Krishna v. Union of India and Ors.

12. 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.

13. 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 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.

14. 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 Chief Justice of India for appropriate directions."

11. It may be noticed at this stage that both in Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College (1990) 3 SCC 130 and Action Committee v. Union of India (1994) 5 SCC 244, the Supreme Court, while considering the question clarified that the rule under which the benefits of reservation to migrant SCs of one State against quotas for SCs in other States, would not apply in the case of UTs. A larger Bench of three Judges in

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 [AIR 1968 SC 637]. In New Delhi Municipal Council v. State of Punjab [(1997) 7SCC 339] the majority has approved the ratio of T.M. Kanniyan and has held that the Union Territories are not States for the purpose of Part XI of the Constitution (para 145). The Tribunal has, therefore, clearly erred in applying the ratio of Marri Chandra Shekhar Rao in setting aside the selection and appointment of migrant SC candidates. xxx xxx xxx

20. ….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.

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

12. In light of the above dichotomy in the decisions, a Division Bench of this Court in a decision dated 25th July, 2011 in W.P.(C) No.610/2011 (Delhi Subordinate Services Selection Board v. Mukesh Kumar) referred the issue to a larger Bench of three Judges. By a decision dated 12th September, 2012, in W.P.(C) 5390/2010 (Deepak Kumar v. District & Sessions Judge, Delhi), the Full Bench of this Court, after discussing extensively the entire case law, summarized the legal position as under: “(1) The decisions in Marri, Action Committee, Milind and Channaiah have all held 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 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 over-classification 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 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 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 vis-a-vis 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 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.”

13. More recently, the Supreme Court in Bir Singh v. Delhi Jal Board (2018) 10 SCC 312 has reiterated the special status that the NCT of Delhi enjoys by virtue of Article 239AA of the Constitution: “National Capital Territory of Delhi

64. 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— 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” (Non-Gazetted). (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.” (emphasis supplied)

65. Subordinate services in the National Capital Territory of Delhi are, therefore, clearly Central Civil Services. The affidavit of the Union of India 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 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.” [ P. 6, para (b) of the affidavit.]

66. 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.”

67. While examining the validity of reservation of seats in medical colleges for local candidates in Delhi, this Court in Jagadish Saran v. Union of India [Jagadish Saran v. Union of India, (1980) 2 SCC 768] 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 paras 10 and 56 may be usefully recapitulated and, therefore, is set out below: (SCC pp. 773 & 789) “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 vis-à-vis regional, minorities. It is megapolitan 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 North-east, population wise, 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 court must test constitutionality and no more. To that extent alone we will weigh these factors in moulding our verdict. ***

56. We may wind-up 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.”

68. The affidavit of the Union of India does not touch upon the details of subordinate services in other Union Territories. 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.

69. Accordingly, we answer the question referred in terms of the views expressed in para 38 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.”

14. Recently, this Court in an order dated 24th September, 2019, in W.P.(C) No.7474/2017 (Rohit Kumar Meena v. Union of India), allowed the plea of another Constable (GD), who had been appointed in the CISF under the Delhi quota of ST, although he belonged to the Meena caste, which was designated as ST in the State of Rajasthan, and he did not figure in the Central List of STs for Delhi. In doing so, this Court followed the decision of the Full Bench in Deepak Kumar v. District & Sessions Judge, Delhi (supra).

15. For all of the aforementioned reasons, this Court sets aside the impugned order dated 12th December, 2018, terminating the services of the Petitioner and the further appellate order dated 2nd April, 2019, dismissing the Petitioner‟s appeal. The Petitioner is directed to be reinstated in service with all consequential benefits. The period between the date of his termination, and his date of reinstatement would be treated as a period „in service‟, for all practical purposes, including notional fixation of pay, seniority, and other incidental benefits. The Petitioner, however, would not be entitled to any arrears of pay. The consequential orders will now be issued not later than eight weeks from today.

S. MURALIDHAR, J.

TALWANT SINGH, J. DECEMBER 17, 2019 tr