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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.8425  of 2013 (Arising out of SLP(C) No.33724 of 2011)

Ranjana Kumari ... Appellant

Versus

State of Uttaranchal and others         ...Respondents

J U D G M E N T

G.S. SINGHVI, J.

1.      Leave granted.

2. The  appellant  has  questioned  correctness  of  order  dated  29.8.2011  by  

which the Uttarakhand High Court dismissed the writ petition filed by her in the  

matter of appointment as District Information Officer against the post reserved  

for Scheduled Caste.

3. In response to an advertisement  issued by Public Service Commission,  

Uttaranchal  (now  Uttarakhand)  (for  short,  ‘the  Commission’),  which  was  

published in newspaper Amar Ujala dated 25.8.2002 for recruitment against 833  

posts in different cadres, the appellant submitted an application for appointment  

as  District  Information  Officer  mentioning  therein  that  she  is  a  member  of  1

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Scheduled Caste. She cleared the Combined Civil Services Examination, 2002,  

preliminary as well as main.  She was interviewed by the Commission in May,  

2005. During the interview, the appellant was asked to indicate her preferences  

for various advertised posts.  She gave her 15th preference for the post of District  

Information  Officer.  She  was  provisionally  selected  but  her  candidature  was  

cancelled by the Commission vide Office Memorandum dated 4.10.2005 on the  

ground that she cannot take benefit of reservation in the State of Uttarakhand  

because  she  is  a  Scheduled  Caste  (Valmiki  of  Punjab).   The  other  ground  

indicated  by  the  Commission  was  that  the  appellant  was  not  eligible  to  be  

appointed against the advertised post because the mark sheet of her examination  

of Diploma in Journalism was issued on 26.10.2002, i.e., after the last date fixed  

for receipt of application.   

4. The appellant challenged the decision of the Commission in Writ Petition  

No.1281(M/B)/2005 (re-numbered as Writ Petition No.297/2007). The Division  

Bench of the High Court dismissed the same by observing that right to be treated  

as a member of reserved category is directly attributable to birth and a person  

can claim the benefit of reservation only in the State in which he/she is born and  

not the State to which such person may migrate after marriage or otherwise.  The  

Division Bench held that after migration from Punjab, the appellant cannot be  

treated as a member of Scheduled Caste in the State of Uttarakhand and she is  

not entitled to be appointed against the post reserved for Scheduled Caste.

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5. Ms.  Priya Hingorani,  learned counsel  for  the appellant  argued that  the  

impugned order is liable to be set aside because the view taken by the High  

Court  on  the  appellant’s  entitlement  to  be  treated  as  Scheduled  Caste  of  

Uttarakhand is not only erroneous, but is also contrary to the law laid down by  

this Court.  She pointed out that the appellant had married Shri Rajesh Gill, who  

is Valmiki by caste and is a resident of Dehradun since 1988 and argued that the  

Commission committed an error by rejecting her plea for appointment against  

the post reserved for Scheduled Caste despite the fact that Valmiki is recognised  

as  a  Scheduled  Caste  in  the  States  of  Uttar  Pradesh  and  Uttarakhand.   Ms.  

Hingorani also invited our attention to certificates dated 10.9.2002 and 13.6.2005  

issued  by  Tahsildar,  Dehradun  showing  the  appellant  as  Valmiki  of  Uttar  

Pradesh and Uttaranchal and a resident of Dehradun and argued that as on the  

last date of application, the appellant could not be treated as a person belonging  

to  Punjab  because  she  is  a  permanent  resident  of  Dehradun  (Uttarakhand).  

Learned  counsel  also  assailed  the  other  ground  on  which  the  Commission  

rejected the appellant’s candidature by pointing out that result of the examination  

held by Rajrshi Tandon Open University, Allahabad was declared on 15.9.2002,  

i.e.,  one day before the last date fixed for receipt of application and she had  

produced all the documents at the time of interview.

6.    Ms. Rachana Srivastava, learned counsel for the respondents supported the  

impugned order and argued that the High Court did not commit any error by  

negating the appellant’s challenge to the decision of the Commission to cancel  

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her  candidature  because  she  cannot  be  treated  as  a  Scheduled  Caste  of  

Uttarakhand.   In  support  of  her  argument,  Ms.  Srivastava  relied  upon  the  

judgments of the Constitution Bench in Marri Chandra Shekhar Rao v. Dean,  

Seth G. S. Medical College and others (1990) 3 SCC 130, Action Committee on  

Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State  

of Maharashtra and another v. Union of India and another (1994) 5 SCC 244 and  

Subhash Chandra and another v. Delhi Subordinate Services Selection Board and  

others (2009) 15 SCC 458.

7. We have considered the respective arguments and scrutinized the record.  

8. Articles 341 and 342, which have bearing on the decision of the question  

arising in this appeal, read as under:

“341. Scheduled Castes.—(1) The President may with respect  to any State or  Union territory,  and where it  is  a State  after  consultation with the Governor thereof, by public notification,  specify the castes, races or tribes or parts of or groups within  castes,  races  or  tribes  which  shall  for  the  purposes  of  this  Constitution be deemed to be Scheduled Castes in relation to  that State or Union territory, as the case may be.

(2) Parliament may by law include in or exclude from the list of  Scheduled Castes specified in a notification issued under clause  (1) any caste, race or tribe or part of or group within any caste,  race or tribe, but save as aforesaid a notification issued under  the  said  clause  shall  not  be  varied  by  any  subsequent  notification.

342.  Scheduled Tribes.— (1) The President may with respect  to any State or Union territory, and where it  is a State, after  consultation with the Governor thereof, by public notification,  specify the tribes or tribal communities or parts of or groups  

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within tribes or tribal communities which shall for the purpose  of  this  Constitution  be  deemed  to  be  Scheduled  Tribes  in  relation to that State or Union territory, as the case may be. (2) Parliament may by law include in or exclude from the list of  Scheduled Tribes specified in a notification issued under clause  (1) any tribe or tribal community or part of or group within any  tribe or tribal community, but save as aforesaid a notification  issued  under  the  said  clause  shall  not  be  varied  by  any  subsequent notification.”

9. The above reproduced  articles  enjoin that  the President after consultation  

with the Governor  where the States are concerned,  by public notification,  may  

specify the tribes or tribal communities or parts of or groups of tribes or tribal  

communities,  which shall  be deemed to be Scheduled Castes in relation to that  

State under Article 341 or Scheduled Tribes in relation to that State under Article  

342.

10. In Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College and  

others (supra), the Constitution Bench of this Court was called upon to consider  

whether the petitioner, who was a member of Scheduled Tribe in the State of  

Andhra  Pradesh  was  entitled  to  admission  in  MBBS  course  in  Maharashtra  

against  the quota reserved for Scheduled Tribes.   The petitioner was born in  

Tenali in the State of Andhra Pradesh and belonged to the Gouda community  

also known as “Goudu” which is recognised as “Scheduled Tribe” in the State of  

Andhra  Pradesh.  The  father  of  the  petitioner  was  issued  a  Scheduled  Tribe  

Certificate by the Tahsildar, Tenali, Andhra Pradesh. He was appointed in the  

Fertilizer Corporation of India, a public sector undertaking. On the 19th June,  

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1978, the petitioner's father joined Rashtriya Chemicals and Fertilizers Ltd., a  

Government  of  India  undertaking,  under  the  quota  reserved  for  Scheduled  

Tribes. He was posted in Bombay. As a consequence, the petitioner started living  

in Bombay.  He completed his education in Bombay.  For the academic year  

1989-90, he submitted applications for admission in three medical colleges run  

by the Bombay Municipal Corporation and one medical college run by the State  

of  Maharashtra  and sought  the benefit  of  reservation in  favour  of  Scheduled  

Tribes.  His claim was not accepted on the ground that he does not belong to  

Scheduled Tribe of Maharashtra.  After examining the scheme of the relevant  

Constitutional provisions, this Court observed:  

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

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It has, however, to be borne in mind that a man does not cease  to belong to his caste by migration to a better or more socially  free  and  liberal  atmosphere.  But  if  sufficiently  long  time  is  spent  in  socially  advanced  area  then  the  inhibitions  and  handicaps suffered by belonging to a socially disadvantageous  community do not continue and the natural talent of a man or a  woman  or  a  boy  or  girl  gets  full  scope  to  flourish.  These,  however,  are  problems  of  social  adjustment  i.e.  how  far  protection  has  to  be  given  to  a  certain  segment  of  socially  disadvantaged community and for how long to become equal  with others is a matter of delicate social adjustment. These must  be so balanced in the mosaic of the country’s integrity that no  section or community should cause detriment or discontentment  to other community or part of community or section. Scheduled  Castes and Scheduled Tribes belonging to a particular area of  the  country  must  be  given  protection  so  long  as  and  to  the  extent they are entitled in order to become equal with others.  But equally those who go to other areas should also ensure that  they make way for the disadvantaged and disabled of that part  of the community who suffer from disabilities in those areas. In  other  words,  Scheduled  Castes  and  Scheduled  Tribes  say  of  Andhra  Pradesh  do  require  necessary  protection  as  balanced  between other communities. But equally the Scheduled Castes  and Scheduled Tribes say of Maharashtra in the instant case, do  require protection in the State of Maharashtra, which will have  to be in balance to other communities.”

11. In Action Committee on Issue of Caste Certificate to Scheduled Castes and  

Scheduled Tribes in the State of Maharashtra and another v. Union of India and  

another  (supra),  another  Constitution  Bench  considered  a  similar  issue.  The  

question framed in that case was:  

“Where a person belonging to a caste or tribe specified for the  purposes  of  the  Constitution  to  be  a  Scheduled  Caste  or  a  Scheduled  Tribe  in  relation  to  State  A  migrates  to  State  B  where a caste or tribe with the same nomenclature is specified  for the purposes of the Constitution to be a Scheduled Caste or  a Scheduled Tribe in relation to that State B, will that person be  entitled to claim the privileges and benefits admissible to the  

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persons  belonging to  the  Scheduled Castes  and/or  Scheduled  Tribes in State B.”

The aforesaid question was considered in the backdrop of certificate, circulars  

and letters  issued  by the  Government  of  India  and  consequential  instructions  

issued by the State  of  Maharashtra  indicating  that  members  belonging to  the  

Scheduled Castes and Scheduled Tribes of other States shall not be entitled to the  

benefits and privileges accorded by the State of Maharashtra unless he or she is  

shown to be permanent resident of the State of Maharashtra on 10.8.1950 in the  

case of Scheduled Castes and 6.9.1950 in the case of Scheduled Tribes.  The  

Constitution Bench referred to the relevant Constitutional provisions including  

Articles 341 and 342, the judgment of the earlier Constitution Bench in Marri  

Chandra Shekhar Rao’s case and observed:  

“We may add  that  considerations  for  specifying  a  particular  caste  or  tribe  or  class  for  inclusion  in  the  list  of  Scheduled  Castes/Schedule  Tribes  or  backward classes  in  a  given State  would depend on the nature and extent of disadvantages and  social  hardships  suffered  by that  caste,  tribe  or  class  in  that  State which may be totally non est in another State to which  persons belonging thereto may migrate. Coincidentally it may  be  that  a  caste  or  tribe  bearing  the  same  nomenclature  is  specified in two States but the considerations on the basis of  which they have been specified may be totally different. So also  the  degree  of  disadvantages  of  various  elements  which  constitute  the  input  for  specification  may  also  be  totally  different. Therefore, merely because a given caste is specified  in State A as a Scheduled Caste does not necessarily mean that  if  there  be  another  caste  bearing  the  same  nomenclature  in  another  State  the  person  belonging  to  the  former  would  be  entitled to  the rights,  privileges  and benefits  admissible  to  a  member  of  the  Scheduled  Caste  of  the  latter  State  “for  the  purposes of this Constitution”.

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12. The  issue  was  again  considered  in  S.  Pushpa  and  others  v  

Sivachanmugavelu and others (2005) 3 SCC 1.  The facts of that case were that  

the  Directorate  of  Education,  Government  of  Pondicherry  had  issued  an  

advertisement for making recruitment of 350 General Central Service Group "C"  

posts of Secondary Grade of which 56 posts were reserved for Scheduled Castes.  

In response to the advertisement, the employment exchange sponsored the names  

of candidates of various categories including Scheduled Caste. The employment  

exchange  also  sponsored  some  names  of  Scheduled  Caste  candidates  from  

neighbouring employment exchanges as sufficient number of Scheduled Caste  

candidates were not available in Yanam and Mahe region of the Union territory  

of Pondicherry. Out of 55 selected candidates of Scheduled Caste, 29 produced  

community certificates from the Governments of Tamil Nadu, Andhra Pradesh  

and Kerala,  based on which the revenue authority of  Pondicherry had issued  

community  certificates  to  them.  The  remaining  26  candidates  produced  

community  certificates  from  the  revenue  authority  of  Pondicherry.  The  

respondents  challenged the selection of  aforesaid  Scheduled Caste  candidates  

mainly on the ground that a migrant Scheduled Caste candidate belonging to  

another State  is not  eligible for  appointment on a post  which is reserved for  

Scheduled Caste candidate of the Union Territory of Pondicherry. The Central  

Administrative Tribunal relied upon the judgments in Marri Chandra Shekhar  

Rao’s case and Action Committee on Issue of Caste  Certificate to Scheduled  

Castes and Scheduled Tribes in the State of Maharashtra and another v. Union of  

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India and another (supra) and held that the Scheduled Castes who migrated to the  

Union Territory of Pondicherry after  the issuance of Presidential  notification,  

which has specified Scheduled Castes in terms of Article 341 of the Constitution  

cannot claim the benefit  of  reservation in the services of  the Government  of  

Pondicherry. Accordingly, the selection and appointment of migrant Scheduled  

Caste candidates was set aside and a direction was issued to review the selection  

process. The three Judge Bench of this Court referred to the judgments of the  

Constitution  Bench  in  Marri  Chandra  Shekhar  Rao’s  case  and  the  Action  

Committee’s case and observed:  

“Part  XVI  of  the  Constitution  deals  with  special  provisions  relating  to  certain  classes  and  contains  Articles  330  to  341.  Articles 330 and 332 make provision for reservation of seats in  the  House  of  the  People  and  Legislative  Assemblies  of  the  States respectively, for Scheduled Castes and Scheduled Tribes.  Similar  provisions  have  been  made  for  Anglo-Indian  community in Articles 331 and 333. Article 338 provides that  there  will  be  a  Commission  for  the  Scheduled  Castes  to  be  known as National Commission for the Scheduled Castes and it  also provides for its composition, powers and duties. Clause (2)  of Article 330 provides that the number of seats reserved in the  States or Union Territories for Scheduled Castes or Scheduled  Tribes shall bear, as nearly as may be, the same proportion to  the number of seats allotted to that State or Union Territory in  the House  of  the People  as  the  population of  the  Scheduled  Castes  in  the  State  or  Union  Territory  or  of  the  Scheduled  Tribes in the State or Union Territory, as the case may be, in  respect  of  which  seats  are  so  reserved,  bears  to  the  total  population of the State or Union Territory. Similar provision for  reservation  of  seats  in  favour  of  SC/ST  in  the  Legislative  Assembly of any State is contained in clause (3) of Article 332  of the Constitution. Therefore, in order to ascertain the number  of  seats  which have  to  be  reserved  for  Scheduled  Castes  or  Scheduled  Tribes  in  the  House  of  the  People  or  in  the  Legislative  Assembly,  it  is  absolutely  essential  to  ascertain  

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precisely the population of the Scheduled Castes or Scheduled  Tribes  in  the  State  or  Union  Territory.  A  fortiori,  for  the  purpose of identification, it becomes equally important to know  who would be deemed to be Scheduled Caste in relation to that  State or Union Territory. This exercise has to be done strictly in  accordance with the Presidential Order and a migrant Scheduled  Caste  of  another  State  cannot  be  taken  into  consideration  otherwise it may affect the number of seats which have to be  reserved in the House of the People or Legislative Assembly.  Though, a migrant SC/ST person of another State may not be  deemed to be so within the meaning of Articles 341 and 342  after migration to another State but it  does not mean that he  ceases to be an SC/ST altogether and becomes a member of a  forward caste.

Clauses  (1)  and  (2)  of  Article  16  guarantee  equality  of  opportunity to all citizens in the matter of appointment to any  office or of any other employment under the State. Clauses (3)  to (5), however, lay down several exceptions to the above rule  of equal opportunity. Article 16(4) is an enabling provision and  confers a discretionary power on the State to make reservation  in the matter of appointments in favour of “backward classes of  citizens” which in its  opinion are not  adequately represented  either numerically or qualitatively in services of the State. But it  confers  no  constitutional  right  upon  the  members  of  the  backward  classes  to  claim  reservation.  Article  16(4)  is  not  controlled by a Presidential Order issued under Article 341(1)  or  Article  342(1)  of  the  Constitution  in  the  sense  that  reservation in the matter of appointment on posts may be made  in a State or Union Territory only for such Scheduled Castes  and  Scheduled  Tribes  which  are  mentioned  in  the  Schedule  appended to the Presidential Order for that particular State or  Union  Territory.  This  article  does  not  say  that  only  such  Scheduled Castes and Scheduled Tribes which are mentioned in  the Presidential Order issued for a particular State alone would  be recognised as backward classes of citizens and none else. If a  State  or  Union  Territory  makes  a  provision  whereunder  the  benefit  of  reservation  is  extended  only  to  such  Scheduled  Castes  or  Scheduled  Tribes  which are  recognised as  such in  relation to that State or Union Territory then such a provision  would  be  perfectly  valid.  However,  there  would  be  no  infraction of clause (4) of Article 16 if a Union Territory by  virtue of its peculiar position being governed by the President  as laid down in Article 239 extends the benefit of reservation  

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even  to  such  migrant  Scheduled  Castes  or  Scheduled  Tribes  who are not mentioned in the Schedule to the Presidential Order  issued for such Union Territory. The UT of Pondicherry having  adopted  a  policy  of  the  Central  Government  whereunder  all  Scheduled  Castes  or  Scheduled  Tribes,  irrespective  of  their  State  are  eligible  for  posts  which  are  reserved  for  SC/ST  candidates, no legal infirmity can be ascribed to such a policy  and the same cannot be held to be contrary to any provision of  law.”

13. In the case of Subhash Chandra and another v. Delhi Subordinate Services  

Selection Board and others (supra), private respondents and/or their parents are  

migrants to Delhi. In their native places, they were declared to be the members of  

the Scheduled Castes. The Ministry of Home Affairs issued a circular on or about  

2.5.1975, in terms whereof the manner in which the claim of a person belonging  

to Scheduled Castes or Scheduled Tribes is required to be verified was laid down.  

Such  verification  was  to  be  made  having  regard  to  the  Presidential  order  

specifying  the  Scheduled  Castes  and  Scheduled  Tribes  in  relation  to  the  

concerned State. National Capital Territory of Delhi issued clarification by way  

of  two  circulars.  Pursuant  to  directions  issued  by  the  Union  Territory,  an  

advertisement was issued by the State Subordinate Selection Board containing  

general  instructions  that  Scheduled  Caste  and  OBC  candidates  must  furnish  

certificates issued by the competent authority of Government of NCT of Delhi  

issued  on  or  before  the  closing  date  of  receipt  of  application  forms.  The  

appellants questioned the legality and/or validity of the circulars issued by the  

National  Capital  Territory  of  Delhi  by  claiming  that  they  are  entitled  to  the  

benefits  of  the Presidential  Notification declaring their  caste  to  be Scheduled  

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Castes but keeping in view the nature of verification specified by reason of the  

aforementioned  circulars.  The  Government  of  National  Capital  Territory  

contended that the notification involved two sets of castes/categories certificate  

one in relation to the original inhabitants and the other relating to the migrants.  

The petitioners filed Writ Petition challenging circulars before the High Court.  

By  relying  upon the  ratio  of  Marri  Chandra  Shekhar  Rao’s  case  and  Action  

Committee  on  Issue  of  Caste  Certificate  to  Scheduled  Castes  and  Scheduled  

Tribes in the State of  Maharashtra v. Union of  India (supra),  the High Court  

dismissed the writ petition. A two Judge Bench of this Court reversed the order  

of the High Court and declared that the migrants are not entitled to the benefit of  

reservation in the Union Territories. The two Judge Bench also declared that the  

view expressed by the three Judge Bench in S.  Pushpa v.  Sivachanmugavelu  

(supra) was per incuriam.  

14. The matter again came up for consideration before a two Judge Bench in  

State of Uttaranchal v. Sandeep Kumar Singh (2010) 12 SCC 794. The two Judge  

Bench did not  approve the approach adopted by another two Judge bench in  

Subhash Chandra’s case and referred the matter to larger Bench by making the  

following observations:

“In our view, a two Judge Bench of this Court could not have  held the decision rendered by a three Judge Bench in S. Pushpa  case to be obiter and per incuriam.

A very important question of law as to interpretation of Articles  16(4),  341  and  342  arises  for  consideration  in  this  appeal.  Whether  Presidential  Order  issued  under  Article  341(1)  or  

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

For the aforesaid reasons, therefore, in our view, it would be  appropriate that this case is placed before the Hon’ble the Chief  Justice of India for constituting a Bench of appropriate strength.  The registry is, accordingly, directed to place the papers before  the  Hon’ble  the  Chief  Justice  of  India  for  appropriate  directions.”

15. The question arising in this appeal is whether a person like the appellant,  

who is a Scheduled Caste in the State where she was born will not be entitled to  

the benefit of reservation after marriage in the State where her husband is living  

despite  the  fact  that  the  husband  also  belongs  to  Scheduled  Caste  and  the  

particular Caste falls in the same reserved category in the State of migration and  

that she is a permanent resident of that State.  

16. Since the other related matter has been referred to a larger Bench, we think  

that it  would be just and proper to refer this matter also to the larger Bench.  

Ordered accordingly.

17. The Registry is directed to place the papers before the Hon’ble the Chief  

Justice of India for consideration and appropriate order.

…………………………..J. (G.S. SINGHVI)

New Delhi; ………………………….J. September 23, 2013.           (V. GOPALA GOWDA)

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