S. Pushpa v. Sivachanmugavelu, (SC) BS81923
SUPREME COURT OF INDIA

Before:- R.C. Lahoti, CJI, K.G. Balakrishnan and G.P. Mathur, JJ,

Civil Appeal Nos. 6-7 of 1998. D/d. 11.2.2005.

S. Pushpa and others - Appellant

Versus

Sivachanmugavelu and others - Respondent

(With C.A. Nos. 4-5/1998)

For the Appellant in C.A. Nos. 6-7/98 :- V. Balachandran, Advocate.

For the Appellant in C.A. Nos. 4-5/98 :- V.R. Reddy, Sr. Advocate with V.G. Pragasam, Advocate.

For the Respondent :- M.N. Rao, Sr. Advocate with M.A. Chinnaswamy, Advocate.

For the Applicant in I.A. Nos. 9-10 in C.A. Nos. 4-5/98 :- K.V. Vishwanathan, K.V. Venkataraman, B. Raghunath and K.V. Vijayakumar, Advocates.

Constitution of India, Articles 16(4) & (5), 239, 239 to 241 - Reservation in Union Territories - Right of migrants to U.T. to be considered in reserved categories - U.T. is administered by the President of India through an administrator - The power to make regulations by the President is fairly large - He can repeal or amend any Act made by Parliament or any other law applicable to such territory which shall have the same effect as an Act of Parliament - The administrator exercises the authority of Central Govt. given to him under Article 239 - The U.Ts. can validly make a provision to extend benefit of reservation only to such Scheduled Castes or Scheduled Tribes which are recognised as such for that Union Territory without any infraction of Article 16(4) - Article 16(4) is not controlled by the Presidential Order issued under Article 341(1) or 342(1) - U.T. of Pondicherry having adopted a policy of Central Govt. under which all SC/STs are eligible for the reserved posts irrespective of their States, no legal infirmity can be ascribed to such a policy and cannot be held to be contrary to any provision of law - Selection made against reserved posts for SC/STs considering all including migrants, cannot be held violative of any constitutional or any other provisions of law - Judicial pronouncements on the policies of States in that regard cannot be applied in the cases of U.Ts. - U.Ts. being governed by Central Govt. all SCs/STs mentioned in the Presidential Orders or any others recognised for that purpose, are entitled to be considered against the reserved posts.

[Paras 11 & 14, 21 and 22]

Cases Referred :-

Marri Chandra Shekhar Rao v. Dean, SGS Medical College, 1990(3) SCC 130.

Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in State of Maharashtra v. Union of India, 1994(4) SCT 435 (SC) : 1994(5) SCC 244.

T.M. Kanniyan v. Income Tax Officer, 1968(2) SCR 103 : (AIR 1968 Supreme Court 637).

New Delhi Municipal Council v. State of Punjab, 1997(7) SCC 339.

JUDGMENT

G.P. Mathur, J. - These appeals, by special leave, have been preferred against the judgment and order dated 5.11.1996 of the Central Administrative Tribunal (Madras Bench) by which O.A. No. 199/1996 and O.A. No. 214/1996 were allowed and selection made of migrant Scheduled Caste candidates against the quota reserved for Scheduled Castes on the post of Selection Grade Teachers in the selection held in the year 1995 in the Union territory of Pondicherry was declared as illegal and invalid, and a further direction was issued to review the selection process with regard to the reserved quota by excluding the migrant Scheduled Caste candidates who had migrated after the relevant notification had been issued in the year 1964.

2. The Directorate of Education, Government of Pondicherry, issued an advertisement for making recruitment of 350 General Central Service Group "C" posts of Secondary Grade Teachers (for short 'SGT') wherein 56 posts were reserved for Scheduled Caste candidates (for short SC candidates). In response to the notification, the employment exchange sponsored the names of candidates in respect of various categories including SC candidates as requested by the Department. Besides, as envisaged and in conformity with the National Employment Service Manual, the employment exchange also sponsored some names of SC candidates from neighbouring employment exchanges as sufficient number of SC candidates were not available in Yanam and Mahe region of Union territory of Pondicherry. The employment exchange, Pondicherry sponsored 118 candidates. The employment exchange of Badagara (Kerala) sponsored 4 candidates for Mahe, the employment exchange Yanam sponsored 15 candidates and employment exchange Vishakhapattnam (AP) sponsored 139 candidates for Yanam. After holding interview a final Selection List was prepared and out of 55 finally selected SC candidates, 29 candidates had produced community certificates from the Governments of Tamil Nadu, Andhra Pradesh and Kerala, based on which the revenue authority of Pondicherry had issued community certificates to them. The remaining 26 candidates produced community certificates from the revenue authority of Pondicherry. The contesting respondents in these appeals filed O.A. No. 199 of 1996 and O.A. No. 214 of 1996 before the Central Administrative Tribunal (Madras Bench) challenging the selection of aforesaid SC candidates basically on the ground that a migrant SC candidate belonging to another State is not eligible for appointment on a post which is reserved for a SC candidate for Union Territory (hereinafter for short 'UT') of Pondicherry and also for a direction to appoint original inhabitants of Scheduled Caste origin belonging to UT of Pondicherry. The Central Administrative Tribunal (hereinafter for short 'Tribunal'), relying upon the decisions in Marri Chandra Shekhar Rao v. Dean, SGS Medical College & Ors., 1990(3) SCC 130 and Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra v. Union of India & Anr., 1994(4) SCT 435 (SC) : 1994(5) SCC 244 held, that the SC persons who migrated to UT of Pondicherry after the issuance of Presidential notification, which has specified Scheduled Castes in terms of Article 341 of the Constitution cannot claim the benefit of reservation in the matter of employment in Pondicherry Government service. Accordingly, the selection and appointment of migrant SC candidates was set aside and a direction was issued to review the selection process with regard to the reserved quota after excluding the migrant SC candidates who had migrated after the issuance of the notification in the year 1964.

3. Feeling aggrieved by the decision of the Central Administrative Tribunal (for short the 'Tribunal'), the Union of India and Director of Education, Government of Pondicherry, preferred Special Leave Petitions, which after grant of leave have been registered as Civil Appeal Nos. 4 and 5 of 1998. Some of the candidates whose selection has been set aside also preferred Special Leave Petitions which, after grant of leave have been registered as Civil Appeal Nos. 6 & 7 of 1998.

4. Before adverting to the contentions raised by learned counsel for the parties, it is necessary to mention that the U.T. of Pondicherry comprises of former four French settlements in India, viz. Pondicherry, Karaikal, Mahe and Yanam. Karaikal is situate within the territorial boundary of State of Tamil Nadu, Mahe is situate within the territorial boundary of State of Kerala and Yanam is situate within the territorial boundary of State of Andhra Pradesh. Though de-facto transfer of these four French settlements to Government of India took place in the year 1954, they legally merged with the Union of India with effect from 16.8.1962 by the Eighteenth Amendment to the Constitution. These four settlements were constituted as U.T. of Pondicherry under Government of Union territories Act, 1963 (Act No. 20 of 1963).

5. Article 341 of the Constitution which is important for the purpose of decision of the present case reads as under :

The President of India exercising power under Article 341(1) issued an order known as Constitution (Pondicherry) Scheduled Castes Order, 1964. Paragraph 2 of this Order read as under :

The schedule mentions 15 castes which are to be deemed to be Scheduled Castes in relation to the U.T. of Pondicherry.

6. Learned counsel for the appellants has submitted that the decisions rendered in Marri Chandra Rao (supra) which has been the sheet anchor of the case of the contesting respondents (applicants before the Tribunal) and which has been relied upon by the Tribunal related to a case where the migrant was from one State to another State (from Adndhra Pradesh to Maharashtra) and it can have no application to a case where the migration of a SC person is from a State to an adjoining or contiguous Union territory, as is the case here. The areas included in the U.T. of Pondicherry being very small enclaves and being contiguous and surrounded by large States, the principle which may be applicable in the case of migration from one State to another State cannot be applied having regard to the ground realities. Learned counsel has further submitted that the Government of India has, from time to time, issued circulars and Government Orders clearly providing that migrant SC persons are eligible for appointment on posts reserved for SC persons in the U.T. of Pondicherry and in absence of any statutory enactment or rules made in exercise of powers conferred under the proviso to Article 309 of the Constitution, these circulars or Government Orders are binding upon the Government of Pondicherry. It has also been contended that in the matter of providing reservation in favour of any backward class of citizens within the meaning of Article 16(4) of the Constitution, it is open to the U.T. of Pondicherry to apply any policy, especially one whereunder migrant SC persons are also given the benefit of reservation and it is not open to the contesting respondents to object to such kind of a reservation policy and claim that the benefit of reservation should be extended only to such SC persons who are mentioned in the schedule appended to the Presidential Order issued in the year 1964. Learned counsel has also submitted that right from inception, the U.T. of Pondicherry has been following a practice whereunder migrant SC persons are held eligible for appointment on reserved posts and this being the consistent and uniform policy of the State, the same cannot be held to be illegal or contrary to any constitutional provisions.

7. Learned counsel for the contesting respondents (applicants in the original application before the Tribunal) have submitted that in view of clear language in Article 341(1) of the Constitution, only such castes which have been mentioned in the schedule appended to the Presidential Order of 1964, shall be deemed to be Scheduled Castes for the U.T. of Pondicherry and a migrant SC person is not eligible for any reserved posts. Learned counsel has also submitted that the fact that a Union territory is administered by the President through an administrator appointed by him, can make no difference as the posts in question are posts under the Pondicherry Government and cannot be deemed to be posts under the Central Government. Learned counsel has also placed strong reliance on the following observation made by the Constitution Bench in the case of Marri Chandra (supra) in para 10 of the reports :

Reliance has also been placed on the following observation in Action Committee case (supra) :

8. Before the Tribunal it was pleaded on behalf of the appellants that the Legislative Assembly of U.T. of Pondicherry has not been vested with powers to make laws in relation to public services of the Union territory and consequently the President of India is the repository of all powers with regard to public services of the Union territory and with regard to the persons appointed in connection with the affairs of the Union territory. The President has delegated to the Lt. Governor of Pondicherry power to frame rules for regulating the method of recruitment to the civil services and posts in Grade 'A', 'B', 'C' and 'D' under his administrative control in connection with the affairs of the Union territory and also the conditions of service of persons appointed to such services. While making rules for appointment in Grade 'A' and 'B' posts, the Lt. Governor has to act subject to prior consultation with the Union Public Service Commission. The services and posts for U.T. of Pondicherry are treated like Central services and posts, and in the matter of reservation in posts and services for Scheduled Castes, the Government of U.T. of Pondicherry is bound by the policy prescription and the rules and orders of Government of India.

9. The Policy of the Government of India, whereunder all SC/ST candidates get benefit in the matter of appointment and admission in educational institutions controlled/administered by the Central Government has been reproduced in para 18 of the judgment in Marri Chandra Shekhar Rao (supra) and the relevant part thereof reads as under :

10. It will be useful here to take note of certain provisions of the Constitution and other enactments which have a bearing on the controversy in hand and also some of the orders issued in this regard by the Government of India and also by Government of Pondicherry. Part VIII of the Constitution (Articles 239 to 241) deals with the Union territories. Article 239 and Article 239A which was inserted by the Constitution (Fourteenth Amendment) Act, 1962 read as under :

11. Article 239B confers power upon the administrator of U.T. of Pondicherry to promulgate Ordinances during recess of Legislature in certain circumstances. But in view of the first proviso appended to clause (1) of Article 239B, no such Ordinance shall be promulgated by the administrator except after obtaining instructions from the President in that behalf. Article 240 confers power on the President to make regulations for certain Union territories, including Pondicherry, subject to satisfaction of certain conditions laid down in the two provisos appended to clause (1) of this Article. Clause (2) of Article 240 lays down that any regulation so made by the President may repeal or amend any Act made by Parliament or any other law which is for the time being applicable to the Union territory and when promulgated by the President, shall have the same force and effect as an Act of Parliament which applies to that territory. Articles 239 and 240 of the Constitution clearly show that U.T. of Pondicherry is administered by the President through an administrator (Lt. Governor) appointed by him and when the Legislature thereof is dissolved or is not functioning, the President is empowered to make regulations for peace, progress and governance of the said Union territory. The power to make regulations by the President is fairly large as he can repeal or amend any Act made by Parliament or any other law which is applicable to the said territory and shall have the same force and effect as an Act of Parliament.

12. Certain other provisions of the Constitution also deserve to be noticed here. Under clause (1) of Article 230, Parliament may by law extend or exclude the jurisdiction of a High Court from any Union territory. Clause (2)(b) of the said Article provides that where the High Court of a State exercises jurisdiction in relation to a Union territory, the reference in Article 227 to the Governor shall, in relation to any rules, forms or tables for subordinate courts in that territory, be construed as a reference to the President. Similar provision is contained in Article 231(2)(b). These provisions again show that the position of a Union territory is different from that of a State and the head of administration of a Union territory is the President of India.

13. Some other statutory provisions which have a bearing on the controversy are being reproduced below :

14. The effect of these provisions is also that the Administrator (Lt. Governor of Pondicherry) and his Council of Ministers act under the general control of and are under an obligation to comply with any particular direction issued by the President. Further, the administrator (Lt. Governor of Pondicherry) while acting under the scope of the authority given to him under Article 239 of the Constitution would be the Central Government.

15. The Central Government has issued several orders and circulars extending the benefit to SC candidates of other States in the matter of employment in the U.T. of Pondicherry which need to be noticed. A D.O letter was sent by the Joint Secretary, Government of India, Ministry of Home Affairs, to the Lt. Governor of Pondicherry on 4.2.1974 and the same is being reproduced below :

After receipt of the aforesaid letter from Government of India, the General Administration Department of the Government of Pondicherry issued a Government Order dated 16.2.1974 which reads as under :

The Government of Pondicherry also issued a circular on 6.1.1993 issuing clarifications regarding two points and the second one was regarding the Government Order dated 16.2.1974 (reproduced above). Paras 2 & 3 of this circular read as under :

It appears that Government of Pondicherry sought some clarifications from the Central Government regarding admissibility of reservation benefit to migrant SC/ST candidates vide their letter dated 21.9.1995. This was replied to by the Ministry of Welfare, Government of India vide their letter dated 6.10.1995 and the relevant part thereof is reproduced below :

In view of the above position explained above, Pondicherry being UT, services under the Administration will be open to all the SC/ST irrespective of their State of origin. Further in regard to posts filled on all-India basis through UPSC or SSC on open competition basis, SC/ST candidates irrespective of their state of origin can apply. In regard to the posts filled through SSC, Madras all the SC/ST candidates from the southern region will be eligible to apply.

The Government of Pondicherry circulated the aforesaid letter of Government of India to Secretaries of all Departments and Heads of Departments/Offices vide its G.O. Ms. No. 9 dated 20.10.1995.

16. These documents show that Government of Pondicherry has throughout been proceeding on the basis that being a Union territory, all orders regarding reservation for SC/ST in respect of posts/services under the Central Government are applicable to posts/services under the Pondicherry administration as well. Since all SC/ST candidates which have been recognised as such under the orders issued by the President from time to time irrespective of the State/Union territory, in relation to which particular castes or tribes have been recognised as SCs/STs are eligible for reserved posts/services under the Central Government, they are also eligible for reserved posts/services under the Pondicherry administration. Consequently, all SC/ST candidates from outside the U.T. of Pondicherry would also be eligible for posts reserved for SC/ST candidates in Pondicherry administration. Therefore, right from the inception, this policy is being consistently followed by the Pondicherry administration whereunder migrant SC/ST candidates are held to be eligible for reserved posts in Pondicherry administration.

17. We do not find anything inherently wrong or any infraction of any constitutional provision in such a policy. The principle enunciated in Marri Chandra Shekhar Rao (supra) cannot have application here as U.T. of Pondicherry is not a State. As shown above, a Union territory is administered by the President through an administrator appointed by him. In the context of Article 246, Union territories are excluded from the ambit of expression "State" occurring therein. This was clearly explained by a Constitution Bench in T.M. Kanniyan v. Income Tax Officer, 1968(2) SCR 103 : (AIR 1968 Supreme Court 367). In New Delhi Municipal Council v. State of Punjab, 1997(7) SCC 339, the majority has approved the ratio of T.M. Kanniyan and has held that the Union territories are not States for the purpose of Part XI of the Constitution (para 145). The Tribunal has, therefore, clearly erred in applying the ratio of Marri Chandra Shekhar Rao in setting aside the selection and appointment of migrant SC candidates.

18. The contesting respondents (applicants before the Tribunal, who challenged the selection) can derive no benefit from the decision in Marri Chandra Shekhar Rao (supra). In this case the writ petitioner Marri Chandra was born in Gouda community in the State of Andhra Pradesh, which is recognised as a Scheduled Tribe in the Presidential Order issued for the said State. For getting admission in a medical college in the State of Maharashtra, he claimed benefit of reservation being an ST. Gouda community was not recognised as Scheduled Tribe in the Presidential Order issued for the State of Maharashtra and on this ground he was denied the benefit of reservation. He then filed the writ petition claiming that he is entitled for benefit of reservation being a member of ST. It was in these circumstances that it was held that his community having not been included as an ST in the Presidential Order issued for the State of Maharashtra, he had no legal right to claim benefit of reservation in the State of Maharashtra. The U.T. of Pondicherry having consistently followed the policy of the Central Government where all scheduled caste candidates were given benefit of reservation, the selection made following the said policy could not be held to be suffering from any legal infirmity on the principle laid down in Marri Chandra Shekhar Rao (supra).

19. Much emphasis has been laid by learned counsel for contesting respondents upon the expression "in relation to that State or Union territory, as the case may be" occurring in clause (1) of Article 341 of the Constitution, and it has been urged that only such of the castes as are mentioned in the schedule appended to the Constitution (Pondicherry) Scheduled Castes Order 1964 issued by the President can be deemed to be Scheduled Castes in relation to the U.T. of Pondicherry and none else and, consequently, migrant SC candidates would not be eligible at all.

20. Part XVI of the Constitution deals with special provisions relating to certain classes and contains Articles 330 to 341. Articles 330 and 332 make provision for reservation of seats in the House of People and Legislative Assemblies of the States respectively, for Scheduled Castes and Scheduled Tribes. Similar provisions have been made for Anglo-Indian community in Articles 331 and 333. Article 338 provides that there will be a Commission for the Scheduled Castes to be known as National Commission for the Scheduled Castes and it also provides for its composition, powers and duties. Clause (2) of Article 330 provides that the number of seats reserved in the States or Union territories for Scheduled Castes or Scheduled Tribes shall bear, as nearly as may be, the same proportion to the number of seats allotted to that State or Union territory in the House of the People as the population of the Scheduled Castes in the State or Union territory or of the Scheduled Tribes in the State or Union territory, as the case may be, in respect of which seats are so reserved, bears to the total population of the State or Union territory. Similar provision for reservation of seats in favour of SC/ST in the Legislative Assembly of any State is contained in clause (3) of Article 332 of the Constitution. Therefore, in order to ascertain the number of seats which have to be reserved for Scheduled Castes or Scheduled Tribes in the House of the People or in the Legislative Assembly, it is absolutely essential to ascertain precisely the population of the Scheduled Castes or Scheduled Tribes in the State or Union territory. A fortiori, for the purpose of identification, it becomes equally important to know who would be deemed to be Scheduled Caste in relation to that State or Union territory. This exercise has to be done strictly in accordance with the Presidential Order and a migrant Scheduled Caste of another State cannot be taken into consideration otherwise it may affect the number of seats which have to be reserved in the House of People or Legislative Assembly. Though, a migrant SC/ST person of another State may not be deemed to be so within the meaning of Article 341 and 342 after migration to another State but it does not mean that he ceases to be an SC/ST altogether and becomes a member of forward caste.

21. Clauses (1) and (2) of Article 16 guarantee equality of opportunity to all citizens in the matter of appointment to any office or of any other employment under the State. Clauses (3) to (5), however, lay down several exceptions to the above rule of equal opportunity. Article 16(4) is an enabling provision and confers a discretionary power on the State to make reservation in the matter of appointments in favour of "backward classes of citizens" which in its opinion are not adequately represented either numerically or qualitatively in services of the State. But it confers no constitutional right upon the members of the backward classes to claim reservation. Article 16(4) is not controlled by a Presidential Order issued under Article 341(1) or Article 342(1) of the Constitution in the sense that reservation in the matter of appointment on posts may be made in a State or Union territory only for such Scheduled Castes and Scheduled Tribes which are mentioned in the schedule appended to the Presidential Order for that particular State or Union territory. This Article does not say that only such Scheduled Castes and Scheduled Tribes which are mentioned in the Presidential Order issued for a particular State alone would be recognised as backward classes of citizens and none else. If a State or Union territory makes a provision whereunder the benefit of reservation is extended only to such Scheduled Castes or Scheduled Tribes which are recognised as such, in relation to that State or Union territory then such a provision would be perfectly valid. However, there would be no infraction of clause (4) of Article 16 if a Union territory by virtue of its peculiar position being governed by the President as laid down in Article 239 extends the benefit of reservation even to such migrant Scheduled Castes or Scheduled Tribes who are not mentioned in the schedule to the Presidential Order issued for such Union territory. The U.T. of Pondicherry having adopted a policy of Central Government whereunder all Scheduled Castes or Scheduled Tribes, irrespective of their State are eligible for posts which are reserved for SC/ST candidates, no legal infirmity can be ascribed to such a policy and the same cannot be held to be contrary to any provision of law.

22. For the reasons discussed above, we are of the opinion that there has been no violation of any constitutional or any other legal provision in making selection and appointment of migrant Scheduled Caste candidates against the quota reserved for Scheduled Castes on the post of Selection Grade Teachers. The view to the contrary taken by the Tribunal cannot, therefore, be sustained and has to be set aside.

23. The appeals are accordingly allowed and the judgment and order dated 5.11.1996 of the Central Administrative Tribunal (Madras Bench) is set aside.

Appeals allowed.