taking the

first step, the primary purpose and object of public law proceedings

will be subserved.

21. The second step relates to restitution. This operates in a different

dimension. Identification and application of appropriate remedial

measures poses a significant challenge to constitutional courts,

largely attributable to the dual variables of time and limited resources.

22. The temporal gap between the impugned illegal or arbitrary action and

their subsequent adjudication by the courts introduces complexities

in the provision of restitution. As time elapses, the status of persons,

possession, and promises undergoes transformation, directly

influencing the nature of relief that may be formulated and granted.

23. The inherent difficulty in bridging the time gap between the illegal

impugned action and restitution is certainly not rooted in deficiencies

within the law or legal jurisprudence but rather in systemic issues

inherent in the adversarial judicial process. The protracted timeline

spanning from the filing of a writ petition, service of notice, filing

of counter affidavits, final hearing, and then the eventual delivery

of judgment, coupled with subsequent appellate procedures,

exacerbates delays. Take for example this very case, the writ petition

was filed against the action of the respondent denying appointment

on 22.05.2017. The writ petition came to be decided by the Single

Judge on 24.01.2018, the Division Bench on 16.10.2018, and then

the case was carried to this Court in the year 2019 and we are

deciding it in 2024. The delay in this case is not unusual, we see

several such cases when our final hearing board moves. Appeals of

more than two decades are awaiting consideration. It is distressing

but certainly not beyond us. We must and we will find a solution to

this problem.

24. It is in this reality and prevailing circumstance that we must formulate

an appropriate system for preserving the rights of the parties till

the final determination takes place. In the alternative, we may also 

[2024] 2 S.C.R. 419

Manoj Kumar v. Union of India & Ors.

formulate a reasonable equivalent for restitution of the wrongful action.

25. Returning to the facts of the present case, in exercise of our primary

duty, we have set aside the action of the respondents as being illegal

and arbitrary. In furtherance of our duty to provide a reasonable

measure for restitution, we have explored the possibility of directing

the Institute to appoint the appellant as a primary teacher in any other

school run by them. However, it seems that the only primary school

run by the Institute is the one for which they sought to fill vacancies

and it is closed since 2023. In this situation, we must consider an

alternative restitutory measure in the form of monetary compensation.

26. We appreciate the spirit of the appellant who has steadfastly contested

his case like the legendary Vikram,10 from the year 2017 when he

was illegally denied the appointment by the executive order dated

22.05.2017, which we have set aside as being illegal and arbitrary.

In these circumstances, we direct the Institute (respondent no. 2)

to pay an amount of Rs. 1,00,000/- as compensation. This amount

shall be paid to the appellant within a period of six weeks from the

date of passing of this order.

27. For the reasons stated above, we allow the appeal and set aside the

judgment of the High Court in W.P. (C) No. 5279 of 2017 and C.M.

No. 22382 of 2017 dated 24.01.2018 and in L.P.A. No. 158 of 2018

dated 16.10.2018 and direct the Institute (respondent no. 2) to pay

Rs. 1,00,000/- as a compensation with cost quantified at Rs. 25,000/-.

Headnotes prepared by: Ankit Gyan Result of the case:

Appeal allowed.

10 Against Betala, in the famous Vetalapancavimsati, the original being the Kathasaritsagara work of the

11th Century by Somadeva.

Evidence – Extra judicial confession – Evidentiary value – Case based on circumstantial evidence – Trial Court acquitted all the accused persons – Appeal against acquittal – High Court reversed the acquittal of the appellant and convicted him largely based on the extra judicial confession allegedly made by him before PW-1 – Correctness:

* Author

[2024] 2 S.C.R. 391 : 2024 INSC 124

Kalinga @ Kushal

v.

State of Karnataka By Police Inspector Hubli

(Criminal Appeal No. 622 of 2013)

20 February 2024

[Bela M. Trivedi and Satish Chandra Sharma,* JJ.]

Issue for Consideration

Whether the extra judicial confession of the appellant-accused

was admissible, credible and sufficient for his conviction thereon

for the murder of his brother-PW-1’s son; whether the testimony

of PW-1 could be termed as reliable and trustworthy and; whether

the chain of circumstantial evidence was complete and consistent

for arriving at the conclusion of guilt.

Headnotes

Evidence – Extra judicial confession – Evidentiary value –

Case based on circumstantial evidence – Trial Court acquitted

all the accused persons – Appeal against acquittal – High

Court reversed the acquittal of the appellant and convicted

him largely based on the extra judicial confession allegedly

made by him before PW-1 – Correctness:

Held: Extra judicial confession is a weak type of evidence and

is generally used as a corroborative link to lend credibility to the

other evidence on record – It must be accepted with great care

and caution – If it is not supported by other evidence on record,

it fails to inspire confidence and shall not be treated as a strong

piece of evidence for the purpose of arriving at the conclusion of

guilt – The extent of acceptability of an extra judicial confession

depends on the trustworthiness of the witness before whom it is

given and the circumstances in which it was given – Prosecution

must establish that a confession was indeed made by the accused,

it was voluntary in nature and the contents of the confession

were true – In the present case, the extra judicial confession

is essentially based on the deposition of PW-1, the father of

the deceased whose testimony is fatal to the prosecution case

on multiple parameters – The doubtful existence of the extra 

392 [2024] 2 S.C.R.

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judicial confession, unnatural prior and subsequent conduct of

PW-1, recovery of dead body in the presence of an unreliable

witness PW-2, contradictions regarding arrest, testimony of the

witnesses in support of the last seen theory etc. are some of the

inconsistencies which strike at the root of the prosecution case

– There exist serious doubts regarding the identity of the dead

body recovered from the well – Testimony of PW-1 not trustworthy

and reliable – Evidence on record fails the test laid down for the

acceptability of circumstantial evidence – Trial Court appreciated

the evidence in a comprehensive sense, High Court reversed

the view without arriving at any finding of perversity or illegality

therein – It took a cursory view of the matter and merely arrived at

a different conclusion on re-appreciation of evidence – Anomaly of

having two reasonably possible views in a matter is to be resolved

in favour of the accused – After acquittal, the presumption of

innocence in favour of the accused gets reinforced – High Court

erred in reversing the acquittal – Impugned judgment set aside –

Order of Trial Court restored, appellant acquitted. [Paras 14-16,

25-27 and 30]

Appeal against acquittal – Exercise of appellate powers by

High Court:

Held: High Court, in exercise of appellate powers, may re-appreciate

the entire evidence – However, reversal of an order of acquittal is

not to be based on mere existence of a different view or a mere

difference of opinion – To permit so would be in violation of the

two views theory – In order to reverse an order of acquittal in

appeal, it is essential to arrive at a finding that the order of the

Trial Court was perverse or illegal; or that the Trial Court did not

fully appreciate the evidence on record; or that the view of the

Trial Court was not a possible view. [Para 25]

Evidence – Extra judicial confession – Standard of proof:

Held: The standard required for proving an extra judicial confession

to the satisfaction of the Court is on the higher side and the

essential ingredients must be established beyond any reasonable

doubt – The standard becomes even higher when the entire case

of the prosecution necessarily rests on the extra judicial confession.

[Para 15]

Evidence – Circumstantial evidence – “Panchsheel” Principles:

[2024] 2 S.C.R. 393

Kalinga @ Kushal v. State of Karnataka By Police Inspector Hubli

Held: Essentially, circumstantial evidence comes into picture

when there is absence of direct evidence – For proving a case

on the basis of circumstantial evidence, it must be established

that the chain of circumstances is complete – It must also be

established that the chain of circumstances is consistent with the

only conclusion of guilt – The margin of error in a case based on

circumstantial evidence is minimal – For, the chain of circumstantial

evidence is essentially meant to enable the court in drawing an

inference – The task of fixing criminal liability upon a person on

the strength of an inference must be approached with abundant

caution. [Para 27]

Criminal Law – Minor inconsistencies vis-à-vis reasonable

doubt – Case based on circumstantial evidence – Plea of the

respondent-State that minor inconsistencies could not be

construed as reasonable doubts for ordering acquittal:

Held: No doubt, it is trite law that a reasonable doubt is essentially

a serious doubt in the case of the prosecution and minor

inconsistencies are not to be elevated to the status of a reasonable

doubt – A reasonable doubt is one which renders the possibility

of guilt as highly doubtful – Purpose of criminal trial is not only to

ensure that an innocent person is not punished, but it is also to

ensure that the guilty does not escape unpunished – In the present

case, the inconsistencies in the case of the prosecution are not

minor inconsistencies – Prosecution miserably failed to establish

a coherent chain of circumstances – The present case does not

fall in the category of a light-hearted acquittal, which is shunned

upon in law. [Para 29]

Case Law Cited

Chandrapal v. State of Chattisgarh [2022] 3 SCR 366 :

(2022) SCC On Line SC 705; Sanjeev v. State of H.P

(2022) 6 SCC 294 – relied on.

Sansar Chand v. State of Rajasthan [2010] 12 SCR

583  : (2010) 10 SCC 604; Piara Singh v. State of Punjab

[1978] 1 SCR 597 : (1977) 4 SCC 452; Mallikarjun v.

State of Karnataka [2019] 11 SCR 609 : (2019) 8 SCC

359; Hari Singh & Anr. v. State of Uttar Pradesh [2021]

10 SCR 1022 : Criminal Appeal No. 186 of 2018 (SC);

Sucha Singh v. State of Punjab [2003] Suppl. 2 SCR

35 : (2003) 7 SCC 643 – referred to.

394 [2024] 2 S.C.R.

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List of Acts

Penal Code, 1860.

List of Keywords

Extra judicial confession; Weak type of evidence; Circumstantial

evidence; Chain of circumstantial evidence; Appeal against

acquittal; Acquittal reversed; Two possible views; Conclusion of guilt;

Perversity or illegality; Cursory view; Presumption of innocence in

favour of accused; Beyond reasonable doubt; Minor inconsistencies;

Reasonable doubt; Inconsistencies not minor; Appellate powers;

Re-appreciation of evidence; Absence of direct evidence; Criminal

trial purpose; Stock witness.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 622

of 2013

From the Judgment and Order dated 28.03.2011 of the High Court

of Karnataka, Circuit Bench at Dharwad in Criminal Appeal No.130

of 2005

Appearances for Parties

Sharan Thakur, Mahesh Thakur, Siddharth Thakur, Shivamm

Sharrma, P.N. Singh, Mustafa Sajad, Ms. Keerti Jaya, Ranvijay Singh

Chandel, Dr. Sushil Balwada, Advs. for the Appellant.

Muhammed Ali Khan, A.A.G., V. N. Raghupathy, Omar Hoda, Ms.

Eesha Bakshi, Uday Bhatia, Kamran Khan, Manendra Pal Gupta,

Advs. for the Respondent.

Judgment / Order of the Supreme Court

Judgment

Satish Chandra Sharma, J.

1. Master Hrithik, aged 2.5 years, lost his life on the fateful day of

03.11.2002 in Hubli, Karnataka. PW-1, his father and complainant in

this case, filed a complaint and the allegation was levelled against

the appellant/accused, who is the younger brother of PW-1. After a

full-fledged trial, Trial Court acquitted the appellant from the charges

levelled upon him. The High Court reversed the order of acquittal and 

[2024] 2 S.C.R. 395

Kalinga @ Kushal v. State of Karnataka By Police Inspector Hubli

convicted the appellant. The mystery of Hrithik’s death continues as the

matter has landed before this Court in the form of the present appeal,

which assails the order dated 28.03.2011 passed by the High Court of

Karnataka (Circuit Bench at Dharwad) in Criminal Appeal No. 130/2005.

FACTUAL MATRIX

2. At the outset, we consider it apposite to note that there is considerable

divergence between the parties (as well as between the decisions

rendered by the Trial Court and the High Court) as regards the

sequence of events and timelines involved in this case. To avoid

any confusion or presumption, the facts delineated herein represent

the version of the prosecution for the purpose of understanding the

story. On 03.11.2002, at around 11 A.M., the son of PW-1 had gone

out for playing and went missing. PW-1 and other family members

of the child searched for him in and around the locality. Upon finding

no trace of the child till evening, a missing complaint was lodged at

around 10 P.M. by PW-1 at PS Vidyanagar, Hubli, Karnataka. The

complaint came to be registered as Crime No. 215/2002.

3. Fast forward to 14.11.2002, the appellant (also the brother of

PW-1) appeared at the house of PW-1 in a drunken state and

started blabbering about the missing incident of Hrithik and about

mishappening with the child. The encounter on 14.11.2002 happened

late at night and PW-1 did not pursue the same at that point of time.

On the morning of 15.11.2002, PW-1 went to his shop and returned

around 12:30 P.M. At this point, PW-1, his mother and wife enquired

about the child from the appellant and the appellant stated that he

had murdered Hrithik and thrown his body in the well. Thereafter,

PW-1 took the appellant to PS Vidyanagar for filing the complaint

which led to the registration of the First Information Report (FIR) in

this case.

4. It is the case of the prosecution that on reaching the police station,

the appellant confessed to the commission of crime as well as the

act of throwing the child in the well. The voluntary statement of the

accused, in the nature of extra judicial confession, was recorded

by PW-16 (Investigating Officer/IO of the case) as Ex.P.21. At the

instance of the appellant, PW-16 took PW-1, mother and wife of

PW-1 and panchas in a police jeep to a place near the back side 

396 [2024] 2 S.C.R.

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of Kamat Cafe. On reaching there, the appellant took PW-16, PW-1

and panchas near the well and told them that the dead body of the

deceased was thrown in the said well. When they looked into the

well, a dead body of a child was found floating there. The dead body

was taken out and inquest panchnama was conducted. Thereafter,

spot panchnama was prepared and the body was sent for post

mortem. Thereafter, accused no. 2 and 3 were arrested and upon

their disclosure and at their instance, jewelry articles exhibited as

M.O.s 5 and 6 were recovered from PW-17, which were allegedly

taken off from the body of the deceased child and were sold off to

PW-17.

5. In this factual backdrop, PW-16 investigated the case and filed the

chargesheet. Upon committal of the case to the Court of Sessions,

charges were framed upon the three accused persons under Sections

201, 302, 363, 364 read with 34 of Indian Penal Code, 18601. Upon the

culmination of trial, the Trial Court acquitted all the accused persons

vide order dated 30.04.2004 passed by Ld. ASJ-01, Dharwad (Hubli).

6. While ordering acquittal of the accused persons, the Trial Court gave

the following reasons:

i. There is no eye witness to support the case of the prosecution

and the case is entirely based on circumstantial evidence.

ii. The prosecution case is built upon the extrajudicial confession

of the appellant and factum of recovery of the dead body from

the well in consequence of the information disclosed by the

appellant.

iii. The credibility of an extra judicial confession depends upon

the veracity of the witnesses before whom it is given and

the circumstances in which it was given. The statements of

PW-1 in the Court and in the complaint Ex.P1 are different.

In the complaint, PW-1 had mentioned about the involved

of co-accused persons, whereas his testimony in the Court

was completely silent regarding the involved of other accused

persons.

1 Hereinafter referred as “IPC”

[2024] 2 S.C.R. 397

Kalinga @ Kushal v. State of Karnataka By Police Inspector Hubli

iv. PW-1 stated that his wife and mother were also present when

the confession was made by the appellant. However, neither

wife nor mother of PW- 1 was examined by the prosecution

as a witness.

v. PW-1 deposed that after the confession was made by the

appellant, he took the appellant to the police station where he

disclosed the involvement of accused no. 2 and 3. However,

in the complaint Ex.P1 which was given by him at the police

station, there is no mention of accused no. 3. The contradiction

in this regard is material as, if the appellant had disclosed the

involvement of accused no. 2 and 3 before going to the police

station, there was no reason for PW-1 to skip the name of

accused no. 3 from Ex.P1.

vi. The Trial Court noted the multiplicity of versions by PW-1 and

held that an extra judicial confession must be free from suspicion,

which is not the case in the testimony of PW-1.

vii. The Trial Court also noted the discrepancy regarding the arrest

of the accused. PW-1 deposed that he took the appellant to the

police station after his disclosure, whereas PW-16 deposed that

after registering the complaint, he had arrested the appellant

from his house.

viii. No mention of the incident of utterance of certain words by

the appellant on 14.11.2002 in the complaint given by PW-1

on the following day.

ix. PW-1 took no steps in furtherance of the information supplied

by PW-5 that he had seen the appellant taking away the child

on 03.11.2002 or in furtherance of the information supplied by

PW-7, who had informed PW-1 on 10.11.2002 that he had seen

three people throwing something into the well. The conduct of

PW-1 was not found to be natural.

x. PW-1 failed to explain the discrepancy in the clothes allegedly

worn by the deceased and the clothes found on the body of

the deceased. Moreover, PW-12 deposed that at the time of

filing the complaint, he had enquired from PW-1 regarding any

ornaments on the child. PW-1 had replied in negative.

398 [2024] 2 S.C.R.

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xi. The theory of last seen was also rejected by the Trial Court and

PWs in that regard - PW-5, PW- 6, PW-7 and PW-18 - were

disbelieved.

7. The decision of the Trial Court was assailed before the High Court

by the State in appeal. The High Court analyzed the evidence on

record and partially allowed the appeal by holding the appellant guilty

for the commission of offences punishable under Sections 201, 302,

363, 364 of IPC. Notably, the High Court was in agreement with the

conclusion of acquittal regarding accused no. 2 and 3.

8. On a re-appreciation of evidence pitched against accused no.

2 and 3, the High Court agreed with the view of the Trial Court

that the evidence was not trustworthy. The theory of last seen,

as propounded to bring accused no. 2 and 3 within the ambit of

criminality, was rejected. Similarly, the allegation of recovery of

ornaments from PW-17 at the instance of the accused was also

rejected. Since, there is no divergence of opinion with respect to

accused no. 2 and 3, this Court is not required to delve further

into the same. The High Court set aside the view of the Trial Court

regarding the rejection of the voluntary extra judicial confession

of appellant and recovery of dead body of the deceased at his

instance. The High Court went on to convict the appellant on the

strength of the following reasons:

i. The extra judicial confession of the appellant was a voluntary

confession and there is no reason to doubt the same.

ii. Information disclosed by the appellant led to the discovery of

dead body of the deceased and minor discrepancies in the

version of PW-1 are not material.

iii. The Trial Court committed an error by not properly appreciating

the evidence of PW-1, especially the voluntary statement and

recovery of dead body.

SUBMISSIONS OF APPELLANT

9. Assailing the order of the High Court, the appellant submits that the

High Court did not appreciate the discrepancies in the evidence of

PW-1 and went on to accept the same. He further submits that the

High Court failed to take note of the improvements made by PW-1 at 

[2024] 2 S.C.R. 399

Kalinga @ Kushal v. State of Karnataka By Police Inspector Hubli

every stage. He further submits that the Trial Court had elaborately

appreciated the entire evidence on record and it was not open for

the High Court to reappreciate the entire evidence and arrive at a

different conclusion of its own. Further, it is submitted that the High

Court did not notice the absence of mother and wife of PW-1 from

the list of witnesses of the prosecution.

10. The appellant further submits that the finding of the Trial Court regarding

the sequence of arrest of the appellant has not been discussed at

all in the impugned order. It is further submitted that the High Court

did not examine the extra judicial confession of the appellant in its

correct perspective, especially in light of the suspicion raised by the

Trial Court. It is urged that the High Court did not subject the extra

judicial confession to a stern test and went on to place undue reliance

on the same. It is further contended that the High Court overlooked

the discrepancy between the description of clothes found on the dead

body and that indicated by PW-1 in his complaint. Lastly, it is submitted

that if two views were possible on a reappreciation of evidence, the

High Court must have adopted the view in favour of the accused,

thereby providing benefit of doubt to the appellant.

11. Per contra, it is submitted on behalf of the State that there is no

infirmity in the impugned order as it is based on a correct appreciation

of evidence. It is further submitted that the voluntary extra judicial

confession of appellant constituted crucial evidence and the fact

that it led to the discovery of the dead body of the deceased, added

credibility to the same. Reliance has been placed upon the decisions

of this Court in Sansar Chand v. State of Rajasthan2 and Piara

Singh v. State of Punjab3

. It is further submitted that the Court

must not consider every doubt as a reasonable doubt and minor

discrepancies must not be allowed to demolish the entire testimony

of a witness. In this regard, reliance has been placed upon the

decisions of this Court in Mallikarjun v. State of Karnataka4

 and

Hari Singh & Anr. v. State of Uttar Pradesh5

.

2 [2010] 12 SCR 583 : (2010) 10 SCC 604

3 [1978] 1 SCR 597 : (1977) 4 SCC 452

4 [2019] 11 SCR 609 : (2019) 8 SCC 359

5 [2021] 10 SCR 1022 : Criminal Appeal No. 186 of 2018 (SC)

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12. We have heard Sh. Sharan Thakur, Advocate for the appellant and

Mr. Muhammed Ali Khan, AAG, for the respondent State.

DISCUSSION

13. We may now proceed to delineate the issues that arise for the

consideration of this Court, as follows:

i. Whether the extra judicial confession of the appellant/accused

was admissible, credible and sufficient for conviction of the

accused thereon?

ii. Whether the testimony of PW-1 could be termed as reliable

and trustworthy?

iii. Whether the chain of circumstantial evidence is complete and

consistent for arriving at the conclusion of guilt?

14. The conviction of the appellant is largely based on the extra judicial

confession allegedly made by him before PW-1. So far as an extra

judicial confession is concerned, it is considered as a weak type

of evidence and is generally used as a corroborative link to lend

credibility to the other evidence on record. In Chandrapal v. State

of Chattisgarh6, this Court reiterated the evidentiary value of an

extra judicial confession in the following words:

“11. At this juncture, it may be noted that as per Section

30 of the Evidence Act, when more persons than one are

being tried jointly for the same offence, and a confession

made by one of such persons affecting himself and some

other of such persons is proved, the court may take into

consideration such confession as against such other

person as well as against the person who makes such

confession. However, this court has consistently held that

an extra judicial confession is a weak kind of evidence

and unless it inspires confidence or is fully corroborated

by some other evidence of clinching nature, ordinarily

conviction for the offence of murder should not be made

only on the evidence of extra judicial confession. As held

in case of State of M.P. Through CBI v. Paltan Mallah, the

6 [2022] 3 SCR 366 : (2022) SCC On Line SC 705

[2024] 2 S.C.R. 401

Kalinga @ Kushal v. State of Karnataka By Police Inspector Hubli

extra judicial confession made by the co-accused could

be admitted in evidence only as a corroborative piece of

evidence. In absence of any substantive evidence against

the accused, the extra judicial confession allegedly made

by the co-accused loses its significance and there cannot

be any conviction based on such extra judicial confession

of the co-accused.”

15. It is no more res integra that an extra judicial confession must

be accepted with great care and caution. If it is not supported by

other evidence on record, it fails to inspire confidence and in such

a case, it shall not be treated as a strong piece of evidence for

the purpose of arriving at the conclusion of guilt. Furthermore, the

extent of acceptability of an extra judicial confession depends on

the trustworthiness of the witness before whom it is given and the

circumstances in which it was given. The prosecution must establish

that a confession was indeed made by the accused, that it was

voluntary in nature and that the contents of the confession were

true. The standard required for proving an extra judicial confession

to the satisfaction of the Court is on the higher side and these

essential ingredients must be established beyond any reasonable

doubt. The standard becomes even higher when the entire case of

the prosecution necessarily rests on the extra judicial confession.

16. In the present case, the extra judicial confession is essentially

based on the deposition of PW-1, the father of the deceased.

Without going into the aspect of PW-1 being an interested witness

at the threshold, his testimony is fatal to the prosecution case on

multiple parameters. PW-1 deposed that the appellant had arrived

at his residence on 14.11.2002 and mentioned about the deceased.

Despite so, the appellant was allowed to leave the residence and no

action whatsoever was taken by PW-1. The incident took place on

03.11.2002 and despite lapse of 11 days, PW-1 had no clue about

his deceased son. On the eleventh day, when the appellant arrives at

his residence and mentions adversely about his deceased son, PW-1

does nothing about it. In fact, on the next day as well, PW-1 started

off normally and went to his shop in a routine manner. Thereafter, he

came back home in the afternoon of 15.11.2002 and confronted the

appellant about the incident. There is no explanation as to how the 

402 [2024] 2 S.C.R.

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appellant arrived at his residence again on 15.11.2002. Nevertheless,

PW-1 deposed that when he, his mother and wife confronted the

appellant, he confessed to the murder of the deceased. Thereafter,

they took him to the police station.

17. Before we refer to the proceedings which took place at the police

station, it is of utmost relevance to note that the confession was

made before PW-1, his mother and wife. However, the mother and

wife of PW-1 were never examined as witnesses by the prosecution.

This glaring mistake raises a serious doubt on the very existence of

a confession, or even a statement, of this nature by the appellant.

18. Once the appellant was taken to the police station, as the examination

in chief of PW-1, the appellant confessed to the act of throwing the

deceased in the well along with accused no. 2 and 3. Notably, there

was no mention of the co-accused persons in the original statement

of the appellant, as per the examination in chief of PW-1. One finds a

third version of the same fact when the complaint Ex.P1 is perused.

The said complaint was given by PW-1 at the police station of

15.11.2002. As per this complaint, the appellant was queried by PW-1

and his mother (presence of wife not mentioned). Furthermore, as per

the complaint, the appellant confessed to the commission of offence

along with one other accused (accused no.2) only. The complaint

Ex.P1 is also silent on the episode that took place at the residence

of PW-1 on 14.11.2002, a day prior to the filing of complaint. There

is no explanation as to how and in what circumstances the incident

of 14.11.2002 was omitted from Ex.P1. The omission assumes great

importance in light of the fact that the incident of 14.11.2002 was

the precursor of the confrontation that followed the next day, which

culminated into the act of filing the complaint. The complaint Ex.P1

is also silent on the information received by PW-1 from PW-5 and

PW-6 that they had seen his child going with the appellant on the

date of incident. The introduction of these witnesses was an exercise

of improvement, as we shall see in the following discussion.

19. The confession was followed by two things – arrest of the appellant

and recovery of dead body of the deceased. The evidentiary aspects

concerning these facts are equally doubtful. As per the testimony of

PW-1, he had taken the appellant to the police station and he was

arrested there. Contrarily, PW-16/I.O. deposed that after recording 

[2024] 2 S.C.R. 403

Kalinga @ Kushal v. State of Karnataka By Police Inspector Hubli

the complaint, he had arrested the appellant from his house. The

mode and manner of arrest, especially the place of arrest, is doubtful.

It also raises a question on the aspect of confession - whether the

confession was recorded when the appellant himself visited the police

station with PW-1 or when he was arrested from his house and was

taken to the police station by PW-16. The confessions, one made

after a voluntary visit to the police station and the other made after

arrest from the house, stand on materially different footings from

the point of view of voluntariness. The likelihood of the latter being

voluntary is fairly lesser in comparison to the former.

20. The next element which weighed upon the High Court in reversing

acquittal is the recovery of dead body of the deceased at the instance

of the appellant. Notably, the element of recovery is based on the

same statement/confession of the appellant which, as observed above,

fails to inspire the confidence of the Court. The Trial Court has rightly

analyzed the evidence regarding the recovery of dead body and the

High Court fell in an error in accepting the evidence on its face value,

without addressing the reasonable doubts raised by the Trial Court.

21. The recovery of dead body from the well is not in question. However,

the proof of such recovery to be at the instance of the appellant is

essentially based on the disclosure statement made by the appellant.

Again, the prime witness for proving the disclosure statement is

PW-1, whose testimony has failed to inspire the confidence of the

Court, in light of the contradictions, multiplicity of versions and

material improvements. The other witness to prove the recovery is

PW-2, the panch. Notably, PW- 2 was a waiter at a restaurant and

he deposed that he had visited the police station himself. It is difficult

to accept that PW-2 just happened to visit the police station on his

own and ended up becoming a witness of recovery of the dead

body. Firstly, his visit to the police station does not fit in the normal

chain of circumstances as it is completely unexplained. A police

station is not per se a public space where people happen to visit

in the ordinary course of business and therefore, an explanation is

warranted. Secondly, a normal person would generally be hesitant in

becoming a witness to the recovery of a dead body. There is nothing

on record to indicate that any notice to join investigation was given

to PW-2 by the I.O./PW-16. In such circumstances, it would not be 

404 [2024] 2 S.C.R.

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safe to rely upon the testimony of PW-2 as he could reasonably be

a stock witness of the I.O.

22. Furthermore, we deem it appropriate to note that the identity of the

dead body recovered from the well is also not beyond question. The

Trial Court had also noted the doubts regarding the identity of the

dead body, however, the identity of the deceased was held to be

established in light of the fact that the identification was done by PW1, father of the deceased. The Trial Court also relied upon the fact

that the identification was not challenged by either side. Be that as it

may, we consider it important to note that there exist serious doubts

regarding the identity of the dead body recovered from the well. The

description of the deceased given by PW-1 in his complaint Ex.P1

did not match with the description of the dead body. The clothes

found on the dead body were substantially different from the clothes

mentioned by PW-1 in his complaint. The presence of ornaments

was not mentioned in the complaint. Furthermore, identification of

the dead body by face was not possible as the body had started

decomposing due to lapse of time. Admittedly, the dead body was

recovered after 12 days of the incident from a well. Sensitive body

parts were found bitten by aquatic animals inside the well. The theory

of ornaments has already been held to be a figment of imagination

by the Trial Court and the High Court in an unequivocal manner.

Therefore, the prosecution case regarding the identity of the dead

body is not free from doubts.

23. Another circumstance which weighs against PW-1 in a material

sense is the deafening silence on his part when PW-5 and PW-6

informed him regarding the factum of the deceased being thrown

into the well. Notably, the said fact was brought to the knowledge of

PW-1 well before 15.11.2002. Despite so, PW-1 maintained silence

and did not even approach the police for investigation or information

on such a crucial aspect of investigation. An anxious father would

have rushed to the police station on receiving an information of this

nature. The subsequent conduct of PW-1, after the receipt of such

material information, is unnatural. Furthermore, PW-5 only saw the

appellant taking away the child, PW-6 also saw the appellant only

and PW-7 saw three persons throwing the child in the well. The

versions are manifold. In such circumstances, it cannot be held that

the testimony of PW-1 is trustworthy and reliable.

[2024] 2 S.C.R. 405

Kalinga @ Kushal v. State of Karnataka By Police Inspector Hubli

24. Notably, it is a peculiar case wherein the appellant has been convicted

for the commission of murder without ascertaining the cause of death

in a conclusive manner. The report prepared by PW-14 reveals

drowning as the cause of death. For attributing the act of throwing

the deceased into the well upon the appellant, the prosecution has

relied upon PW-7 and PW-18, the witnesses in support of the last

seen theory. The testimonies of these witnesses have been held to

be incredible by both Trial Court and the High Court. We suffice to

observe that we agree with the findings of the said Courts on this

point. Furthermore, the post mortem reveals the time of death within

a time frame of 3 to 12 days. Allegedly, the death took place on

03.11.2002. Such a wide time frame concerning the crucial question

of time of death raises a serious doubt on the reliability of the post

mortem report. When this fact is seen in light of the already existing

doubts on the identity of the deceased, one is constrained to take

the report with a pinch of salt. More so, this discrepancy again brings

into question the element of recovery of the dead body and identity

of the deceased.

25. This Court cannot lose sight of the fact that the Trial Court had

appreciated the entire evidence in a comprehensive sense and

the High Court reversed the view without arriving at any finding of

perversity or illegality in the order of the Trial Court. The High Court

took a cursory view of the matter and merely arrived at a different

conclusion on a re-appreciation of evidence. It is settled law that the

High Court, in exercise of appellate powers, may reappreciate the

entire evidence. However, reversal of an order of acquittal is not to

be based on mere existence of a different view or a mere difference

of opinion. To permit so would be in violation of the two views theory,

as reiterated by this Court from time to time in cases of this nature.

In order to reverse an order of acquittal in appeal, it is essential to

arrive at a finding that the order of the Trial Court was perverse or

illegal; or that the Trial Court did not fully appreciate the evidence on

record; or that the view of the Trial Court was not a possible view.

26. At the cost of repetition, it is reiterated that the anomaly of having

two reasonably possible views in a matter is to be resolved in favour

of the accused. For, after acquittal, the presumption of innocence in 

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favour of the accused gets reinforced. In Sanjeev v. State of H.P.7

,

this Court summarized the position in this regard and observed as

follows:

“7. It is well settled that:

7.1. While dealing with an appeal against acquittal, the

reasons which had weighed with the trial court in acquitting

the accused must be dealt with, in case the appellate court

is of the view that the acquittal rendered by the trial court

deserves to be upturned (see Vijay Mohan Singh v. State

of Karnataka8, Anwar Ali v. State of H.P.9)

7.2. With an order of acquittal by the trial court, the

normal presumption of innocence in a criminal matter gets

reinforced (see Atley v. State of U.P.10)

7.3. If two views are possible from the evidence on record,

the appellate court must be extremely slow in interfering

with the appeal against acquittal (see Sambasivan v.

State of Kerala11)”

27. It may be noted that the entire case of the prosecution is based on

circumstantial evidence. The principles concerning circumstantial

evidence are fairly settled and are generally referred as the

“Panchsheel” principles. Essentially, circumstantial evidence comes

into picture when there is absence of direct evidence. For proving a

case on the basis of circumstantial evidence, it must be established

that the chain of circumstances is complete. It must also be

established that the chain of circumstances is consistent with the

only conclusion of guilt. The margin of error in a case based on

circumstantial evidence is minimal. For, the chain of circumstantial

evidence is essentially meant to enable the court in drawing an

inference. The task of fixing criminal liability upon a person on the

strength of an inference must be approached with abundant caution.

7 (2022) 6 SCC 294

8 (2019) 5 SCC 436

9 (2020) 10 SCC 166)

10 AIR 1955 SC 807

11 [1998] 3 SCR 280 : (1998) 5 SCC 412

[2024] 2 S.C.R. 407

Kalinga @ Kushal v. State of Karnataka By Police Inspector Hubli

As discussed above, the circumstances sought to be proved by the

prosecution are inconsistent and the inconsistencies in the chain

of circumstances have not been explained by the prosecution. The

doubtful existence of the extra judicial confession, unnatural conduct

of PW-1, recovery of dead body in the presence of an unreliable

witness PW-2, contradictions regarding arrest, unnatural prior and

subsequent conduct of PW-1, incredible testimony of the witnesses in

support of the last seen theory etc. are some of the inconsistencies

which strike at the root of the prosecution case. To draw an inference

of guilt on the basis of such evidence would result into nothing but

failure of justice. The evidence on record completely fails the test

laid down for the acceptability of circumstantial evidence. Therefore,

in light of the consolidated discussion, all three issues are hereby

answered in negative.

28. Before parting, we consider it our duty to refer to the catena of

judgments relied upon by the respondent to contend that minor

inconsistencies could not be construed as reasonable doubts for

ordering acquittal. Reference has been made to Sucha Singh v.

State of Punjab12, Mallikarjun13 and Hari Singh v. State of Uttar

Pradesh14.

29. No doubt, it is trite law that a reasonable doubt is essentially a serious

doubt in the case of the prosecution and minor inconsistencies are

not to be elevated to the status of a reasonable doubt. A reasonable

doubt is one which renders the possibility of guilt as highly doubtful.

It is also noteworthy that the purpose of criminal trial is not only to

ensure that an innocent person is not punished, but it is also to ensure

that the guilty does not escape unpunished. A judge owes this duty

to the society and effective performance of this duty plays a crucial

role in securing the faith of the common public in rule of law. Every

case, wherein a guilty person goes unpunished due to any lacuna on

the part of the investigating agency, prosecution or otherwise, shakes

the conscience of the society at large and diminishes the value of

the rule of law. Having observed so, the observations in this regard

12 [2003] Suppl. 2 SCR 35 : (2003) 7 SCC 643

13 [2019] 11 SCR 609 : Supra

14 [2021] Suppl. 10 SCR 1022 : Supra

408 [2024] 2 S.C.R.

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may not advance the case of the respondent in the present appeal.

It is so because the inconsistencies in the case of the prosecution

are not minor inconsistencies. As already discussed above, the

prosecution has miserably failed to establish a coherent chain of

circumstances. The present case does not fall in the category of a

light-hearted acquittal15, which is shunned upon in law.

30. In light of the foregoing discussion, we hereby conclude that the High

Court has erred in reversing the decision of acquittal. The evidence

of the prosecution, at best, makes out a case for suspicion, and not

for conviction. Accordingly, the impugned order and judgment are

set aside. We find no infirmity in the order of the Trial Court and

the same stands restored. Consequently, the appellant is acquitted

from all the charges levelled upon him. The appellant is directed to

be released forthwith, if lying in custody.

31. The captioned appeal stands disposed of in the aforesaid terms.

Interim applications, if any, shall also stand disposed of.

32. No order as to costs.

Headnotes prepared by: Divya Pandey Result of the case:

Appeal disposed of.

15 ‘Proof of Guilt’, Glanville Williams.

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:

[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 

372 [2024] 2 S.C.R.

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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 

374 [2024] 2 S.C.R.

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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 

[2024] 2 S.C.R. 375

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. 

376 [2024] 2 S.C.R.

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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 

[2024] 2 S.C.R. 377

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.

378 [2024] 2 S.C.R.

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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 

[2024] 2 S.C.R. 379

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 

380 [2024] 2 S.C.R.

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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 

[2024] 2 S.C.R. 381

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 

382 [2024] 2 S.C.R.

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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 

[2024] 2 S.C.R. 383

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, 

384 [2024] 2 S.C.R.

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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. 

[2024] 2 S.C.R. 385

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.

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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.