Ashu & Ors. v. High Court of Delhi & Ors.

13. The question whether a person, who belongs to a Scheduled Tribe in relation to a State, is entitled to avail benefits available to persons belonging to Scheduled Tribes in another State was considered by the Constitution Bench of the Supreme Court in the case of Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College & Ors.: (1990) 3 SCC 130. This question arose in the context of a petitioner, who belonged to a Scheduled Tribe in the State of Andhra Pradesh and had sought benefits of reservation for admission to a medical college in the State of Maharashtra.

14. The Supreme Court construed the words “in relation to that State or the Union Territory, as the case may be” as used in Articles 341 and 342 of the Constitution of India to mean that a member of Scheduled Caste or Scheduled Tribe of particular State would be considered as such in respect the said State and would not be entitled to carry special privileges or rights granted to him in that State to another State.

15. Paragraph 13 of the said decision is relevant and set out below:-

16. The said view was reiterated in a subsequent decision of the Supreme Court in Action Committee on Issue of Caste Certificate to Scheduled Castes and Schedules Tribes in the State of Maharashtra v. Union of India: (1994) 5 SCC 244. The Supreme Court considered the import of certain instructions issued by the Ministry of Home Affairs, which permitted issuance of Scheduled Caste or Scheduled Tribe Certificates to members belonging to the said category, who had migrated from other States. In terms of the said instructions, Scheduled Caste/Scheduled Tribe Certificates were required to be issued irrespective of whether a particular caste/tribe was notified in relation to the State/Union Territory to which a member had migrated and sought such certificate. The Court held that issuance of a certificate was a facility extended to persons, who had migrated, and that did not entitle a person to benefits of reservation in that State. The Court observed that “certificate to be so issued would be in relation to the State/Union Territory from which the person concerned had migrated and not in relation to the State/Union Territory to which he had migrated. Therefore, the migrant would not be entitled to derive benefits in the State to which he had migrated on the strength of such a certificate.”

17. Insofar as the question whether a member of the Scheduled Caste or Schedule Tribe in a particular State carries the benefit of migration to another State is concerned, the said issue stands concluded by the aforementioned authoritative decisions of the Supreme Court in Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College & Ors. (supra) and Action Committee (supra).

18. The question whether a member of the Scheduled Caste or Schedule Tribe would carry the benefits of his/her reservation on migration to a Union Territory was also considered by the Supreme Court in S. Pushpa & Ors. v. Sivachanmugavelu & Ors.: (2005) 3 SCC 1. The said decision was in the case, where the appellants belonged to a Scheduled Caste of another State, who were granted benefit of reservation for appointment to the post of Selection Grade Teachers in the Union Territory of Pondicherry. The Central Administrative Tribunal (Madras Bench), following the decisions in Marri Chandra Shekhar Rao v. Dean, Seth, G.S. Medical College & Ors. (supra) and Action Committee (supra), had allowed the said petitions challenging their selection to the said post inasmuch as the benefits of reservation had been extended to migrants, who did not belong to the Scheduled Castes as notified for the Union Territory of Pondicherry (now known as Puducherry). In the said case the court referred to letter dated 04.02.1974 issued by the Government of India, Ministry of Home Affairs. The said letter, inter alia, clarified as under:- “So far as reservations for SC/ST candidates in posts/services under the Central Government are concerned, the concession is admissible to all SCs and STs which have been recognized as such under the orders issued from time to time irrespective of the State/Union Territory in relation to which particular castes or tribes have been recognized as SCs Tribes. Thus for a reserved vacancy in a Central Government office located in a State, any SC candidate throughout the country would be eligible. Since Pondicherry is a Union Territory all orders regarding reservations for Scheduled Castes/Tribes issued by the Department of Personnel in respect of posts/services under the Central Government are applicable to posts/services under the Pondicherry Administration. Also as such an SC/Tribe candidate from outside Pondicherry should also be eligible for a vacancy reserved for SCs/ST in the Union Territory Administration.”

19. Following the receipt of the aforesaid letter from the Government of India, the General Administration Department of the Government of Pondicherry had issued a government order dated 16.02.1974, which reads as under:- “In view of the clarifications of the Government of India all Secretariat Departments, Heads of Departments/Offices are informed that SC/Tribe candidates from outside the Union Territory of Pondicherry should also be considered for appointment to posts reserved for SCs/Tribe in this administration. These instructions should be followed strictly.”

20. Subsequently, the Government of Pondicherry had also issued a clarificatory circular dated 06.01.1993. In view of the aforesaid orders/circulars, the Pondicherry Administration extended special benefits to the candidates belonging to Scheduled Tribes and Scheduled Castes as notified in relation to the State of their origin. The Court found that extension of such benefits even to members of Scheduled Castes and Scheduled Tribes, who had migrated from their States, would not fall foul of any law. The relevant extract of the said decision reads as under: -

21. However, in a subsequent decision in the case of Subhash Chandra & Anr. v. Delhi Subordinate Services Selection Board & Ors.: 2009 (15) SCC 458, the Supreme Court found that the observations made in S. Pushpa & Ors. v. Sivachanmugavelu & Ors. (supra) were in conflict with the decision rendered by the Constitution Bench of the Supreme Court in Marri Chandra Shekhar Rao v. Dean, Seth, G.S. Medical College & Ors. (supra). Thus, the Court held that the “the dicta in S. Pushpa is an obiter and does not lay down any binding ratio”.

22. Subsequently, in the case of State of Uttaranchal v. Sandeep Kumar Singh and Ors.: (2010) 12 SCC 794, the Supreme Court expressed its reservation regarding the decision rendered by a Bench of two Judges in Subhash Chandra & Anr. v. Delhi Subordinate Services Selection Board & Ors. (supra). The Court held that it was not open for a two Judge Bench of the Supreme Court to hold that a decision of a three Judge Bench [referring to the decision in S. Pushpa & Ors. v. Sivachanmugavelu & Ors. (supra)] as obiter and per incuriam. The Court held that it would be apposite that the case be referred to a larger Bench.

23. Whilst the aforesaid reference to a larger bench of the Supreme Court was pending, a Full Bench of this Court was constituted to consider the batch of matters involving the question of granting benefit of reservation to reserved categories from other states. The said batch of petitions was disposed of by the decision rendered in the case of Deepak Kumar & Ors. v. District and Sessions Judge, Delhi and Ors.: (2012) 192 DLT 602 (Full Bench). The Full Bench of this Court had held that the decision of the Supreme Court in S. Pushpa & Ors. v. Sivachanmugavelu & Ors. (supra) is a binding precedent notwithstanding the reservation expressed by the Supreme Court in the case of Subhash Chandra & Anr. v. Delhi Subordinate Services Selection Board & Ors. (supra) as the decision in S. Pushpa & Ors. v. Sivachanmugavelu & Ors. (supra) was rendered by a Bench of three Judges. Accordingly, the benefit of reservation was directed to be extended to the petitioners, who belonged to notified castes/tribes albeit in relation to other States and not in relation to the National Capital Territory of Delhi. It is material to note that the petitioners had sought benefit of the reservation for appointments to the posts under the district judiciary. Given the importance of the matter, the Court also granted a certificate of appeal to the Supreme Court under Article 134 of the Constitution of India.

24. The question whether the benefit of reservation would be extended to migrant Scheduled Castes/Scheduled Tribes from another State/Union Territory including the appeals preferred pursuant to the certificate of appeal granted by the Full Bench of this Court under Article 134A of the Constitution of India in Deepak Kumar & Ors. v. District and Sessions Judge, Delhi and Ors. (supra), was considered by the Constitution Bench of the Supreme Court in Bir Singh v. Delhi Jal Board & Ors.: (2018) 10 SCC 312. The Supreme Court, following the decision in Marri Chandra Shekhar Rao v. Dean, Seth, G.S. Medical College & Ors. (supra), concluded as under: -

25. Insofar as granting benefit of reservation in the employment under a Union Territory is concerned, there is divergence of opinion amongst the members of the Bench. The majority decision, delivered by Ranjan Gogoi J, held that insofar as a Union Territory is concerned, it was not necessary to go into the correctness of some of the views expressed by the Supreme Court in S. Pushpa & Ors. v. Sivachanmugavelu & Ors. (supra).

26. The Supreme Court concluded that the National Capital Territory of Delhi enjoys a special status inasmuch it has the power to enact laws on any of the subjects in List II & List III of the Constitution of India. The Court also examined the scheme of appointment to subordinate services in the National Capital Territory of Delhi and held that insofar 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. It is important to note that the appeals preferred pursuant to the certificate granted by the Full Bench of this Court in the Deepak Kumar & Ors. v. District and Sessions Judge, Delhi (Civil Appeal NO. 1085/2013) was not allowed but disposed of in view of the aforesaid conclusion. The decision rendered by the Full Bench of this Court – which was in respect of appointments to the posts with the district judiciary – was not set aside.

27. It is clear from the above that the controversy with regard to extending the benefit of reservation in employment to the services under the State/Union Territory revolved, essentially, on the question whether the benefit of the Presidential order notifying Scheduled Castes and Scheduled Tribes in relation to a State or a Union Territory could be extended to grant benefits in another State/Union Territory.

28. Insofar as the States are concerned, the decision of the Constitution Bench of the Supreme Court in Marri Chandra Shekhar Rao v. Dean, Seth, G.S. Medical College & Ors. (supra) and recently in Bir Singh v. Delhi Jal Board & Ors. (supra) authoritatively concludes the issue. A person who belongs to a Scheduled Caste/Scheduled Tribe in another State is not entitled to benefits extended to the reserved categories in another State as he/she would not belong to Scheduled Caste/Scheduled Tribe in relation to that State.

29. Insofar as the services under the National Capital Territory of Delhi are concerned, the decision in the case of Bir Singh v. Delhi Jal Board & Ors. (supra) and Deepak Kumar & Ors. v. District and Sessions Judge, Delhi and Ors. (supra) hold that the rule of pan-India reservation would be applicable. Thus, all candidates belonging to reserved categories notified by the Presidential Order in any State or Union Territory would be entitled to benefit of reservation in the subordinate services in the National Capital Territory of Delhi.

30. It is relevant to note that in none of the decisions, as referred to above, the question of domicile or the question of disqualifying any member of Scheduled Caste/Scheduled Tribe from the benefits of reservation on the ground of its residential status was in issue.

31. In the present case, the Establishment of the Delhi High Court (the Establishment) had denied the benefit of reservation to the petitioners solely on the ground that they have been unable to produce certificates that they are ordinarily residents of Delhi. It is important to note that in terms of the Notification, applications were invited from all citizens of this Country without any qualification as to their place of residence. It is also not the case of the Establishment that persons belonging to Scheduled Castes and Scheduled Tribes of another State are not eligible to apply to the post of Court Attendant/Room Attendant as advertised in terms of the Notification. Concededly, there is no requirement for a general category candidate to establish that he is an ordinarily resident of Delhi for qualifying for the said appointment. The requirement for a candidate to be an ordinarily resident of Delhi has been carved out only in respect of candidates, who claim reservation by virtue of belonging to the Scheduled Castes and Scheduled Tribes, as notified in relation to a State other than National Capital Territory of Delhi.

32. This Court is unable to find any basis for such disqualification; the Notification did not provide for any such qualification.

33. Mr Dattar, learned senior counsel appearing for the Establishment of the Delhi High Court, submitted that the condition that a candidate, who seeks the benefit of reservation, should be ordinarily resident in Delhi is premised on the decision of this Court in Ravindra Devi & Ors. v. Govt. of N.C.T. of Delhi & Ors.: (2013) 139 DRJ 321 (DB). He, however, concedes that none of the other decisions qualify that the benefit of reservation be made available only to persons ordinarily resident of Delhi.

34. The decision in the case of Ravindra Devi & Ors. v. Govt. of N.C.T. of Delhi & Ors. (supra) was delivered by this Court, while the appeal preferred from the decision of the Full Bench of this Court in Deepak Kumar & Ors. v. District and Sessions Judge, Delhi and Ors. (supra) was pending before the Supreme Court.

35. In Ravindra Devi & Ors. v. Govt. of N.C.T. of Delhi & Ors. (supra), this Court had had referred to the decisions of the Supreme Court in Marri Chandra Shekhar Rao v. Dean, Seth, G.S. Medical College & Ors. (supra); Action Committee (supra); and S. Pushpa & Ors. v. Sivachanmugavelu & Ors. (supra); and of the Full Bench of this Court in Deepak Kumar & Ors. v. District and Sessions Judge, Delhi and Ors. (supra) and observed that decision in the case of Deepak Kumar would hold the field. The Court had also referred to Office Memorandum dated 27.08.2003 issued by the Government of NCT of Delhi with regard to extending the benefit of reservation for recruitment of post under the Government of NCT of Delhi.

36. It is relevant to refer to Paragraph nos. 21, 22 and 23 of the said decision, which were dispositive of the controversy before the Court. The said paragraphs are set out below:-

appropriate action for recruitment may be taken.” (Emphasis Supplied)

23. The position would be that in Delhi it would be a case of a conscious decision taken, as was taken by the appropriate Government in the Union Territory of Pondicherry, to extend benefit of reservation to, if we may use the expression migrant Scheduled Castes and Scheduled Tribes, provided the holder of the certificate is otherwise an ordinary resident of Delhi”

37. It is apparent from the above that the Court had read in the requirement of being ordinarily resident of Delhi for seeking benefit of reservation on the ground that such benefit also available to migrant Scheduled Castes and Scheduled Tribes. Clearly, there can be no such requirement where recruitment is to a post to which all citizens of India, irrespective of their residence, are eligible to apply. And, more importantly, the rule of pan-India reservation is applicable. Thus, if a candidate is able to furnish a certificate of belonging to a Scheduled Caste or Scheduled Tribe – which may otherwise be issued only by the competent authority where such a candidate is ordinarily resident – he cannot be denied the benefit of reservation as specified under the Notification.

38. The case of Bir Singh v. Delhi Jal Board & Ors. (supra) was rendered subsequent to the decision in Ravindra Devi & Ors. v. Govt. of N.C.T. of Delhi & Ors. (supra). As noted above, the said decision did not allow the appeal preferred against the decision of the Full Bench of this Court in Deepak Kumar & Ors. v. District and Sessions Judge, Delhi and Ors. (supra) and, in unambiguous terms, held that rule of pan-India reservation would apply to recruitment to posts in the subordinate services in the National Capital Territory of Delhi.

39. These petitions in respect of petitioner nos. 1 and 2 in W.P.(C) 5200/2018; petitioner nos. 1, 2 and 3 in Petition No. W.P.(C) 5240/2018; and petitioner no. 4 in W.P.(C) 1623/2019 were dismissed following the decision of the Full Bench of this Court in Deepak Kumar & Ors. v. District and Sessions Judge, Delhi and Ors. (supra) as they belonged to the category Other Backward Classes and not Scheduled Castes or Scheduled Tribes by various orders passed earlier. These petitions survive only in respect of the other petitioners.

40. In view of the above, these petitions are allowed and the Establishment of the Delhi High Court is directed to consider appointment of the petitioners to the advertised posts under the quota for the reserved category candidates, without insisting that the petitioners establish that they are ordinarily residents of Delhi. This is subject to the petitioners otherwise qualifying for such appointment in the order of merit.

VIBHU BAKHRU, J AMIT MAHAJAN, J NOVEMBER 02, 2022