REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO.1085 OF 2013

BIR SINGH  ….APPELLANT(S) VERSUS

DELHI JAL BOARD & ORS. ….RESPONDENT(S) WITH

CIVIL APPEAL NO(S) 9935­9937 OF 2014 CIVIL APPEAL NO(S).10081 OF 2014 CIVIL APPEAL NO(S). 8141 OF 2014 CIVIL APPEAL NO(S). 8802 OF 2012 CIVIL APPEAL NO(S).1086 OF 2013 CIVIL APPEAL NO.9048 OF 2018

[ARISING OUT OF S.L.P(C) NO.36324 OF 2017]

J U D G M E N T

RANJAN GOGOI, J

1. Leave granted in Special Leave Petition (Civil) No.36324

of 2017

2. In  State of  Uttaranchal  vs.  Sandeep  Kumar  Singh  and

others1  [Civil Appeal No.4494 of 2006) the following question arose

1 (2010) 12 SCC 794

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for consideration of this Court:

“Whether a person belonging to a Scheduled Caste in relation to a particular State would be entitled or not, to the benefits or concessions allowed to Scheduled Caste candidate in the matter of employment, in any other State?”  

3. In  the  course  of the  deliberations  that took  place this

Court noticed the Constitution Bench judgments of this Court in

Marri Chandra Shekhar Rao vs. Dean, Seth G.S. Medical College and

others2  and  Action Committee on Issue of Caste Certificate to

Scheduled Castes and Scheduled Tribes in the State of Maharashtra

and another  vs.  Union of India and another3.   The view of a three

Judge Bench of this Court in  S. Pushpa and others  vs.

Sivachanmugavelu and others4   was also noticed and the same was

perceived to be somewhat contrary to the view expressed by  the

Constitution Bench in the above two cases.   This Court also took

note of the fact that a two judge Bench of this Court in  Subhash

2 (1990) 3 SCC 130 3 (1994) 5 SCC 244 4 (2005) 3 SCC 1

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Chandra and another  vs. Delhi Subordinate Services Selection

Board and others5  held that the dicta in  S. Pushpa  (supra) is an

obiter and does not lay down any binding ratio.  The Bench hearing

the case  i.e.  State  of  Uttaranchal  vs.  Sandeep Kumar Singh and

others (supra) took the view that “it was not open to a two judge

Bench to say that the decision of a three judge Bench

rendered following the Constitution Bench judgments to be per

incuriam”.  In this regard, the canons of judicial discipline carved

out by this Court in  Central Board of Dawoodi Bohra Community

and another  vs. State of Maharashtra and another6  were recalled

and eventually in paragraph 13 of the opinion rendered in State of

Uttaranchal vs.  Sandeep Kumar Singh and others (supra) the

reference of the question noted below was made to a larger Bench:

“13.  A very important question of law as to interpretation of Articles 16(4), 341 and 342 arises for consideration in this appeal. Whether the Presidential Order issued under Article

5 (2009) 15 SCC 458 6 (2005) 2 SCC 673

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341(1) or Article 342(1) of the Constitution has any bearing on the State’s action in making provision for the reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State, is not adequately represented in the services under the State?  The  extent  and nature  of interplay  and interaction among Articles 16(4), 341(1) and 342(1) of the Constitution is required to be resolved.”

4. The said Civil Appeal No.4494 of 2006 (State of

Uttaranchal  vs.  Sandeep Kumar Singh and others) was disposed of

by the larger Bench of this Court by order dated 6th August, 2014,

in the light of the findings of the High Court recorded in paragraph

4 of the High Court order to the effect  that  the order  impugned

suffers from an apparent illegality as the appointing authority of the

petitioner therein is the University and the University had acted at

the dictate of the State Government, which has no power to ask for

cancellation of an appointment made in accordance with the

advertisement.   In the aforesaid order dated 6th August, 2014 this

Court took the view that the conclusions recorded in paragraph 4 of

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the High Court order cannot be said to be legally flawed and

accordingly closed the said Civil Appeal (No. 4494 of 2006) on the

aforesaid basis.  The question referred was not answered.   

5. However, the question arising and referred to in the State

of Uttaranchal vs. Sandeep Kumar Singh and others (supra) was felt

to be surviving and subsisting in the present appeals also.

Accordingly, by an order of the Court dated 7th August, 2014, the

very same question as formulated in paragraph 13 of the judgment

in State of Uttaranchal vs.  Sandeep Kumar Singh and others

(supra), as extracted above, has been referred for an answer by a

five judge Bench of this Court.  That is how we are in seisin of the

matters.  

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

will suffice.   

The question as to whether a policy in furtherance of the

enabling provision contained in Article 16(4) of the Constitution of

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India could extend to giving of benefits beyond the Scheduled

Castes and Scheduled Tribes of a State/Union Territory

enumerated in the Presidential Orders framed/issued under

Articles 341 and 342 of the Constitution of India had arisen in the

bunch of writ petitions filed before the High Court of Delhi against

the order/orders of the Central Administrative Tribunal.   The

learned Tribunal following Marri Chandra Shekhar Rao (supra) and

Action Committee (supra), in preference to the view expressed in S.

Pushpa (supra) (three judge Bench) held that insofar as the Union

Territory of Delhi is concerned, a migrant Scheduled Caste person

would not be entitled to the benefits conferred on members of the

Scheduled Castes enumerated in the list for the Union Territory of

Delhi by the Presidential  Order (i.e. the Scheduled  Castes and

Scheduled Tribes Lists (Modification) Order, 1956) in question.  The

Delhi High Court sitting in a Full Bench (perhaps in view of the

importance of the question) found the decision in S. Pushpa (supra)

to be more directly relatable to the issue at hand i.e. being one of

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services in the Union Territory and, therefore, felt to be bound by

the decision of the three judge Bench of this Court in  S. Pushpa

(supra).   While doing so, the Delhi High court in paragraph 66 of

the judgment emphasised on the necessity of an authoritative

pronouncement on the issue(s) arising.   Accordingly, certificate to

appeal under Article 134­A of the Constitution was granted by the

High Court. Paragraph 66 of the judgment of the Full Bench of the

Delhi  High Court  will require  a  specific  notice  and  is, therefore,

reproduced below:

“66. This court summarizes  its  conclusions, as follows: (1) The decisions in Marri, Action Committee, Milind and Channaiah have all ruled that  scheduled caste  and tribe citizens moving from one State to another cannot claim reservation benefits, whether or not their caste is notified in the state where they migrate to, since the exercise of notifying scheduled castes or tribes is region (state) specific, i.e " in relation" to the  state  of their  origin.  These judgments  also took note of the Presidential Notifications, which had enjoined such citizens to be "residents" in

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relation to the state which provided for such reservations.

(2) The considerations which apply to Scheduled Caste and Tribe citizens who migrate from state to state,  apply equally  in respect of those who migrate from a state to a union territory, in view of the text of Articles 341 (1) and 342 (1), i.e. only those castes and tribes who are notified in relation to the concerned  Union Territory, are entitled to  such benefits.  This is reinforced  by the Presidential Notification in relation to Union Territories, of 1951. Only Parliament can add to such  notification,  and include  other castes, or tribes, in view of Articles 341 (2), Article 342(2) which is also reinforced by Article 16(3).   States cannot legislate on this aspect; nor can the executive ­  Union or  state,  add to or  alter the castes, or tribes in any notification in relation to a state or Union Territory, either through state legislation or through policies or circulars. Differentiation between residents of states, who migrate to  states, and residents  of states  who migrate to Union Territories would result in invidious discrimination and over­classification thus denying equal access to reservation benefits, to those  who are residents of Union Territories, and whose castes or tribes are included in the Presidential Order in respect of

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such Union Territories. The Pushpa interpretation has led to peculiar consequences, whereby: (i) The resident of a state, belonging to a scheduled caste,  notified in that state, cannot claim reservation benefit, if he takes up residence in  another  state,  whether  or  not  his caste is included in the latter State's list of scheduled castes; (ii) However, the resident of a state who moves to a Union Territory would be entitled to carry his reservation benefit, and status as  member of scheduled caste, even if his caste is not included as a scheduled caste, for that Union Territory; (iii) The resident of a Union Territory would however, be denied the benefit of reservation, if he moves to a State, because he is not a resident scheduled caste of that State. (iv) The resident of a Union Territory which later becomes a State, however, can insist that after such event, residents of other states, whose castes may or may not be notified, as scheduled castes,  cannot  be  treated as such members  in such newly formed states; (v) Conversely, the scheduled caste resident of a state which is converted into a Union Territory, cannot protest against the treatment of scheduled caste residents of other states as members of scheduled caste of the Union Territory, even though their castes are not

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included in the list of such castes, for the Union Territory. (3) The ruling in Pushpa is clear that if the resident of a state,  whose caste is  notified  as Scheduled caste or scheduled tribe, moves to a Union Territory, he carries with him the right to claim that benefit, in relation to the Union Territory, even though if he  moves to another state, he is denied such benefit (as a result of the rulings in Marri and Action Committee). The ruling in Pushpa, being specific about this aspect vis­à­vis Union Territories, is binding; it was rendered by a Bench of three judges. (4) The later ruling in Subhash Chandra doubted the judgment in Pushpa, holding that it did not appreciate the earlier larger Bench judgments in the  correct  perspective.  Yet,  Subhash Chandra cannot be said to have overruled Pushpa, since it was rendered by a smaller Bench of two judges. This approach of Subhash  Chandra has been doubted, and the question as to the correct view has been referred to a Constitution Bench in the State of Uttaranchal case. (5) By virtue of the specific ruling applicable in the case of Union Territories, in Pushpa, whatever  may be the  doubts  entertained as to the soundness of its reasoning, the High Courts have to apply its ratio, as it is by a formation of

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three judges; the said decision did notice the earlier judgments in Marri and Action Committee. Article 141 and the discipline enjoined  by the  doctrine of precedent compels this Court to follow the Pushpa ruling. (6) In matters pertaining to incidence of employment, such  as seniority,  promotion  and accelerated seniority or promotional benefits, flowing out  of  Articles  16  (4A)  and  (4B)  of the Constitution, there may be need for clarity, whichever rule is  ultimately  preferred ­ i.e the Pushpa view or the Marri and Action Committee view. In such event, it may be necessary for the guidance of decision makers and High Courts, to spell out whether the correct view should be applied prospectively. Furthermore, it may be also necessary to clarify what would be meant by prospective  application of the correct  rule,  and whether such employment benefits flowing after recruitment, would be altered if the Marri view is to be preferred.”

7. Civil Appeal Nos.9935­9937 of 2014 from the decision of

the Calcutta High court pertain to claims made by persons

belonging to Uraons and Mundas members of the Scheduled Tribes

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communities who have migrated to the Union Territory of Andaman

& Nicobar Island.  The High Court rejected the claim of reservation

made by the aforesaid  migrants Scheduled Tribes communities

confining such benefits to the Scheduled Castes communities

enumerated in the list appearing in the Presidential Order

pertaining to the Union Territory of Andaman & Nicobar Island.  

8. Before  delving into the  constitutional  provisions  which

would be necessary to be dealt with for answering the reference a

brief look at the pre­constitutional position on the issue  would

throw considerable light and provide a sound insight to the multi­

faceted questions that the reference has given rise to.  

9. The caste system in India, which is the bane of a just

social order, has a long history which can be traced to the earliest

times.  Ancient  Hindu religious scriptures refer to the practice.

Division of Society based on birth and the calling/profession of a

person has continued to dominate Hindu thinking and way of life

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and is perhaps one of the thorny problems inherited by the British

Administration which had tried to resolve the same by giving legal

recognition to what came to be termed as the “depressed classes”.

Such recognition  was in the form  of a protective regime  which

extended to representation in the Legislature and in the services

under the State.  Exercises in finding out the numerical strength of

the  depressed class in the  early  20th  Century (By  Southborough

Committee) revealed a grim picture indicating such number to be as

high as 20 per cent of the majority population (Hindu) in eight (08)

Indian Provinces of  Madras,  Bombay,  Bengal,  United Provinces,

Punjab, Bihar and Orissa, Central Provinces and Assam.  The above

figure did not include primitive or aboriginal tribes who later came

to be known as the Scheduled Tribes and included in the list of

Scheduled Tribes  under the different Presidential  Orders issued

from time to time.

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10. The Government of India Act, 1935 (hereinafter referred

to as “1935 Act”) (also referred to as “the Constitution Act”) brought

into force the expression “Scheduled Castes”  for the first time in

Indian Constitutional history.  Entry 26 Part I of the First Schedule

to the 1935 Act stipulates that “the Scheduled Castes mean such

castes, races or tribes or parts of or groups within the castes,

races or tribes, being castes, races, tribes, parts or groups,

which appear to His Majesty in Council to correspond to the

classes of persons formerly known as ‘the depressed classes’,

as His Majesty in Council may specify”.  

11. Thereafter a  Gazette  Notification  was  published  on  6th

June, 1936 promulgating the Government of India (Scheduled

Castes) Order, 1936 notifying the list of castes that are to be

considered as “the Scheduled Castes” across the territory of India.

A look at the Schedule  which consisted of nine (09) parts i.e.

Madras, Bombay, Bengal, United Provinces, Punjab, Bihar, Central

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Provinces, Assam, Orissa would indicate that identification of the

different castes for inclusion as Scheduled Castes in the Schedule

to the 1935 Act was based on an elaborate exercise conducted for

each of the Provinces so much so that while some castes have been

identified as Scheduled Castes throughout a Province, others have

been so identified to limited  areas  within  a  province.  The  post

constitutional exercise by the Constitution (Scheduled Castes)

Order, 1950 and the Constitution (Scheduled Tribes) Order, 1950,

as originally enacted under Articles 341 and 342 of the

Constitution, was basically an exercise in re­casting the Schedule to

the 1935 Act.   The subsequent amendments to the aforesaid two

Orders, from  time to time,  have  been  necessitated to  bring the

position in tune with the amendments to the First Schedule to the

Constitution made at  different points  of time by creation of  new

States and alterations in the area and boundaries of existing States.

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12. Article 366 of the Constitution which defines expressions

appearing in the Constitution specifically defines ‘Scheduled Castes’

[clause (24)] to mean “such castes, races or tribes or parts of or

groups  within such castes, races or tribes as are deemed

under Article 341 to be Scheduled Castes for the purposes of

this  Constitution”. Similarly, clause (25) of Article 366  defines

“Scheduled Tribes” to mean “such tribes or tribal communities

or parts of or groups within such tribes or tribal communities

as are deemed under Article 342 to be Scheduled Tribes for

the purposes of this Constitution”.

13. Part XVI of the Constitution of India deals with special

provisions relating to certain classes.   Article 330 provides for

reservation of seats for Scheduled Castes and Scheduled Tribes in

the House of the People (Lok Sabha) whereas Article 332 contains

similar provisions so far as the Legislative Assemblies of the States

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are concerned.   Article 335 of the Constitution provides that “the

claims of the members of the Scheduled Castes and Scheduled

Tribes shall be taken into consideration, consistently with the

maintenance of efficiency of administration, in the making of

appointments to  services  and posts in connection  with the

affairs of the Union or of a State”.  By the Constitution (Eighty­

Second) Amendment Act, 2000 a proviso to Article 335 was added

to provide that the members of the Scheduled Castes and

Scheduled Tribes may be granted relaxation in qualifying marks in

any examination or standards of evaluation can be lowered in

matters of promotion to any class or classes of services or posts in

connection with the affairs of the Union or of a State. Article 338 of

the Constitution provides for a National Commission for Scheduled

Cates which is invested with the following duties:

“(a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes under this Constitution or under any other law for the time being in force or

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under any order of the Government and to evaluate the working of such safeguards;  (b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes;  (c) to participate and advise on the planning process of socio­economic development of the Scheduled Castes and to evaluate the progress of their development under the Union and any State; the Scheduled Castes and to evaluate the progress of their  development under the Union and any State;   (d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards; deem fit, reports upon the working of those safeguards;   (e) to make in such reports recommendations as to the  measures that should  be taken  by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio­ economic development of the Scheduled Castes; and  (f) to discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Castes as the President may, subject to the provisions of any law made by Parliament, by the rule specify.”

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14. Similarly, Article 338A provides for a National

Commission for Scheduled Tribes which is vested with similar

duties as in the case of the Commission for the Scheduled Castes.

15. Article 341(1) of the Constitution empowers the President

with respect to any State or Union Territory, and where it is a State,

after consultation with the Governor thereof, by public notification,

to specify the castes, races or tribes or parts of or groups within

castes, races or tribes which shall for the purposes of the

Constitution be deemed to be Scheduled Castes in relation to that

State or Union Territory, as the case may be.  

16. In case of Scheduled Tribes the President has been

similarly empowered under Article 342(1) of the Constitution.  Sub­

clause (2) of Article 341 and Article 342 empowers the Parliament

by law to include in or exclude from the list of Scheduled

Castes/Scheduled Tribes specified in the Notification issued under

clause (1) thereof any caste, race or tribe/tribal community or part

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of or group within any caste, race or tribe/tribal community. It is

further provided that except as provided i.e. by Parliament by law(s)

made, the notification issued under Article 341(1) or Article 342(1)

shall not be varied by any subsequent notification.   The

constitutional  mandate, therefore,  appears to  be that  any  caste,

race or tribe/tribal community or part of or group within any caste,

race or tribe/tribal community as has been specified in the

Presidential Order under clause (1) of Article 341 or Article 342 can

be altered only by Parliament by law(s) made.

17. Article 341 and Article 342 also makes it clear that the

caste, race or tribe or part of or group within any caste, race or tribe

as specified in the Presidential Order under Article 341(1) or a tribe

or tribal community as may be specified in the Presidential Order

under Article 342(1) shall be deemed to be Scheduled

Castes/Scheduled Tribes  for the  purposes of the  Constitution  in

relation to that State or Union Territory, as the case may be.  The

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above position is further  made clear by clause (2) of the two

Presidential Orders which are in the following terms.

“Clause 2 of the Constitution  (Scheduled Castes) Order, 1950

2. Subject to the provisions of this Order, the castes, races or tribes or parts of, or groups within, castes or tribes specified in Parts I to XXV of the Schedule to this  Order shall, in relation to the States to which those Parts respectively relate, be deemed to be Scheduled Castes so far as regards member thereof resident in the localities specified in relation to them in those Parts of that Schedule.

Clause 2 of the Constitution (Scheduled Tribes) Order, 1950

2. The Tribes or tribal communities, or parts of, or groups within, tribes or tribal communities, specified in Parts I to XXII of the Schedule to this Order shall, in relation to the States to which those Parts respectively relate, be deemed to be Scheduled Tribes so far as regards members thereof residents in the localities specified in relation to them respectively in those Parts of that Schedule.”

18. There are various parameters by which a caste/race is

recognized as 'Scheduled Caste/Scheduled Tribe'  in a State/Union

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Territory or a particular part thereof.  There is no doubt that before

the Presidential Orders were issued under Article 341(1) or under

Article 342(1), elaborate enquiries were made and only after such

enquiries that the Presidential Orders were issued. While doing so,

the Presidential Orders not only provided that even specified parts

or groups of castes, races or tribes/tribal community could be

Scheduled Castes/Tribes in a particular State/Union Territory but

also  made it clear that certain castes  or tribes  or  parts/groups

thereof could be Scheduled Castes/Tribes only in

specified/particular areas/districts of a State/Union Territory.  The

reason for such an exercise by reference to specific areas of a State

is that  judged by standards of educational,  social backwardness,

etc. races or tribes may not stand on the same footing throughout

the State. The consideration for specifying a particular caste or tribe

or class for inclusion in the list of Scheduled Castes and Scheduled

Tribes or  Backward  Classes in any given  State  depends  on the

nature and extent of the disadvantages and social hardships

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suffered by the concerned members of the class in that State. These

may be absent in another State to which the persons belonging to

some other State may migrate.

19. The Presidential Orders which enumerate lists of

castes/races, tribes recognized as 'Scheduled Caste/Scheduled

Tribe'  cannot be challenged or agitated  in a court  of law except,

perhaps, on the limited ground as held in M. Nagaraj and others vs.

Union of India and others7.   A few illustrations  may clarify the

position.   The question  whether  Dohar  caste is a sub­caste of

Chamar caste which is recognized as a scheduled caste came up for

consideration in Bhaiya Lal vs. Harikishan Singh8. This Court held

that the court cannot enquire into whether  Dohar  caste is a sub­

caste of  Chamar  caste and whether the same must be deemed to

have been included in the Presidential Order.   In  Bhaiya Lal

(supra),  this Court held that before issuing notifications under

7 (2006) 8 SCC 212 8 AIR 1965 SC 1557

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Articles 341 and 342, an elaborate enquiry is made and as a result

of the enquiry social justice is sought to be done to the castes, races

or tribes as may appear to be necessary.   It was further held that

only Parliament is empowered to amend the  Notification under

Articles 341(2) and 342(2) of the Constitution, as is underlined by

the expression  "but save as aforesaid a notification issued

under the said clause shall not be varied by any subsequent

notification"  occurring in each of the said provisions. In  Bhaiya

Lal (supra), this Court held as under:­

"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

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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 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..."  

[Underlining added]

20. Whenever States' reorganization had taken place in

the past,  Parliament had exercised  its  powers under Article

341(2) and Article 342(2) and provided for specific

Castes/Tribes that were entitled to be recognised as

Scheduled  Castes and Scheduled Tribes in relation to the

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reorganized States/Union Territories. The Scheme of the

Constitution (Scheduled Castes) and (Scheduled Tribes)

Orders makes it clear that Parliament's intention was to

extend the benefits of reservation in relation to the

States/Union Territories only to the castes, races or tribes as

mentioned in the Presidential Orders.

21. The Orders of 1950 was amended by the

Constitution (Scheduled Castes and Scheduled Tribes Order),

by the Amendment Act, 1956 (Act 63/1956).   Another

amending Act was enacted by parliament  in 1976.   Earlier,

orders had been made for the first time in relation to certain

territories,  such as  the Constitution  (Andaman and Nicobar

Islands) Scheduled Tribes Order, 1959.  Further, amendments

had taken place as and when parliament reorganized states,

through separate Reorganisation Acts, which led to large scale

modification of the Presidential  Orders. Illustratively,  when

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new States/Union Territories were formed such as, Nagaland,

Pondicherry,  or  Sikkim, the Scheduled Castes or Scheduled

Tribes Orders were made in relation to the new States/Union

Territories, for instance, the Constitution (Nagaland)

Scheduled Tribes Order, 1970­ after the reorganisation of

Assam; the Constitution (Sikkim) Scheduled Castes  Order,

1978; the Constitution (Sikkim) Scheduled Tribes Order, 1978)

upon creation of the State of Sikkim; the recent ones being

upon creation of the States of Uttarakhand, Chhattisgarh, and

Jharkhand. Likewise, when previous Union Territories  (such

as  Goa,  Mizoram and  Arunachal  Pradesh)  were constituted

into States, consequential amendments were  made to the

Scheduled Castes and Tribes Orders.   All such

amendments/enactments were made by Parliament.   

22. Though in a different context i.e. in relation to

Backward Classes this Court in M.C.D. v. Veena and Ors.9, has

9 (2001) 6 SCC 571

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specifically held that migrants are not entitled for reservation

as Other Backward Classes (OBCs) in the States/Union

Territories where they have migrated.  The relevant portion of

the judgment that may be noticed is as hereunder:­ "6. Castes or groups are specified in relation to a given  State or  Union Territory,  which obviously means that such caste would include caste belonging to an OBC group in relation to that  State  or  Union Territory for which it is specified. The matters that are to be taken  into  consideration  for  specifying  a particular caste in a particular group belonging to OBCs would depend on the nature and extent of disadvantages and social hardships suffered by that caste or group in that State. However, it may not be so in another  State to  which a person belonging thereto goes by migration. It may also be that a caste belonging to the same nomenclature is specified in two States but the considerations on the basis of which they had been specified may be totally different. So the degree of  disadvantages of  various elements which constitute the data for specification may also be entirely different.  Thus,  merely because a given caste is specified in one State as belonging to  OBCs  does  not necessarily mean that if there be another group belonging to the same nomenclature in another State, a person belonging to that group is entitled to

28

the rights, privileges and benefits admissible to the members of that caste. These aspects have to be borne in mind in interpreting the provisions of the Constitution with reference to application of reservation to OBCs."

23. A Constitution Bench of this Court in  Marri

Chandra Shekhar Rao (supra) had the occasion to consider the

question as to whether a member of  the Gouda community

which is recognised as “Scheduled Tribe” in the Constitution

(Scheduled Tribes) Order, 1950 for the State of Andhra

Pradesh would be entitled to admission in a medical

institution situated in the State of Maharashtra. This Court

noticed the fact that the father of the petitioner in  Marri

Chandra Shekhar Rao  (supra)  was an employee  in  Fertilizer

Corporation of India, a public sector undertaking and

thereafter in  Rashtriya  Chemicals  and Fertilizers  Limited,  a

Government of India undertaking.  He belonged to the Gouda

community, a recognized Scheduled Tribe of Andhra Pradesh.

29

On his appointment he was stationed at Bombay. The

petitioner came to Bombay at the age of nine years. He

completed his studies in Bombay; he submitted an application

for his admission in the medical institutions run by Bombay

Municipal Corporation which was denied.   This denial of

admission  was based on the  Government of India circular

dated 22nd February, 1985, according to which a person who

migrates from one State to another is entitled to the benefit of

being Scheduled Castes/Scheduled Tribes in the State of

origin and not in the State to which he or she migrates. The

appellant was held not entitled to be admitted to the Medical

College on the basis that he belonged to a Scheduled Tribe in

his original State i.e. Andhra Pradesh.   

24. After referring to various provisions of the

Constitution of India, the background in which the

Presidential Orders were issued and several earlier judgments

of this Court, it was held as under:­

30

"9.  It appears that Scheduled Castes and Scheduled Tribes in some States had to suffer the social disadvantages and did not have the facilities for  development  and growth. It is, therefore,  necessary in  order to  make  them equal in those areas where they have so suffered and are in the state of underdevelopment to have reservations or protection in their favour so that they can compete on equal terms with the more advantageous or developed sections of the community. Extreme social and economic backwardness arising out of traditional practices of untouchability is normally considered as criterion for including a community in the list of Scheduled  Castes and Scheduled Tribes.  The social conditions of a caste, however, varies from State to State and it  will  not  be  proper to generalise  any caste  or  any tribe  as  a  Scheduled  Tribe  or Scheduled Caste for the whole country. This, however, is a different problem whether a member or the Scheduled Caste in one part of the country who migrates to another State or any other Union territory should continue to be treated as a Scheduled Caste or Scheduled Tribe in which he has migrated. That question has to be judged taking into consideration the interest  and  well­being  of the Scheduled Castes and Scheduled Tribes in the country as a whole."

[underlining is ours]

31

25. In Marri Chandra Shekhar Rao (supra), rejecting the

contention that a  member of  Scheduled Castes/Scheduled

Tribes should get the benefit of the status 'for the purpose of

the Constitution throughout the territory of India', it was

observed that if such contention is to be accepted the

expression "In relation of that State" would become

nugatory.  

26. Marri Chandra Shekhar Rao (supra) was followed by

another Constitution Bench of this Court in Action Committee

(supra).   After referring to Articles 14, 15(1), 15(4), 16(4) and

19 and Part XVI of the Constitution of India and the decisions

governing the field and also Articles 341 and 342, it was held

as under:­

"3. On a plain reading of clause (1) of Articles 341 and 342 it is manifest that the power of the President is limited to specifying the castes or tribes which shall, for the purposes of the

32

Constitution, be deemed to be Scheduled Castes or Scheduled  Tribes in relation to a State or a Union Territory, as the case may be. Once a notification is issued under clause (1) of  Articles  341 and 342 of the  Constitution, Parliament can by  law  include  in or  exclude from the list of Scheduled Castes or Scheduled Tribes, specified in the notification, any caste or tribe but save for that limited purpose the notification issued under clause (1), shall not be varied by any subsequent notification. What is important to notice is that the castes or tribes have to be specified in relation to a given State or Union Territory.  That means a given caste or tribe can be a Scheduled Caste or a Scheduled Tribe in relation to the State or Union Territory for which it is specified. These are the relevant provisions with which we shall be concerned while dealing with the grievance made in this petition.

.... 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

33

considerations on the basis of which they have been specified may be totally different. So also the degree of disadvantages of various elements which constitute the input for specification may also be totally different. Therefore, merely because a given caste is specified in State A as a Scheduled Caste does not necessarily mean that if there be another caste bearing the same nomenclature in another State the person belonging to the former would be entitled to the rights, privileges and benefits admissible to a member of the Scheduled Caste of the latter State “for the purposes of this Constitution”. This is an aspect which has to be kept in  mind and which  was very  much in the  minds of the Constitution­makers as is evident from the choice of language of Articles 341 and 342 of the Constitution...."

[underlining is ours]

27. Marri Chandra Shekhar Rao  (supra)  and  Action

Committee  (supra) were followed in  Subhash Chandra and

another  (supra).   After referring to various judgments on the

point and also the various circulars, this Court in  Subhash

Chandra and another (supra) held as under:­

34

"69.  Both the Central Government and the State Government indisputably may lay down a policy decision in regard to reservation having regard to Articles 15 and 16 of the Constitution of India but such a policy cannot violate other constitutional provisions. A policy cannot  have primacy over the constitutional scheme. If for the purposes of Articles 341 and 342 of the Constitution of India, State and the Union Territory are on a par on the ground of administrative exigibility (sic) or in exercise of the administrative power, the constitutional interdict contained in clause (2) of Article 341 or clause (2) of Article 342 of the Constitution of India cannot be got rid of.

....... 75. If a caste or tribe is notified in terms of the Scheduled Castes Order or the Scheduled Tribes Order, the same must be done in terms of clause (1) of Article 341 as also that of Article 342 of the Constitution of India, as the case may be. No deviation from the procedure laid down therein is permissible in law. If any amendment/alteration thereto is required to be made, recourse to the procedure laid down under clause (2) thereof must be resorted to."

28. In  Marri Chandra Shekhar Rao  (supra),  the

Constitution Bench observed that the expression "in relation

to that State" must be read meaningfully and harmoniously.

35

It was observed that if a member of Scheduled

Castes/Scheduled Tribes gets the benefit of that status

throughout the territory of India, the expression "in relation

to that State"  would become nugatory.   If the special

privileges or the rights granted to scheduled castes or

scheduled tribes in a particular State are to be made available

in all the States and if such benefits are to be carried from

State ‘A’ to State ‘B’ on  migration, the  mandate of Article

341/342 would get compromised.  Such a consequence must

be avoided for it is a fundamental rule of interpretation, be it

of a statutory enactment or of the Constitution, that wherever

and whenever there is a conflict between two provisions, the

same should be so interpreted as to give effect to both.

“…….Nothing is surplus in a Constitution and no part should

be made nugatory…..”. [Marri Chandra Shekhar Rao (supra)]

36

29. The issue has to be viewed from another

perspective.  If  a member of a Scheduled Caste/ Scheduled

Tribe of Andhra Pradesh who had migrated to Maharashtra is

to be given the benefit of reservation it will amount to

depriving a member of a Scheduled Caste/Scheduled Tribe of

Maharashtra by reducing the reservation earmarked for them.

It  is  in this context, in  Marri  Chandra Shekhar Rao (supra),

that the Constitution Bench observed as under:­

"14.  ....But  having regard to the  purpose, it appears to  us that  harmonious construction enjoins that we should give to each expression —”in relation to that State” or “for the purposes of this Constitution” — its full meaning and give their full effect. This must be so construed that one  must not negate the other. The construction that reservation made in respect of the Scheduled Caste or Tribe of that State is so determined to be entitled to all the privileges and rights under the Constitution in that State would be the most correct way of reading, consistent with the language, purpose and scheme of the Constitution.  Otherwise, one has to bear in mind that if reservations to those who are treated as Scheduled Caste or Tribe in Andhra

37

Pradesh are also given to a boy or a girl who migrates  and gets  deducted  (sic  inducted) in the State of Maharashtra or other States where that caste or tribe is not treated as Scheduled Caste or Scheduled Tribe then either reservation will have the effect of depriving the percentage to the member of that caste or tribe in Maharashtra who would be entitled to protection or it would denude the other non­ Scheduled Castes or non­Scheduled Tribes in Maharashtra  to the  proportion  that they  are entitled to.  This  cannot  be logical  or  correct result designed by the Constitution."

30. 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

38

confined to the geographical territories of a State/Union

Territory in respect of which the lists of Scheduled

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'.   

31. In  S. Pushpa  (supra),  the Pondicherry Government

had appointed Selection Grade Teachers  in 1995 under  the

Scheduled Castes quota from amongst the scheduled castes

candidates registered in the employment exchange in

Pondicherry  but  also extended  the  benefit of reservation to

scheduled castes candidates of other States and Union

Territories.   The Chennai Bench of Central Administrative

Tribunal (“CAT” for short) quashed the selection process

holding that migrant Scheduled Castes/Scheduled Tribes

39

candidates could not be considered for appointment for posts

within the union territory of Pondicherry. In S. Pushpa (supra)

the issue was with regard to  the extent of benefit that

Scheduled Castes candidates of other States/Union Territories

would be entitled to in Pondicherry.   This Court held that in

the matter of providing reservation, it was open to the

Pondicherry Government to apply or adopt a policy to give the

benefit of reservation to migrant Scheduled Castes and

Scheduled  Tribes.   In  paragraphs  17  and 21 in  S.  Pushpa

(supra), it was held as under:

“17. We do not find anything inherently wrong or any infraction of any constitutional provision in such a policy. The principle enunciated in     Marri Chandra Shekhar Rao cannot have application here as UT 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 the expression “State” occurring therein. This was clearly explained by a Constitution Bench in T.M. Kanniyan v. ITO. In New Delhi Municipal

40

Council  v.  State of Punjab  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.

(underlining is ours)

*** *** ***

21.  ....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

41

Territory then such a provision would be perfectly  valid.  However, there  would  be  no infraction of clause (4) of Article 16 if a Union Territory by virtue of its peculiar position being governed by the President as laid down in Article 239 extends the benefit of reservation even to such migrant Scheduled Castes or Scheduled Tribes who are not mentioned in the Schedule to the Presidential Order issued for  such Union  Territory.  The UT of Pondicherry having adopted a policy of the Central Government whereunder all Scheduled Castes or Scheduled Tribes, irrespective of their State are eligible for posts which are reserved for SC/ST candidates, no legal infirmity can be ascribed to such a policy and the same cannot be  held to be contrary to any provision of law."

32. 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 the  Parliament

alone which has been vested with the power to so act, that too,

by laws made. Scheduled Castes and Scheduled Tribes thus

42

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.

33. Article 16(4) is an enabling provision.  It enables the

State to provide to backward classes including Scheduled

Castes  and Scheduled Tribes reservation  in appointments to

public services.  Such reservation is to be provided on the basis

of quantifiable data indicating the adequacy or inadequacy, as

may be, of the representation of such classes in Government

service.   The data which is the basis of the satisfaction of the

State being verifiable, is open to judicial scrutiny on the limited

ground of relevance of the circumstances on which the

satisfaction is moulded.   The policy decision to provide

43

reservation, of course, is beyond the pale of judicial review.

34. It is  an unquestionable  principle  of interpretation

that interrelated statutory as well as constitutional provisions

have to be harmoniously construed and understood so as to

avoid making any provision nugatory and redundant.  If the list

of Scheduled Castes/Scheduled Tribes in the Presidential

Orders under Article 341/342 is subject to alteration only by

laws made by Parliament, operation of the lists of  Scheduled

Castes and Scheduled Tribes beyond the classes or categories

enumerated under the Presidential Order for a particular

State/Union Territory by exercise of the enabling power vested

by Article 16(4) would have the obvious effect of circumventing

the specific constitutional provisions in Articles 341/342.   In

this regard, it must also be noted that the power under Article

16(4) is  not only capable  of  being exercised  by  a legislative

provision/enactment but also by an  Executive  Order issued

44

under Article 166 of the Constitution.   It will, therefore, be in

consonance with the constitutional scheme to understand the

enabling provision under Article 16(4) to be available to provide

reservation only to the classes or categories of Scheduled

Castes/Scheduled Tribes enumerated in the Presidential orders

for a particular State/Union Territory within the geographical

area of that State and not beyond.  If in the opinion of a State it

is necessary to extend the benefit of reservation to a

class/category of  Scheduled Castes/Scheduled Tribes beyond

those specified in the Lists for that particular State,

constitutional  discipline  would  require the  State to  make  its

views in the matter prevail with the central authority so as to

enable an appropriate parliamentary exercise to be made by an

amendment of the Lists of Scheduled Castes/Scheduled Tribes

for that  particular State.  Unilateral  action by States on the

touchstone of Article 16(4) of the Constitution could be a

possible  trigger point  of  constitutional  anarchy and therefore

45

must be held to be impermissible under the Constitution.

35. The decision in S. Pushpa (supra) may now be taken

up to understand the basis on which the conclusion recorded

therein was recorded.  In  S. Pushpa  (supra) a distinction was

found by this  Court in the  constitutional status  of a  Union

Territory and a State in relation to the Union/Central

Government.   The provisions of Article 239 and 239A of the

Constitution;  Section  3(8) of the  General  Clauses  Act, 1897

defining ‘Central Government’ and the provisions of the

Government of Union Territories Act, 1963 were considered to

arrive at the following conclusion:

“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

46

Central Government.”

36.  It is on the aforesaid basis that the concerned

Notification/Government Order dated 16th  February, 1974 by

which it was provided that Scheduled Castes/Scheduled

Tribes candidates from outside the Union Territory of

Pondicherry should also be considered for appointment to

posts reserved for Scheduled Castes/Scheduled Tribes in the

Union Territory Administration and the communication of the

Government of India dated 6th October, 1995 to the same effect

were upheld.   

37. The First Schedule to the Constitution, as original

enacted, provided for three (03) categories of States i.e. Part

‘A’,  Part ‘B’  and Part ‘C’  States  to  comprise the  territory  of

India.   The States Reorganization Act, 1956 and the

consequential  Constitution (Seventh  Amendment)  Act, 1956

drastically altered the provisions of the First Schedule to the

47

Constitution by establishment of new States; alteration in the

area and boundaries of existing States and also by abolition of

the three (03) categories of  States; and  by classification  of

certain areas as Union Territories.   Pursuant thereto the

Government of  Union  Territories  Act, 1963  was enacted to

provide for  Legislative Assemblies and Councils  of  Ministers

for certain Union Territories and for certain other incidental

matters.   It will not be necessary to specifically deal with the

provisions of the aforesaid Act in any great detail except to say

that in course of time most of the Union Territories (except for

Pondicherry), which had been provided with their own

Legislatures and Councils of Ministers have graduated to

become full­fledged States on the basis of enactment of several

State Reorganisation Acts details of which have been

mentioned (para 21).   The Union Territory of Pondicherry, as

on date, stands out as sole Union Territory which has a

Legislature and Council of Ministers, apart from Delhi.   

48

38. Delhi, which was one of the original Union

Territories, came to be called as “National Capital Territory of

Delhi”.   This change was introduced by the Constitution

(Sixty­Ninth Amendment) Act, 1991 with effect from 1st

February, 1992 by insertion of Article 239­AA in Part VIII of

the Constitution (i.e. Special provisions with respect to Delhi).

Article 239­AA(3)(a) empower the Legislative Assembly of the

National Capital Territory of Delhi to make laws with respect

to any matters enumerated in the State List or in the

Concurrent List (i.e. List II and List III of the Seventh Schedule

to the Constitution of India) subject to certain exceptions.  It is

here that the  Union  Territory  of  Delhi i.e.  National  Capital

Territory  of  Delhi is enjoined a  special  status inasmuch as

power to enact laws on any of the subjects in List II and List III

is a constitutional conferment as opposed to the position in

the erstwhile  Union  Territories and the  present day  Union

49

Territory of Pondicherry where the power to frame/make laws

has been conferred on the Union Territory Legislatures by a

Parliamentary enactment i.e. Section 18 of the Government of

Union Territories Act,  1963.   The above narration has been

considered necessary only to make the discussion complete.

We make it clear that we are not entering into any discussion

as to the special position/status of Delhi, if any, by virtue of

the provisions contained in Article  239AA as the said  issue

does not arise for consideration in the present reference.   

39. The above view coupled with the scope and ambit of

the present reference may also not require us to go into the

correctness of the view expressed by this Court in paragraph

14 of the decision in S. Pushpa (supra) (as already extracted).

The  resolution of the  question  formulated for  an answer is

capable of being reached by adopting an entirely different

perspective which we intend to do hereinafter.

50

40. The federal nature of the Constitution finds broad

manifestation in two principal areas i.e. division of legislative

power and exercise thereof by the Union and the constituent

States and secondly, which is more relevant and important to

the subject in hand, is the constitutional provisions relating to

services under the Union and the States as dealt with in Part

XIV of the Constitution.

41. The subject finds an elaborate  study by Dr.  D.D.

Basu in “Commentary on the Constitution of India”10.

According to Dr. D.D. Basu, “In India though the Union and

the States have their own public services, (vide Entry 70

of  List I  and Entry 41 of  List II) there  is  no clear­cut

bifurcation in the administration of the Union and the

State laws as in the U.S.A. The State officials administer

the State laws as well the Union laws applicable within

10 8th Edition, 2011, Volume 9, Page 9858

51

that  Sate  whereas the  members  of the  Union  Services

while working within a State, also carry out State laws,

insofar as they may be applicable. The second peculiarity

of the  Indian  federal  system of  administration  is that

though the federal and State Governments have civil

services of their own to manage their own households,

there are certain services known as the All­India

Services, which are common to both the federal and

State Governments.  

The organisation of the Civil services in the Indian

federal system may be demonstrated as thus:  

All India Services Central Civil  Services

State Civil Services

Central Secretariat  Services”  

Subordinate Services

52

42. At the State Level, as Dr. D.D. Basu points out, “the

State Civil Services administer the subject solely

belonging to the State Governments, according to the

federal distribution of subjects thus including the

Judicial, Executive, Medical, Engineering, Police,

Education branches. Their members are under the

exclusive control of the respective State Governments and

their duties are confined to the territories of the State by

which they have been appointed, unless sent on

deputation to the Union Government”.11   These  State Civil

Services  may be Administrative Services, Forest Services etc.

[illustratively, in case of Himachal Pradesh, Himachal Pradesh

Administrative Service (HPAS) is a type of service, so is,

Himachal Pradesh Forest Service (HPFS).  The  recruitment to

these services is conducted by way of Civil Services

11 8th Edition, Volume 9, 2011, Page 9860.

53

Examinations organised  by the  State­specific Public Service

Commission e.g. in case of Himachal Pradesh, it is Himachal

Pradesh Public Service Commission.  As stated earlier, persons

inducted into the State Service of a particular State cannot be

transferred  to  any other  State.  These officers  are  concerned

with only the affairs of the state in which they are appointed.

These services (like  HPAS,  HPFS)  may, for convenience, be

called as Superior Services/Higher Services with reference to a

State.  But in addition to these higher services, there are also

services that may, again for convenience, be called as

Subordinate  Services/Lower Level Jobs. The  posts in these

services are like those of  Clerks, School Teachers;  Drivers,

Attendants, Safai Workers, etc.  For the purpose of recruitment

of  Subordinate  Servants, states  have in  place  State­specific

Selection Commissions.

54

43. At the  Federal Level, civil administration is carried

out  by the  members of – (1)  All India  Services  (specifically

provided for in Article 312); (2) Central Civil Services (although,

not specifically provided for in the Constitution but are

regulated by creation of statutory Rules framed under the

proviso to Article 309). These are again Superior Services and

the selection/recruitment is by the Union Public Service

Commission.

ALL INDIA SERVICES

There are three  All India Services  (AIS) – (a) Indian

Administrative Service (IAS); (b) Indian Forest Service (IFoS); (c)

Indian Police  Service (IPS).  As regards AIS,  Dr.  D.D.  Basu12

says that,  “the  peculiarity of the  AIS from  the federal

standpoint is that –

(a) Though they are recruited and their conditions

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55

of service are determined by the Union Government, they

have to  administer  both  Union and  the  State  subjects,

accordingly as their services are placed at the disposal of

the Union or a State Government, in connection with the

affairs of the Union or the State, as the case may be.

(b) While serving in a State, they are controlled by

the State Government, except as regards the imposition of

the penalty of dismissal, removal or compulsory

retirement, which can be awarded only by the Union

Government.

(c) In a sense, this system is an exception to the

usual federal precedent inasmuch as it is intended to fill

up the strategic posts both under the Union and State

Governments by men of superior calibre, recruited on a

uniform basis, through the UPSC. Thus, while a Deputy

56

Collector may be a member of the State Civil Service, the

Additional Collector and the Collector may be members of

the Indian  Administrative  Service.  The  category  of  AIS

thus breaks through the federal  division so  far as the

administrative services  in India are concerned.  In fact,

the principal agents of a Sate administration are

members of the AIS and it would be a mistake to suppose

that the  AIS exist for the administration of the  Union

subjects. Broadly, speaking, the administration of a State

is run both by the members of the AIS and State Services,

the latter supplying only the intermediate and

subordinate tiers.

(d) Though the bulk of recruitment to the AIS is by

competitive examination, a certain proportion is selected

by promotion from amongst members of  the State Civil

57

Services.

(e) Though  a  member  of  AIS  may  be required to

serve anywhere  in  India,  on recruitment,  he  is  usually

assigned to a State or States jointly, or, in a technical

language, is included in a State cadre or Joint cadre and

continues to serve there until or unless he is called upon

to serve the Union Government, in any of its Departments.

(f) While employed under a State, again, the

members of the  AIS do  not have to  work only in the

Secretariat of the State but also in the Districts as

already stated and members of these services are

expected to acquire experience of the business in the

district as well as Secretariat administration and there

is a constant interchange of officers between the

Secretariat  and the  Districts, just  as there is such an

58

interchange between the States and the Union

Secretariats on the other hand.”   

44. Therefore, the members of the All India Services are

common to the Union and the States and they serve, by turn,

both the Union and State Governments. The members of these

services  although recruited by the  Centre their  services  are

placed under various State cadres. “It is evident from Article

312(1) that the members of the AIS are common to the

Union and the States. Curiously, however, there is a

cadre for the Indian Administrative Service only in the

States, according to the Indian  Administrative  Service

(Cadre)  Rules, 1954 and there is no separate cadre for

members of this service in the Government of India. Each

members of the Indian Administrative Service therefore,

59

belongs to the cadre of one State or the other.”13  

45. There are many State Cadres e.g. Bihar Cadre,

Rajasthan Cadre and Joint Cadres like AGMUT (for Arunachal

Pradesh + Goa + Mizoram + the 7 Union Territories).  These

officers remain in the allotted Cadres till they retire. They are

not normally to be transferred from one State Cadre to another

State Cadre though they have the accountability to serve both

under the State and the Centre.

46. At this juncture, the Union of India’s Affidavit may

also be referred to,  which states with reference to AIS that,

“the conditions of service of these services (AIS) are

regulated by the DoPT by way of executive and statutory

instructions, statutory rules formulated under Article

309 of the Constitution and Act of Parliament etc.  The

functional control of some of the services rests with other

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

60

Ministries and Departments also. The Ministry of Home

Affairs exercises functional control on IPS and the

Ministry of Environment & Forest & Climate Change

exercises functional  control on IFoS.  Members  of these

services  are  allocated a cadre  under  a  State  or  Union

Territory and they serve the Union as well as the State,

whichever is allotted to them. Thus their services are All

India Services. Their recruitment is by the Union Public

Service Commission and as they serve the Union as well

as the States,  their  recruitment  is  on pan India basis.

Every citizen of this country having the required

qualification is eligible to be considered for the

appointment. It is pertinent to note that before selection

in the AIS, there is no specification or indication of the

cadre in Union, Union Territory or State, which they may

61

serve. Upon selection alone, they would be allocated

cadre depending upon the merit and the preferences they

would have made at the time of applying. Upon selection

they could be allocated to serve through any of the 25

states or 7 Union Territories of Delhi; Puducherry;

Chandigarh; Daman & Diu; Dadra & Nagar Haveli;

Andaman & Nicobar; Lakshadweep coupled with the

states of Arunachal Pradesh, Goa and Mizoram”14.

47. CENTRAL CIVIL SERVICES

The Central Civil Services (CCS), as Dr. D.D. Basu

points out, “are engaged in administering the Union

subjects, such as the Posts and Telegraphs, Customs and

Excise, Income Tax. In short, these constitute all the

administrative services in the Central Departments which

have  not so far  been included in the list of  All India

14 Para 5 of the Affidavit.

62

Services. They are under the exclusive control of the

Union Government. Besides the Central Services, there are

other  Services intended for  work  solely in the  Central

Secretariat, or, in other words, those who are to manage

the offices of the Central Departments. Both the Central

Civil  Services and Central Secretariat Services are sub­

divided into Class I, II, III, IV, (= Group  A, B, C, D15)

according to the rank and responsibilities of the

officers… Members of the Central Services are also sent

on transfer or deputation to States where offices relating

to the Union subjects or Public Sector Undertakings

relating thereto are located.”16 All that we would like to add

15 Rule 6A of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 provides that, “All reference to Central Civil Services/Central Civil Posts, Class I, Class II, Class III and Class IV in all Rules, Orders, Schedules,  Notifications,  Regulations,  Instructions  in  force,  immediately before the commencement of these rules shall be construed as references to Central Civil Services/Central Civil Posts, Group 'A', Group 'B', Group 'C' and Group 'D' respectively, and any reference to "Class or Classes" therein in this context shall be construed as reference to "Group or Groups", as the case may be.” 16 8th Edition. Volume 9, Page 9859.

63

is that though the members of these services are concerned

only with the affairs of the Union/Centre they discharge such

duties in the offices and establishments of the Union

Government as may be located in the States and the Union

Territories.   The Central Civil Services (Classification, Control

and Appeal) Rules, 1965 [CCS Rules, 1965] (enacted under the

proviso to Article 309) are the governing statutory Rules with

reference to these services. Rule 4 of CCS Rules, 1965

classifies the Central Civil Services into four types –  

(i) Central Civil Services, Group A (45 services as per

the Schedule to the Rules);

(ii) Central Civil Services, Group B (33 services as per

the Schedule to the Rules);

(iii) Central  Civil  Services,  Group  C  (5 services as  per the

Schedule to the Rules);

(iv) Central Civil Services, Group D (1 service as per the

64

Schedule to the Rules)17.

48. CCS Group A:  

The Affidavit of the Union of India says that,

“recruitment to Group A services is made by UPSC. The

recruitment is again on all India basis. This is the reason

the personnel belonging to these 45 services work in the

posts of Union and the Union Territories (UT) across the

length and breadth of the country. The Cadre Controlling

Authority of Group A services are the respective

ministries of the Government of India. For example, the

first service being the Archaeological Service, the Cadre

Controlling Authority is the Ministry of Culture, Central

Government. Another example, the 12th  service being the

Indian Foreign Service and this is controlled by Ministry

17 Para 6 of the Affidavit.

65

of External Affairs. No. 16 is the Indian Revenue Service

and it is controlled by the Ministry of Finance. The

members of these services being recruited pursuant to the

Central Service Exams conducted by the UPSC are

allocated to the respective services.  Whichever Ministry

seeks recruitment to the service in this Group, sends

requisition to UPSC as per procedure prescribed and UPSC

accordingly advertises for the post in Group  A. Every

citizen of India is eligible to apply as per the

qualifications and requirements in the notification. DOPT

is the nodal  Ministry for regulating the conditions of

service of all Central Civil Services as per Allocation of

Business  Rules.  As  per the  conditions  of service, every

employee is required to give an undertaking agreeing to

the conditions of all India transfer liability at the time of

66

joining service. Central Civil Services employees belonging

to Group A serve the Union of India and that is the reason

why these services are across the length and breadth of

the country,  wherever  there is  an office of  the Central

Government. Member of the Groups A service are governed

by CCS Rules of 1965 as well as Central Civil Services

(Conduct) Rules 1972; Central Civil Services (Pension)

Rules 1972 and such other Rules made by the Central

Ministries.”

49. CCS Group B:  

As  mentioned earlier, there are 33  Group  B  Services.

Amongst these, are the Union Territory Services listed at No.

28 and No. 29 and known as the  ‘Delhi  and Andaman and

Nicobar Islands Civil Service’ abbreviated as ‘DANICS’ and

‘Delhi and Andaman and Nicobar Islands Police Service’ (Grade

67

II) abbreviated as ‘DANIPS’.   While at this stage we may have

also a look at Union Territory services in some detail.

UNION TERRITORY SERVICES

50. The Government of India (Ministry of Home Affairs)

by way of  a  notification dated 6th  August,  2003, and  in the

exercise  of the  proviso to  Article  309,  enacted  ‘the  National

Capital Territory of Delhi, Andaman and Nicobar Islands,

Lakshadweep,  Daman and Diu and Dadra and Nagar Havel

(Civil Service) Rules, 2003 [DANICS Rules, 2003]. As also, ‘the

National Capital Territory of Delhi, Andaman and Nicobar

Islands, Lakshadweep, Daman and Diu and Dadra and Nagar

Havel (Police Service) Rules, 2003 [DANIPS Rules, 2003].

51. The DANICS/DANIPS Rules, 2003 define:­

*  ‘Administration’ to mean the Government of the

National Capital Territory of Delhi in respect National Capital

68

Territory of Delhi and Union Territory Administration in

respect of the Union Territories of – Andaman  & Nicobar

Islands; Lakshadweep; Daman & Diu; Dadra & Nagar Haveli

[under Rule 2(a)]

* ‘Commission’ to mean the Union Public Service

Commission [under Rule 2(h)].

* ‘Scheduled  Castes and Scheduled Tribes’ to have the

same meaning as are assigned to them by Articles 366(24) and

366(25) [under Rule 2(n)].

The DANICS/DANIPS Rules, 2003, further, state that posts in

Junior Administrative Grade­I, Junior Administrative Grade­II,

Selection Grade will be Central Civil Services (Group A),

whereas Entry Grade shall be Central Civil Services (Group B)

[Rule 3]. The vacancies in DANICS/DANIPS shall be filled in on

the basis of the Civil Services Examination conducted by UPSC

[Rule 7].  Every member of DANICS/DANIPS allocated to an

69

Administration shall be posted against a duty post18 under the

Administration by the Administrator [Rule 12]. More

importantly, the Government of India shall, from time to time,

allocate a member of DANICS/DANIPS to any Administration

for posting [Rule 12]. Nothing in the Rules affects reservations,

relaxation  in age­limit  and other concessions required to be

provided for the Scheduled Castes, the Scheduled Tribes,

Other Backward Classes and other special categories of

persons in accordance with the orders issued by the

Government of India from time to time in this regard [Rule 17:

the Saving clause]. The Sanctioned Strength for DANICS and

DANIPS is in the DANICS/DANIPS Rules, 2003 (approximately

398 DANICS; approximately 355 DANIPS).   

52. As per the Union of  India’s Affidavit,  DANICS and

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

70

DANIPS are ‘Union Territory Services’19. The Affidavit says,

“...at  Serial  28  and 29  of the  Schedule (to  CCS Rules,

1965),  we  have the  Union Territory  Services  known as

DANICS and DANIPS”.  The Affidavit, further, says that,

“DANICS/DANIPS Officers are posted in Delhi; Andaman &

Nicobar Islands; Lakshadweep; Daman & Diu; Dadra &

Nagar Haveli. The recruitment to all the Union Territories

for these Group B posts are common. They are also

centralised and the Appointing Authority  is  none other

than the Ministry of Home Affairs (Joint Secretary). For

the recruitment to these services, it is the very same

examination meant for AIS and CCS Group A. Any citizen

of India is eligible to  apply, subject to the conditions

prescribed. As per the Service Rules, transfer

undertakings throughout the  Union  Territories covered

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

71

under DANICS/DANIPS is taken from these officers. This is

the reason why the Union of India while inviting

applications for recruitment considers all candidates,

including reserved candidates on all India basis. Group B

Cadre of DANICS/DANIPS is the Feeder Cadre for IAS and

IPS respectively (i.e. AIS). They retire invariably in these

Offices, some of them reaching high positions in the

Central  Government.  Recruitment to  AIS;  CCS Group A;

CCS Group B (Gazetted) is conducted through UPSC. In the

Civil  Services  Examination, the applicants are common

when the  applications  are  made.  Every  aspirant seeks

recruitment to the services and it is only as per the

marks and ranking that allocations are made eventually

to AIS; CCS Group A; CCS Group B. Therefore, when UPSC

undertakes the recruitment, it is naturally a pan India

72

recruitment and therefore, it is necessary to seek

applications including from reserved candidates from all

over India.”20   

53. But it is not the Members of the All India Services

(AGMUT Cadre); Central Civil Services (Group ‘A’ and ‘B’) and

the ‘DANICS’ and ‘DANIPS’ who alone are the public servants

in the States and the Union Territories engaged in the

discharge of duties in connection with the affairs of the Union.

There are and bound to be public servants that  work the

subordinate services.  

CCS Group C:

54. At the subordinate level these are the  Group ‘C’

posts.  In the Schedule to CCS Rules, 1965, there are 5 such

services. The Union of India’s Affidavit says that, “These

posts, in so far, as they relate to services under the Union

20 Page 4, 5 of the Affidavit.

73

of India are concerned are recruited by the Staff

Selection Commission (which is the Recruiting Agency

under the DoPT). The members of CCS Group C get

promoted to CCS Group B. Recruitment to posts in this

group arise out of requisition  made by the concerned

ministries all over India. These requisitions, upon

reaching, the Staff Selection Commission are processed

and selection takes place and appointments are made.

Even from  these  appointees, undertaking for all India

transfer liability is taken. As these are posts under the

Central  Government  and these employees  are liable to

transferred anywhere in the country and the recruitment

being centralised for all such posts in the country, it has

been consistent policy of the Union of India to have pan

India eligibility.”   

74

55. With regard to CCS Group D posts, in the affidavit of

the Union it is stated that “the posts under this category are

primarily of what used to be Class IV employees now

referred to  as  the Multi  Tasking staff.   In recent years,

Central Pay  Commission has recommended against any

further recruitment to these posts in Group D.  Further it

has also been recommended that the existing posts will be

merged  with Group C. Hence, this is now a vanishing

cadre21.”

56. The broad  picture that emanates from the above

discussion and  narration is that insofar as the services in

connection with the affairs of the Union is concerned (Central

Services), wherever the establishment may be located i.e. in the

National Capital Territory of Delhi or in a State or within the

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

75

geographical areas of Union Territory, recruitment to all

positions is on an All India basis and reservation provided for

is  again  a  pan­ India reservation.  This  by itself, from one

perspective, may appear to be in departure from the rule set

out in Part XVI of the Constitution of India (Articles 341 and

342).   However, the close look undertaken hereinbefore

indicates such a position is fully in accord with the

constitutional structure of a federal polity.  

NATIONAL CAPITAL TERRITORY OF DELHI

57. In case of National Capital Territory of Delhi,

especially, to make the picture even clearer, a reference may be

made to ‘Delhi Administration Subordinate Service Rules,

1967’.  Rule 3 of the aforesaid Rules is to the following effect:

“3. Constitution of service and its classification.­  (1) On and from the date of commencement of these Rules, there shall be constituted one Central Civil Service, known as the Subordinate Service of the Delhi Administration. (2) The Service shall have four Grades, namely—

76

Grade I Grade II Grade III Grade IV

(3) The  posts in  Grade I shall  be  Central  Civil posts,  Class  II  Group  ‘B’ (Gazetted) and those  in Grades II, III  and IV shall  be Central  Civil  posts Group ‘C’ (Non­Gazetted). (4) Members of  the service shall, in the normal course be eligible for appointment to various Grades of the service to which they belong and not to the other service.”

(underlining is ours)

Subordinate services in the National Capital Territory of

Delhi are, therefore, clearly Central Civil Services. The Affidavit

of the Union also points out this feature by stating that, “The

posts in CCS Group C are in the subordinate services.  The

equivalent in the Union Territory  of  Delhi is the  Delhi

Administrative Subordinate Services (DASS) and the

Recruiting Agency in the place of  Staff Selection

Commission is the  Delhi Subordinate  Service Selection

Board (DSSSB). Members of the Delhi Administrative

77

Subordinate  Services  are the  Feeder  Cadre for  Central

Civil  Services Group B  (DANICS). It is for these reasons

that the policy (of pan India eligibility) consistently

adopted.”22  

58. A combined reading of these provisions of the DASS

Rules, 1967 and CCS Rules, 1965, therefore, more than

adequately explains the nature of Subordinate Services in the

NCT of Delhi.   These clearly are General Central Services and

perhaps, it is owing to this state of affairs that the Union of

India in its Affidavit has stated that, “Members of the Delhi

Administrative Subordinate Services are the Feeder Cadre

for Central Civil Services Group B (DANICS). It is for these

reasons that the policy (of pan India eligibility) is

consistently adopted.”

22 Page 6, Para (b) of the Affidavit.  

78

59. While examining the validity of reservation of seats

in medical colleges for local candidates in Delhi, this Court in

Dr. Jagdish Saran and Others Vs.  Union of India23 had made

certain observations with regard to the special status that the

capital city enjoys, which today, has come to be known as the

National Capital Territory of Delhi.   The observations of this

Court in paragraphs 10 and 56 may be usefully recapitulated

and, therefore, is set out below:   

“10. The capital city is not just a part of India. It is miniaturised India, a fact often forgotten  by the administration in the field of culture and education, especially vis­a­vis regional, minorities. It is magapolitan and people from all parts flock to this outsized city.  But we cannot exaggerate this factor, for the presence of the farther regions like the South and the North­east, population­wise, is minimal and precarious. Shri Balakrishnan insisted that the University was sustained by Central  Government finances, collected from the whole country, and the benefits must likewise belong  to all  qualified students from everywhere. These are valuable aspects to shape policy but the

23  (1980) 2 SCC 768

79

court must test constitutionality and no more. To that extent alone  we  will  weigh these factors in moulding our verdict.

xxx   xxx   xxx  

56.  We may wind­up by articulating the core thought that vitalises our approach. Anyone who lives inside India can never be considered an ‘outsider’ in  Delhi.  The  people in the  States  are caught in a  happy  network  of  mutuality,  woven into a lovely garment of humanity, whose warp and woof is India. This is the underlying fundamental of the preambular resolve registered in our National  Parchment.  So we  insist that  blind and bigoted local patriotism in xenophobic exclusivism is destructive of our Freedom and only if compelling considerations of gross injustice, desperate backwardness and glaring inequality desiderate such a purposeful course can protective discrimination gain entrance into the portals of college campuses. The Administration has a constitutional responsibility not to be a mere thermometer where  mercury rises with populist pressure but to be a thermostat  that  transforms the mores of groups to stay in the conscience of the nation viz. the Constitution.”

60. The Affidavit of the Union does not touch upon the

details of Subordinate Services in other Union Territories.

80

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.  

61. Accordingly, we answer the question referred in

terms of the views expressed in para 34 of this opinion.   We

further  hold  that  so  far  as  the National  Capital  Territory  of

Delhi is concerned the pan India Reservation Rule in force is in

accord with the constitutional scheme relating to services

under the Union and the States/Union Territories.

62. In view of the conclusions reached as above, it will

not  be  necessary to remit  Civil  Appeal  Nos.  1085  of  2013,

10081 of 2014, 8141 of 2014, 8802 of 2012, 1086 of 2013 and

Civil Appeal arising out of Special Leave Petition (Civil)

81

No.36324 of 2017 (pertaining to Delhi) for further

consideration by the appropriate Bench.   Accordingly, we

dispose of the said appeals (pertaining to Delhi) in terms of the

present order.

So far as Civil Appeal Nos.9935­9937 of 2014 pertaining

to the U.T. of Andaman and Nicobar Island are concerned the

issue may be decided by the appropriate Bench in the light of

the views expressed herein on adequate and sufficient

materials being placed before the  Bench by the contesting

parties.  

..……………………………………., J.  [RANJAN GOGOI]

..……………………………………., J.  [N.V. RAMANA]

..……………………………………., J. [MOHAN M. SHANTANAGOUDAR]

..……………………………………., J.  [S. ABDUL NAZEER]

PLACE:  NEW DELHI DATE: 30th AUGUST, 2018

82

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1085 OF 2013

BIR SINGH ....Appellant

Versus  

DELHI JAL BOARD & ORS.     ....Respondents

WITH

CIVIL APPEAL NOS. 9935-37 OF 2014 CIVIL APPEAL NO. 8375 OF 2014

CIVIL APPEAL NO. 10081 OF 2014 CIVIL APPEAL NO. 8141 OF 2014 CIVIL APPEAL NO. 8802 OF 2012 CIVIL APPEAL NO. 1086 OF 2013 CIVIL APPEAL NO. 9048 OF 2018

(Arising out of SLP(C) No. 36324 of 2017)

J U D G M E N T

R. BANUMATHI, J.

Reference Order:-

I  have gone through the judgment proposed by His Lordship

Justice Ranjan Gogoi. I agree with the following conclusions arrived

83

at in paras (30) and (34) and the reasonings thereon.

"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'......".

".......It  will,  therefore,  be  in  consonance  with  the  constitutional scheme to understand the enabling provision under Article 16(4) to be available to provide reservation only to the classes or categories of  Scheduled  Castes/Scheduled  Tribes  enumerated  in  the Presidential orders for a particular State/Union Territory within the geographical  area of  that  State/Union Territory  (Union Territory added by me) and not beyond."

With due respect, I do not agree with the conclusion arrived at in para

(61) and the reasonings thereon.

“......So far as the National Capital Territory of Delhi is concerned the  pan-India  Reservation  Rule  in  force  is  in  accord  with  the constitutional scheme relating to services under the Union and the States/Union Territories."  

For agreeing with the conclusion arrived at in paras (30) and (34) and

for  differing from the conclusions in  para (61)  and the reasonings

thereon, I have given my own reasonings.

2. The extent and nature of interplay and interaction under Articles

16(4), 341(1) and 342(1) of the Constitution of India was referred to

the Constitution Bench in  State of Uttaranchal v. Sandeep Kumar

84

Singh and Ors., (2010) 12 SCC 794, with the following reference:-

"13. A very important question of law as to interpretation of Articles 16(4), 341 and 342 arises for consideration in this appeal. Whether the Presidential Order issued under Article 341(1) or Article 342(1) of the Constitution has any bearing on the State’s action in making provision for the reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State, is not adequately represented in the services under the State? The extent and nature of interplay and interaction among Articles 16(4), 341(1) and 342(1) of the Constitution is required to be resolved."

3. Territory  of  India:-  Article  1(1)  of  the  Constitution  of  India

declares that India, that is Bharat, shall  be a Union of States.  As

amended  by  the  Constitution  Seventh  (Amendment)  Act,  1956.

Article 1 of the Constitution reads as under:-

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

(2)  The  States  and  the  territories  thereof  shall  be  as specified in the First Schedule. (3) The territory of India shall comprise—

(a) the territories of the States; (b) the Union Territories specified in the First Schedule; and (c) such other territories as may be acquired.

4. Under the Constitution of India, as initially enacted, the States

were divided into Part A States, Part B States, Part C States and the

territories  in  Part  D.  Substantial  changes  were  made  by  the

Constitution (Seventh Amendment) Act, 1956 which incorporated the

85

recommendations of the States Reorganisation Commission and was

to have effect in concert with the States Reorganisation Act, 1956.

The  four  categories  of  States  that  existed  were  reduced  to  two

categories. The first of these categories - Part A and Part B States

comprised  one  class,  called  "States".  The  second  category

comprised the areas which had earlier been included in Part C and

Part  D  States;  these  areas  were  called  "Union  Territories".  Some

additions and deletions were made to the existing lists.  Now as per

Schedule I, there are twenty-nine States and Seven Union Territories.

5. The expression “State” is not defined in the Constitution. It is

defined in the General Clauses Act, 1897 which is made applicable to

the interpretation of the Constitution by Article 367. As on the date of

the commencement of the Constitution, clause (58) in Section 3 of

the General Clauses Act, 1897 defined “State” in the following words:-

“3. (58)  ‘State’, — shall mean a Part A State, a Part B State or a Part C State.”

The said definition was amended by the Adaptation of Laws Order

86

No.  1  of  1956  issued  by  the  President  in  exercise  of  the  power

conferred upon him by Article 372-A of the Constitution introduced by

the  Constitution  Seventh  (Amendment)  Act,  1956.   The  amended

definition 'State' reads thus:-

“3. (58) ‘State’, — (a) as respects any period before the commencement of the

Constitution (Seventh Amendment) Act, 1956, shall mean a Part A State, a Part B State or a Part C State; and

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

6. Clause (30) in Article 366 defines the “Union Territory” in the

following words:-

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

7. Clause  (24)  of  Article  366  defines  “Scheduled  Castes”  and

clause  (25)  of  Article  366  defines  “Scheduled  Tribes”.  The  latter

means “such tribes or tribal communities or parts of or groups within

such tribes or tribal communities as are deemed under Article 342 to

be 'Scheduled Tribes'  for the purposes of  this Constitution”.  Article

341(1) of  the Constitution empowers the President,  in consultation

87

with  the  Governor  of  the  State  concerned,  to  specify  Scheduled

Castes  by  public  notification.  Equally,  Article  342(1)  of  the

Constitution empowers the President “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”.  Article  342(2)  of  the  Constitution  empowers

“Parliament,  by  law,  to  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.”

Until  the  Presidential  Notification  is  modified  by  appropriate

amendment  by  Parliament  in  exercise  of  the  power  under  Article

341(2) of the Constitution, the Presidential Notification issued under

Article 341(1) is final and conclusive and any caste or group cannot

88

be  added  to  it  or  subtracted  by  any  action  either  by  the  State

Government or by a Court on adducing of evidence. In other words, it

is the constitutional mandate that the tribes or tribal communities or

parts of or groups within such tribes or tribal communities specified by

the  President,  after  consultation  with  the  Governor  in  the  public

notification,  will  be 'Scheduled Tribes'  subject  to  the law made by

Parliament alone, which may, by law, include in or exclude from the

list  of  'Scheduled  Tribes'  specified  by  the  President.  Thereafter,  it

cannot be varied except by law made by the Parliament.  

8. The  President  of  India  alone  is  competent  or  authorized  to

issue an appropriate Notification in terms of Article 341(1) and Article

342(1).  Cumulative  reading  of  Articles  338,  341  and  342  indicate

that:-

a) Only  the  President  could  notify  castes/tribes  as

Scheduled Castes/Tribes and also indicate conditions

attaching to such declaration. A public Notification by

the President specifying the particular castes or tribes

as SC/ST shall be final for the purpose of Constitution

and shall be exhaustive.

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b) Once  a  notification  is  issued  under  clause  (1)  of

Articles  341  and  342  of  the  Constitution,  the

Parliament can by law include in or exclude from the

list  of  Scheduled  Castes  or  Scheduled  Tribes,

specified  in  the  notification,  any  caste  or  tribe  but

save for that limited purpose the notification issued

under  clause  (1),  shall  not  be  varied  by  any

subsequent notification24.  

9. It is stated that before notification was issued under          Article

341(1)  and  Article  342(1)  notifying  certain  caste/race  or  group  as

Scheduled Caste/Scheduled Tribe, an elaborate enquiry was made

and also after such enquiry, the Presidential Order was issued. While

doing so,  Presidential  Order  not  only  specified parts  or  groups of

caste,  races  or  tribes  but  also  made  the  said  specification  by

reference  to  different  areas  in  the  State.  By  perusal  of  the

Presidential Order, it is clear that some caste/race is actually confined

with  reference  to  a  particular  area;  for  instance,  confined  to  a

particular  taluk  in  a  district.  The  reason  for  such  specification  by 24 Ref. Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and Anr. v. Union of India (UOI) and Anr. (1994) 5 SCC 244.

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reference  to  different  areas  in  the  State  being  educational,  social

backwardness, races or tribes cannot be the same throughout the

State. The consideration for specifying a particular caste or tribe or

class for  inclusion in  the list  of  Scheduled Castes and Scheduled

Tribes or Backward Classes in a given State would depend on the

nature and extent of the disadvantages and social hardships suffered

in that State. These may be absent in another State to which these

persons belonging to other States may migrate.

10. Whenever  States'  reorganization  took  place  in  the  past,

Parliament exercised its powers under Articles 341(2) and 342(2) and

provided for specific Castes/Tribes that had to be Scheduled Castes

and  Scheduled  Tribes  in  relation  to  the  reorganized  States/Union

Territories.  The  Constitution  Scheduled  Caste  Orders  and  the

Constitution Scheduled Castes (Union Territories) Order, also clarify

that Parliament's intention was to extend benefits of reservation in

relation to the States/Union Territories in terms of the castes, races or

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tribes mentioned as per the Presidential Orders themselves.

11. Presidential  Order  which  provided  for  castes/races,  tribes

recognized  as  'Scheduled  Caste/Scheduled  Tribe' and  their

interpretation cannot be challenged or agitated in a court of law. The

question whether Dohar caste is a sub-caste of Chamar caste which

is recognized as a Scheduled Caste came up for  consideration in

Bhaiya Lal v. Harikishan Singh, AIR 1965 SC 1557, wherein this

Court held that the court cannot enquire into whether Dohar caste is a

sub-caste of  Chamar caste and whether the same must be deemed

to  have  been included  in  the  Presidential  Order.  In  Bhaiya  Lal's

case,  this  Court  held  "...that  before  a  notification  is  issued under

Article 341(1), an elaborate 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...”

and while doing so, the notification not only to specify parts or groups

of castes, races or tribes but to make specification by reference to

different  areas  in  the  State.   In  Bhaiya  Lal's  case, the  Supreme

92

Court  held  that  only  the  Parliament  is  empowered  to  amend  the

Notification under Articles 341(2) and 342(2) of the Constitution.

12. Presidential  Notification  (Scheduled  Caste)  Order  1950:-

The  List  of  Scheduled  Castes  is  contained  in  the  Constitution

(Scheduled Castes)  Order  1950.   The Presidential  Notifications of

1950 and 1951 (as amended) in relation to Scheduled Castes and

Scheduled Tribes of various States, very importantly provided that:-

"2.  Subject to the provisions of this Order,  the castes, races or tribes or  parts  of,  or  groups within,  castes  or  tribes  specified in [Parts I to XXV] of the Schedule to this Order shall, in relation to the States to which those Parts respectively relate, be deemed to be Scheduled Castes  so far as regards members thereof resident in the localities specified in relation to them respectively in those Parts of that Schedule."

The  Presidential  Notification  of  1950  was  amended  by  the

Constitution  (Scheduled  Castes  and  Scheduled  Tribes  Order),

Amendment Act, 1956, (Act No.63 of 1956).  Another amending Act

was enacted by Parliament in 1976.  Further, amendments had taken

place  as  and  when  Parliament  reorganized  States  like  Bombay,

Andhra Pradesh, Uttarakhand, Chhattisgarh and Jharkhand through

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separate Acts. All these were Parliamentary enactments. Presidential

Notification pertaining to Union Territories, Scheduled Castes (Union

Territories) Order, 1951 specifies Scheduled Castes resident in the

Union Territories of Delhi, Chandigarh and Daman and Diu.   When

new Union Territories were formed such as Pondicherry, Sikkim, Goa,

Daman and Diu, Arunachal Pradesh, Mizoram, the Scheduled Castes

or  Scheduled  Tribes  Orders  were  made  in  relation  to  those  new

Union Territories.  

13. The  Constitution  (Scheduled  Tribes)  Order,  195025:-  In

exercise of the powers conferred by clause (1) of Article 342 of the

Constitution of  India  the President  has,  after  consultation with  the

Governors  of  the  States  concerned,  made  the  Constitution

(Scheduled Tribes) Order, 1950, specifying the tribes or communities

which  shall  be  deemed  to  be  Scheduled  Tribes  in  the  States

mentioned therein.  This Order has been amended by the Scheduled

25 Ref. Election Manual (1984), p.44 quoted in Commentary on the Constitution of India 8th  Ed. by Durga Das Basu.

94

Castes and Scheduled Tribes Orders (Amendment)  Act,  1976 (Act

No.108  of  1976),  the  Constitution  (Scheduled  Tribes)  Order

(Amendment)  Act,  1991 (16 of  1991),  the Constitution (Scheduled

Tribes)  Order  (Second  Amendment)  Act,  1991  (39  of  1991),  the

Scheduled Castes and Scheduled Tribes Orders (Amendment) Act,

2002  (32  of  2002),  the  Scheduled  Castes  and  Scheduled  Tribes

Orders  (Amendment)  Act,  2002  (10  of  2003),  the  Constitution

(Scheduled Tribes) Order (Amendment) Act, 2003 (47 of 2003), the

Constitution (Scheduled Tribes) Order (Amendment) Act 2006 (48 of

2006), the Constitution (Scheduled Tribes) Order (Amendment) Act,

2008 (14  of  2008)  and  the  Constitution  (Scheduled  Tribes)  Union

Territories Order (Amendment) Act, 2008 (2 of 2009).  As it stands

amended, it specifies the Scheduled Tribes resident in the States of

Andhra  Pradesh,  Assam,  Bihar,  Gujarat,  Himachal  Pradesh,

Karnataka,  Kerala,  Madhya  Pradesh,  Maharashtra,  Manipur,

Meghalaya, Orissa, Rajasthan, Tamil Nadu, Tripura, West Bengal.

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14. Article 16(4) is only an enabling provision to provide reservation

to  backward  classes.  Clause  (4)  of  Article  16  of  the  Constitution

cannot  be  made applicable  for  the  purpose  of  grant  of  benefit  of

reservation for Scheduled Castes or Scheduled Tribes in a State or

Union Territory, who have migrated to another State or Union Territory

and they are not members of the Scheduled Castes and Scheduled

Tribes in  the State  to  which they have migrated.  The Presidential

Orders made under Article 341 and Article 342 have an overriding

status.  The  presence  of  Articles  338,  338A,  341,  342  of  the

Constitution clearly shows that it precludes any tinkering or deviation

from the list of castes or tribes notified in the Presidential Order which

are reserved for that State or that Union territory.

15. India is huge.  There is Unity in Diversity.  Diversity in terms of

language, culture,  demography, geographical  area,  development of

regions,  opportunities  available  to  individuals  for  education  and to

make social and economical advancement etc. Some States are well-

96

developed; some other States are developing; few other States are

under-developed.  All the affirmative action of the States is to provide

equality  of  opportunity  to  the  socially  and  economically

disadvantaged group. Under Article 15(4) of the Constitution, State is

empowered to make special provisions for the advancement of any

socially  and  educationally  backward  class  of  citizens  or  for  the

Scheduled Castes or Scheduled Tribes.  Article 16 of the Constitution

of India lays down that there shall be equality of opportunity for all

citizens  in  matters  relating  to  employment  or  appointment  to  any

office under the State.  Article 16(4) of the Constitution empowers the

State  to  make  provisions  to  provide  reservation  to  the  backward

classes in employment or appointment to any posts and thereby to

create equally opportunities for their  socio-economic empowerment

and  their  emancipation.  Article  16(4)  speaks  of  one  type  of

reservation namely reservation of appointments/posts.

16. Article  16(4)  of  the  Constitution  is  an  enabling  provision

directed towards achieving equality of opportunity in services under

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the State.  Observing that Article 14 of the Constitution is the genus

while Article 16 is the species, in  E. P. Royappa v. State of Tamil

Nadu and Anr., (1974) 4 SCC 3, it was held that:-

"85.  .........Article  16  embodies  the  fundamental  guarantee  that there  shall  be  equality  of  opportunity  for  all  citizens  in  matters relating  to  employment  or  appointment  to  any  office  under  the State. Though enacted as a distinct and independent fundamental right  because  of  its  great  importance  as  a  principle  ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged in the Constitution, Article 16 is only an instance of the application of the concept of equality enshrined in Article 14. In other words, Article 14 is the genus while Article 16 is a species. Article 16 gives effect to  the  doctrine  of  equality  in  all  matters  relating  to  public employment.  The  basic  principle  which,  therefore,  informs  both Articles 14 and 16 is equality and inhibition against discrimination. Now,  what  is  the  content  and  reach  of  this  great  equalising principle? It is a founding faith, to use the words of Bose. J., “a way of  life”,  and  it  must  not  be  subjected  to  a  narrow  pedantic  or lexicographic  approach.  We cannot  countenance  any  attempt  to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with  many  aspects  and  dimensions  and  it  cannot  be  “cribbed, cabined and confined” within traditional and doctrinaire limits........" [Underlining added]

17. The Constitution Bench of nine Judges in Indra Sawhney and

Ors. v. Union of India and Ors., (1992) Supp 3 SCC 217, observed

that Article 16(4) of the Constitution is aimed at 'protective equality'

and it was held as under:-

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"563. Thus, Article 16(1) and (4) operate in the same field.  Both are directed towards achieving equality of opportunity in services under the State.  One is broader in sweep and expansive in reach.  Other is limited in approach and narrow in applicability.  Former applies to 'all' citizens whereas latter is available to 'any' in Article 16(4) read together indicate that they are part of same scheme.  The one is substantive equality and other is protective equality.  Article 16(1) is fundamental right of a citizen whereas Article 16(4) is an obligation of the State.  The former is enforceable in a Court of law, whereas the  latter  is  'not  constitutional  compulsion'  but  an  enabling provision.  Whether Article 16(4) is in substance, 'an exception', 'a proviso', or an 'emphatic way of putting the extent to which equality of  opportunity  could  be  carried',  or  'presumed  to  exhaust  all exceptions in favour of backward class', or  'expressly designed as benign discrimination devoted to lifting to backward classes', but if Article 16(1) is the positive aspect of equality of opportunity', Article 16(4)  is  a  complete  Code  for  reservation  for  backward  class  of citizens as it not only provides for exercise of power but also lays down the circumstances, in which the power can be exercised, and the purpose and extent  or  its  exercise.   One is  mandatory  and operates  automatically  whereas  the  other  comes  into  play  on identification  of  backward  class  of  citizens  and  their  inadequate representation."  [Underlining added]

18. Article 16(4) of the Constitution is not an exception; but a facet

of Article 14 and Article 16(1) of the Constitution; it enables the State

to effectuate equality of opportunity to any backward class. As held in

Chattar Singh and Ors. v. State of Rajasthan and Ors. (1996) 11

SCC 742 in paras (17) and (18), that "....It gives power to the state to

effectuate  the  opportunity  of  equality  to  any  backward  class  of

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citizens.  ……..The object of reservation for the Scheduled Casts and

Scheduled Tribes is to bring them into the mainstream of national life,

while the objective in respect of the backward classes is to remove

their social and educational handicaps. Therefore, they are always

treated dissimilar and they do not form an integrated class with Dalits

and Tribes for the purpose of Article 16(4) or 15 (4)...".

19. In State of Kerala and Anr. v. N.M. Thomas and Ors. (1976) 2

SCC 310 in para (178), it was held that "...differences and disparities

exist among men and things and they cannot be treated alike by the

application of the same laws but the law has to come in terms with

life  and  must  be  able  to  recognize  the  genuine  differences  and

disparities that exist in human nature.  Legislature has also to enact

legislation to meet specific ends by making a reasonable and rational

classification..".

20. A Constitution Bench of this Court in Marri Chandra Shekhar

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Rao v. Dean, Seth G.S. Medical College and Ors., (1990) 3 SCC

130  had  the  occasion  to  consider  the  question  as  to  whether  a

member  of  Gouda community  which is  recognised  as “Scheduled

Tribe” in the Constitution (Scheduled Tribes) Order, 1950 would be

entitled to admission in a medical institution situated in the State of

Maharashtra.  Based  on  the  Government  of  India  circular  dated

22.02.1985,  the  appellant  was  denied  admission  to  the  Medical

College on the ground that Marri Chandra Shekhar Rao was not a

‘Scheduled Tribe’ in the migrated State i.e. State of Maharashtra.

21. After  referring  to  various  provisions  of  Constitution  of  India,

background in which the Presidential Order was issued and earlier

judgments, in  Marri Chandra Shekhar Rao's case, it was held as

under:-

"9. It appears that Scheduled Castes and Scheduled Tribes in some States had to suffer the social disadvantages and did not have the facilities for development and growth. It is, therefore, necessary in order  to  make  them  equal  in  those  areas  where  they  have  so suffered  and  are  in  the  state  of  underdevelopment  to  have reservations or protection in their favour so that they can compete on equal terms with the more advantageous or developed sections of  the  community.  Extreme  social  and  economic  backwardness

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arising  out  of  traditional  practices  of  untouchability  is  normally considered  as  criterion  for  including  a  community  in  the  list  of Scheduled Castes and Scheduled Tribes. The social conditions of a caste, however, varies from State to State and it will not be proper to  generalise  any  caste  or  any  tribe  as  a  Scheduled  Tribe  or Scheduled Caste for the whole country. This, however, is a different problem whether a member or the Scheduled Caste in one part of the  country  who  migrates  to  another  State  or  any  other  Union territory should continue to  be treated as a Scheduled Caste or Scheduled Tribe in which he has migrated. That question has to be judged taking into consideration the interest and well-being of the Scheduled  Castes  and  Scheduled  Tribes  in  the  country  as  a whole."

22. Marri  Chandra Shekhar Rao case  was followed by another

Constitution Bench of this Court in  Action Committee on issue of

caste certificate to Scheduled Castes and Scheduled Tribes in

the  State  of  Maharashtra  and Anr.  v.  Union of  India  and Anr.

(1994) 5 SCC 244.   In  Action Committee's case, it was held as

under:-

"3. On a plain reading of clause (1) of Articles 341 and 342 it is manifest that the power of the President is limited to specifying the castes 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 a Union Territory, as the case may be. Once a notification is  issued  under  clause  (1)  of  Articles  341  and  342  of  the Constitution, Parliament can by law include in or exclude from the list  of  Scheduled  Castes  or  Scheduled  Tribes,  specified  in  the notification, any caste or tribe but save for that limited purpose the notification  issued  under  clause  (1),  shall  not  be  varied  by  any

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subsequent  notification.  What  is  important  to  notice  is  that  the castes or tribes have to be specified in relation to a given State or Union  Territory.  That  means  a  given  caste  or  tribe  can  be  a Scheduled Caste or a Scheduled Tribe in relation to the State or Union  Territory  for  which  it  is  specified.  These  are  the  relevant provisions with which we shall be concerned while dealing with the grievance made in this petition.

.... 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.  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...."

Marri Chandra Shekhar Rao's case and Action Committee's case

were followed in Subhash Chandra and Anr. v. Delhi Subordinate

Services  Selection  Board  and  Ors.,  (2009)  15  SCC  458.   In

Subhash Chandra case, the Supreme Court reiterated that “If a caste

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or tribe is notified in terms of  the Scheduled Castes Order or the

Scheduled Tribes Order, the same must be done in terms of clause

(1) of  Article 341 as also that of Article 342 of  the Constitution of

India, as the case may be. No deviation from the procedure laid down

therein is permissible in law. If any amendment/alteration thereto is

required  to  be  made,  recourse  to  the  procedure  laid  down under

clause (2) thereof must be resorted to."

23. In  Marri  Chandra  Shekhar  Rao's  case,  it  was  held  that  a

Scheduled Caste or Scheduled Tribe of any State which depends on

the nature and extent of disadvantages and social hardships suffered

by the caste, tribe or class in that State or area may be non-existent

in another State.  The inclusion of the castes, races or tribes is mainly

based on the degree of  disadvantages or  hardships faced by the

castes, races or tribes in that State or in some cases or in part area of

the State.  For instance, in the Presidential Order relating to the State

of Tamil Nadu, the caste Kanikaran, Kanikkar (in Kanyakumari District

and Shenkottah and Ambasaundram taluks of Tirunelveli district) are

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notified as Scheduled Castes.   This shows that  the President can

specify castes, races or tribes or parts thereof in relation not only to

the entire State but in relation to the parts of the State.  The President

has been authorised to limit the notification to parts of the State or

groups within castes, races or tribes.  In  Marri Chandra Shekhar

Rao case, the Constitution Bench therefore held that the expression

“in relation to that State” must be read meaningfully; otherwise the

expression “in relation to that State” would come nugatory.

24. The  Presidential  Order  issued  under  Article  341  of  the

Constitution in  regard to Scheduled Castes and Article  342 of  the

Constitution  in  regard  to  Scheduled  Tribes  cannot  be  varied  by

anyone  or  by  the  Court.   Only  the  Parliament  by  law  include  or

exclude  from  the  list  of  Scheduled  Castes  or  Scheduled  Tribes

specified  in  a  notification  issued  under  Article  341(1)  and  Article

342(1)  of  the  Constitution  respectively  any  caste,  race  or  tribe  or

parts or group within any caste, race or tribe.  The Scheduled Castes

or Scheduled Tribes thus specified in relation to one State or Union

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Territory  does  not  carry  their  status  in  another  State  or  Union

Territory.   When  the  Scheduled  Castes  or  Scheduled  Tribes  are

specified for  each State and in some cases, specific areas of  the

State or Union Territory, neither the State legislature nor the courts

can include or exclude other Scheduled Castes or Scheduled Tribes

so  specified  in  some  States  or  Union  Territories  which  would  be

against the mandate of Articles 341 and 342 of the Constitution and

the Presidential Orders issued thereon.  If that is permitted, it would

amount  to  addition or  alteration of  the Presidential  Order  which is

violative of the Constitutional Scheme.   

25. State of  Maharashtra  v.  Milind and Ors. (2001)  1 SCC 4,

dealt with a question as to whether the notified Scheduled Tribe being

Halba  or  Halbi  as  contained  in  item 19  of  the  Presidential  Order

would include "Halba-Koshti". This Court held that addition of "Halba-

Koshti" in the Presidential Order would amount to amendment thereto

which  is  impermissible  in  law.   In  Milind's  case,  it  was  held  as

under:-

"33......The  jurisdiction  of  the  High  Court  would  be  much  more

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restricted while dealing with the question whether a particular caste or tribe would come within the purview of the notified Presidential Order,  considering  the  language  of  Articles  341  and  342  of  the Constitution. These being the parameters and in the case in hand, the  Committee  conducting  the  inquiry  as  well  as  the  Appellate Authority,  having  examined  all  relevant  materials  and  having recorded a finding that Respondent 1 belonged to “Koshti”  caste and has no identity with “Halba/Halbi” which is the Scheduled Tribe under Entry 19 of the Presidential  Order, relating to the State of Maharashtra, the High Court exceeded its supervisory jurisdiction by  making  a  roving  and  in-depth  examination  of  the  materials afresh  and  in  coming  to  the  conclusion  that  “Koshtis”  could  be treated as “Halbas”. In this view the High Court could not upset the finding of fact in exercise of its writ jurisdiction. Hence, we have to essentially  answer  Question  2  also  in  the  negative.  Hence  it  is answered accordingly."

26. When  the  Parliament  restricts  the  benefit  of  reservation  by

inclusion of a caste as a Scheduled Caste to a State or part of State

i.e. certain specified districts in a State, the Court cannot express any

opinion as  to  its  correctness.   Hence,  as  regards  the   inclusion of

caste “Mochi”  in  the  list of  Scheduled Castes within a   particular

area  as  per  Constitution  (Scheduled  Castes)  Order

(Second Amendment)  Act,  2002, it  was  held  that  it  was  not  for

the Court to render any opinion in regard to the correctness of the

same.   [vide  Shree   Surat   Valsad   Jilla   K.M.G.

Parishad v. Union of India and Ors. (2007) 5 SCC 360].

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27. The  executive instructions/circulars issued by the Government

of  India  also  reiterate  to  well-settled  position.  The  circular

No. BC-16014/1/82-SC & BCD-I dated 06.08.1984 of the Ministry of

Home  Affairs  addressed  to  all  State  Governments  and  UT

Administration states  that  SC and ST on migration from  the  State

of  his  origin  to  another  State  will  not  lose   his  status  as  SC/ST;

but will be entitled to the concession/benefits admissible to the SC/ST

from the State of his origin  and  not  from the State where he has

migrated. The relevant portion of the said circular reads as under:-

No. BC-16014/1/82-SC & BCD-I Government of India/Bharat Sarkar

Ministry of Home Affairs/GrihMantralaya New Delhi, the 6th August, 1984

To, The Chief Secretaries of All State Governments and U.T. Administrations.

Subject:  -  Verification  of  claim  of  candidates  belonging  to Scheduled Castes  and Scheduled Tribes  and migrants  from other States/Union Territories-Form of certificate-Amendment to. Sir, ……..

2. The  instructions  issued  in  this  Ministry’s  letter  of  even number dated the 18.11.1982 will continue. It is, however, clarified that  the  Scheduled  Caste/Scheduled  Tribe  person  on  migration

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from the State of his origin to another State will not lose his status as Scheduled Caste/Scheduled Tribes but he will be entitled to the concessions/benefits  admissible  to  the  Scheduled Castes/Scheduled Tribes from the State of his origin and not from the State where he has migrated……              (Underlining added)

Yours faithfully Sd/-

Joint Secretary to Govt. of India

28. The same thing was reiterated in the circular dated 22.02.1985

issued by the Ministry of Home Affairs which has also clarified that a

Scheduled Caste/Scheduled Tribe person who has migrated from the

State  of  origin  to  some  other  State  for  the  purpose  of  seeking

education,  employment,  etc.  will  be  deemed  to  be  a  Scheduled

Caste/Tribe of  the State of  his origin and will  be entitled to derive

benefits from the State of origin and not from the State to which he

has migrated.

29. My  Conclusion for agreeing with the view taken in paras

(30)  and (32):-   It  is  now settled  law that  a  person  belonging  to

Scheduled Caste/Scheduled Tribe in State 'A' cannot claim the same

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status in another State 'B'  on the ground that he is declared as a

Scheduled Caste/Scheduled Tribe in State 'A'.  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

are to be meaningfully interpreted.  A given caste or tribe can be a

Scheduled Caste or  a Scheduled Tribe in relation to that  State or

Union Territory for which it is specified.  Thus, the person notified as a

Scheduled Caste in State 'A' cannot claim the same status in another

State on the basis that he was declared Scheduled Caste in State 'A'.

Article 16(4) has to yield to the Constitutional mandate of Articles 341

and 342.

Union Territories:

30. Part VIII of the Constitution of India deals with Union Territories.

Article 239 provides that the Union Territory shall be administered by

the President acting through an Administrator to be appointed by him.

Article 239 reads as follows:-

“239. Administration of Union Territories

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

(2) Notwithstanding anything contained in Part VI, the President may appoint  the Governor of  a State as the administrator  of  an adjoining Union Territory, and where a Governor is so appointed, he shall exercise his functions as such administrator independently of his Council of Ministers.”

31. Article  239A  was  inserted  by  the  Constitution  (Fourteenth

Amendment)  Act,  1962.   Article  239A of  the  Constitution  of  India

empowers the Parliament to create by law legislatures and Council of

Ministers in the then Union Territories of Himachal Pradesh, Manipur,

Goa,  Daman  &  Diu  and  Pondicherry.   Arunachal  Pradesh  and

Mizoram were added later.  With Himachal Pradesh, Manipur, Tripura,

Goa and Mizoram all  becoming full-fledged States, the only Union

Territory left under Article 239A is Pondicherry.  Now, Union Territory

of  Pondicherry (Puducherry)  also has a legislature  and Council  of

Ministers.

32. Article 341 empowers the President “with respect to any State

or Union Territory, and where it is a State, after consultation with the

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Governor thereof, by public notification, specify the castes, races or

tribes or parts of or groups within castes, races or tribes which shall

for  the purposes of  this Constitution,  be deemed to be Scheduled

Caste in relation to that State or Union Territory as the case may be.”

Equally Article 342(1) empowers the President “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  the  Constitution  be

deemed to be Scheduled Tribes in  relation to that  State or  Union

Territory,  as the case may be”.   Articles 341(2)  and 342(2)  of  the

Constitution  empower  the  Parliament  alone  by  law  to  include  or

exclude from the list of Scheduled Castes/Scheduled Tribes specified

by  notification  issued  under  Articles  341(1)  and  342(1)  of  the

Constitution of India.  Until the Presidential Notification is modified by

appropriate amendment by Parliament in exercise of the power under

Articles  341(2)  or  342(2)  of  the  Constitution,  the  Presidential

Notification  issued  under  Articles  341(1)  and  342(1)  of  the

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Constitution is final and conclusive.  No caste or group can be added

to it or subtracted by any action either by the State Government or by

a  Court  on  adducing  of  evidence.   Articles  341  and  342  of  the

Constitution do not make any distinction between a ‘State’ or ‘Union

Territory’.

33. Constitution (Scheduled Castes) (Union Territories) Order,

1951:-  In exercise of powers under Clause (1) of Articles 341 and

342  of  the  Constitution,  the  Presidential  Notifications  were  issued

specifying Scheduled Castes in relation to various Union Territories.

List  of  Scheduled  Castes  are  declared  in  relation  to  each  Union

Territory  separately.   Presidential  Notification  pertaining  to  Union

Territories,  Scheduled  Castes  (Union  Territories)  Order,  1951

specifies Scheduled Castes resident in the Union Territories of Delhi,

Chandigarh and Daman and Diu.  The Presidential Order provided

that:-

"Subject to the provisions of this Order, the castes, races or tribes or parts of, or groups within, castes or tribes, specified in *[Parts I to

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III]  of  the Schedule to this Order shall,  in relation to the *[Union territories] to which those parts respectively relate, be deemed to be Scheduled Castes  so far as regards members thereof resident in the localities specified in relation to them respectively in those Parts of that Schedule."

As  and  when  there  is  reorganisation  of  the  Union  Territories,  in

exercise  of  the  powers  conferred  under  Article  341(1)  of  the

Constitution, the President has made various orders.

34. The  Constitution  (Scheduled  Tribes)  (Union  Territories)

Order, 195126:-  In exercise of the powers conferred by clause (1) of

Article  342  of  the  Constitution  of  India,  as  amended  by  the

Constitution (First  Amendment)  Act,  1951,  the President  made the

Constitution  (Scheduled  Tribes)  (Part  C  States)  Order,  1951,

specifying the tribes or  communities which shall  be deemed to be

'Scheduled Tribes’ in Part C State.  This Order was adapted for the

Union  Territories  by  the  Scheduled  Castes  and  Scheduled  Tribes

Lists (Modification) Order, 1956.

26  Ref. Ibid., p.53, quoted in Article 342 of commentary on the Constitution of India 8th Ed.  by Durga Das Basu.

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35. When  new  territories  were  formed,  such  as  Pondicherry

(Puducherry), or Sikkim, the Scheduled Castes or Scheduled Tribes

Orders were made in relation to the new territories. In exercise of the

powers under Articles 341(1) and 342(1), the President has made the

orders  -  The  Constitution  (Dadra  and  Nagar  Haveli)  Scheduled

Castes  Order,  1962;  The  Constitution  (Dadra  and  Nagar  Haveli)

Scheduled  Tribes  Order,  1962;  The  Constitution  (Pondicherry)

Scheduled Castes Order, 1964; The Constitution (Goa, Daman and

Diu) Scheduled Caste Order, 1968; The Constitution (Goa, Daman

and Diu) Scheduled Tribes Order, 1968; In the case of Goa, the Goa,

Daman and Diu Reorganisation Act,  1987 (Act No.18 of 1987), by

Section 19 amended the Scheduled Castes and Scheduled Tribes

Orders.

36. Union Territories do not become merged with the Central

Government:- The Union Territories are centrally administered by the

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President acting through an administrator.  As held by this Court in

New Delhi Municipal Council v. State of Punjab & Ors. (1997) 7

SCC  339,  the  President,  who  is  the  executive  head  of  a  Union

Territory while administering the Union Territory, does not function as

the head of the Central Government, but as the head of the Union

Territory under powers specially vested in him under Article 239 of the

Constitution  thereby  occupying  a  position  analogous  to  that  of  a

Governor  in  a  State.  Though  the  Union  Territories  are  centrally

administered under the provisions of Article 239, they do not become

merged with the Central Government as has been held by this Court

in Satya Dev Bushahri v. Padam Dev and Ors. AIR 1954 SC 587.

They  are  centrally  administered;  but  they  retain  their  independent

identity [Chandigarh Administration and Anr. v. Surinder Kumar

and Ors.  (2004) 1 SCC 530]. The Union Territory does not entirely

lose its existence as an entity though large control is exercised by the

Union of India. [Government of NCT Delhi v. All India Central Civil

Accounts, Jao's Association and Ors. (2002) 1 SCC 344]

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37.     View taken in Pushpa and Chandigarh Administration – not

correct  view:-   Reliance  was  placed  upon  Pushpa’s  case to

contend that Article 16(4) is not controlled by the Presidential Order

issued under Article 341(1) or Article 342(1) to the Officers appointed

to the post in the Union Territories need not be confined to only such

Schedule Castes/Schedule Tribes of the particular Union Territory. In

Pushpa’s case, the Supreme Court was confined with the question

as to whether, selection and appointment already made to migrants’

Schedule  Caste  candidates  of  other  States  against  the  quota

reserved for the Schedule Caste candidates in the Union Territory of

Pondicherry  was  legal  and  valid.  In  S.  Pushpa  and  Ors.  v.

Shivachanmugavelu  and  Ors.  (2005)  3  SCC  1,  Pondicherry

Government appointed Selection Grade Teachers in 1995 under the

Scheduled  Castes  quota  not  only  from  the  Scheduled  Castes

candidates  of  Pondicherry  but  also such  candidates  of  Scheduled

Castes from other States.  In Pushpa's case, this Court upheld the

policy  of  the  Pondicherry  Government  extending  the  benefit  of

reservation of SC/ST seats even to those candidates who came from

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other States.  The Pondicherry Government proceeded on the basis

that  since  Central  Government  jobs  were  open  to  all  SC/ST

candidates irrespective of origin of their States, the same may apply

to jobs with a Union Territory as well. In  Pushpa's case, this Court

held that in the matter of providing reservation, it  was open to the

Pondicherry  Government  to  extend  the  benefit  of  reservation  to

migrant Scheduled Caste and Scheduled Tribe candidates and that

the same will not be an infraction of clause (4) of Article 16 of the

Constitution of India.

38. In  Pushpa's  case,  the  principle  that  “when  members  of

Scheduled Castes/Scheduled Tribes migrate to another State, they

do not carry with them the special privileges and advantages”, was

held  not  applicable  in  case  of  Union  Territories.  In  para  (21)  of

Pushpa's case, it was held as under:-

"21.....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

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appended  to  the  Presidential  Order  for  that  particular  State  or Union Territory. This article does not say that only such Scheduled Castes  and  Scheduled  Tribes  which  are  mentioned  in  the Presidential  Order  issued  for  a  particular  State  alone  would  be recognised as  backward  classes of  citizens and none else.  If  a State or Union Territory makes a provision whereunder the benefit of  reservation  is  extended  only  to  such  Scheduled  Castes  or Scheduled Tribes which are recognised as such in relation to that State or Union Territory then such a provision would be perfectly valid. However, there would be no infraction of clause (4) of Article 16  if  a  Union  Territory  by  virtue  of  its  peculiar  position  being governed by the President as laid down in Article 239 extends the benefit  of reservation even to such migrant Scheduled Castes or Scheduled Tribes who are not mentioned in the Schedule to the Presidential  Order  issued  for  such  Union  Territory.  The  UT  of Pondicherry having adopted a policy  of  the Central  Government whereunder all Scheduled Castes or Scheduled Tribes, irrespective of their State are eligible for posts which are reserved for SC/ST candidates, no legal infirmity can be ascribed to such a policy and the same cannot be held to be contrary to any provision of law." (Underlining added)

In my considered view, the above observation in  Pushpa's case is

not a correct view.  The judgment in Pushpa's case is contrary to the

views taken in Marri Chandra Shekhar Rao's case.  The judgment

in  Pushpa's case  is contrary to the views taken in  Marri Chandra

Shekhar  Rao's  case.  Facts  of  Pushpa’s  case disclose  that  the

Government of Pondicherry had throughout proceeded on the basis

that being a Union Territory all orders regarding reservation for SC/ST

in  respect  of  post/services  under  the  Central  Government  were

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applicable to post/services as under the Pondicherry administration.

The decision in  Pushpa’s case therefore cannot be taken to be an

authoritative  pronouncement.   Clause  (2)  of  Article  341  of  the

Constitution empowers Parliament alone by law to include or exclude

from the lists of Scheduled Castes specified in a notification issued

under  clause  (1)  of  Article  341.   No  executive  action  or  order  or

modification  or  variance  of  the  same  is  possible  and  any  such

variance would be against the constitutional scheme.    

39. In  Pushpa's  case,  the  posts  advertised  were  of  Selection

Grade Teachers under the Pondicherry Services and not for Central

Government jobs. It may be that Pondicherry is a Union Territory; but

the  posts/services  exclusively  coming  under  Pondicherry

administration  is  meant  only  for  the  Scheduled  Casts/Scheduled

Tribes as notified under the Presidential  Order for Pondicherry.  In

fact,  Pondicherry  (Union  Territory)  itself  by  referring  to  Subhash

Chandra's case  has taken the decision that reservation benefits to

posts/services arising under the Union Territory of Pondicherry will be

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confined only to the Scheduled Castes/Scheduled Tribes notified by

virtue  of  Presidential  Order.  The  said  Government  Order  of  the

Pondicherry Government was upheld by this Court in  Puducherry

Scheduled Caste People Welfare Association v. Chief Secretary

to Government, Union Territory of Pondicherry and Ors. (2014) 9

SCC 236, wherein this Court held as under:-

"13. It  is  important  to  bear  in  mind  that  it  is  by  virtue  of  the notification  of  President  under  Article  341(1)  that  the  Scheduled Castes come into being. The members of the Scheduled Castes are drawn from castes, races or tribes, they attain a new status by virtue of  Presidential  Order.  Clause (2)  of  Article  341 empowers Parliament  alone  by  law  to  include  or  exclude  from  the  list  of Scheduled Castes specified in a notification issued under clause (1) by the President. By no executive power, amendment, modification, alteration or variance in the Presidential Order is permissible. It is not open to the executive to do anything directly or indirectly which may  lead  to  any  change  in  the  Presidential  Order.  Once Presidential Order has been issued under Article 341(1) or Article 342(1), any amendment in the Presidential Order can only be made by Parliament by law as provided in Article 341(2) or Article 342(2), as the case may be, and in no other manner. The interpretation of “resident” in the Presidential Order as “of origin” amounts to altering the Presidential Order."

40. The principle in Pushpa's case was not accepted in Subhash

Chandra's  case.  It  was  held  that  although  Union  Territory  is

administered by the Union Government, socio-political aspect of the

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Union  Territory  cannot  be  mixed  up  with  administrative  aspect.  In

Subhash Chandra's case, it was held that if the principle applied in

Pushpa's  case is to be given a logical extension, it will lead to an

absurdity, that the Scheduled Castes Order in a State/Union Territory

brought under the control of the President under Article 341 of the

Constitution  could  be  altered  by  virtue  of  a  notification  issued  in

pursuance  of  Article  16(4)  of  the  Constitution,  which  is  not  in

consonance with the Constitutional Scheme.

41. Let us refer to the facts of  Chandigarh Administration and

Another v. Surinder Kumar and Others (2004) 1 SCC 530. Ministry

of  Home  Affairs,  Government  of  India  issued  various  circulars

pertaining  to  the  Scheduled  Castes  and  Scheduled  Tribes.  The

circular  dated  22.02.1985  regarding  "Issue  of  Scheduled

Caste/Scheduled Tribe certificate to migrants from other States/Union

Territories",  issued by the Ministry  of  Home Affairs  clarified  that  a

Scheduled Caste/Tribe person who has migrated from the State of

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origin  to  some  other  State  for  the  purpose  of  seeking  education,

employment, etc. will be deemed to be a Scheduled Caste/Tribe of

the State of his origin and will be entitled to derive benefits from the

State  of  origin  and  not  from the  State  to  which he  has migrated.

Based on the aforesaid circular of the Government of India, the Home

Secretary, Chandigarh Administration vide his letter dated 28.07.1986

sought clarification from the Government of India, Ministry of Home

Affairs, as to whether, these instructions are applicable in the Union

Territory of Chandigarh. Chandigarh Administration received the reply

dated 26.08.1986 from Ministry  of  Welfare stating that  there is  no

discrimination  in  the  employment  under  the  Central  Government

between the Schedule Caste/Schedule Tribes of one State or another

and  Union  Territories  and  that  the  same may  be  followed  by  the

Chandigarh Administration. The letter  dated 26.08.1986 stated that

Scheduled  Castes/Scheduled  Tribes  of  any  other  State/Union

Territory would be entitled to the benefits and facilities provided in the

services under the Union Territory of  Chandigarh.  Further the said

circular  leaves  it  to  the  Chandigarh  Administration  to  seek  further

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clarification.  The  above  letter  of  Government  of  India  is  in  clear

violation of Constitutional scheme.

42. Pursuant to the said letter,  Chandigarh Administration sought

clarification from the Department of Personnel and Training. However,

they have not received any response. The clarification was issued by

the  Home  Secretary,  Chandigarh  Administration  vide  letter  dated

07.09.1999.  The said letter  had given a clarification based on the

Government  of  India  circular  dated  02.02.1985  stating  that  a

Schedule Caste/Schedule Tribe of any other State or Union Territory

would not be entitled to the benefits of reservation in the services in

the Chandigarh Administration and that the benefit of reservation to

persons  belonging  to  reserved  categories  in  other  States  in  the

Chandigarh  Administration  is  to  be  discontinued  with  effect  from

07.09.1999.  In  Chandigarh  Administration case,  the  Supreme

Court  took  the  view  that  the  stand  taken  by  Chandigarh

Administration  discontinuing  the  benefits  of  reservation  with  effect

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from  07.09.1999  was  untenable.  With  due  respect,  I  am  not  in

agreement with the view taken in   Chandigarh Administration case  .

The letter dated 26.08.1986 sent by the Ministry of Welfare/Kalyan

Mantralaya  is  contrary  to  the  letter  dated  22.02.1985 sent  by  the

Ministry of Home Affairs and also against the Constitutional scheme.

43. It  was  held  in  Subhash  Chandra that Chandigarh

Administration and  Pushpa  proceeded  on  the  basis  that  Marri

Chandra  Shekhar  Rao  and  Action  Committee would  have  no

application in relation to Union Territories. Observing that both Articles

341 and 342 not only refer to the State but also to the Union Territory.

In para (64) of Subhash Chandra's case, it was held as under:-

"64. Although  Union  Territories  are  administered  by  the  Central Government,  yet  it  is  difficult  to  conceive  that  the  socio-political aspect can be mixed up with the administrative aspect. Article 341 leads to grant of constitutional rights upon a person whose affinity to a caste/tribe would attract the Constitution (Scheduled Castes) Order or the Constitution (Scheduled Tribes) Order. Once a person comes within the purview of presidential promulgation, he would be entitled  to  constitutional  and  other  statutory  or  administrative benefits attached thereto. In our opinion, such socio-political rights created in our Constitution cannot be segregated keeping in view the administrative exigencies.”

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44. As per the scheme of the Constitution under Articles 341, 342

and 239 of the Constitution, only those Scheduled Castes/Scheduled

Tribes as notified in the Presidential  Notification for  the respective

Union Territory can legitimately claim the benefit of reservation in that

Union  Territory.  Even  though  the  Union  Territories  are  centrally

administered, though the administrator/Lieutenant Governor so far as

the  administrative  aspects  of  the  Union  Territories,  each  Union

Territory has its own identity.   Each of the Union Territories would be

bound  by  their  respective  Presidential  Order  of  Scheduled

Castes/Scheduled  Tribes  for  giving  benefit  of  reservation  to

Scheduled  Castes/Scheduled  Tribes  in  employment.   Only  those

persons, who come within the purview of the Presidential Notification,

would  be  entitled  to  constitutional  and  other  statutory  benefits  of

reservation  in  the  respective  Union  Territory.  If  the  benefit  of

reservation is to be extended to Scheduled Castes/Scheduled Tribes

from all over the country then it would amount to inclusion of caste,

races  or  tribes  to  the  Presidential  Order  pertaining  to  that  Union

Territory.  As  discussed  earlier,  such  inclusion  or  exclusion  in  the

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Presidential Order can be done only by the Parliament in the manner

as indicated in Articles 341(2) and 342(2) of the Constitution of India.

By  no  executive  order,  amendment,  alteration  or  variance  in  the

Presidential Order is permissible.  

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

45. Under  Central  Civil  Services  (Classification,  Control  and

Appeal)  Rules,  1965  [CCS(CCA)  Rules,  1965],  there  are  four

categories of services namely:-

(i) Central Civil Services, Group A; (ii) Central Civil Services, Group B; (iii) Central Civil Services, Group C; and (iv) Central Civil Services, Group D

Central Civil Services – Group A:-

46. As  per  the  Schedule  to  Central  Civil  Services  (CCA)  Rules,

1965, under Group ‘A’, there are forty five services inter alia like – (i)

Archaeological  Service  (Serial  No.1);  (ii)  Central  Health  Service

(Serial No.5); (iii) Indian Defence Accounts Service (Serial No.11); (iv)

Indian  Foreign  Service  (Serial  No.12);  (v)  Indian  Meteorological

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Service (Serial No.13); (vi) Indian Postal Service (Serial No.14); (vii)

Indian  Posts  and  Telegraphs  Traffic  Service  (Serial  No.15);  (viii)

Indian Revenue Service (Serial No.16); (ix) Indian Salt Service (Serial

No.17); (x) Directorate General of Mines Safety (Serial No.19); (xi)

Indian Telecommunication Service (Serial No.22); (xii) Central Legal

Service  (Grades  I,II,  III  and  IV)  (Serial  No.25);  (xiii)  Delhi  and

Andaman  and  Nicobar  Islands  Civil  Service,  Grade  I  (DANICS)

(Serial No.28); (xiv) Delhi and Andaman and Nicobar Islands Police

Service, Grade II (DANIPS) (Serial No.29); (xv) Company Law Board

Service  (Serial  No.38);  (xvi)  Labour  Officers  of  the  Central  Pool

(Serial No.39); and (xvii) Armed Forces Headquarters Civil Services

(Serial No.44).

47. By reading of the categories of services, the said services of

Group ‘A’ are concerned only with the services of the Union of India

and the appointment to Group ‘A’ services are made by the President.

The  Cadre  Controlling  Authority  of  Group  ‘A’  services  are  the

respective  ministries  of  the  Government  of  India.   Recruitment  to

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Group ‘A’ services is made by the Union Public Service Commission

(UPSC)  and  the  recruitment  is  on  all-India  basis.   So  far  as  the

recruitment to Group ‘A’ services is concerned, Union of India in its

counter affidavit has stated as under:-

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

b.   Whichever  ministry  seeks  recruitment  to  the  service  in  this Group sends requisition to UPSC as per procedure prescribed and  UPSC  accordingly  advertises  for  the  post  in  Group  A. Every citizen of India is eligible to apply as per the qualifications and requirements in the notification.

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

d. Central  Civil  Services employees belonging to Group A serve the Union of India and that is the reason why these services are across the length and breadth of the country, wherever there is an office of the Central Government.

e. Member of the Group A service are governed by Central Civil Services  (Class,  Control  &  Appeal)  Rules,  1965  as  well  as Central  Civil  Services  (Conduct)  Rules,  1972  &  Central  Civil Services (Pension) Rules, 1972 and such other rules made by the central ministries.”27

Central Civil Services – Group B:-

48. Under  Rule  5,  the  Central  Civil  Services  –  Group  ‘B’  are

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

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specified  in  the  Schedule  and  there  are  thirty-two  such  services

mentioned.  Some of the thirty-two services of Group ‘B’ and their

appointing authorities are as under:-

PART II - Central Civil Services, Group 'B' (Except for Civilians in Defence Services)

Description of service (2)

Appointing Authority

(3)

Description of service (2)

Appointing Authority

(3)

Section  Officer  Grade  of  the Central  Secretariat  Service excluding  Section  Officers  with Group 'A' status. (Serial No.1)

President Postal  Superintendents' Service,  Group  'B' (Serial No.7)

Director-General Posts

Postmasters'  Service,  Group  'B' (Serial No.8)

Director-General Posts

Customs  Preventive  Service, Group  'B'-  Chief  Inspectors (Serial No.15)

Collector of Customs

Botanical Survey of India, Group 'B' (Serial No.18)

Chief  Botanist, Botanical Survey of India

Income  Tax  Service,  Group 'B' (Serial No.17)

Commissioner  of Income Tax

Geological  Survey  of  India, Group 'B' (Serial No.19)

Director-General ,  Geological Survey of India

Survey  of  India,  Group  'B' (Serial No.20)

Surveyor  General  of India

Zoological Survey of India, Group 'B' (Serial No.21)

Zoological Survey of India

Central Electrical Engineering Service  Group  'B' (Serial No.22)

Director  General (Works),  Central Public  Works Department

Central  Engineering  Service, Group 'B': (Serial No.24) (i)  Posts  in  the  Ministry  of Irrigation and Power.

(ii) Posts in the Central Water and Power Commission

(iii) Posts in the Chambal Control Board

(iv) Posts in the Farakka Barrage Control Board

Joint Secretary,

Chairman, Central  Water and  Power Commission

Joint  Secretary, Ministry  of Irrigation  and Power

Commissioner (Ganga  Basin), Ministry  of Irrigation  and Power

Indian Salt Service, Group 'B' (Serial No.26)

Joint  Secretary, Ministry  of Production

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(v) Posts in the Ganga Discharge Circle

Commissioner (Ganga  Basin), Ministry  of Irrigation  and Power

Delhi  and  Andaman  and Nicobar  Islands  Civil  Service, Grade  II.  (DANICS) (Serial No.28)

Joint Secretary, Ministry  of Home Affairs

Delhi  and  Andaman  and Nicobar  Islands  Police Service, Grade II.  (DANIPS) (Serial No.29)

Joint  Secretary, Ministry  of  Home Affairs

General  Central  Service,  Group 'B'- (Serial No.32) (i)  Post  in  any  Ministry  of Department  of  Government  of India,  other  than  the  post  in respect  of  which  specific provision  has  been  made  by  a general  or  special  order  of  the President.

(i-a)  Posts  outside  a Ministry  or Department  of  Government  of India,  other  than  the  posts  in respect  of  which  specific provision  has  been  made  by  a general  or  special  order  of  the president.

(ii)  Posts  in  Union  Territories other  than  Delhi Administration,  the  Andaman and  Nicobar  Islands  and  the Laccadive,  Minicoy  and Amindive Islands

(iii)  Delhi  Administration-All posts

(iv) The Andaman and Nicobar Islands-All Posts

Secretary  in  the Ministry  or Department

In  respect  of posts in an office under  the control  of  a Head  of Department directly  under the Government.

-Head  of  the Department

In  respect  of other  posts  - Secretary  in  the Ministry  or Department

Administrator

Chief Secretary

Chief Commissioner

Administrator

All  Group  'B'  posts  of  the Departmentalised  Accounts Offices of the Government of India. (Serial No.33)

Chief  Controller  of Accounts  or  Joint Controller General of Accounts  in  a Ministry  or Department  where there  is  no  Chief Controller  of Accounts

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(v)  The  Lakshadweep Administration-All Posts

Recruitment to Group ‘B’ services are conducted by the UPSC.  The

appointing authority to various Group ‘B’ services is the President of

India/respective  Ministries/respective  Heads  like  Ministry  of  Home

Affairs, Collector of Customs, Commissioner of Customs etc.

49. In Serial Nos. 28 and 29 of the Schedule, we have the Union

Territories Service known as Delhi,  Andaman and Nicobar  Islands,

Lakshadweep,  Daman  &  Diu  and  Dadra  &  Nagar  Haveli  Civil

Services  (DANICS)  and  Delhi,  Andaman  and  Nicobar  Islands,

Lakshdweep,  Daman  &  Diu  and  Dadra  &  Nagar  Haveli  Police

Services  (DANIPS).   In  the  counter  affidavit  filed  by  the Union  of

India, it is stated as under:-

“a. …….DANICS/DANIPS officers are posted in Delhi, Andaman & Nicobar Islands, Lakshdweep, Daman & Diu and Dadra & Nagar Haveli.   The recruitment  to  all  the Union Territories for these Group B posts are common.  They are also centralised and the appointing authority is none other than Ministry of Home Affairs, Government of India.  The recruitment to these services is the very  same  examination  meant  for  the  All  India  Services (IAS/IPS) on the one hand and the Central Civil Services Group A on the other.  Any citizen of India is eligible to apply, subject to the  conditions  prescribed.   As  per  service  rules,  transfer undertakings  throughout  the  Union  Territories  covered  under DANICS/DANIPS is taken from these officers.

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b. This  is  the  reason  why  the  Union  of  India  while  inviting applications for recruitment considers all  candidates, including reserved  candidates  on  all  India  basis.   Group  B  cadre  of DANICS  and  DANIPS  is  the  feeder  cadre  for  IAS  and  IPS respectively.   They retire  invariably  in  these offices,  some of them reaching high positions in the central government.

c. As indicated above recruitment to the All India Services, CCS Group  A as  well  as  CCS  Group  B  (Gazetted)  is  conducted through UPSC in the Civil Services Examination, the applicants are common when the applications are made,  every aspirant seeks recruitment to the services and it is only as per the marks and ranking  that  allocations are  made eventually  to  All  India Services,  Group  A  and  Group  B.   Therefore,  when  UPSC undertakes  the  recruitment,  it  is  naturally  a  PAN  India recruitment and therefore it  is  necessary to seek applications including from reserved candidates from all over India.”28

Central Civil Services – Group C:-

50. There are five services under Central Civil Services – Group ‘C’

under CCS (CCA) Rules.  Some of the posts noted in Group ‘C’ and

their appointing authorities are as under:-

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

Description of service (2)

Appointing Authority

(3)

Description of service (2)

Appointing Authority

(3)

Central  Secretariat  Clerical Service,  Upper  Division  and Lower  Division  Grade (Serial No.1)

Deputy Secretary  or Director,  Cadre Authority

General  Central  Service, Group ‘C’ (Serial No.4)

(i) Posts  in  the Ministry/Department  of Government  other  than the  posts  in  respect  of which  specific  provision has  been  made  by  a

Deputy  Secretary  or Director  in  the Ministry/Department of Government

28 Para No. 6(ii) of the Counter Affidavit filed by the Union of India at Pg. No.4-5

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general  or  special  order of the President

(ii) Posts  in  non-Secretariat Office other than posts in respect  of  which specific provision has been made by  a  general  or  special order of the President

(iii) Posts  in  Union Territories

(iv) All Group ‘C’ posts of the Departmentalized Accounts  Office  of  the Government of India

Head of Office

Head  of  Office  of such  other authority as may be specified  by  the Administrator.

Controller  of Accounts  or  Deputy Controller General of Accounts  in  a Ministry  or Department  where there is no Controller of Accounts.

Insofar as Group ‘C’ services of Union of India are concerned, they

are recruited by the Staff Selection Commission (SSC) which is the

recruiting  agency  under  DoPT.   Members  of  these  services  get

promoted to CCS – Group ‘B’.  In the counter affidavit filed by the

Union of India, it is stated as under:-

“a. ……Recruitment  to  posts  in  Group C arise  out  of  requisition made  by  the  concerned  ministries  all  over  India.   These requisitions upon reaching the Staff Selection Commission are processed  and  selection  takes  place  and  appointments  are made.   Even from these appointees undertaking for  all  India transfer  liability  is  taken.   As  these  are  posts  under  Central Government and these employees are liable to be transferred anywhere in the country and the recruitment being centralised for all such posts in the country, it had been consistent policy of

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the Union of India to have PAN India eligibility. b. The posts in CCS Group C are in the subordinate services.  The

equivalent  in  the  Union  Territory  of  Delhi  is  the  Delhi Administrative Subordinate Services (DASS) and the recruiting agency in the place of Staff Selection Commission is the Delhi Subordinate  Service  Selection  Board  (DSSSB).   Members  of Delhi Administrative Subordinate Services are the feeder cadre for Central  Civil  Services Group B (DANICS).  It  is  for  these reasons that the policy is consistently adopted.”29

Central Civil Services – Group D:-

51. Class  IV  employees  now  referred  to  as  Multi-Tasking  Staff

(MTS) come under this category.  Some of the posts noted in Group

‘D’ and their appointing authorities are as under:-

PART IV - Central Civil Services, Group 'D' (Except for Civilians in Defence Services)

Description of service (2)

Appointing Authority

(3)

General Central Service, Group ‘D’  (Serial No.1)

(i) Posts in Ministries or Departments of Government other than  posts  in  respect  of  which  specific  provision  has been  made  by  a  general  or  special  order  of  the President.

(ii) Posts  in  non-Secretariat  Offices  other  than  posts  in respect of which specific provision has been made by a general or special order of the President.

(iii) Posts in Union Territories

(iv) All  Group ‘D’ posts  of  the  Departmentalized  Accounts Offices of the Government of India

Under Secretary

Head of Office

Head of Office or such other authority  as  may  be specified  by  the Administrator

Deputy  Controller  of  Accounts or Assistant Controller General of  Accounts  in  a  Ministry  or Department  where there is no

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

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Deputy Controller of Accounts.

52. As  pointed  out  earlier,  there  is  centralised  recruitment

conducted by UPSC for the Central Civil Services in Group ‘A’ and

Group ‘B’.  For this centralised recruitment, applications are invited

from  candidates  across  the  country  and  Scheduled

Castes/Scheduled  Tribes  of  all  the  States/Union  Territories  are

entitled to apply for the reserved posts.  Recruitment to various posts

in  Group  ‘A’  and  Group  ‘B’  (Gazetted)  categories  for  services  in

States/Union Territories  are  presently  filled  only  through UPSC by

centralised recruitment.  After recruitment, the Group ‘A’ and Group

‘B’ officers are posted across the country wherever there are offices

of Central Government.

53. Services mentioned at Serial No.28 that is Delhi and Andaman

and Nicobar Islands Civil Service, Grade-II (DANICS) are Group

‘B’ civil services. DANICS officers are posted at Delhi, Andaman and

Nicobar  Islands,  Lakshadweep,  Daman  and  Diu  and  Dadra  and

Nagar Haveli.   DANICS - Group ‘B’ civil service officers are directly

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recruited through the Central Civil  Services examination conducted

by  UPSC.  Since  DANICS is  a  centralised  recruitment  conducted

through UPSC naturally applications are invited from the candidates

across  the  country  including  reserved  candidates  of  Scheduled

Castes/Scheduled Tribes.

54. Delhi,  Andaman  and  Nicobar  Islands  Police  Services

(DANIPS) are  recruited  directly  through  centralised  civil  services

examination conducted by UPSC.  DANIPS are posted at Delhi and

other  Union  Territories  –  Andaman  and  Nicobar  Islands,

Lakshadweep Islands, Daman and Diu and Dadar and Nagar Haveli.

The  cadre  strength  is  controlled  by  the  Ministry  of  Home  Affairs,

Government  of  India.  Two-thirds  of  DANIPS are  filled  by  direct

recruitment  and  remaining  are  promoted  from non-gazetted  police

officers of Union Territory of Delhi and other Union Territories.  Since,

DANIPS officers  are  recruited  through  a  centralised  recruitment

conducted through UPSC, applications are invited from candidates

from across the country including reserved candidates of Scheduled

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Castes and Scheduled Tribes of all the States and Union Territories.

Thus, up to Group ‘B’ (Gazetted) of Central Civil Services including

the  Group  ‘B’  (Gazetted)  services  of  Union  Territories,  there  is

Centralised Civil Services Examination conducted by UPSC with PAN

INDIA reservation.

55. Serial No.32, Group ‘B’ of CCS (CCA) Rules refers to General

Central Services.  At the risk of repetition, we may usefully refer to

Serial No.32 which reads as under:-

Serial No. 32 General Central Service, Group 'B'-

(i)  Post  in  any Ministry of  Department of Government of India, other than the post in respect  of  which  specific  provision  has been made by a general or special order of the President.

(i-a)  Posts  outside  a  Ministry  or Department of Government of India, other than the posts in respect of which specific provision has been made by a general or special order of the president.

(ii)  Posts  in  Union  Territories  other  than Delhi  Administration,  the  Andaman  and Nicobar  Islands  and  the  Laccadive, Minicoy and Amindive Islands

(iii) Delhi Administration-All posts

(iv) The Andaman and Nicobar Islands-All Posts

Secretary in the Ministry or Department

In respect of posts in an office  under  the  control of a Head of Department directly  under  the Government.

-Head of the Department

In respect of other posts -  Secretary  in  the Ministry or Department

Administrator

Chief Secretary

Chief Commissioner

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(v)  The  Lakshadweep  Administration-All Posts

Administrator

As seen from the above, Serial No.32(i) and (i-a) relates to the posts

under the Government of India for which the appointing authority is

the Secretary in the Ministry or Department/Head of the Department

respectively.  Serial No.32 (ii) of Central Civil Services (CCA) Rules,

1965  relates  to  “Posts  in  Union  Territories  other  than  Delhi

Administration,  the  Andaman  and  Nicobar  Islands  and  the

Laccadive,  Minicoy  and  Amindive  Islands”.  The  appointing

authority is shown to be the ‘Administrator’.  Serial No.32 (iii) to (v)

relate to  ‘All  posts’ in Delhi administration, Andaman and Nicobar

Islands  and  the  Lakshadweep  administration  respectively.  Serial

No.32(ii)  posts  in  the  Union  Territories  (other  than  Delhi

Administration, the Andaman & Nicobar Islands and the Laacadive,

Minicoy and Amindive Islands) Group ‘B’ (Gazetted) posts for which

recruitment  is  conducted  by  UPSC.  Since  there  is  centralised

recruitment conducted by UPSC for Group ‘B’ (Gazetted), naturally

applications  are  invited  from  the  candidates  across  the  country

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including reserved candidates of Scheduled Castes/Schedules Tribes

from all  the  States/Union  Territories.  Up  to  the  level  of  Group ‘B’

(Gazetted)  of  Central  Civil  Services,  since  there  is  centralised

recruitment for which there is  PAN INDIA reservation of Scheduled

Castes and Scheduled Tribes, Scheduled Castes/Scheduled Tribes

from any State/Union Territory are entitled to apply for the reserved

posts for Group ‘B’ examinations conducted by UPSC.  

56. When it comes to services under Union Territories, there are so

many  other  services  like  teaching,  clerical  cadre,  police  services,

Medical  Officers,  Health Services,  Stenographers,  Typists, services

under  the  Revenue  department,  services  under  public-sector

undertakings, services under the municipalities and the corporations

in  the  Union  Territories  and  various  other  services  which  are

concerned with the administration of Union Territories. These services

under the Union Territories would fall under Group ‘B’, Group ‘C’ and

Group ‘D’ and their recruitment is within the exclusive domain of the

respective Union Territories.  Though the government servants under

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the Union Territories are governed by Central Civil  Services Rules,

the services under the Union Territories are essentially different from

All  India  Services.   For  recruitment  to  services  under  respective

Union  Territories,  there  are  different  modes  of  recruitment  for  the

different Union Territories.

57. This Court posed the question whether there is other category

of employees in UT administration and what is the practice followed

for  recruitment.  In  response  to  the  question,  Union  of  India,  on

instructions, filed the following response:-

SCOPE OF SC/ST RESERVATION IN UTs 1. Puducherry : Reserved  posts  confined  to  local

reserved candidates. 2. Chandigarh : Reserved  posts  filled  up  by

candidates from all India. 3. Daman & Diu : Reserved  posts  confined  to  local

reserved  candidates  for  Group  C posts.  For  Group  B  it  is  opened  to candidates  from  all  India  but  local candidates get additional 20 marks.

4. Dadra  &  Nagar Haveli

: Reserved  posts  confined  to  local reserved  candidates  for  Group  C posts.  For  Group  B  it  is  opened  to candidates  from  all  India  but  local candidates get additional 20 marks.  

5. Lakshadweep : Reserved  posts  confined  to  local

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reserved candidates. 6. A & N Islands : For Group C posts locally reserved. 7. NCT of Delhi : Reserved  posts  filled  up  by

candidates from all India.

For the above response that  there is PAN India reservation of the

reserved  candidates  for  recruitment  by  Union  Territories  of

Chandigarh,  Dadra  and  Nagar  Haveli  and  NCT  of  Delhi,  no

authenticated documents were produced to substantiate the same.

When  there  are  Presidential  Orders  notifying  the  Scheduled

Castes/Scheduled Tribes for Union Territories of Chandigarh, Dadra

and  Nagar  Haveli,  calling  for  application  from  the  Scheduled

Castes/Scheduled  Tribes  candidates  from  all  over  India  for  the

reserved  posts  of  services  under  various  Union  Territories,  be  it

Group ‘B’ or Group ‘C’, is not in accordance with the constitutional

scheme.   

58. For Group ‘B’ and Group ‘C’ posts falling within the services of

the  Union  Territories,  recruitment  is  made  by  the  Staff  Selection

Board of respective Union Territories.  For instance, let me refer to

the Staff  Selection Board of  UT Administration of  Daman and Diu

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whose home page reads as under:-

“In exercise of the powers conferred by the provision of Article 239 of the Constitution of India, the Administrator of Daman & Diu is pleased  to  make  following  rules  to  regulate  the  method  of recruitment to all Group ‘B’ and ‘C’ categories of posts under the Administration of Daman & Diu. It  aims  to  “ensure  a  uniform  and  transparent  process  and procedures for  recruitment of  all  Group ‘B’ and ‘C’ categories of posts  under  the  Administration  of  Daman  and  Diu  through  an autonomous  body,  without  disturbing  the  existing  recruitment processes  and  procedures  and  for  ensuring  that  cumulative outcome of the recruitment is to provide just and fair opportunities to  all  the  candidates  and  for  matters  connected  therewith  or incidental thereto30.”  

59. In response to the question posed by the court, Union of India

filed response affidavit  stating that in Union Territories Daman and

Diu  and  Dadra  and  Nagar  Haveli,  for  Group  ‘B’,  it  is  opened  to

candidates  from  all  over  India.    Local  candidates  with  domicile

certificate get additional twenty per cent marks.  Response filed by

the Union of India that there is PAN India reservation for Group ‘B’

services  of  Daman  and  Diu  and  Dadra  and  Nagar  Haveli,  no

authenticated  documents/format  of  any  application  for  Group  ‘B’

posts conducted by Daman and Diu was produced before us.  Even

assuming that there is such PAN India reservation for recruitment of

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

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Group ‘B’ conducted by the Union Territory of Daman and Diu, when

there  are  Scheduled  Castes/Scheduled  Tribes  as  notified  in  the

Presidential Order (Reorganisation Act, 1987 in respect of SCs/STs),

there cannot be PAN India reservation as it is not in accordance with

the constitutional scheme.

60. Pointing out that services in the Union Territories are different

from All  India Services and that  the mode of  recruitment  are also

different, in para (29) of  Subhash Chandra and another v. Delhi

Subordinate Service Selection Board and others  (2009) 15 SCC

458, it was held as under:-

“29. Concededly, in respect of education or service, there exists a distinction  between  State  Services  and  State-run  institutions including  the  Union  Territory  Services  and  Union  Territory-run institutions on the one hand, and the Central Civil Services and the institutions run by the Central Government on the other. Whereas in the case of the former,  the reservation whether for admission or appointment in an institution and employment or appointment in the services or posts in a State or Union Territory must confine to the members  of  the  Scheduled  Castes  and  Scheduled  Tribes  as notified  in  the  Presidential  Orders  but  in  respect  of  All  India Services, Central Civil  Services or admission to an institution run and  founded  by  the  Central  Government,  the  members  of  the Scheduled  Castes  and  Scheduled  Tribes  and  other  reserved category candidates irrespective of their State for which they have been notified are entitled to the benefits thereof. It is not denied or

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disputed that services in the Union Territory is essentially different from  All  India  Services.  It  is  also  beyond  any  controversy  that machinery for recruitment is also different. Indisputably again, not only  the  conditions  of  recruitment  but  also  conditions  of  service differ.”

I  am  in  full  agreement  with  the  view  taken  by  Justice  Sinha  in

Subhash Chandra case.

61. Rule 3 of Delhi Administration Subordinate Services (DASS)

Rules, 1967 deals with constitution of services and its classification in

Delhi Administration.  As per Rule 3(3) of DASS Rules, the post in

Grade-I, Class-II Group ‘B’ (Gazetted) and those in Grades II, III and

IV shall be Central Civil Services Posts.  But as noted earlier, as per

Serial  No.32  –  General  Central  Service,  Group  ‘B’,  insofar  as

Delhi  Administration  –  All  Posts  (Serial  No.  32  (iii)),  the

Appointing  Authority  is  the  Chief  Secretary.   The  subordinate

services in the National Capital Territory of Delhi though “Central Civil

Services”,  they  are  neither  All  India  Services  nor  services  under

Union of India so as to attract Pan India Reservation.

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62. Even  in  the  counter  affidavit  filed  by  the  Union  of  India,  by

referring to Group ‘C’ services, it is stated that CCS – Group ‘C’ are in

the  subordinate  services  and  there  are  equivalent  services  in  the

Union Territory of Delhi.  For recruitment of other employees in the

Union  Territory  of  Delhi,  there  is  Delhi  Administrative  Subordinate

Services (DASS) and the recruiting agency is Delhi Subordinate Staff

Selection  Board  (DSSSB).   Members  of  Delhi  Administrative

Subordinate Services are stated to be the feeder cadre for Central

Civil Services – Group ‘B’ (DANICS).31  Merely because members of

Delhi Administrative Subordinate Services are the feeder category for

DANICS,  PAN  India  reservation  cannot  be  extended  to  Delhi

Subordinate Services or to services under various Union Territories.

Likewise, merely because, DANICS and DANIPS (Serial Nos. 28 and

29 of Group ‘B’ Services) are the feeder category for IAS and IPS, it

cannot  be  said  that  the  Pan  India  Reservation  is  applicable  to

services under National Capital Territory of Delhi.

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

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63. So  far  as  Group  ‘B’  and  Group  ‘C’  posts  falling  under  the

services  of  the  Union  Territories,  recruitment  is  done  by  the

respective  Staff  Selection  Board  of  respective  Union  Territories.

Serial No.4 (iii) – ‘Posts in Union Territories’ of Group ‘C’ in CCS

(CCA) Rules is shown and the appointing authority is stated as Head

of the Office of such other authority as may be specified by the

Administrator. Merely because the posts in the Union Territories and

the appointing authority are shown in Group ‘C’ in CCS (CCA) Rules,

that does not mean that  those Group ‘C’ and Group ‘D’ posts are

available for the Scheduled Castes and Scheduled Tribes of all the

States/Union Territories. For recruitment of Group ‘B’ and Group ‘C’

posts of  services under  the respective Union Territories,  since the

examination  is  conducted  by  the  respective  Union  Territories  like

Delhi Subordinate Staff Selection Board and other Union Territories

Staff Selection Boards of respective Union Territories, reservation of

posts of Scheduled Castes/Scheduled Tribes must be confined only

to  those  Scheduled  Castes/Scheduled  Tribes  as  notified  in  the

Presidential Order of the respective Union Territories. For recruitment

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of  Group  ‘B’  and  Group  ‘C’ posts  under  various  Union  Territories

including  Union  Territory  of  Delhi,  there  cannot  be  PAN  INDIA

reservation  of  Scheduled  Castes/Scheduled  Tribes,  lest,  it  would

defeat the very object of the Presidential Orders issued specifying the

Scheduled Castes/Scheduled Tribes for respective Union Territories.

64. As  pointed  out  earlier,  services  under  the  Union  Territories

though  they  are  Central  Government  services,  they  are  services

under the respective Union Territories and not under the direct control

of Union of India/different Ministries.  Procedure for recruitment to the

various posts  for  the services of  Union Territories  are  different  as

followed by respective Union Territories.  The persons appointed for

the services of Union Territories might be governed by CCS (CCA)

Rules; but they are employees of respective Union Territories.  The

appointing authorities are the authorities under the administration of

Union  Territories  and  not  under  the  Ministries  of  Union  of  India.

Central Civil Services are the services directly under Union of India.

Contrarily,  various  services  under  the  Union  Territories  are  the

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services under the respective Union Territories.  Such services under

Union Territories cannot be said to be Central Civil Services that is

services  under  Union  of  India  to  extend  the  benefit  of  PAN India

reservation for  recruitment  to  the services  under  respective  Union

Territories including Union Territory of Delhi.

65. In exercise of the powers conferred by clause (1) of Article 341,

the  President  issued  the  Constitution  (Scheduled  Castes)  Union

Territories Order, 1951 in the Presidential Order specifying Scheduled

Castes in relation to Delhi and the thirty-six castes/groups notified are

as under:-

Part 1 – Delhi Throughout the Union Territory

Adi Dharmi 19. Kachhandha Agria 20. Kanjar or Giarah Aheria 21. Khatik Balal 22. Koli Banjara 23. Lalbegi    Bawaria 24. Madri Bazigar 25. Mallah Bhangi 26. Mazhabi Bhil 27. Meghwal Chamar,  l Chanwan  Chmanr,

28. Naribut

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Jatya  or  Jatav Chamar,  Mochi Ramadasia, Ravidasi,  Reghgrh or Raigharh Chohra (Sweeper) 29. Nat (Rana), Badi Chuhra (Balmiki) 30. Pasi   Dhanak or Dhanuk 31. Perna   Dhobi 32. Sansi or Bhedkut    Dom 33. Sapera Gharrami 34. Sikligar Julaha (Weaver)    35. Singiwala  or

Kalbelila     Karbirpanthi 36. Sirkiband

In relation to Delhi, there are thirty-six castes notified as Scheduled

Castes in the Presidential  Order.   The members of the Scheduled

Castes in Delhi are drawn from castes, races and by virtue of the

Presidential  Order pertaining to Delhi,  they attain the status of the

Scheduled Caste.  In  view of  the Presidential  Order  issued for  the

Scheduled Castes to Delhi, only those Scheduled Castes can claim

the benefit of reservation in the employment under the Union Territory

of Delhi who are notified in the Presidential Order.  Neither the Delhi

Government nor the court can add any caste or group to the list of

Scheduled  Castes  notified  in  the  Presidential  Order.  Once  a

Presidential  Order  has  been  issued  under  Article  341(1)  of  the

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Constitution, any addition or deletion to the Presidential  Order can

only be made by the Parliament  by law as provided under  Article

341(2) and in no other manner.  Merely because, Delhi Subordinate

Services is a feeder category for DANICS, there cannot be Pan India

Reservation  of the SCs and STs for the services under Group ‘C’

and  ‘D’  categories,  for  which  recruitment  are  made  by  the  Delhi

Subordinate Staff Selection Board (DSSSB).

66. Likewise,  the  Presidential  Order  has  notified  the  following

Scheduled Castes for the Union Territory of Chandigarh, Daman and

Diu, Puducherry and Dadra and Nagar Haveli:-

Part II – Chandigarh 1. Adi Dharmi 19. Khatik 2. Bangali 20. Kori or Koli 3. Barar,  Burar  or

Berar 21. Marjia or Marecha

4. Batwal, Barwala 22. Mazhabi 5. Bauria or Bawaria 23. Megh 6. Bazigar 24. Nat 7. Balmiki, Chura or

Bhangi 25. Od

8. Bhanjra 26. Pasi 9. Chamar,  Jatia

Chamar,  Rehgar, Raigar,  Ramdasi

27. Perna

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or Ravidasi 10 .

Chanal 28. Pherera

11 .

Dagi 29. Sanhai

12 .

Darain 30. Sanhal

13 .

Dhanak 31. Sansoi

14 .

Dhogri,  Dhangri  or Siggi

32. Sansi,  Bhedkut or Manesh

15 .

Dumna, Mahasha or Doom

33. Sapela

16 .

Gagra 34. Sarera

17 .

Gandhila or Gnadil  Gondola

35. Sikligar

18 .

Kabirpanthi or  Julaha

36. Sirkiband

The Schedule - Puducherry

Adi Andhra 9. Pallan Adi Dravida

10. Parayan, Sambavar

Chakkiliyan 11. Samban Jambuvulu 12. Thoti Kuravan 13. Valluvan Madiga 14. Vetan Mala,  Mala Masti

15. Vetriyan

Paky 16. Puthirai Vannan

The Schedule – Dadra and Nagar Haveli

Bhangi 3. Mahar Chamar 4. Mahayavanshi

67. Let  me take  the  case  of  Andaman &  Nicobar  Islands.   The

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PART III – Daman and Diu

Bhangi (Hadi) 4. Mahyavanshi (Vankar)

Chambhar, Mochi5. Mang Mahar

Constitution (Andaman and Nicobar Islands) Scheduled Tribes Order,

1959 has notified the following tribes or tribal communities who have

been included in the Schedule for the Andaman & Nicobar Islands:-

The Schedule

The  Andamanese (including  Chariar  or Chari,  Kora,  Tabo  or Bo,  Yere,  Kede,  Bea Balawa,  Bojigiyab, Juwai and Kol

4. Sentinelese

Jarawas 5. The Nicoberese Onges 6. The Shompens

When  Andaman  &  Nicobar  Islands  is  recruiting  persons  to  the

services of Group ‘B’, ‘C’ and ‘D’ under its administration, it has to

necessarily follow the policy of recruiting members from amongst the

Scheduled  Tribes  who  are  notified  as  Scheduled  Tribes  in  the

Presidential Notification for Andaman and Nicobar Islands.  It will not

be appropriate to extend the benefit of reservation to the SCs and

STs  from  other  States/Union  Territories,  lest  it  would  deprive  the

notified Scheduled Tribes of the Andaman and Nicobar Islands.   

68. It may be that the candidates recruited by the respective Union

Territories  for  Group  ‘B’  and  Group  ‘C’  may  become  the  feeder

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categories for further promotion in Group ‘A’ and Group ‘B’ of All India

Services respectively in the Central Civil Services.  The fact that the

candidates  who  are  recruited  by  the  respective  Union  Territories

become the feeder  categories  for  further  promotion  in  the  Central

Civil  Services is not a ground for extending the benefit  of all  India

reservation  to  the  Scheduled  Castes/Scheduled  Tribes  for  the

reserved posts in the respective Union Territories.  Be it noted that the

candidates recruited by the various State Governments under Group

‘A’ of respective State services become the feeder category for IAS

and IPS.   The persons recruited for Group ‘B’ and Group ‘C’ by the

respective Union Territories stand on the same footing as that of the

candidates  so  recruited  by  the  various  States  where  only  the

Scheduled  Castes/Scheduled  Tribes  of  the  respective  States  can

apply.

69. A  letter  dated  10.05.2013  by  Special  Secretary  (Services)

addressed to  all  the Secretaries/Heads of  Departments  of  NCT of

Delhi has been filed by the Union of India.  The letter relates to the

subject “Reservation policy to be followed with regard to SCs/STs in

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civil posts under GNCTD”.  The said letter refers to the judgment in

Pushpa’s case and states that the Ministry of Law and Justice has

opined  that  the  law declared  by  the  Supreme Court  in  Pushpa’s

case applies to the NCT of Delhi and that Pushpa’s case cannot be

ignored.  Relevant portion of the said letter reads as under:-

“GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI (SERVICES DEPARTMENT BRANCH-IV)

7TH LEVEL, B-WING, DELHI SECRETARIAT, I.P. ESTATE, NEW DELHI – 110002

No. F. 19(6)/2012/S-IV/883               Dated: 10-05-2013 ……

The Government of National Capital Territory of Delhi follows the guidelines and instructions issued by the Government of India from time to time in matters regarding reservation to Scheduled Castes and Scheduled Tribes in recruitment to various civil posts in Government of Delhi.

Ministry  of  Home Affairs,  Govt.  of  India,  in  the  context  of  order dated 11.02.2005 of  Hon’ble  Supreme Court  of  India  in  case titled S. Pushpa & Ors.  Vs.  Sivachanmugavelu & Ors. stated vide their  letter dated 01.06.2005 that the matter has been examined in consultation with the Ministry  of  Law & Justice  (Department  of  Legal  Affairs).   That  the Ministry had opined that the law declared by the Supreme Court of India cited above, applies to the National Capital Territory of Delhi. This  was  accordingly  conveyed  to  the  departments  vide  this department’s letter No.F.16(73)/97-S-III/710 dated 30.06.2005,  stating that  all  the  Scheduled  Castes/Scheduled  Tribe  candidates irrespective of their nativity, are eligible for reservation to the civil posts  under  Govt.  of  NCT of  Delhi,  which are reserved for  SC/ST candidates  and  appropriate  action  for  recruitment  may  be  taken accordingly.

Subsequently,  in  view  of  order  dated  04.08.2009  of  Hon’ble Supreme Court in the matter of Sarv Rural & Urban Welfare Society vs. Union of India & Ors. and of the Hon’ble High Court dated 12.09.2012 in WP(C) No.5390/2010 under consideration in the Ministry of Home Affairs, Govt. of India.

Now,  Ministry  of  Home  Affairs,  Govt.  of  India,  vide  its  letter

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No.14012/09/2012-Delhi-I dated 03.04.2013 has informed that the subject matter  has  been  re-examined  in  consultation  with  Ministry  of  Law  & Justice.  In this matter Learned Attorney General for India has given his opinion dated 18.02.2013 (copy enclosed), which is self-explanatory and has been approved by the Hon’ble Minister  of  Law & Justice,  Govt.  of India.  The opinion, inter alia, states that having regard to the order in the State of Uttaranchal’s case, till this issue is resolved by a larger bench, the decision in S. Pushpa case cannot be ignored.  Ministry of Home Affairs has conveyed that it has been decided to proceed according to this opinion.

Copy of above mentioned letter of the Ministry of Home Affairs is circulated for information & necessary action accordingly.

Yours faithfully,

(Kailash Chandra) Spl. Secretary (Services)

Dated: 10-05-2013 …..”

70. PAN India reservation probably is followed by NCT of Delhi in

its recruitment based on the above letter dated 10.05.2013.  Since I

have taken the view that  the decision in  Pushpa’s case is  not  a

correct  decision  extending  PAN India  reservation  for  the  reserved

posts  recruited  by  NCT of  Delhi  or  any  other  Union  Territories  is

against the Presidential Orders issued under Articles 341 and 342 of

the Constitution of India and against the constitutional scheme.

71. As discussed earlier in para  (8), in case of Union Territories,

though administrative  control  to  certain  extent  is  exercised by  the

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Union of India, Union Territories do not lose their identity as an entity.

The existing practice of PAN INDIA reservation followed in Delhi and

Chandigarh is against the constitutional scheme and also against the

executive instructions dated 06.08.1984 and 22.02.1985 issued by

the Ministry of Home Affairs.

72. As pointed our earlier, the Ministry of Home Affairs in its circular

dated 06.08.1984 addressed to all the State Governments and Union

Territories administration stated that SCs and STs on migration from

the  State  of  his  origin  to  other  State  will  not  loose  his  status  as

SCs/STs;  but  will  be  entitled  to  the  concession/benefits  to  the

SCs/STs from the State of his origin and not from the State where he

has  migrated.   The  same thing  was  reiterated  in  the  letter  dated

22.02.1985 of the Ministry of Home Affairs, Government of India.  If

PAN India reservation is to be extended to the Union Territories like

Delhi,  Chandigarh,  Puducherry,  Andaman  &  Nicobar  Islands  or

Daman & Diu for Group ‘C’ and ‘D’ services for which recruitment are

made  by  the  respective  Union  Territories,  the  very  object  of  the

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Constitutional Scheme of upliftment of the SCs/STs of these Union

Territories will be defeated.  All India reservation to the services under

the  Union  Territories  including  the  Union  Territory  of  Delhi  will  be

against the mandate of Articles 341 and 342 of the Constitution and

against the Constitutional Scheme.

73. Marri  Chandra  Shekhar  Rao  and  Action  Committee  are

applicable to the States and they are applicable with equal force to

the Union Territories including Union Territory of Delhi. There cannot

be  any  distinction  between  the  States  and  the  Union  Territories.

Likewise, there can be no distinction between Union Territory of Delhi

and other Union Territories.  When Presidential Orders of Scheduled

Castes/Scheduled  Tribes  are  notified  for  various  Union  Territories

including Union Territory of Delhi extending PAN India reservation to

the  employment  falling  under  the  services  of  Union  Territories

including Union Territory of Delhi,  will  be against the Constitutional

scheme and the law laid down in Marri Chandra Shekhar Rao and

Action Committee.

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74. Article  16(4)  of  the  Constitution  has  to  yield  to  the

constitutional  mandate  of  Articles  341  and  342  of  the

Constitution.   The Presidential  Order  issued under  Article  341 in

regard to Scheduled Castes and Article 342 in regard to Scheduled

Tribes  cannot  be  varied  by  anyone  or  by  the  Court.   Only  the

Parliament  by  law  include  or  exclude  from  the  list  of  Scheduled

Castes or Scheduled Tribes specified in the notification issued under

Article 341 (1) and Article 342(1) respectively any caste, race or tribe

or  parts  or  group within any caste,  race or  tribe.   The Scheduled

Castes or Scheduled Tribes thus specified in relation to one State or

Union Territory does not carry the status in another State or Union

Territory.   When  the  Scheduled  Castes  or  Scheduled  Tribes  are

specified for each State in relation to one State or Union Territory,

neither  the  State  legislature,  the  administration  of  the  Union

Territories and nor the courts can include or exclude other Scheduled

Castes  or  Scheduled  Tribes  so  notified  in  the  Presidential  Order.

Providing  all  India  reservation  to  the  services  of  Union  Territories

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including Union Territory of Delhi, would be against the mandate of

Articles 341 and 342 and the Presidential Orders issued thereon. If

that  is  permitted,  it  would  amount  to  addition  or  alteration  of  the

Presidential  Order  which  is  impermissible  and  violative  of  the

Constitutional Scheme.

75. It is the responsibility of each State/Union Territory to provide

for such reservation/affirmative action by positive discretion to bring

backward  classes/Scheduled  Castes  and  Scheduled  Tribes  in  the

respective States/areas to provide socio-economic empowerment. If

the reservation to the Scheduled Castes and Scheduled Tribes are to

be extended to all  categories of Scheduled Castes and Scheduled

Tribes all over India or to the migrants then there is every possibility

of the Scheduled Castes and Scheduled Tribes of other developed

States  and  Union  Territories  squandering  reservations  to  the

Scheduled Castes and Scheduled Tribes who are disadvantaged in

the  respective  States/Union  Territories  including  Union  Territory  of

Delhi.  If this is permitted, it would defeat the very object of providing

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reservation to the disadvantaged Scheduled Castes and Scheduled

Tribes in a particular State or Union territory. The enabling provision

of Article 16(4) of the Constitution has to yield to the constitutional

scheme of Article 341 and Article 342 of the Constitution.

76. Conclusion:-

 Insofar as the States,  I  agree with the majority view

that  a  person  who  is  recognised  as  a  member  of

Scheduled  Castes/Scheduled  Tribes  in  his  original

State, will be entitled to all the benefits of reservation

under  the  Constitution  in  that  State  only  and  not  in

other  States/Union Territories  and not  entitled  to  the

benefits  of  reservation  in  the  migrated  State/Union

Territory.  Marri  Chandra  Shekhar  Rao  and  Action

Committee are applicable to the States and they are

applicable  with  equal  force  to  the  Union  Territories

including  Union  Territory  of  Delhi.  There  cannot  be

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any  distinction  between  the  States  and  the  Union

Territories.  Likewise,  there  can  be  no  distinction

between  Union  Territory  of  Delhi  and  other  Union

Territories.   When Presidential  Orders of  Scheduled

Castes/Scheduled  Tribes  are  notified  for  various

Union  Territories  including  Union  Territory  of  Delhi

extending PAN India reservation to the employment

falling under the services of Union Territories including

Union  Territory  of  Delhi,  will  be  against  the

Constitutional scheme and the law laid down in Marri

Chandra Shekhar Rao and Action Committee.   Since there is centralised recruitment upto Group ‘B’

(Gazetted)  services  conducted  by  UPSC  for  the

Central  Civil  Services  posts  in  the  States/Union

Territories of  India,  there has to be necessarily  PAN

India  reservation  for  Scheduled  Castes/Scheduled

Tribes  for  those  recruitment  conducted  by  UPSC.

Sofaras Group ‘B’ and Group ‘C’ posts falling  under

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