Subhash
Chandra & Anr. V. Delhi Subordinate Ser.Sel.Board & Ors. [2009] INSC 1391
(4 August 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2009
(Arising out of SLP (C) No.24327 of 2005) Subhash Chandra & Anr. ...
Appellants Versus Delhi Subordinate Services Selection Board & Ors. ...
Respondents WITH WRIT PETITION (C) NO.507 OF 2006 Sarv Rural & Urban
Welfare Society through its President ...Petitioner Versus Union of India &
ors. ...Respondents
S.B. Sinha,
J.
1.
Leave granted in SLP (C) No.24327 of 2005.
2.
Interpretation and/ or application of the notifications and/or the
circulars issued by the National Capital Territory of Delhi in terms of clause
(1) of Article 341 of the Constitution of India is involved herein.
3.
It arises out of a judgment and order dated 13.05.2005 passed by a
Division Bench of the High Court of Delhi dismissing an appeal preferred from
an order passed by a learned Single Judge of the said Court.
The writ
petition was filed by the appellant society which is registered under the
Societies Registration Act, with its objects amongst others `up lift ment of
Backwards, Scheduled Castes and others of Delhi in education, social and
cultural fields and to apply for and get all kinds of facilitation and
relaxation and for safeguarding their interest in Government jobs'.
4.
The background facts involving filing of this appeal are as
follows :
The
members of Scheduled Casts and Scheduled Tribes have an important place in our
constitutional scheme. Article 341 of the Constitution empowers the President
to specify the castes, races or tribes or part of or groups within castes,
races or tribes with respect to any State or Union Territory for the purposes
of the Constitution deemed to be Scheduled Castes in relation to that State or
Union Territory as the case may be.
Similar
provision is contained in Article 342 of the Constitution of India with regard
to the members of the Scheduled Tribes. Clause (2) of Article 341 which is
relevant for our purpose reads as under :
3
"(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."
5.
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.
6.
Indisputably, 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 as
being 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.
In the
matter of verification of the caste of migrants, it was laid down:
"1.
General (Applications in all cases):- Where a person claims to belong to a
Scheduled Castes and Scheduled Tribes by birth it could be verified:- 4 (i)
That the person and his parents actually belong to the community claimed.
(ii) That
this community includes in the Presidential Orders specifying the Scheduled
Caste and Scheduled Tribes in relation to the concerned State.
(iii)
That the person belongs to that State and to the area within that State in
respect of which the community has been scheduled.
(iv) If
the person claims to be a Scheduled Caste, he should profess either the Hindu
or the Sikh religion.
(v) If
the person claims to be a Scheduled Tribe, he may profess any religion.
2. Case
of Migration:- (i) Where a person migrates from the portion of the State in respect
of which his community is scheduled to another part of the same State in
respect of which his community is not scheduled he will continue to be deemed
to be a member of the Scheduled Caste or the Scheduled Tribe as the case may be
in relation to that State.
(ii)
Where a person migrates from one State to another, he can claim to belong to a
Scheduled Caste or Scheduled Tribe only in relation to the State to which he
originally belonged and not in respect of the State to which he has
migrated."
7.
Yet again, by way of a clarification issued by the National
Capital Territory of Delhi dated 22.3.1977, it was, inter alia, stated :
"2.
As required under Article 341 and 342 of the Constitution, the President has,
with respect to every State and Union Territory and where it is State after
consultation with the Governor of the concerned State, issued orders notifying
various Castes and Tribes as Scheduled Castes and Scheduled Tribes in relation
that State or Union Territory from time tome. The inter State area restrictions
have been deliberately imposed so that the people belonging to the specific
community residing in a specific area, which has been assessed to qualify for
Scheduled Castes or Scheduled Tribes status, only benefit from the facility
provided for them. Since the people belonging to the same caste but living in
different State/Union Territories may not necessarily suffer from the such
disabilities, it is possible that two persons belonging to the same caste but
living in different State/Union Territories may not both be treated to belong
Scheduled Caste/Tribes or vice versa. Thus the residence of a particular person
a particular locality assumes a special significance. The residence has not
been understood in the literal or ordinary sense of the word. On the other hand
it connotes the permanent residence of a person on the date of the notification
of the Presidential Order scheduling his caste/tribe in relation to that
locality. Thus a person who is temporarily away from his permanent place of
abode at the time of the notification of the Presidential Order applicable in
his case say for example to earn a living or seek education etc. can also be
regarded as Scheduled Caste or a Scheduled Tribe, as the case may be, with
regard to his relation to his State U.T. but he cannot be treated as such in
relation to the place of 6 his temporary residence notwithstanding the fact
that the name of his caste/tribe has been scheduled in respect of that area in
any Presidential Order."
8.
Despite the same, however, on or about 8.4.1994, yet again a
circular letter was issued; the relevant portions whereof read as under :
"Subject:
Issuing of other Backward Class certificates to migrants from other States/UT.
Sir,
1. In
continuation of the DEPT's letter of 36012/22/93- Estt./SCT) dated 15th
November, 1993, I am directed to say that it has been represented to this
Department that persons belonging to OBCS who have migrated from one State to
another for the purpose of employment, education etc. experience great
difficulty in obtaining caste certificates from the States from which they have
migrated, in order to remove this difficulty it has been decided that the
prescribed authority of a State/UT Administration in terms of the DEPT letter
aNo.16012/22/93-Estt. (SCT) dated 15th November, 1993 may issue the OBCS
certificates to a person who has migrated from another States on the production
of a genuine certificate issued to his father by the prescribed authority of
the State his father's origin except where the prescribed authority feels that
a detailed enquiry is necessary through the state of origin before the issue of
the certificate.
2. The certificates
will be issued irrespectively of whether the OBC candidate in question is
included in the list of OBC pertaining to the State/U.T. to which the person
has migrated. The facility does not alter the OBC status of the person in
relation to the one at the other State/U.T. The OBC person on migration 7 from
the State/U.T. of his origin in another State/U.T.
where his
caste is not in the OBC list is entitled to the concession/benefits admissible
to the OBCS from the state of his origin and Union Government but not from the
State where he has migrated."
9.
Keeping in view the aforementioned directions issued by the Union
Territory, an advertisement was issued by the State Subordinate Selection
Board. General instructions issued therein, inter alia, read as under :
"(2)
SC 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.
(Illegible)"
10.
Questioning the legality and/or validity of the said circular,
Shri Kunwar Pal and 22 others, claiming themselves to be entitled to the
benefits of the aforementioned Presidential Notification declaring their caste
to be Scheduled Castes but keeping in view the nature of verification specified
by reason of the aforementioned circulars, filed writ petition in the High
Court of Delhi at New Delhi which was registered as Civil Writ Petition No.5061
of 2001 praying, inter alia, for the following reliefs :
"(i)
certiorari quashing the entire action of the respondents in not considering the
Scheduled Castes certificates of the petitioners (Annexure P3) collectively and
stating them not to be valid certificates:
8 (ii)
mandamus directing the respondents to consider and appoint the petitioners to
be posts of Assistant Teachers (Primary)-Hindi under reserved categories of
Scheduled Castes as per petitioners' Scheduled castes certificates (Annexure
P3) Collectively.
11.
The Government of National Capital Territory having been served
with a notice in the said writ application filed a counter affidavit
contending, inter alia, that the notification involved two sets of
castes/categories certificate' one in relation to the original inhabitants and
the other relating to the migrants and stating :
"In
other words candidates belonging to SC/ST/OBC Castes/communities whose state/UT
of origin is other than the NCT of Delhi are not at all, eligible for benefit
of reservation in the services/posts under the Govt. Of Delhi and the
Local/Autonomous Bodies sub-ordinate to the said Government. The benefit of
reservation in the services/posts in Government of Delhi and Local/Autonomous
bodies is legally available to only those candidates who fall in the first
category.
The
candidates falling in the second category can claim the benefit of reservation
in the services/posts under the Central Government as well as Govt. of the
state/U.T. of their origin.
Such
candidates are not, at all, entitled for grant of benefit of reservation in the
services/posts under the Government of Delhi and Local/Autonomous bodies
subordinate to the said Govt."
12.
A learned Single Judge of the said Court, however, upon
construction of clause (2) of the circular letter dated 2.5.1975, held as
under:
"A
reading of the aforesaid clause, however, shows that the same relates to a
person who migrates from one State to another. In the present case the
candidates are the progenies of person who had migrated. In my considered view
there is a difference between the first generation migrant and the progenies of
the said migrant. The benefit may be denied to the first generation migrant on
the basis of the said circular but it cannot be denied to his progenies who are
born and brought up in the migrated State."
13.
Taking note of the fact that Delhi is an amalgam of people from
various parts of the country and, thus, the benefit of the aforementioned
Presidential notification, may not be extended to those who had migrated from
other States, inter alia, raised a question as to what should be the cut off
date to determine as to who is a Delhite.
Opining
that the circular letters had been issued with the object of protecting the
rights of the persons who may be away from his State would fall in the category
of that State and that only with a view to prevent injustice to such persons
that the said circular had been issued. Referring to 10 the decisions in Marri
Chandra Shekhar Rao v. Dean, Seth G.S. Medical College & Ors. [(1990) 3 SCC
130] and Action Committee on Issue of Caste Certificate to Scheduled Castes and
Scheduled Tribes in the State of Maharashtra & anr. [(1994) 5 SCC 244], it
was held :
"In
my considered view the aforesaid judgment would not come to the aid to the
respondents since the present case is not one of a similar nature. The benefit
of reservation is sought by such of the petitioners who are born and brought up
in Delhi but whose father or forefathers happened to migrate to Delhi over the
last number of years."
The writ
petitioners before the High Court, however, strongly relied upon the decision
of this Court in K. Balakrishnan v. K. Kamalam & Ors. [(2004) 1 SCC 580]
and S.Pushpa & Ors. v. Sivachanmugavelu & Ors. [(2005) 3 SCC 1].
Noticing
the dictionary meaning of the words `domicile' and `residents', as noticed by
this Court in Union of India & Ors. v. Dudh Nath Prasad [(2000) 2 SCC 20],
the learned Judge was held that widest amplitude for granting benefits of
reservations should be given to the said circulars.
Holding
that there is no rationale as to why the respondents suddenly sought to bring
in the restriction now, it was opined :
11
"In view of the aforesaid a writ of mandamus is issued to appoint such of
the petitioners in the present writ petitions who are born and brought up in
Delhi, the caste is notified as a reserved caste in Delhi but the certificate
issued to them is on the basis of the certificate issued to their fathers who
were the migrants from other States."
14.
The Division Bench of the said court dismissed the intra court
appeal preferred thereagainst by the Delhi Subordinate Service Selection Board
and another, holding :
"Therefore,
it is clear that for States inter se, the matters are considered differently.
In the instant case, it is an accepted position that the original petitioners
were born in the State of Delhi.
Therefore,
they are Scheduled Tribes in Delhi and the Tribe/Caste is also recognised in
Delhi as a reserved category. There is no dispute that the same caste to which
their parents belonged in other State is also recognized as a reserved
category."
15.
Mr. U.U. Lalit, learned senior counsel appearing on behalf of the
appellants, would contend :
(1) a
person belonging to a caste notified as Scheduled Castes in one State cannot
automatically claim the benefit of any notification specifying a similar caste
in another State or Union Territory.
12 (2)
Although a distinction lies between a State Civil Service and a Central Civil
Service, and inasmuch as in the latter, people from all over the country are
entitled to be considered for appointment keeping in view the plain language
contained in clause (1) of Article 341 of the Constitution of India, such a
benefit cannot be conferred on a person who had migrated from one State to
another State/Union Territory.
(3) In
interpreting such a notification, the High Court should have used the principle
of contextual interpretation and not a beneficent legislation.
16.
Mr. Mariarputham, learned Senior Counsel appearing on behalf of
the Union of India, Mr. Rakesh Kumar Khanna, learned Senior Counsel appearing
on behalf of the New Delhi Municipal Corporation and Dr. Krishan Singh Chauhan,
learned counsel appearing on behalf of the private respondents, on the other
hand, urged :
(i) The
Central Government being within the administrative control of Union Territory
in terms of Article 239 of the Constitution of India is entitled to lay down
policies involving Union Territory Services wherefor executive instructions can
be issued.
(ii)
Direction of this nature being in regard to the classes of people who would be
eligible to enter into Union Territory Service which is akin to Central Civil
Services being for the purpose of achieving the constitutional goal provided
for under clause (4) of Article 16 of the Constitution of India is permissible
in law.
(iii) The
State may take such policy decisions which would advance the cause of the
backward class as envisaged under clause (4) of Article 16 of the Constitution
of India and clause (4) of Article 15 thereof.
(iv)
Doctrine of protective discrimination envisaged in Article 16 would bring
within its ambit all such people who are backward not only in a State or Union
Territory but also throughout the length and breadth of the country as
envisaged under clause (1) of Article 16 thereof.
(v) For
the purpose of considering the validity of the circular letters impugned in the
writ petitions, the preamble of the Constitution of India as also the
provisions relating to reservation should be allowed to have its full play
particularly in view of the binding precedents of this Court in Chandigarh
Administration & Anr. vs. Surinder Kumar & ors. [(2004) 1 SCC 530] and
S. Pushpa & ors. vs. Sivachanmugavelu & ors. [(2005) 3 SCC 1].
(vi)
Although at one point of time the stand of the Union Territory of Delhi which
was impugned in the writ petition before the Delhi High Court by the private
respondents was in the light of the law laid down by this Court in Marri
Chandra Shekhar Rao (supra) and Action Committee (supra) but in view of the
later decisions of this Court in Chandigarh Administration (supra) and S.
Pushpa (supra), the Union of India as also the N.C.T. of Delhi must be held to
be bound thereby, being law declared under Article 141 of the Constitution of
India.
(vii)
Migrants from other States who are members of Scheduled Castes and Scheduled
Tribes in their State must be allowed to take the benefit of the said status
particularly those who had been residing in Delhi for a period of more than
five years and those who are born and brought up in Delhi.
17.
Ms. Shashi Kiran, learned counsel appearing on behalf of the
N.C.T. of Delhi would submit that having regard to the provisions contained in
Article 239 of the Constitution of India, the N.C.T. of Delhi has no other 15
option but to follow the directives issued by the Central Government from time
to time.
18.
In view of the rival contentions of the parties, the questions
which arise for our consideration are :
(1)
Having regard to the decisions of this Court in Marri Chandra Shekhar Rao
(supra) and Action Committee (supra), the specification of a particular Caste
or Tribe to be a Scheduled Caste and Scheduled Tribe being in relation to that
State or Union Territory, whether a person on his migration to another State
would carry the same status with him? (2) Whether in view of the decisions of
this Court in Action Committee (supra) even where the similar Caste bearing the
same name having been declared to be the Scheduled Caste both in the State to
which he originally belonged and the State and/or Union Territory to which he
has migrated would make any difference in view of the provisions contained in
Article 341 of the Constitution of India? (3) Whether in view of the decisions
of the Constitution Bench of this Court in State of Maharashtra vs. Milind
& ors. [(2001) 1 SCC 4] and E.V. Chinnaiah vs. State of A.P. & ors. [(2005)
1 SCC 394] extension of notification even to a migrant would amount to
modification and/or 16 alteration of the notification which is impermissible in
law in view of clause (2) of Article 341 and clause (2) of Article 342 of the
Constitution of India? (4) Whether having regard to the provisions contained in
Articles 239 and 239AA of the Constitution in relation to Union Territory it is
permissible for the Central Government to direct recruitment to the Union
Territory Services treating it to be akin to Central Civil Services in view of
the decisions of this Court in Chandigarh Administration (supra) and S. Pushpa
(supra)? (5) Whether the ratio laid down by this Court in Chandigarh
Administration (supra) and S. Pushpa (supra) having not taken into
consideration the binding precedents in Constitution Bench in Milind (supra),
Chinnaiah (supra) and M.C.D. vs. Veena & ors. [(2001) 6 SCC 571] would
constitute binding precedents?
19.
The Constitution of India is suprema lex. The Preamble of the
Constitution of India envisages `Sovereign Socialist Secular Democratic
Republic'. In terms of Article 1 of the Constitution of India, that is, Bharat,
shall be a Union of States as specified in the First Schedule.
17 The
First Schedule contains two lists; (1) the list of States, and (2) the list of
Union Territories. They together constitute geographical and political
territory of India.
The
equality clause contained in Articles 14, 15 and 16 constitutes a set of
fundamental rights of all persons whether they are citizens of India or not.
Whereas in terms of Article 14 of the Constitution of India all persons
similarly situated are entitled to enforcement of their fundamental right of
equality before the law and equal protection of the laws. Articles 15 and 16
although aim at equality but also provide for certain exceptions.
20.
In terms of the aforementioned provisions, enabling provisions
have been made so as to enable the State to make any special provision for the
advancement of any socially and educationally backward classes of citizens or
for Scheduled Castes and Scheduled Tribes as provided for in clause (4) of
Article 15 of the Constitution of India and for making any 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 of the State as provided for in clause (4) of Article 16 thereof.
21.
We may at the outset notice the distinction between clause (4) of
Article 15 and clause (4) of Article 16 of the Constitution. The words 18
`backward classes' and `Scheduled Castes and Scheduled Tribes' find place in
clause (4) of Article 15 but only the words `backward class of citizens' find
place in clause (4) of Article 16.
It is,
however, beyond any doubt or dispute that the term `backward class of citizens'
contained in clause (4) of Article 16 includes Scheduled Castes and Scheduled
Tribes for all intent and purport. Therefore, the protection sought to be
accorded to a section of the citizenry must not only be to backward class but
may also be to Scheduled Castes and Scheduled Tribes for whom a special
provision can be made.
Article
341 of the Constitution of India, which finds place in Part XVI thereof
provides for special provisions relating to certain classes of citizens.
It reads
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, 19 race or tribe, but save as aforesaid a
notification issued under the said clause shall not be varied by any subsequent
notification."
The terms
`Scheduled Castes' and `Scheduled Tribes' have been defined in clauses (24) and
(25) of Article 266 of the Constitution, which read as under:
"(24)
"Scheduled Castes" means 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;
(25)
"Scheduled Tribes" 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
342 in identical terms deals with the cases of members of Scheduled Tribes.
22.
Part VIII of the Constitution of India provides for the Union
Territories stating that 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. Special 20
provisions with respect to Delhi has been made by inserting Article 239AA to
the Constitution; Clause (1) whereof provides that despite coming into force of
the Constitution (Sixty-ninth Amendment) Act, 1991, the Union Territory of
Delhi shall be called the National Capital Territory of Delhi and shall be
administered by an Administrator appointed under Article 239 who shall be
designated as the Lieutenant Governor.
23.
The President of India promulgated the Constitution (Scheduled
Tribes) Order in the year 1950 specifying the Tribes which would be deemed to
be the Scheduled Tribes. Similarly, in the year 1951, Constitution (Scheduled
Castes) Order was promulgated. The names of several Tribes and Castes were
added, deleted and altered subsequently by notifications issued by the
President of India from time to time.
24.
It may be advantageous to notice the relevant provisions of the
Constitution (Scheduled Castes) Order, 1950 and the Constitution (Scheduled
Tribes) Order, 1950 made by the President of India in exercise of powers
conferred by Article 341(1) and Article 342(1) respectively of the
Constitution. In the order first mentioned Clause (2) provides as under:
"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 XXIV of the 21
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 the
Schedule."
Clause
(2) of the second mentioned Order reads as under:
"2.
The Tribes or tribal communities, or part of, or groups within, tribes or
tribal communities, specified in Parts I to XXII of the Schedule to this Orders
shall, in relation to the State 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 Scheduled."
25.
Indisputably, having regard to clause (2) of Article 341 as also
of Article 342 of the Constitution tinkering with the said list is
impermissible, save and except by a law made by the Parliament.
Concededly,
in respect of education or service, there exists a distinction between State
Service and State run institutions including 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 22 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 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 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.
Before
us, it has furthermore been conceded that for the purpose of Union Territory of
Delhi no separate notification in respect of Scheduled Tribe has been issued.
The
Constitution (Scheduled Castes) (Union Territories) Order, 1951, is a
Presidential Notification, issued under Article 341 of the Constitution of
India specifying Scheduled Castes in relation to the Union Territory of Delhi.
However, no such notification exists under Article 342 of the 23 Constitution
of India, listing scheduled tribes for the Union Territory of Delhi.
The
question therefore is, whether in the absence of a Presidential Notification,
listing any group of persons as a Scheduled Tribe in Delhi, can by policy, the
benefit of reservation in services be accorded to migrant Scheduled Tribes in
the Union Territory of Delhi? We may, however, notice that a learned Single
Judge of the Delhi High Court had rejected extension of such benefit of
reservation to migrant Scheduled Tribes but a Division Bench of High Court
applied the ratio of this Court in S. Pushpa (supra) to extend such benefits to
members belonging to Scheduled Tribes. The correctness of the said view is also
in question before us.
It is in
the aforementioned context, the constitutional provisions as noticed by us
heretobefore call for interpretation.
When a
Caste or a Tribe is designated as a Scheduled Caste or Scheduled Tribe, the
members belonging thereto derive a bunch of benefits.
Such
benefits may not only be confined to admission in educational institutions,
appointment in State or Central Civil Services, but also for contesting
elections to the seats reserved for them in the Panchayats and 24
Municipalities in lieu of the provisions of 73rd and 74th Amendments to the
Constitution. Benefits to the members of the Scheduled Castes and Scheduled
Tribes and other backward classes may also be conferred by means of schemes
formulated by the Central Government or the State Government.
Article
341 of the Constitution of India does not make any distinction between a State
and Union Territory except for the purpose of consultation with the Governor or
the Administrator, as the case may be.
Such
consultation is necessary in view of the fact that it is for the State
machinery to identify such Caste or Tribe who had suffered the centuries old
ignominy and/ or suffered other disadvantages. It is possible for a State to
point out that although a group of people may be belonging to a caste or Tribe
which is otherwise backward but having regard to the social and economic
advancement made by that group, they should be excluded.
Persons
belonging to a particular Caste or Tribe may suffer some disadvantages in one
State but may not suffer the same disadvantages in the other. Our
constitutional scheme, therefore, seeks to identify the social and economic
backwardness of people having regard to the State or Union Territory as a unit.
The same principle applies even to the minorities as has 25 been laid down by
an Eleven Judge Bench of this Court in T.M.A. Pai Foundation and Ors. v. State
of Karnataka and Ors [(2002) 8 SCC 481]
26.
It is also a trite law that a study has to be undertaken before a
section of the people can be identified as being belonging to backward class
people.
In our
constitutional scheme backward class people are divided into three categories,
namely, Scheduled Castes, Scheduled Tribes and other backward classes.
Scheduled Caste and Scheduled Tribe would be backward but the same would not
mean that the converse is true, i.e., all backwards would be members of the
Scheduled Castes or Scheduled Tribes.
Why we
say so is that the reservation in terms of clause (4) of Article 16 of the
Constitution of India is fixed on a percentage basis. The advertisement issued
by the Delhi Subordinate Services Selection Board clearly shows that the
percentage of reservation having regard to the Central Government Rules which
are applicable to the National Capital Territory of Delhi would be 7.5% for
Scheduled Tribes, 15% for Scheduled Castes and 27.5% for other backward
classes.
No
Scheduled Tribe has been identified in the Union Territory. The Presidential
Order in regard to the Scheduled Castes speaks of the residents of Delhi alone.
26 Some
of the Castes identified as Scheduled Castes in some other States also find
place in the Presidential Order issued for Delhi.
What
would be the effect is the question.
27.
With the aforementioned backdrop in mind, we may notice a few
decisions of this Court.
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 Gouda community
which is recognized 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. This Court noticed the fact that the father of the
petitioner therein was an employee in Fertilizer Corporation of India, a public
sector undertaking, in the Scheduled Tribes quota and thereafter in the
Rashtriya Chemicals and Fertilizers Limited, a Government of India undertaking
under the quota reserved for Scheduled Tribes whereafter he was stationed at
Bombay. The petitioner therein 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 in view of Circular dated 22.2.1985 issued by the Government of India.
27 The
Circular dated 22.2.1985 issued by the Government of India, inter alia, read as
under :
"It
is also clarified that a Scheduled Caste/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."
The
question which was posed was the effect of specification by the President of
the Scheduled Castes or Scheduled Tribes, as the case may be, for the State or
Union territory or part of the State. Noticing that the specification was
"for the purposes of this Constitution", it was found to be necessary
to determine what the expression `in relation to that State' seeks to convey.
28.
This Court noticed not only the various provisions of the Constitution
but also the earlier decisions governing the field as well as the views of Dr. B.R.
Ambedkar in the Constituent Assembly, to hold:
"22.
In that view of the matter, we are of the opinion that the petitioner is not
entitled to be admitted to the medical college on the basis of Scheduled Tribe
Certificate in Maharashtra. In the view we have taken, the question of
petitioner's 28 right to be admitted as being domicile does not fall for
consideration."
Marri
Chandra Shekhar Rao (supra) was followed by another Constitution Bench of this
Court in Action Committee (supra).
The
question posed therein 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 persons belonging to the
Scheduled Castes and/or Scheduled Tribes in State B?"
While
interpreting clause (1) of Articles 341 and 342, this Court held:
"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."
Noticing
that the persons belonging to Scheduled Castes/Scheduled Tribes who migrate
from their State of origin to another State in search of 29 employment or for
educational purposes had experienced great difficulty in obtaining Caste or
Tribe Certificates wherefor the Circular letters were issued, this Court held:
"14.
It is a matter of common knowledge that before and during the British Rule also
the social order in India was of graded inequality. During the freedom struggle
some of our leaders strived to bring about social integration to give a fillip
to the independence movement. The need to bring about equality was strongly
felt. After independence when the Constitution was being framed for free India,
considerable emphasis was laid on the need to secure equality. The debates of
the constituent Assembly bear testimony to this felt need."
29.
This Court also noticing Articles 14, 15(1), 15(4), 16(1), 16(4),
19, Part XVI of the Constitution of India and the decisions governing the field
as also Articles 341 and 342 thereof opined that Marri Chandra Shekhar Rao lays
down the correct law, holding :
"15.
We may add that considerations for specifying a particular caste or tribe or
class for inclusion in the list of Scheduled Castes/Scheduled 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 30 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."
30.
Whereas Marri Chandra Shekhar Rao (supra) was a case where no
notification had been issued for the State of Maharashtra specifying the Caste
to which the petitioner therein belonged to; in the case of Action Committee
(supra), the question related to a situation where coincidently some Castes
were notified in both the States, i.e., a fortuitous circumstance arose therein
that some classes had been notified in both the States.
31.
In Veena (supra), a Division Bench of this Court in a case arising
out of the National Capital Territory of Delhi, noticing Marri Chandra Shekhar
Rao (supra) held as under:
31
"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 belongs thereto goes by
migration.
It may
also be that a caste belonging to the same nomenclature is specified in two
States but the consideration on the basis of which they been specified may be
totally different. So the degree of disadvantages of various elements which
constitute the date 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 other State and a person belonging to that group is entitled to
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."
Upon
noticing the Circular letter dated 15.11.1993 specifying two model forms of the
certificate to be furnished by the OBC candidates seeking benefit of
reservations and the form appended thereto, it was held:
"A
careful reading of this notification would indicate that the OBCs would be
recognised as 32 such in the Government of National Capital Territory of Delhi
as notified in the Notification dated 20.01.1995 and further for the purpose of
verification of claims for belonging to castes/communities in Delhi as per the
list notified by the National Capital Territory of Delhi the certificates will
have to be issued only by the specified authorities and certificates issues by
any other authority could not be accepted."
This
Court opined:
"The
only additional aspects stated by them in their respective applications or in
the Certificates supported thereto is that they belong to OBC categories.
Hence, their cases ought to have been considered in the general category as if
they do not belong to OBC categories in the circumstances arising in this
case."
There the
candidature of those candidates were directed to be considered as a general
category candidate.
32.
The said principle was reiterated in U.P. Public Service
Commission, Allahabad vs. Sanjay Kumar Singh reported in (2003) 7 SCC 657,
wherein a boy belonging to Scheduled Tribe `Naga' and hailing from Nagaland
sought admission in a medical college at Kanpur. This Court upon considering
Marri Chandra Shekhar Rao (supra), Action Committee (supra) as also Veena
(supra) opined that the appellant therein could not be treated as 33 Scheduled
Tribe candidate so as to qualify himself to claim reservation against the
vacancy reserved for Scheduled Tribes in public services in the State of U.P.
33.
At this juncture, we may also notice two other Constitution Bench
decisions of this Court, namely, Milind (supra), Chinnaiah (supra) as also a
judgment of this Court in Shree Surat Valsad Jilla K.M.G. Parishad vs. Union of
India &ors. [(2007) 5 SCC 360].
Milind
(supra) dealt with a question as to whether the notified Scheduled Tribe being
Halba or Halbi as contained in Item No. 19 of the Presidential Order would
include "Halba-Koshti" or not. Indisputably, beginning from the decision
of the Nagpur High Court rendered in 1956 in Sonabai vs. Lakhmibai reported in
1956 Nagpur LJ 725, several other judgments as also circular letters issued by
the State of Maharashtra from time to time, acknowledging that
"Halba-Koshti" come within the definition of Halba and/or Halbi; the
Constitution Bench opined that the rule of stare decisis will have no
application in a case of this nature. It was opined that addition of
"Halba-Kosthi" in the Presidential Order would amount to amendment
thereto which is impermissible in law, stating:
"The
jurisdiction of the High Court would be much more restricted while dealing with
the question 34 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 No.
1 belong
to 'Koshti' caste and has no identity with the 'Halba/Halbi', which is the
Scheduled Tribe under Entry 19 of the Presidential Order, relating to 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 the question no. 2 also in the negative.
Hence it
is answered accordingly."
Milind
(supra), therefore, is an authority for the proposition that neither practice
prevailing in a State nor the decisions of the High Court which are otherwise
binding on the State would create a right in a person to obtain the benefit of
reservation in the teeth of provisions of Articles 341 and 342 of the
Constitution. It was furthermore stated:
"35.
The arguments advanced before the High Court on behalf of an intervener relying
on Articles 162, 256 to 258 and 339(2) of the Constitution of India that
instructions issued by the Central Government in the matter have overriding
effect over the instructions issued by the State Government, was lightly
brushed aside on the 35 ground that this aspect assured little importance in
the view taken by the High Court that the State Government was bound by the
circulars issued by it. We have already expressed above the view in the light
of Articles 341 and 342 of the Constitution that a Scheduled Tribes Order can
be amended only by the Parliament. Hence it is not possible to accept that
orders/circulars issued by the State Government, which have the effect of
amending Scheduled Tribes Order, were binding on the Government or other
affected parties."
34.
Another Constitution Bench of this Court in Chinnaiah (supra)
while considering the question as to whether any sub-classification within a
class is permissible having regard to the constitutional provision, answered
it, thus:
"26.
Thus from the scheme of the Constitution, Article 341 and above opinions of
this Court in the case of N.M. Thomas (supra), it is clear that the castes once
included in the Presidential List, form a class by themselves. If they are one
class under the Constitution, any division of these classes of persons based on
any consideration would amount to tinkering with the Presidential List."
xxx xxx
xxx
37. We
have already held that the members of Scheduled Castes form a class by
themselves and any further sub- classification would be impermissible while
applying the principle of reservation.
xxx xxx
xxx 36 111. The Constitution provides for declaration of certain castes and
tribes as Scheduled Castes and Scheduled Tribes in terms of Articles 341 and
342 of the Constitution of India. The object of the said provisions is to
provide for grant of protection to the backward class of citizens who are
specified in the Scheduled Castes Order and Scheduled Tribes Order having
regard to the economic and educationally backwardness wherefrom they suffer.
The President of India alone in terms of Article 341(1) of the Constitution of
India is authorized to issue an appropriate notification therefor. The
Constitution (Scheduled Castes) Order, 1950 made in terms of Article 341(1) is
exhaustive."
As
regards the question as to whether such a sub-classification is permissible
having regard to clause (4) of Article 16 of the Constitution of India, it was
held:
"43.
The very fact that the members of the Scheduled Castes are most backward
amongst the backward classes and the impugned legislation having already
proceeded on the basis that they are not adequately represented both in terms
of Clause (4) of Article 15 and Clause (4) of Article 16 of the Constitution of
India, a further classification by way of micro classification is not
permissible.
Such
classification of the members of different classes of people based on their
respective castes would also be violative of the doctrine of reasonableness.
Article 341 provides that exclusion even of a part or a group of castes from
the Presidential List can be done only by the Parliament. The logical corollary
thereof would be 37 that the State Legislatures are forbidden from doing that.
A uniform yardstick must be adopted for giving benefits to the members of the
Scheduled Castes for the purpose of Constitution.
The
impugned legislation being contrary to the above constitutional scheme cannot,
therefore, be sustained."
In a
separate but concurring judgment, one of us (S.B. Sinha, J.) opined as under:
"62.
It is true that by reason of Article 341 of the Constitution of India no
benefit other than expressly provided for in the Constitution, as, for example,
Article 320 or Article 322, had been conferred on a member of Scheduled Caste.
It is also not in doubt or dispute that the State has the legislative
competence to provide for reservations both in the field of public services as
also education. Article 15(4) and Article 335 expressly refer to the Scheduled
Castes and Scheduled Tribes. Clause (4) of Article 16 although does not refer
to Scheduled Castes or Scheduled Tribes, having regard to the expressions
"backward class of citizens" contained therein, it is judicially
interpreted that Scheduled Castes and Scheduled Tribes would come within the
purview thereof.
Scheduled
Caste indisputably is treated to be more backward than the backward class
people."
The said
principle had been applied by a Division Bench of this Court in Shree Surat
Valsad Jilla K.M.G. Parishad (supra).
38 Recently,
a Constitution Bench of this Court in Ashok Kumar Thakur v. Union of India
& Ors. [(2008) 6 SCC 1], noticed E.V. Chinnaiah (supra) in the following
terms :
"65.
The learned Senior Counsel further contended that the exclusion of creamy layer
has no application to SCs and STs in regard to employment and education.
Articles 341, 342, 366(24) and 366(25) of the Constitution would militate
against such course of action.
66. It
was held in E.V. Chinnaiah v. State of A.P. that the SCs and STs form a single
class. The observations in Nagaraj case cannot be construed as requiring
exclusion of creamy layer in SCs and STs. Creamy layer principle was applied
for the identification of backward classes of citizens. And it was specifically
held in Indra Sawhney case that the above discussion was confined to Other
Backward Classes and has no relevance in the case of Scheduled Tribes and
Scheduled Castes. The observations of the Supreme Court in Nagaraj case should
not be read as conflicting with the decision in Indra Sawhney case. The
observations in Nagaraj case as regards SCs and STs are obiter.
In regard
to SCs and STs, there can be no concept of creamy layer.
XXX XXX
XXX 184. So far, this Court has not applied the "creamy layer"
principle to the general principle of equality for the purpose of reservation.
The "creamy layer"
so far
has been applied only to identify the backward class, as it required certain
parameters to determine the backward classes. "Creamy layer"
principle
is one of the parameters to identify 39 backward classes. Therefore,
principally, the "creamy layer" principle cannot be applied to STs
and SCs, as SCs and STs are separate classes by themselves. Ray, C.J., in an
earlier decision, stated that "Scheduled Castes and Scheduled Tribes are
not a caste within the ordinary meaning of caste".
And they
are so identified by virtue of the notification issued by the President of
India under Articles 341 and 342 of the Constitution. The President may, after
consultation with the Governor, by public notification, specify the castes,
races or tribes or parts of or groups within castes, races or tribes which for
the purpose of the Constitution shall be deemed to be Scheduled Castes or
Scheduled Tribes. Once the notification is issued, they are deemed to be the
members of Scheduled Castes or Scheduled Tribes, whichever is applicable. In
E.V. Chinnaiah concurring with the majority judgment, S.B. Sinha, J. said:
"The
Scheduled Castes and Scheduled Tribes occupy a special place in our
Constitution. The President of India is the sole repository of the power 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. The Constitution (Scheduled Castes) Order, 1950 made in terms
of Article 341(1) is exhaustive. The object of Articles 341 and 342 is to
provide for grant of protection to the backward class of citizens who are
specified in the Scheduled Castes Order and Scheduled Tribes Order having
regard to the economic and education backwardness wherefrom they suffer. Any
legislation which would bring them out of the purview thereof or tinker with
the order issued by the President of India would be unconstitutional.
40
(emphasis supplied) 185. A plea was raised by the respondent State that
categorisation of Scheduled Castes could be justified by applying the
"creamy layer" test as used in Indra Sawhney case which was
specifically rejected in para 96 of E.V. Chinnaiah case. It is observed:
"96.
But we must state that whenever such a situation arises in respect of Scheduled
Caste, it will be Parliament alone to take the necessary legislative steps in
terms of Clause (2) of Article 341 of the Constitution.
The
States concededly do not have the legislative competence therefor."
186.
Moreover, right from the beginning, the Scheduled Castes and Scheduled Tribes
were treated as a separate category and nobody ever disputed identification of
such classes. So long as "creamy layer" is not applied as one of the
principles of equality, it cannot be applied to the Scheduled Castes and
Scheduled Tribes. So far, it is applied only to identify the socially and
educationally backward classes. We make it clear that for the purpose of reservation,
the principles of "creamy layer" are not applicable for Scheduled
Castes and Scheduled Tribes."
The
authoritative pronouncement of the Constitution Bench, thus, clearly shows that
the proclamation made by the President of India by Scheduled Caste Order is
exhaustive. Only the Parliament having regard to the Constitutional Scheme can
tinker therewith.
35.
We may now notice the decisions of this Court which have taken a
somewhat different view.
In
Chandigarh Administration (supra), one of the issues related to the effect of
the State Reorganisation Act. This Court noticed Marri Chandra Shekhar Rao
(supra) as also Action Committee (supra) but proceeded on the premise that
Government of India was entitled to issue instructions qua service in the Union
Territories and the same were binding on the Union Territory, holding :
"The
judgments relied upon by the learned counsel for the appellant only decide the
constitutional aspect of the Government policy on the subject at a given time
while leaving the policy decision as to what benefits are to be conferred on
persons belonging to reserved categories with the Government of India. In the
present case the Government of India has conveyed its decision on the point
vide its circular letter dated 26.8.1986 which has not been modified.
Therefore, the instructions contained in the said letter which were admittedly
being followed till 7.9.1999, in our view, continue to be in force. There is no
reasonable basis to discontinue the said decision with effect from 7.9.1999. No
reason or basis has been disclosed for discontinuing the same with effect from
the said date."
Indisputably,
the Division Bench noticed a decision of this Court in State of Maharashtra vs.
Kumari Tanuja [(1999) 2 SCC 462], to opine:
42
"12. In the present case we have noticed that the Government of India
instructions contained in circular dated 26.8.1986 specifically permit that a
recognised Scheduled Caste/Schedule Tribe of any other State or Union Territory
would be entitled to the benefits and facilities provided for SC/ST in the
services in the Union Territory of Chandigarh.
This
letter is specifically addressed by the Government of India to the Home
Secretary, Chandigarh Administration and deals with employment in the Union
Territory of Chandigarh.
Therefore,
there is no reason to ignore the instructions contained in the said letter. It
is to be noticed in this behalf that in the rejoinder affidavit filed by the
appellant before this Court it is specifically pleaded in para 12 that `at the
relevant time, the reservation benefit was being extended to all the candidates
belonging to respective communities on the production of valid certificates of
castes issued by the State of origin, but on receipt of clarification on
7.9.1999 the reservation benefits are only to be allowed to .... who are
bonafide residents of Chandigarh and in whose favour valid certificates have
been issued by the competent of Chandigarh Administration. After 7.9.1999 no
appointment against reserved posts have been made to the candidates who are not
residents of Chandigarh and are not having valid certificates of caste issue by
the DM/SDM Chandigarh'".
This
Court although noticed Marri Chandra Shekhar Rao (supra), Action Committee
(supra) and Veena (supra) but did not distinguish the same.
36.
We may now notice S. Pushpa (supra). It is a judgment rendered by
a three judge Bench of this Court. The fact involved therein was noticed in
paragraph 2 of the judgment, from a perusal whereof, it appears that 26
candidates produced community certificates from the Revenue Authority of
Pondicherry. This Court proceeded on the basis that as the Administrator while
acting under the authority given to him by the President in terms of Article
239 of the Constitution was bound by the directions issued by the Central
Government in terms whereof the vacancies occurring in the Union Territory was
to be treated as that of Central Civil Services which practice had consistently
been followed by the Administration in terms whereof migrant SC/ST candidates
were held to be eligible for appointment in the reserved posts in the
Pondicherry Administration. It was held that the Marri Chandra Shekhar Rao
(supra) would have no application as Union Territory of Pondicherry is not a
State, stating :
"Since
all SC/ST candidates which have been recognized as such under the orders issued
by the President from time to time irrespective of the State/Union territory,
in relation to which particular castes or tribes have been recognized as
SCs/STs are eligible for reserved posts/services under the Central Government,
they are also eligible for reserved posts/services under the Pondicherry
administration. Consequently, all SC/ST candidates from outside the U.T. of
Pondicherry would also be eligible for posts 44 reserved for SC/ST candidates
in Pondicherry administration. Therefore, right from the inception, this policy
is being consistently followed by the Pondicherry administration whereunder
migrant SC/ST candidates are held to be eligible for reserved posts in
Pondicherry administration.
37.
It was furthermore held that in a case of that nature even clause
(4) of Article 16 would be attracted, stating:
"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 45 State alone
would be recognized as backward classes of citizens and none else. If a State
or Union territory makes a provision where under the benefit of reservation is
extended only to such Scheduled Castes or Scheduled Tribes which are recognized
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 U.T.
of Pondicherry having adopted a policy of 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."
Chandigarh
Administration (supra) and S. Pushpa (supra) read together, therefore, proceed
on the basis that Marri Chandra Shekhar Rao (supra) would have no application
in relation to Union Territory.
The
contention of the respondents in this case is squarely based on these two
decisions.
Can it be
said that Marri Chandra Shekhar Rao does not apply to Union Territory? The
answer thereto, in our opinion, is a big emphatic `no'.
46 Both
Articles 341 and 342 not only refer to the State but also to the Union Territory
.
Although
Union Territories are administered by the Central Government, yet it is
difficult to conceive that 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 Caste) Order or Constitution (Scheduled Tribe) 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.
38.
If the principle applied in S. Pushpa (supra) is to be given a logical
extension, it will lead to an absurdity, that the Scheduled Castes Order in a
State brought under the control of the President under Article 356 could be
altered by virtue of a notification issued in pursuance of Article 16(4) of the
Constitution. Clause (4) of Article 16 of the Constitution, as noticed
hereinbefore, cannot be made applicable for the purpose of grant of benefit of
reservation for Scheduled Castes or Scheduled Tribes in a State or Union 47
Territory, who have migrated to another State or Union Territory and they are
not members of the Scheduled Castes and Scheduled Tribes.
By virtue
of Article 341, the Presidential orders made under clause (1) thereof acquire
an overriding status. But for Articles 341 and 342 of the Constitution, it would
have been possible for both the Union and the States, to legislate upon, or
frame policies, concerning the subject of reservation, vis-`-vis inclusion of
Castes/Tribes. The presence of Articles 338, 338A, 341, 342 in the Constitution
clearly preclude that.
39.
We may notice the Scheme and the legal position of the
Constitution (Schedule Castes) Orders which is as under:
Originally
a common Presidential Order was made in respect of States in 1950.
Another
common Presidential Order was issued in respect of Union territories in 1951.
The Union Territories Order continues to be in force. It comprehends three
Union Territories including Delhi and Chandigarh.
48
Separate orders have been made in respect of the Union Territories of
Pondicherry and Dadra and Nagar Haveli. There is no order in respect of Andaman
Nicobar Island.
Amendments
were made to the Schedule Caste/ Tribe Orders of the States and Union
Territories Order of 1951, by an Act of Parliament first in 1956 and later in
1976. besides the above, in the event of States reorganization, Parliament has
exercised its power under Article 341 (2) to enact specific Castes/ Tribes that
had to be Scheduled Castes and Scheduled Tribes in relation to the reorganized
States/Union Territories.
The Union
Territories Scheduled Castes Order of 1951, amended by an Act of 1956 and later
of 1976, and still later, in 1987, reads as follows:
APPENDIX
"XI THE CONSTITUTION (SCHEDULED CASTES) (UNION TERRITORIES) ORDER, 1951
C.O. 32, dated the 20th September, 1951. "In exercise of the power
conferred by Clause (1) of Article 341 of the Constitution of India, as amended
by the Constitution (First Amendment) Act, 1951, the President is pleased to
make the following order namely :
49 This
order may be called the Constitution (Scheduled Cates) (Union Territories)
Order, 1951.
Subject
to the provision of this order, the castes, races or tribes or parts of, or
groups within, castes or tribes, specified in parts I to 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 regard members
thereof resident in the localities specified in relation to them respectively
in those parts of that schedule.
Notwithstanding
anything contained in paragraph 2, no person who professes a religion different
from the Hindu (or Sikh or the Buddhist) Religion shall be deemed to be a
member of a Scheduled Castes.
Any
reference in this order to a Union Territories in part 1 of the Schedule shall
be construed as a reference to the territory constituted as a Union Territory
as from the first day of November, 1956, any reference to a Union Territory in
part II of the Schedule shall be construed as a reference to the territory
constituted as a Union Territory as from the first day of the November, 1966
and any reference to a Union Territory in part III of the Schedule shall be
construed as a reference to the territory constituted as a Union Territory as
from the day appointed under clause (b) of the Section 2 of the Goa, Daman and
Diu Reorganization Act, 1987."
40.
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 50
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 at par on the ground of administrative exigibility 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.
41.
It is well known that what cannot be done directly cannot be done
indirectly. (See Ramdev Food Products Pvt. Ltd. v. Arvindbhai Rambhai Patel and
Ors. [(2006) 8 SCC 726, Para 73]. When an amendment or alteration is to be
brought about by a Parliamentary Legislation, the same purpose cannot be
achieved by taking recourse to circular letters.
If the
Central Civil Services and the Union Territory Services are different, keeping
in view the constitutional schemes particularly having regard to the proviso
appended to Article 309 of the Constitution of India, the same cannot be done
away with only because a Union Territory administratively is administered by
the Central Government. Any direction or policy decision, thus, must satisfy
the constitutional requirements laid down under Articles 341 and 342 of the
Constitution of India. If any other 51 construction is made, a policy decision
having regard to the decisions of this Court will have to be treated as a
proviso appended to clause (2) of Article 341 of the Constitution of India and
would amount to deriding of the Constitution which is impermissible in law.
For
identification of backward classes, it is necessary to undertake a study in a
particular State as to whether the migrants are required to be treated as
backward classes.
Indisputably,
the classes contemplated by Article 16(4) may be wider than those contemplated
by Article 15(4). If they are backward classes for the purpose of Article 16(1)
and 16(4) and not Scheduled Castes and Scheduled Tribes, they will come within
the purview of the reservation for backward classes and not the one which is
exclusively meant for Scheduled Castes and Scheduled Tribes within the purview
of reservation policy of the States.
Moreover
enabling provision contained in clause (4) of Article 16 of the Constitution of
India can of course be enforced by reason of an executive direction but the
same must be made in terms of Article 77 or Article 162 of the Constitution of
India.
52
Furthermore, a circular letter does not have the force of law [See Punjab Water
Supply and Sewerage Board, Hoshiarpur v. Ranjodh Singh and Ors.(2007) 2 SCC
491, Para 10].
Article
246 of the Constitution will, thus, have no application where law making power
is not resorted to. Executive instructions contained in Article 77 and Article
162 refer to the law making power alone. No material has been placed before the
High Court or before us to show that the Scheduled Castes or Scheduled Tribes
candidates migrated from another State having regard to their socio economic
position in Delhi were required to be treated as backward classes We are unable
to accept the contention that the members of scheduled castes and scheduled
tribes notified as such in other States would come within the purview of the
backward classes within the meaning of clause (4) of Article 16 of the
Constitution of India. If a caste or tribe is notified in terms of the
Scheduled Caste Order or Scheduled Tribe Order, the same must be done in terms
of clause (1) of Article 341 as also that of 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) 53 thereof must be
resorted to. Reservations have been made in terms of the policy decision of the
Central Government, namely, 7.5% for the members of scheduled tribes, 15% for
the members of scheduled castes and 27% for the members of backward classes. If
the members of the scheduled castes and scheduled tribes in other States are to
be treated as backward classes for Delhi; intensive studies were required to be
made in regard to the question whether they would come within the purview of
the definition of `backward classes' so as to answer the description of
`socially and educationally backward'. It was so held in Indra Sawhney &
ors. v. Union of India & ors.
[1992
Supp. (3) SCC 212] thus:
"...The
language of clause (4) makes it clear that the question whether a backward
class of citizens is not adequately represented in the services under the State
is a matter within the subjective satisfaction of the State. This is evident
from the fact that the said requirement is preceded by the words "in the
opinion of the State". This opinion can be formed by the State on its own,
i.e., on the basis of the material it has in its possession already or it may
gather such material through a Commission/Committee, person or authority. All
that is required is, there must be some material upon which the opinion is
formed. Indeed, in this matter the court should show due deference to the
opinion of the State, which is in the present context means the executive...."
42.
There is another aspect of the matter. When reservation for
scheduled castes or scheduled tribes had been earmarked, persons answering the
description thereto only can be appointed. No recruitment is permissible for a
backward class against a scheduled caste or scheduled tribe quota.
That
itself would be violative of clauses (1) and (4) of Article 16 of the
Constitution of India. Furthermore, if a person is to be treated as scheduled
caste or scheduled tribe in terms of Article 341 of the Constitution of India,
the benefit attached thereto in all other areas must be conferred on him. A
person cannot be treated to be a member of scheduled caste for one purpose and
not for another purpose.
43.
The law relating to affirmative action and protective
discrimination by way of reservation of posts for the members of the Scheduled
Castes invoking Clause (4) of Article 16 of the Constitution of India is
reflected by constitutionalism, i.e., the provisions of the Constitution of
India read with the executive instructions issued by the National Capital
Territory of Delhi in this behalf which has the force of law in terms whereof
only the classes of persons who would be entitled thereto were determined. By
judicial process or otherwise, the said executive instructions which are
consistent with the constitutional scheme could not have brought about an
altogether different 55 situation as a result whereof those who are residents
of Delhi being belonging to the members of the Scheduled Castes and, thus,
entitled to be regarded within the framework of the quota provided for by the
Government could not have been deprived therefrom by way of bringing in another
class of persons within the purview of the said category of Scheduled Castes
who are not entitled to the said benefit. By reason of such an Act, those who
are entitled to the benefit of the doctrine of protective discrimination
contained in Clause (4) of Article 16 of the Constitution of India had been
deprived of their constitutional right. Once it is found that the
constitutional violation of this nature has been committed, in our opinion, the
Courts would be entitled to apply the principle of strict scrutiny test or
closer scrutiny test or higher level of scrutiny. It is commonly believed
amongst a section of Academicians that strict scrutiny test in view of the
Constitution Bench decision of this Court in Ashok Kumar Thakur (supra) is not
applicable in India at all.
Therein
reliance has been placed in Saurabh Chaudri & Ors. v. Union of India &
Ors. [(2003) 11 SCC 146] wherein this Court stated :
"36.
The strict scrutiny test or the intermediate scrutiny test applicable in the
United States of America as argued by Shri Salve cannot be applied in this
case. Such a test is not applied in Indian 56 courts. In any event, such a test
may be applied in a case where a legislation ex facie is found to be
unreasonable. Such a test may also be applied in a case where by reason of a
statute the life and liberty of a citizen is put in jeopardy. This Court since
its inception apart from a few cases where the legislation was found to be ex
facie wholly unreasonable proceeded on the doctrine that constitutionality of a
statute is to be presumed and the burden to prove contra is on him who asserts
the same."
In a
concurrent opinion, one of us, S.B. Sinha, J., stated, thus:
"92.
Mr Nariman contended that provision for reservation being a suspect
legislation, the strict scrutiny test should be applied. Even applying such a
test, we do not think that the institutional reservation should be done away
with having regard to the present-day scenario..."
Saurabh
Chaudri (supra) read as a whole therefor refused to apply the strict scrutiny
test in the case of reservation evidently having regard to the Clauses (1) and
(4) of Articles 15 and 16 of the Constitution of India. It is noteworthy to
point out that the facts of this case did not bear out an ex facie
unreasonableness and therefore the court did not employ the strict scrutiny
test. The Constitution Bench in Ashok Kumar Thakur (supra), itself, held:
57
"252. It has been rightly contended by Mr Vahanvati and Mr Gopal
Subramanium that there is a conceptual difference between the cases decided by
the American Supreme Court and the cases at hand. In Saurabh Chaudri v. Union
of India626 it was held that the logic of strict classification and strict
scrutiny does not have much relevance in the cases of the nature at
hand..."
[Emphasis
supplied] Saurabh Chaudri (supra) itself, therefore, points out some category
of cases where strict scrutiny test would be applicable. Ashok Kumar Thakur
(supra) solely relies upon Saurabh Chaudri to clarify the applicability of
strict scrutiny and does not make an independent sweeping observation in that
regard.
We are of
the opinion that in respect of the following categories of cases, they said
test may be applied:
1. Where
a statute or an action is patently unreasonable or arbitrary.
[See
Mithu v. Stateof Punjab [(1983) 2 SCC 277].
2. Where
a statute is contrary to the constitutional scheme. [See E.V. Chinniah
(supra)].
3. Where
the general presumption as regards the constitutionality of the statute or
action cannot be invoked.
58 4.
Where a statute or execution action causes reverse discrimination.
5. Where
a statute has been enacted restricting the rights of a citizen under Article 14
or Article 19 as for example clauses (1) to (6) of Article 19 of the
Constitution of India as in those cases, it would be for the State to justify
the reasonableness thereof.
6. Where
a statute seeks to take away a person's life and liberty which is protected
under Article 21 of the Constitution of India or otherwise infringes the core
human right.
7. Where
a statute is `Expropriatory' or `Confiscatory' in nature.
8. Where
a statute prima facie seeks to interfere with sovereignty and integrity of
India.
However,
by no means, the list is exhaustive or may be held to be applicable in all
situations.
In Anuj
Garg & Ors. v. Hotel Association of India & Ors. [(2008) 3 SCC 1], this
Court, stated :
"46.
It is to be borne in mind that legislations with pronounced "protective
discrimination" aims, such as this one, potentially serve as double-edged
swords. Strict scrutiny test should be employed 59 while assessing the
implications of this variety of legislations. Legislation should not be only
assessed on its proposed aims but rather on the implications and the effects.
The impugned legislation suffers from incurable fixations of stereotype
morality and conception of sexual role.
The
perspective thus arrived at is outmoded in content and stifling in means."
In United
India Insurance Company Ltd. v. Ajay Sinha & Anr.
[(2008) 7
SCC 454], it is stated :
"26.
An option is given to any party to a dispute. It may be a public utility
service provider or a public utility service recipient. The service must have
some relation with public utility. Ordinarily, insurance service would not come
within the public utility service. But having regard to the statutory scheme,
it must be held to be included thereunder. It is one thing to say that an
authority is created under a statute to bring about a settlement through
alternate dispute resolution mechanism but it is another thing to say that an
adjudicatory power is conferred on it. Chapter VI- A, therefore, in our
opinion, deserves a closer scrutiny. In a case of this nature, the level of
scrutiny must also be high. (See Anuj Garg v.
Hotel
Assn. of India.)"
As we have
already stated, in the event the state issues any instruction through circular
in the National Capital Territory of Delhi to this effect, the same will
deserve strict scrutiny. After following the precedent with respect 60 to
strict scrutiny it is pertinent to explore some foundational principles in this
regard.
At the
heart of the applicability of this doctrine in protective discrimination cases,
including affirmative action matters, is the challenge before the court to
facilitate the translation of the constitutional vision of substantive equality
into a practical feature of the polity. The enabling environment must have
objectively laid down policy attributes so much so that the targeted benefits
are accrued to parts of polity for which they are meant. As the final arbiter
on constitutional interpretation, the court is duty bound to delineate the four
corners of the legislative policy which is amenable to the constitutional
epithets of equality as also to Article 21. The state has to play within the rules
set by the court in this regard.
It must
be borne in mind at this juncture that in reality, various kinds of rights do
not operate independently of each other. And importantly, when State puts its
weight behind any particular set of rights by showing compelling interest, the
courts have to ensure that the transfer or accrual of benefits as a result of
the State action does not end up abrogating the competing rights of others to
an unnecessary extent. The constitutional grant of power to state in this respect
is channeled by the mandate of this court on the front of implementation.
61 First
responsibility of the court is to determine whether the ends purported to be
sought by the executive are "compelling." This process is under the
intense gaze of the court because the government is impinging upon somebody
else's core constitutional rights and therefore only the most pressing
circumstances can justify the government action.
The other
important responsibility is to inquire and assess that the law is a narrowly
tailored means of furthering those governmental interests.
Narrow
tailoring should satisfy the court that the law capture within its reach just
the adequate activity, neither more or less, than is necessary to advance those
compelling ends. In the ultimate analysis, the State action must be narrowly
drawn in a manner that it can qualify to be the least restrictive alternative
available to pursue those ends. Without this inquiry into "fit"
between
the ends and the means enables it will not only be difficult for the courts to
test the sincerity of the government's claimed objective but also the law may
be suffer from the vice of arbitrariness. Article 14 guarantee against
uncanalized and arbitrary laws has to be rigorously pursued by the court in this
regard. The State in such cases may act not only through a law but also through
an executive instrument like circular or even simple practice or convention and
the intense gaze of the Court in this behalf is all pervasive.
62 In
fact, more inarticulate the State action would be, greater would be the
intensity of the scrutiny by the courts.
Objectivity,
both in terms of quantifiable data and the intended objective, and time bound
prescriptions, (preferably with a sunset clause) are two measures which shall
keep the State in good stead while discharging the burden under the protective
discrimination mandate. The law must showcase overinclusion or underinclusion
or whatever other requirement there may be through statistics before moving
ahead with the execution of law. In M. Nagaraj & Others v. Union of India
& Others, (2006)8SCC212 this court employed the doctrine of guided power to
suggest that the power of the state to enact such a law or give effect to
protective discrimination under Article 16 (4-A) is to be exercised under the
guidance of the Court. The doctrine of guided power in that sense has been used
as a corollary of strict scrutiny rule. It is a distant relative of continuing
mandamus.
Courts
must guard against that protective discrimination clauses are not used as
pretexts for an invidious purpose. The political compulsions and extraneous
vote considerations in the functioning of the legislature are mentioned by a
prominent political science scholar, John Hart Ely in his landmark book,
Democracy and Distrust. He says that "special scrutiny, in particular its
demand for an essentially perfect fit, turns out to be a way of 63 'flushing
out' unconstitutional motivation." Justice Sandra Day O'Connor's in
Johnson v. California, 543 U.S. 499, 505 (2005) observed that "racial
classifications raise special fears that they are motivated by an invidious
purpose" and that strict scrutiny is designed "to 'smoke out'
illegitimate uses of race by assuring that the executive is pursuing a goal important
enough to warrant use of a highly suspect tool."
Protective
discrimination may be used to curtail the extremely hard won civil and
political rights granted by the Constitution. We have the backdrop of freedom
struggle to engage with in this regard. Rights of the accused as part of the
fair trial rights, equality rights, right to liberty and personal autonomy and
other such rights are to be fiercely protected against any blind policy
onslaught of the times. The government must have a overwhelming compelling
interest to justify limitations on the freedom of association, free exercise of
religion, free speech, right to vote, right to travel et al.
Strict
scrutiny thus paves the way for a more searching judicial scrutiny to guard
against invidious discriminations which could have made by the State against
group of people in violation of the constitutional guaranty of just and equal
laws. The court must adopt a weighted balancing approach or in other words
pursue an even-handed balancing of the interests 64
44.
The only question which survives is as to whether S. Pushpa
(supra) constitutes a binding precedent. A decision, as is well known, is an
authority for what it decides and not what can logically be deduced therefrom.
In S.
Pushpa (supra), decisions of the Constitution Benches of this Court in Milind
(supra) had not been taken into consideration. Although the case of Chinnaiah
(supra) was decided later on, we are bound by the same.
It is now
a well settled principle of law that a division bench, in case of conflict
between a decision of a Division Bench of two Judges and a decision of a larger
Bench and in particular Constitution Bench, would be bound by the latter. [See
M/s Sardar Associates v. Punjab & Sind Bank, CAs @ SLP (C) Nos. 5249-5250
of 2008 decided on 31st July, 2009] This Court in Marri Chandra Shekhar Rao
(supra) categorically held that when a person is held to be a member of
scheduled caste for one State, he cannot be treated as such in another. In
Milind (supra), it was categorically held that the High Court, in exercise of
its supervisory jurisdiction, under Article 227 of the Constitution of India,
cannot make any roving inquiry for the purpose of finding out as to whether a
person belonging to one caste would, for one reason or the other, can be held
to be 65 belonging to another caste or tribe which had been notified as
scheduled caste or scheduled tribe. It is also well known that a decision
rendered in ignorance of a binding precedent and/or in ignorance of a
constitutional provision, would be held to have been rendered per incuriam.
In
Harminder Kaur & Ors. v. Union of India & Ors. [2009 (7) SCALE 204],
this Court held:
"16.
A judgment of a Constitution Bench of this Court laying down the law within the
meaning of Article 141 of the Constitution of India must be read in its
entirely for the purpose of finding out the ratio laid down therein. The
Constitution Bench, in no uncertain terms, based its decision on the touchstone
of the `equality clause' contained in Articles 14 and 16 of the Constitution of
India.
Emphasis
has been laid at more than one place for making appointments only upon giving
an opportunity to all concerned. Appointment through side-door has been held to
be constitutionally impermissible."
[See also
Oriental Insurance Company Limited v. Mohd. Nasir and Another (2009) 6 SCC 280]
In Black's Law Dictionary, 8th edition, 2004, it is stated:
"There
is at least one exception to the rule of stare decisis. I refer to judgments
rendered per 66 incuriam. A judgment per incuriam is one which has been
rendered inadvertently. Two examples come to mind: first, where the judge has
forgotten to take account of a previous decision to which the doctrine of stare
decisis applies. For all the care with which attorneys and judges may comb the
case law, errare humanum est, and sometimes a judgment which clarifies a point
to be settled is somehow not indexed, and is forgotten. It is in cases such as
these that a judgment rendered in contradiction to a previous judgment that
should have been considered binding, and in ignorance of that judgment, with no
mention of it, must be deemed rendered per incuriam; thus, it has no
authority.... The same applies to judgments rendered in ignorance of
legislation of which they should have taken account. For a judgment to be
deemed per incuriam, that judgment must show that the legislation was not
invoked." Louis- Philippe Pigeon, Drafting and Interpreting Legislation 60
(1988) "As a general rule the only cases in which decisions should be held
to have been given per incuriam are those of decisions given in ignorance or
forgetfulness of some inconsistent statutory provision or of some authority
binding on the court concerned, so that in such cases some features of the
decision or some step in the reasoning on which it is based is found on that
account to be demonstrably wrong. This definition is not necessarily
exhaustive, but cases not strictly within it which can properly be held to have
been decided per incuriam, must in our judgment, consistently with the stare decisis
rule which is an essential part of our law, be of the rarest occurrence."
Rupert Cross & J.W. Harris, Precedent in English Law 149 (4th ed.
1991)"
67 In an
article "Final Appellate Courts Overruling Their Own "Wrong"
Precedents:
The Ongoing Search For Principle" by B.V. Harris published in (2002) 112
LQR 408-427, it is stated:
"A
decision may be held to be per incuriam where relevant statutory provisions, or
binding case law authority, have been overlooked or misinterpreted in arriving
at the holding in the precedent....
Considerations
Relevant To Deciding whether to Defer to or Overrule Precedent:
The first
consideration for a final appellate court called upon, in the exercise of its
discretion, to overrule an allegedly wrong precedent of its own, will be
whether the precedent can be distinguished on the facts, including changing
social and other contexts, or distinguished on the law. If the precedent can be
distinguished, overruling will not be necessary. The subsequent appellate court
will rather be free to choose not to follow the precedent which can be
distinguished.
Second,
the precedent should be considered closely to determine whether the decision
was reached per incuriam. A per incuriam precedent may be overruled.
Third,
the workability of the precedent should be assessed. Evidence of lack of
workability may justify overruling.
The
fourth consideration will be whether any reasons have been advanced in the
appeal which were not considered in deciding the precedent.
This
category could arguably be included in many circumstances, either in the first
category as a form of distinguishing, or in the second category if the omission
is sufficiently serious to cause the precedent to be per incuriam.
68 All of
the first four considerations have traditionally been accepted as exempting
subsequent appellate courts from the obligation to follow precedent."
In the
context of overruling the two leading precedents {de Freitas v. Benny [1976] AC
239 and Reckley v. Minister of Public Safety and Immigration (No. 2) [1996]
A.C.527} which had held the exercise of the prerogative of mercy to be
non-justiciable, Lord Slynn of Hadley in Lewis v. Att. Gen. Of Jamaica [2001] 2
AC 50 at p. 75, stated:
"The
need for legal certainty demands that they should be very reluctant to depart
from recent fully reasoned decisions unless there are strong grounds to do so.
But no less should they be prepared to do so when a man's life is at stake,
where the death penalty is involved, if they are satisfied that the earlier
cases adopted a wrong approach. In such a case rigid adherence to a rule of
stare decisis is not justified."
The case
of Attorney General v. Blake [(1997) Ch D; (1998) Ch 439 CA; and (2001) 1
A.C.268 HL] has been referred by SIR Richard Buxob in his article How the
Common Law Gets Made: Hedley Byrne and Other Cautionary Tales" [(2009) 125
L.Q.R. 60], as decision given per incuriam.
Prof.A.W.Brain
has prepared a memorandum on the said note. In the particular case in 1961
Blake pleaded guilty to five offences against Official 69 Secrets Act 1911. He
had communicated information which he has come to pssess as a member of the
Secret Intelligence Service (SIS). He was sentenced o term of 42 years
imprisonment. The House of Lords decision stated that Blake wasa member of the
security and intelligence. However it is stated by the author that there is no
practice of describing the SIS as a security service; it is not concerned with
security but with foreign intelliegence, including the sponsorship of espionage
and was "an offshoot of some sort of the Foreign Office, possibly also
being associated with the Cabinet Office or the Prime Minister's Personal
Office." Thus there was no details explained as regards to the employment
of Blake and it was not clear.
The
author states that it was a well settled in 1940s that the relationship between
a member of the armed services and the crown was non-contractual.
However
it is stressed that if the nature of employment of Blake was in civil capacity
then the application of above observation needs to be considered.
But more
importantly, what needs to be addressed is that "to treat incidental
undertakings by members of the armed services as actionable contracts would
lead to absurdity". It is also pointed out that "the relationship
between the Crown and members of the armed services is and long has been
regulated by disciplinary proceedings, by failure to promote, or by retirement,
not by the private law of contract or tort. If this position is to be 70
changed by a judicial decision then the court surely needs to attend to the
radical nature of such a change." Also it is noted that the "signing
the Official Secrets Acts" created a binding contract relating just to one
aspect of Blake's duties, is something which is problematic. Thus author states
that "the supposed contract case was decided without any careful investigation
of the very existence of a binding contract, or of its scope and character,
assuming there to have been one. It does not seem to be a good idea to proceed
in this way, and at end of day there is therefore a strong case for regarding
the decision as having been given per incuriam in their Lordships' attention
had never been adequately directed to either the relevant facts or the relevant
law." [See A Decision Per Incuriam? -Prof.A.W.Brian Simpson, The Law
Quarterly Review, volume 125, July 2009, p.433] We have noticed hereinbefore
that the premise on which S. Pushpa (supra) was rendered, namely, Marri Chandra
Shekhar Rao (supra), had no application to union territories was not correct.
45.
Would we be violating the norms of judicial discipline in ignoring
the decision of this Court in Pushpa is the question, having regard to the
provisions contained in Article 141 of the Constitution of India? 71 The
question is a difficult one. On the one hand, this Court emphasizes the need
for speaking in one voice and/or adhering to the doctrine of certainty so as
not only to enable this Court but also the High Court and the subordinate
courts to know exactly what the law is and, on the other hand, it is now trite
that having regard to the binding nature of the doctrine of stare decisis,
whether we would be bound by our own decision and to what extent. [See Milind
(supra) where in view of constitutional scheme, even doctrine of stare decisis
not followed. See also India Cement Ltd. and Others v. State of Tamil Nadu and
Others (1990) 1 SCC 12 and Synthetics and Chemicals Ltd. and Others v. State of
U.P. and Others (1990) 1 SCC 109] In Central Board of Dawoodi Bohra Community
& Anr. v. State of Maharashtra & Anr. [(2005) 2 SCC 673], Lahoti, CJI
(as he then was) speaking for a Constitution Bench following its earlier
decision in Union of India v. Raghubir Singh [(1989) 2 SCC 754], stating :
"12.
Having carefully considered the submissions made by the learned senior counsel
for the parties and having examined the law laid down by the Constitution
Benches in the abovesaid decisions, we would like to sum up the legal position
in the following terms :- 72 (1) The law laid down by this Court in a decision
delivered by a Bench of larger strength is binding on any subsequent Bench of
lesser or co-equal strength.
(2) A
Bench of lesser quorum cannot doubt the correctness of the view of the law
taken by a Bench of larger quorum. In case of doubt all that the Bench of
lesser quorum can do is to invite the attention of the Chief Justice and
request for the matter being placed for hearing before a Bench of larger quorum
than the Bench whose decision has come up for consideration. It will be open
only for a Bench of coequal strength to express an opinion doubting the
correctness of the view taken by the earlier Bench of coequal strength,
whereupon the matter may be placed for hearing before a Bench consisting of a
quorum larger than the one which pronounced the decision laying down the law
the correctness of which is doubted.
(3) The
above rules are subject to two exceptions :
(i) The
abovesaid rules do not bind the discretion of the Chief Justice in whom vests
the power of framing the roster and who can direct any particular matter to be
placed for hearing before any particular Bench of any strength; and (ii) In
spite of the rules laid down hereinabove, if the matter has already come up for
hearing before a Bench of larger quorum and that Bench itself feels that the
view of the law taken by a Bench of lesser quorum, which view is in doubt,
needs correction or reconsideration then by way of exception (and not as a
rule) and for reasons given by it, it may proceed to hear the case and examine
the correctness of the previous decision in question dispensing with the need
of a specific reference or the order of Chief Justice constituting the Bench
and such listing. Such was the situation in 73 Raghubir Singh and Ors. and
Hansoli Devi and Ors. (supra)."
Yet
again, recently in Nagar Palika Nigam v. Krishi Upaj Mandi Samiti & Ors.
[(2008 AIR SCW 7914] having regard to the provisions of Order VII Rule 2 of the
Supreme Court Rules, 1966, this Court refused to allow the appellant therein to
raise the question of vires of a statute as such a contention had not been
raised before the High Court.
The
question came up for consideration before a Three Judge Bench in Official
Liquidator v. Dayanand & Ors. [(2008) 10 SCC 1], wherein the necessity to
maintain judicial discipline was reiterated, stating :
"90.
We are distressed to note that despite several pronouncements on the subject,
there is substantial increase in the number of cases involving violation of the
basics of judicial discipline. The learned Single Judges and Benches of the
High Court’s refuse to follow and accept the verdict and law laid down by
coordinate and even larger Benches by citing minor difference in the facts as
the ground for doing so. Therefore, it has become necessary to reiterate that
disrespect to constitutional ethos and breach of discipline have grave impact
on the credibility of judicial institution and encourages chance litigation. It
must be remembered that predictability and certainty is an important hallmark
of judicial jurisprudence developed in this country in last six decades and
increase in the frequency of conflicting judgments of the superior judiciary
will do incalculable harm to the system 74 inasmuch as the courts at the grass
root will not be able to decide as to which of the judgment lay down the
correct law and which one should be followed.
91. We
may add that in our constitutional set up every citizen is under a duty to
abide by the Constitution and respect its ideals and institutions.
Those who
have been entrusted with the task of administering the system and operating
various constituents of the State and who take oath to act in accordance with
the Constitution and uphold the same, have to set an example by exhibiting
total commitment to the Constitutional ideals. This principle is required to be
observed with greater rigour by the members of judicial fraternity who have been
bestowed with the power to adjudicate upon important constitutional and legal
issues and protect and preserve rights of the individuals and society as a
whole. Discipline is sine qua non for effective and efficient functioning of
the judicial system. If the Courts command others to act in accordance with the
provisions of the Constitution and rule of law, it is not possible to
countenance violation of the constitutional principle by those who are required
to lay down the law."
46.
Should we consider Pushpa to be an orbiter following the said
decision is the question which arises herein.
We think
we should. The decisions referred to hereinbefore clearly suggest that we are
bound by a Constitution Bench decision. We have referred to two Constitution
Bench decisions, namely Marri Chandra Shekhar Rao and E.V. Chinnaiah. Marri
Chandra Shekhar Rao had been 75 followed by this Court in a large number of
decisions including Three Judge Bench decisions. Pushpa, therefore, could not
have ignored either Marri Chandra Shekhar Rao or other decisions following the
same only on the basis of an administrative circular issued or otherwise and
more so when the Constitutional scheme as contained in clause (1) of Articles
341 and 342 of the Constitution of India putting the State and Union Territory
in the same bracket.
Following
Dayanand (supra), therefore, we are of the opinion that the dicta in Pushpa is
an obiter and does not lay down any binding ratio.
47.
For the reasons aforementioned, the impugned judgments cannot be
sustained which are set aside accordingly. The appeal and the writ petition are
allowed. In the facts and circumstances of the case, there shall be no orders
as to costs.
.....................J. (S.B. Sinha)
.....................J. (Cyriac Joseph)
New Delhi;
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