Non -  Reportable    

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.4665 of 2019 [ Arising out of S.L.P. (Civil) No. 16421 of 2017 ]

Director Transport Department  Union Territory Administration of Dadra and  Nagar Haveli Silvassa & Ors.  

  ....  Appellants    

Versus

Mr. Abhinav Dipakbhai Patel             …. Respondent

J U D G M E N T

L. NAGESWARA RAO, J.

Leave granted.  

1. The judgment of the High Court directing appointment

of the Respondent as Assistant Motor Vehicle Inspector by

allowing his Writ Petition is the subject matter of the above

Appeal.  The Respondent belongs to “Dhodia” caste which is

recognized as a Scheduled Tribe category in  the State of

Gujarat as well as in the Union Territory of Dadra and Nagar

Haveli.  He holds a caste certificate which was issued by the

concerned competent authority in the State of Gujarat.  He

shifted his residence from Gujarat to the Union Territory of

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Dadra  and  Nagar  Haveli.   He  owns  a  residential

accommodation in the Union Territory and has a Voter’s I.D.

card to show that he was a resident of Dadra and Nagar

Haveli.   

2. An advertisement was issued on 25.10.2014 calling for

applications  for  filling  up  two  posts  of  Assistant  Motor

Vehicle Inspectors, one of them reserved for the Scheduled

Tribe category.  It was made clear in the advertisement that

all Indian citizens could apply for appointment to the post.

However,  persons  having  ‘Domicile’  in  Dadra  and  Nagar

Haveli would be given weightage.  Candidates claiming to

be members of a Scheduled Tribe were required to furnish

an attested copy of the certificate issued by the competent

authority stating that he/ she belongs to the Scheduled Tribe

community.   The Respondent  applied  for  selection  to  the

post of Assistant Motor Vehicle Inspector and after scrutiny

of  114 applications that  were received,  it  was found that

three candidates belonging to the ‘General’  category and

two from the ‘Scheduled Tribe’ category were eligible.  The

respondent  appeared  in  the  written  examination  on

01.07.2015.  To his surprise, the Respondent found that the

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result  of  the  written examination  for  the Scheduled  Tribe

vacancy was not announced while announcing the result for

the  unreserved  post  on  11.07.2015.   As  there  was  no

response to the representations made by him regarding his

non-selection  to  the  post  of  Assistant  Motor  Vehicle

Inspector,  he  approached  the  National  Commission  for

Scheduled Tribes, Govt. of India.  The National Commission,

being convinced that the Respondent was a resident of the

Union  Territory  of  Dadra  and  Nagar  Haveli  and  that  he

belongs  to  a  Scheduled  Tribe  category,  directed  the

representative  of  Dadra  and  Nagar  Haveli  to  seek  a

clarification from the Ministry of Home Affairs, Govt. of India

and  appoint  the  Respondent  thereafter.   The  Ministry  of

Home Affairs,  Govt.  of India clarified that the Respondent

was  eligible  for  appointment  and  advised  the  concerned

authority  to  take appropriate action as  per  the directions

issued  by  the  National  Commission  for  Schedule  Tribes.

After a series of correspondence between the Government

of India, Union Territory of Dadra and Nagar Haveli and the

National Commission, an order was passed on 25.07.2016

by  the  National  Commission  directing  the  Appellants  to

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issue a letter of appointment in favour of the Respondent.

Since no action was taken to appoint the Respondent,  he

was constrained to file a Writ Petition in the High Court of

Judicature at Bombay.  

3. On behalf of the Appellants,  it  was submitted before

the  High  Court  that  a  policy  was  framed  by  the  Union

Territory of Dadra and Nagar Haveli on 01.09.2006 by which

it was decided that the local candidates from open category

had to provide ‘Domicile’ certificate. Insofar as the reserved

categories are concerned,  only local  candidates would be

considered.   The said  policy was modified on 26.12.2013

only  in  respect  of  ‘Domicile’  relating  to  open  category

candidates.  It  was  also  contended  on  behalf  of  the

Appellants  that  there  can  be  no  difference  between

migrants of the Scheduled Tribe from one State to another

and from one State to a Union Territory.   As there was a

separate  Presidential  Order  issued  for  notifying  the

Scheduled  Tribes  in  Dadra  and  Nagar  Haveli,  migrants

cannot  claim  the  benefit  of  reservation  in  the  Union

Territory.   While  referring to  the weightage given to  local

candidates,  the Appellants submitted that 20 marks were

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given for  local  candidates  in  the  selection  process  which

apply  equally  to  the  open  category  and  the  reserved

category  candidates.  However,  the  Appellants  maintained

that the benefit of reservation under the Scheduled Tribes

category  was  restricted  only  to  local  candidates  and  not

migrants.   

4. The High Court was not impressed with the submission

of the Appellants that the members of the Scheduled Tribe

category  from  outside  the  Union  Territory  were  excluded

from consideration for appointment to the public post in the

Union  Territory  in  the  reserved  category.   Weightage  of

marks given to local candidates in the selection indicates

that  outsiders  were  not  excluded  from  consideration,

according to the High Court.  The Respondent was found to

be  a  resident  of  the  Union  Territory  of  Dadra  and  Nagar

Haveli and though he migrated from the State of Gujarat, he

was entitled to be considered for appointment as a reserved

category candidate.  On the basis of the said findings, the

High Court directed the Appellants to appoint Respondent as

Assistant Motor Vehicle Inspector with effect from the date

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of appointment of other candidates from the same selection

process.   

5. The  learned  counsel  appearing  for  the  Appellants

referred to various circulars which indicate the policy of the

Union Territory that the reservation was applicable only to

the locals  and not  to  the  migrants.   He  argued that  the

benefit of reservation can only be claimed by a person who

is  domiciled  in  the  Union  Territory.   According  to  him,

residence of at least 10 years is required for a person to be

considered for appointment on a public post as a Scheduled

Tribe.  To justify the action of the Union Territory in refusing

to appoint the Respondent, he relied upon the judgment of

this  Court  reported  in  Action  Committee  on  Issue  of

Caste Certificate to Scheduled Castes and Scheduled

Tribes  in  the  State  of  Maharashtra  and  Another v.

Union of India & Another,1 S. Pushpa and Others v.

Sivachanmugavelu  and  Others,2 Puducherry

Scheduled Caste People Welfare Association v.  Chief

Secretary  to  Government,  Union  Territory  of

1 (1994) 5   SCC 244 2 (2005) 3   SCC 1  

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Pondicherry  and  Others,3 and  Bir  Singh v.  Delhi  Jal

Board and Others.4   

6. The  learned  Senior  Counsel  appearing  for  the

Respondent referred to the Office Memorandum issued by

the Union Territory to argue that there is a clear indication

from  the  Memorandum  that  there  is  no  exclusion  of

Scheduled Tribes of other States from being considered for

appointment to a public post in the reserved category.  The

local candidates were given the benefit of weightage which

applies  to  Scheduled  Tribes  as  well.   Amongst  the  four

candidates who were found eligible and who participated in

the  written  examination,  the  Respondent  secured  the

highest marks and was eligible for being appointed in the

unreserved  post  according  to  the  law  laid  down  by  this

Court.   Even  as  per  the  Office  Memorandum  dated

26.12.2013,  which  pertains  to  the  direct  recruitment  in

group ‘C’ posts, the Scheduled Tribe candidates who were

selected on their own merit without relaxed standards shall

be appointed in the posts earmarked for the open category.

The learned Senior Counsel argued that it is settled law that

3 (2014) 9   SCC 236 4 (2018) 10 SCC 313

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a resident of the Union Territory is entitled to be considered

for appointment to the public post as a reserved category

candidate.   He  cannot  be  deprived  of  the  status  as  a

member  of  a  reserved  category  candidate  only  on  the

ground that he is a migrant.  It was submitted that there is

no  doubt  that  the  Respondent  had  been  residing  in  the

Union  Territory  for  six  years  before  the  date  of  the

advertisement.  He referred to the judgment of this Court in

Bir  Singh (supra)  to  argue  that  the  law  laid  down  in

Pushpa’s (supra) case has not been disturbed.   

7. By  the  Constitution  (Dadra  and  Nagar  Haveli)

Scheduled  Tribes  Order,  1962,  the  President  declared

“Dhodia” caste as a Scheduled Tribe in relation to the Union

Territory  of  Dadra  and  Nagar  Haveli  regarding  members

thereof who are residents in that Union Territory.  A circular

was issued by the Appellants on 10.07.1995 by which the

benefit of reservation in Government offices for Scheduled

Castes/  Scheduled  Tribes  candidates  would  continue  in

respect of persons who were appointed prior to   01.01.1990

and  a  separate  decision  shall  be  taken  for  future

appointments.  Persons  belonging  to  Scheduled  Castes/

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Scheduled  Tribes  domiciled  in  the  Union  Territory

Administration  of  Dadra  and  Nagar  Haveli  are  to  be

considered  for  appointment  to  public  posts  in  reserved

categories  as  per  the  Office  Memorandum  dated

01.09.2006.  The said notification was in respect of direct

recruitments to group ‘C’ and ‘D’ posts.  While reiterating

that  the  benefit  of  reservation  for  appointment  to  public

posts shall be restricted to those castes/ tribes included in

the  notification  applicable  to  the  Union  Territory,  in  the

Letter to the Ministry of Home Affairs dated 13.09.2013, it

was conveyed that priority/preference shall be given to the

locals.   It  is  not  disputed  that  the  said  priority  shall  be

applicable to candidates belonging to open category as well

as reserved categories.  The Government of India approved

the said  proposal  regarding weightage/preference to  local

people in direct recruitment in respect of Group ‘B’, ‘C’ and

‘D’ posts.  The Government of India was of the opinion that

exclusive  reservation  for  local  people  would  be

unconstitutional.   Thereafter, a decision was taken by the

Union Territory of Dadra and Nagar Haveli that weightage of

20 additional marks shall be given to the locals in both open

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and reserved categories for direct recruitment to category

‘C’  posts  in  the  Union  Territory.   According  to  the

advertisement,  a  candidate  applying  in  the  reserved

category  should  produce  a  certificate  issued  by  the

competent  authority.   All  Indian  citizens  were  eligible  to

apply for  selection to the post  of  Assistant  Motor  Vehicle

Inspector  and  the  candidates  were  informed  about  the

weightage to be given to the locals.    

8. In Marri Chandra Shekhar Rao v. Dean, Seth G.S.

Medical College and Others5  the Petitioner belonged to

‘Gouda’ community in the State of Andhra Pradesh which

was  recognized  as  a  Scheduled  Tribe  in  the  Presidential

Order issued for the said State.  He applied for admission in

a medical college in the State of Maharashtra and claimed

the  benefit  of  reservation.  ‘Gouda’  community  was  not

recognized as a Scheduled Tribe in  the Presidential  Order

issued for the State of Maharashtra, and on that ground he

was denied the benefit of reservation.  It was held by this

Court  that  he  had  no  legal  right  to  claim  benefit  of

reservation in the State of Maharashtra as his community

5 (1990) 3 SCC 130  

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was not included as a Scheduled Tribe in the Presidential

Order issued for the State of Maharashtra.   

9. Appointments of Selection Grade Teachers made by the

Directorate  of  Education,  Government  of  Pondicherry  was

the subject matter of a judgment of this Court in S. Pushpa

(supra).   An advertisement  was issued for  recruitment  of

350  General  Central  Service  Group ‘C’  posts  of  Selection

Grade  Teachers  out  of  which  56  posts  were  reserved  for

Scheduled  Caste  candidates.   As  sufficient  number  of

Scheduled  Castes  candidates  were  not  available  in  the

Yanam and  Mahe regions  of  the  Union  Territory  of

Pondicherry,  candidates  registered  in  the  neighbouring

employment exchanges in the States of Tamil Nadu, Andhra

Pradesh and Kerala were also sponsored.  The question that

arose  for  consideration  therein  was  whether  a  migrant

Scheduled Caste candidate belonging to another State was

eligible for appointment to the post which is reserved for a

Scheduled  Caste  candidate  in  the  Union  Territory  of

Pondicherry.  The Central Administrative Tribunal was of the

opinion that migrant Scheduled Caste candidates were not

entitled to claim the benefit of reservation in the matter of

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employment in the Pondicherry Government Service.  This

Court reversed the judgment of the Central Administrative

Tribunal  by  observing  that  there  is  no  violation  of  any

provision of the Constitution of India in making the selection

and  appointment  of  migrant  Scheduled  Caste  candidates

against  the  quota  reserved  for  Scheduled  Castes  in  the

Union Territory of Pondicherry.   

10. Government  Orders  issued  by  the  Pondicherry

Government  extending  the  benefit  of  reservation  for

admissions in colleges was extended only to the members

of the Scheduled Castes who were originally from the Union

Territory.   While  referring to  the  notification issued under

Articles 341(1) and 342(1) of the Constitution of India, this

Court in  Puducherry Scheduled Caste People Welfare

Association (supra)  decided  that  no  amendment,

modification, alteration or variation of the Presidential Order

is  permissible  by  an  executive  power.   Altering  the  word

“Resident”  in  the  Presidential  Order  to  “Origin”  by  an

executive order amounted to altering the Presidential Order,

was  held  to  be  impermissible  by  this  Court  in  the  said

judgment.   

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11. In  view  of  the  difference  of  opinion  relating  to  the

extension of benefits or concessions allowed to Scheduled

Caste candidates belonging to a particular State in another

State, the matter was referred to a Constitution Bench.  In

Bir Singh’s case (supra), this Court was of the opinion that

the  correctness  of  the  view expressed  in  the  case  of  S.

Pushpa  (supra)  did  not  require  reconsideration.   The

Constitution  Bench  also  reiterated  that  the  Presidential

Notification issued under  Articles  341 and 342 cannot be

altered or  modified by the Executive.   The upshot of  the

above discussion is that a person belonging to a Scheduled

Caste or a Scheduled Tribe which is notified by the President

for  a  Union  Territory  is  entitled  to  be  considered  as  a

reserved  candidate  provided  he is  a  resident  of  the  said

Union Territory.   

12. There is no dispute that the Respondent was a resident

in  the  Union  Territory  of  Dadra  and  Nagar  Haveli  for  six

years prior to the date of advertisement.  He stated in the

Writ  Petition that he owns an apartment in which he was

residing and he married a woman from “Dhodia” tribe in the

Union Territory.  He further stated that his name is in the

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Voter’s List in the Union Territory.  These facts have not been

disputed by the Appellants.  The central issue raised by the

Appellants before the High Court was that a person should

be a local in the Union Territory which meant that migrant

Scheduled Tribes cannot be given the benefit of reservation.

The Presidential Notification issued for the Union Territory of

Dadra and Nagar Haveli extends the benefit of reservation

to the Scheduled Tribes mentioned therein on the basis of

residence and not on the basis of origin.  We find no force in

the  point  canvassed  by  the  learned  counsel  for  the

Appellants that the reservation for Scheduled Tribes in the

Union Territory of Dadra and Nagar Haveli is not available to

migrant Scheduled Tribes.  A feeble attempt was made by

the learned counsel for the Appellant that the requirement

of residence is for a period of 10 years for a person to claim

the benefit of reservation.  There is no material which was

placed on record in the High Court in support of the said

submission and there was no such averment in the counter

affidavit filed in the Writ Petition.  This point was not raised

before the High Court and no such ground is taken in the

Special Leave Petition for which reason the said contention

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does not merit any consideration.  Other points canvassed

by the learned Senior Counsel for the Respondent need not

be adverted to in  view of  the order  we propose to pass.

Gross injustice is caused to the Respondent by the action of

the Appellants in not appointing him in spite of the advice of

the Union of India and the direction issued by the National

Commission  for  Scheduled  Tribes.   The  appointment  of

Respondent as  Assistant Motor Vehicle Inspector does not

brook any further delay.   

13. We have no reason to interfere with the judgment of

the High Court.  Accordingly, the Appeal is dismissed.   

                          .................................J.

             [L. NAGESWARA RAO]

 ..................................J.               [M.R.SHAH]

New Delhi, May  07,  2019.   

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