State of Uttaranchal
Vs. Sandeep Kumar Singh & Ors. [2010] INSC 830 (7 October 2010)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4494 OF 2006 State of
Uttaranchal ... Appellant VERSUS Sandeep Kumar Singh & Ors. ... Respondents
ORDER
1.
The
question which arises for consideration in the present appeal is as to whether
a person belonging to a scheduled caste in relation to a particular State would
be entitled or not, to the benefits or concessions allowed to scheduled caste
candidate in the matter of employment, in any other State?
2.
G.B.
Pant University of Agriculture & Technology, Pant Nagar, Uttaranchal issued
employment notice inviting applications from candidates all over the 2 country
for various posts mentioned therein. The notification, inter alia, porivded:
1.
"The
vacancies are advertised under the reservation roster supplied by the
Uttaranchal Government."
2.
Respondents
applied for post of Assistant Professor in different departments as scheduled
caste reserved category candidates. In support of their caste, certificates
issued by the States of U.P, Bihar and Tripura were produced. Respondents were
successful in the selection conducted by the University. Appellant, State of
Uttaranchal, wrote a letter to the Vice-Chancellor of the University inter alia
stating that reservations in the appointment have been made in violation of
reservation policy of the State and all the appointments made by the University
in violation of the reservation policy of the State were accordingly cancelled.
University, accordingly, withdrew the appointment letters of the respondents
under the instructions of the State Government on the ground that they do not
belong to scheduled caste category of State of Uttaranchal. 3 The respondents
filed writ petitions in the High Court challenging the termination letter. The
High Court allowed the writ petitions. The High Court without even adverting to
the Constitution Bench decisions in Marri Chandra Shekhar Rao vs. Dean, Seth G.
S. Medical College & Ors.1 and Action Committee on Issue of Caste
Certificate to Scheduled Castes & Scheduled Tribes in the India & Anr.2
allowed the writ petitions filed by the respondents and accordingly quashed the
termination orders.
3.
In
Marri Chandra Shekhar Rao, a Constitution Bench of this Court while
interpreting Article 341 as well as Article 342 observed: "...that the
expression `for the purposes of this Constitution' in Article 341 as well as in
Article 342 do imply that the Scheduled Caste and the Scheduled Tribes so
specified would be entitled to enjoy all the constitutional rights that are
enjoyable by all the citizens as such. Constitutional right, e.g., it has been
argued that right to migration or right to move from 1 (1990) 3 SCC 130 2 (1994)
5 SCC 244 4 one part to another is a right given to all -- to Scheduled Castes
or Tribes and to non- scheduled castes or tribes. But when a Scheduled Caste or
Tribe migrates, there is no inhibition in migrating but when he migrates, he
does not and cannot carry any special rights or privileges attributed to him or
granted to him in the original State specified for that State or area or part
thereof. If that right is not given in the migrated State it does not interfere
with his constitutional right of equality or of migration or of carrying on his
trade, business or profession. Neither Article 14, 16, 19 nor Article 21 is
denuded by migration but he must enjoy those rights in accordance with the law
if they are otherwise followed in the place where he migrates. There should be
harmonious construction; harmonious in the sense that both parts and all parts
of a constitutional provision should be so read that one part does not become
nugatory to the other or denuded to the other but all parts must be read in the
context in which these are used. It was contended that the only way in which
the fundamental rights of the petitioner under Articles 14, 19(1)(d), 19(1)(e)
and 19(1)(f) could be given effect to is by construing Article 342 in a manner
by which a member of a Scheduled Tribe gets the benefit of that status for the
purposes of the Constitution throughout the territory of India. It was
submitted that the words "for the purposes of this Constitution" must
be given full effect. There is no dispute about that. The words "for the
purposes of this Constitution" must mean that a Scheduled Caste so
designated must have right under Articles 14, 19(1)(d), 19(1)(e) and 19(1)(f)
inasmuch as these are applicable to him in his area where he migrates or where
he goes. The expression "in relation to that State" would become nugatory
if in all States the special privileges or the rights granted to Scheduled
Castes or Scheduled Tribes are carried forward. It will also be inconsistent
with the whole purpose of the scheme of reservation. In Andhra Pradesh, a
Scheduled Caste or a Scheduled Tribe may require protection because a boy or a
child who grows in that area is inhibited or is at disadvantage. In Maharashtra
that caste or that tribe may not be so inhibited but other castes or tribes
might be. If a boy or a child goes to that atmosphere of Maharashtra as a young
boy or a child and goes in a completely different atmosphere or Maharashtra
where this inhibition or this disadvantage is not there, then he cannot be said
to have that reservation which will denude the children or the people of
Maharashtra belonging to any segment of that State who may still require that
protection. After all, it has to be borne in mind that the protection is
necessary for the disadvantaged castes or tribes of Maharashtra as well as
disadvantaged castes or tribes of Andhra Pradesh. Thus, balancing must be done
as between those who need protection and those who need no protection, i.e.,
who belong to advantaged castes or tribes and who do not. Treating the
determination under Articles 341 and 342 of the Constitution to be valid for
all over the country would be in negation to the very purpose and scheme and
language of Article 341 read with Article 15(4) of the Constitution."
4.
"...But
having regard to the purpose, it appears to us that harmonious construction
enjoins that we should give to each expression --"in relation to that
State" or "for the purposes of this Constitution" -- its full
meaning and give their full effect. This must 6 be so construed that one must
not negate the other. The construction that reservation made in respect of the
Scheduled Caste or Tribe of that State is so determined to be entitled to all
the privileges and rights under the Constitution in that State would be the
most correct way of reading, consistent with the language, purpose and scheme
of the Constitution. Otherwise, one has to bear in mind that if reservations to
those who are treated as Scheduled Caste or Tribe in Andhra Pradesh are also
given to a boy or a girl who migrates and gets deducted (sic inducted) in the
State of Maharashtra or other States where that caste or tribe is not treated
as Scheduled Caste or Scheduled Tribe then either reservation will have the
effect of depriving the percentage to the member of that caste or tribe in
Maharashtra who would be entitled to protection or it would denude the other
non-Scheduled Castes or non- Scheduled Tribes in Maharashtra to the proportion
that they are entitled to. This cannot be logical or correct result designed by
the Constitution."
5.
In
Action Committee on Issue of Caste Certificate to Scheduled Castes &
Scheduled Tribes in the State of Maharashtra & Anr., it is held:
"On a plain
reading of clause (1) of Articles 341 and 342 it is manifest that the power of the
President is limited to specifying the castes or tribes which shall, for the
purposes of the Constitution, be deemed to be Scheduled Castes or Scheduled
Tribes in relation to a 7 State or a Union Territory, as the case may be. Once
a notification is issued under clause (1) of Articles 341 and 342 of the
Constitution, Parliament can by law include in or exclude from the list of
Scheduled Castes or Scheduled Tribes, specified in the notification, any caste
or tribe but save for that limited purpose the notification issued under clause
(1), shall not be varied by any subsequent notification. 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." It is further held: "We may add that
considerations for specifying a particular caste or tribe or class for
inclusion in the list of Scheduled Castes/Schedule Tribes or backward classes
in a given State would depend on the nature and extent of disadvantages and
social hardships suffered by that caste, tribe or class in that State which may
be totally non est in another State to which persons belonging thereto may
migrate. Coincidentally it may be that a caste or tribe bearing the same
nomenclature is specified in two States but the considerations on the basis of
which they have been specified may be totally different. So also the degree of
disadvantages of various elements which constitute the input for specification
may also be totally different. Therefore, merely because a given caste is
specified in State A as a Scheduled Caste does not necessarily mean that if
there be another caste bearing the same nomenclature in another State the
person belonging to the former would be 8 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."
6.
The
latter Constitution Bench reiterated the view taken by former Constitution
Bench in Marri Chandra Shekhar Rao case.
7.
In
S. Pushpa & Ors. vs. Sivachanmugavelu & ors.3, a three Judge Bench
after referring to Marri Chandra Shekhar Rao & Action Committee cases held:
"Part XVI of the Constitution deals with special provisions relating to
certain classes and contains Articles 330 to 341. Articles 330 and 332 make
provision for reservation of seats in the House of the People and Legislative
Assemblies of the States respectively, for Scheduled Castes and Scheduled
Tribes. Similar provisions have been made for Anglo- Indian community in
Articles 331 and 333. Article 338 provides that there will be a Commission for
the Scheduled Castes to be known as National Commission for the Scheduled
Castes and it also provides for its composition, powers and duties. Clause (2)
of Article 330 provides that the number of seats 3 (2005) 3 SCC 1 9 reserved
in the States or Union Territories for Scheduled Castes or Scheduled Tribes
shall bear, as nearly as may be, the same proportion to the number of seats
allotted to that State or Union Territory in the House of the People as the
population of the Scheduled Castes in the State or Union Territory or of the
Scheduled Tribes in the State or Union Territory, as the case may be, in
respect of which seats are so reserved, bears to the total population of the
State or Union Territory. Similar provision for reservation of seats in favour
of SC/ST in the Legislative Assembly of any State is contained in clause (3) of
Article 332 of the Constitution. Therefore, in order to ascertain the number of
seats which have to be reserved for Scheduled Castes or Scheduled Tribes in the
House of the People or in the Legislative Assembly, it is absolutely essential
to ascertain precisely the population of the Scheduled Castes or Scheduled
Tribes in the State or Union Territory. A fortiori, for the purpose of
identification, it becomes equally important to know who would be deemed to be
Scheduled Caste in relation to that State or Union Territory. This exercise has
to be done strictly in accordance with the Presidential Order and a migrant
Scheduled Caste of another State cannot be taken into consideration otherwise
it may affect the number of seats which have to be reserved in the House of the
People or Legislative Assembly. Though, a migrant SC/ST person of another State
may not be deemed to be so within the meaning of Articles 341 and 342 after
migration to another State but it does not mean that he ceases to be an SC/ST
altogether and becomes a member of a forward caste.
10 Clauses (1) and
(2) of Article 16 guarantee equality of opportunity to all citizens in the
matter of appointment to any office or of any other employment under the State.
Clauses (3) to (5), however, lay down several exceptions to the above rule of equal
opportunity. Article 16(4) is an enabling provision and confers a discretionary
power on the State to make reservation in the matter of appointments in favour
of "backward classes of citizens" which in its opinion are not
adequately represented either numerically or qualitatively in services of the
State. But it confers no constitutional right upon the members of the backward
classes to claim reservation. Article 16(4) is not controlled by a Presidential
Order issued under Article 341(1) or Article 342(1) of the Constitution in the
sense that reservation in the matter of appointment on posts may be made in a
State or Union Territory only for such Scheduled Castes and Scheduled Tribes
which are mentioned in the Schedule appended to the Presidential Order for that
particular State or Union Territory. This article does not say that only such
Scheduled Castes and Scheduled Tribes which are mentioned in the Presidential
Order issued for a particular State alone would be recognised as backward
classes of citizens and none else. If a State or Union Territory makes a
provision whereunder the benefit of reservation is extended only to such
Scheduled Castes or Scheduled Tribes which are recognised as such in relation
to that State or Union Territory then such a provision would be perfectly
valid. However, there would be no infraction of clause (4) of Article 16 if a
Union Territory by virtue of its peculiar position being governed by the
President as laid down in Article 239 extends the benefit of reservation even to
such migrant Scheduled Castes or 11 Scheduled Tribes who are not mentioned in
the Schedule to the Presidential Order issued for such Union Territory. The UT
of Pondicherry having adopted a policy of the Central Government whereunder all
Scheduled Castes or Scheduled Tribes, irrespective of their State are eligible
for posts which are reserved for SC/ST candidates, no legal infirmity can be
ascribed to such a policy and the same cannot be held to be contrary to any
provision of law."
A two Judge Bench in
Subhash Chandra & Anr. vs. Delhi Subordinate Services Selection Board &
Ors.4 held that the dicta in S. Pushpa case is an obiter and does not lay down
any binding ratio. We may notice that a three Judge Bench in S. Pushpa case
relied on Marri Chandra Shekhar Rao & Action Committee... cases and
understood the ratio of those judgments in a particular manner. In our
considered opinion, it was not open to a two Judge Bench to say that the
decision of a three Judge Bench rendered following the Constitution Bench judgments
to be per incuriam.
8.
In
Central Board of Dawoodi Bohra Community & Anr. vs. State of Maharashtra
& Anr.5, a 4 (2009) 15 SCC 458 5 (2005) 2 SCCC 673 12 Constitution Bench
of this Court in categorical terms held that the law laid down by the Supreme
Court in a decision delivered by a Bench of larger strength is binding on any
subsequent Bench of lesser or coequal strength. A Bench of lesser Coram cannot
disagree or dissent from the view of the law taken by a Bench of larger Coram.
In case of doubt all that the Bench of lesser Coram 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 Coram 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 Coram larger than the one which pronounced the
decision laying down the law the correctness of which is doubted.
9.
In
our view, a two Judge Bench of this Court could not have held the decision
rendered by a three Judge Bench in S. Pushpa case to be obiter and per
incuriam.
10.
A
very important question of law as to interpretation of Articles 16 (4), 341 and
342 arises for consideration in this appeal. Whether Presidential Order issued
under Article 341(1) or Article 342(1) of the Constitution has any bearing on
the State's action in making provision for the reservation of appointments or
posts in favour of any backward class of citizens which, in the opinion of the
State, is not adequately represented in the services under the State? The
extent and nature of interplay and interaction among Articles 16(4), 341(1) and
342(1) of the Constitution is required to be resolved.
11.
For
the aforesaid reasons, therefore, in our view, it would be appropriate that
this case is placed before the Hon'ble the Chief Justice of India for
constituting a Bench of appropriate strength. The registry is, accordingly,
directed to place the papers before the Hon'ble the Chief Justice of India for
appropriate directions.
...............................................J.
(B. SUDERSHAN REDDY)
................................................J.
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