Month: September 2018

Download Supreme Court Aadhaar Judgement

MASTI

In JUSTICE K.S. PUTTASWAMY (RETD.) vs. UOI WRIT PETITION (CIVIL) NO. 494 OF 2012, the Supreme Court has pronounced judgement on the issue of constitutional validity of the Aadhaar scheme.

The Supreme Court arrived at the following conclusions relating to the validity of the Aadhaar card:

(1) The requirement under Aadhaar Act to give one’s demographic and biometric information does not violate fundamental right of privacy.

(2) The provisions of Aadhaar Act requiring demographic and biometric information from a resident for Aadhaar Number pass threefold test as laid down in Puttaswamy (supra) case, hence cannot be said to be unconstitutional.

(3) Collection of data, its storage and use does not violate fundamental Right of Privacy.

(4) Aadhaar Act does not create an architecture for pervasive surveillance.

(5) Aadhaar Act and Regulations provides protection and safety of the data received from individuals.

(6) Section 7 of the Aadhaar is constitutional. The provision does not deserve to be struck down on account of denial in some cases of right to claim on account of failure of authentication.

(7) The State while enlivening right to food, right to shelter etc. envisaged under Article 21 cannot encroach upon the right of privacy of beneficiaries nor former can be given precedence over the latter.

(8) Provisions of Section 29 is constitutional and does not deserves to be struck down.

(9) Section 33 cannot be said to be unconstitutional as it provides for the use of Aadhaar data base for police investigation nor it can be said to violate protection granted under Article 20(3).

(10) Section 47 of the Aadhaar Act cannot be held to be unconstitutional on the ground that it does not allow an individual who finds that there is a violation of Aadhaar Act to initiate any criminal process.

(11) Section 57, to the extent, which permits use of Aadhaar by the State or any body corporate or person, in pursuant to any contract to this effect is unconstitutional and void. Thus, the last phrase in main provision of Section 57, i.e. “or any contract to this effect” is struck down.

(12) Section 59 has validated all actions taken by the Central Government under the notifications dated 28.01.2009 and 12.09.2009 and all actions shall be deemed to have been taken under the Aadhaar Act.

(13) Parental consent for providing biometric information under Regulation 3 & demographic information under Regulation 4 has to be read for enrolment of children between 5 to 18 years to uphold the constitutionality of Regulations 3 & 4 of Aadhaar (Enrolment and Update) Regulations, 2016.

(14) Rule 9 as amended by PMLA (Second Amendment) Rules, 2017 is not unconstitutional and does not violate Articles 14, 19(1)(g), 21 & 300A of the Constitution and Sections 3, 7 & 51 of the Aadhaar Act. Further Rule 9 as amended is not ultra vires to PMLA Act, 2002.

(15) Circular dated 23.03.2017 being unconstitutional is set aside.

(16) Aadhaar Act has been rightly passed as Money Bill. The decision of Speaker certifying the Aadhaar Bill, 2016 as Money Bill is not immuned from Judicial Review.

(17) Section 139AA does not breach fundamental Right of Privacy as per Privacy Judgment in Puttaswamy case.

(18) The Aadhaar Act does not violate the interim orders passed in Writ Petition (C) No. 494 of 2012 and other Writ Petitions.

Download adhaar judgement Supreme-Court

Latest Supreme Court Judgement On S. 498A Dowry Harassment

MASTI

In the latest judgement delivered on September 14 , 2018, the Supreme Court has modified the guidelines laid down by it in Rajesh Sharma and others v. State of U.P. and another AIR 2017 SC 3869 : 2017 (8) SCALE 313 on the arrest of the husband and his relatives on the subject of dowry harassment.

The judgement of the Supreme Court on section 498A of the IPC is delivered in Social Action Forum for Manav Adhikar vs. UOI WRIT PETITION (CIVIL) NO. 73 OF 2015.

The Supreme Court judgement in which extensive discussion is there about section 498A and dowry harassment has been delivered by a Bench comprising of CJI Dipak Misra, Justice A.M. Khanwilkar and Justice Dr. D.Y. Chandrachud.

The Court has directed that the guidelines laid down in Rajesh Sharma and others v. State of U.P. and another AIR 2017 SC 3869 : 2017 (8) SCALE 313 be modified.

Text of Social Action Forum for Manav Adhikar vs. UOI WRIT PETITION (CIVIL) NO. 73 OF 2015

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 73 OF 2015

Social Action Forum for Manav Adhikar …Petitioner(s)
and another

VERSUS

Union of India

Ministry of Law and Justice and others …Respondent(s)

WITH

CRIMINAL APPEAL NO. 1265 OF 2017

WRIT PETITION (CRIMINAL) NO. 156 of 2017

J U D G M E N T

Dipak Misra, CJI

Law, especially the criminal law, intends to control, if not altogether remove, the malady that gets into the spine of the society and gradually corrodes the marrows of the vertebrae of a large section of the society. A situation arises and the legislature, expressing its concern and responsibility, adds a new penal provision with the intention to achieve the requisite result.

When a sensitive legal provision is brought into the statute book, the victims of the crime feel adequately safe, and if the said provision pertains to matrimonial sphere, both the parties, namely, wife and husband or any one from the side of the husband is booked for the offence and both the sides play the victim card.

The accused persons, while asserting as victims, exposit grave concern and the situation of harassment is built with enormous anxiety and accentuated vigour. It is propounded in a court of law that the penal provision is abused to an unimaginable extent, for in a cruel, ruthless and totally revengeful manner, the young, old and relatives residing at distant places having no involvement with the incident, if any, are roped in.

Thus, the abuse of the penal provision has vertically risen. When the implementation of law is abused by the law enforcing agency, the legislature introduces a protective provision as regards arrest.

Needless to say, the courts have ample power to grant pre-arrest bail or popularly called anticipatory bail and even to quash the criminal proceeding totally to stabilize the lawful balance because no court of law remotely conceives of a war between the two sexes.

The courts remain constantly alive to the situation that though no war takes place, yet neither anger nor vendetta of the aggrieved section should take an advantage of the legal provision and harass the other side with influence or espousing the principle of sympathy.

The role of the law enforcing agency or the prosecuting agency is sometimes coloured with superlative empathy being totally oblivious of the sensation to make maladroit efforts to compete with the game of super sensitivity. Such a situation brings in a social disaster that has the potentiality to vertically divide the society. The sense of sensitivity and the study of social phenomenon are required to be understood with objectivity.

In such a situation, it is obligatory on the part of the legislature to bring in protective adjective law and the duty of the constitutional courts to perceive and scrutinize the protective measure so that the social menace is curbed.

We are, in the instant matters, focussing on Section 498-A of the Indian Penal Code, 1860 (for short, “the IPC‟).

2. Section 498-A was brought into the statute book in the year 1983. The objects and reasons for introducing Section 498-A IPC can be gathered from the Statement of Objects and Reasons of Criminal Law (Second Amendment) Act of 1983 and read as under :-

"The increasing number of Dowry Deaths is a matter of serious concern. The extent of evil has been commented upon by the Joint Committee of the Houses constituted to examine the working of Dowry Prohibition Act, 1961. Cases of cruelty by the husband and the relatives of the husband which culminate in suicide by, or murder of the hapless woman concerned, constitute only a small fraction of the cases involving such cruelty. It is, therefore proposed to amend the Indian Penal Code, Code of Criminal Procedure and the Indian Evidence Act suitably to deal effectively not only with cases of Dowry Death but also cruelty to married woman by their in laws.  

2. The following are the changes that are proposed to be made:-

(i) The Indian Penal Code is proposed to be amended to make cruelty to a woman by her husband or any relative of her husband punishable with an imprisonment for a term which may extend to three years and also with fine. Willful conduct of such a nature by the husband or any other relative of the husband as is likely to drive the woman to commit suicide or cause grave physical or mental injury to her, and harassment of woman by her husband or by any relative of her husband with a view to coercing her or any of her relatives to meet any unlawful demand for property would be punishable as cruelty, the offence will cognizable if information relating to the commission of the offence is given to the officer in charge of a Police Station by the victim of the offence or a relative of the victim of the offence or, in the absence of any such relative, by any public servant authorized in this behalf by the State Government.

It is also being provided that no court shall take cognizance of the offence except upon a Police Report or complaint made by the victim of the offence or by her father, mother, brother, sister or by her father’s or mother’s brother or sister or with the leave of the court by any other person related to her by blood, marriage or adoption (vide Clauses 2, 5 and 6 of the Bill.)

(ii) Provision is being made for inquest by Executive Magistrates and for postmortem in all cases where a woman has, within seven years of her marriage, committed suicide or died in circumstances raising a reasonable suspicion that some other person has committed an offence. Post-mortem is also being provided for in all cases where a married woman has died within seven years of her marriage and a relative of such woman has made a request in this behalf (vide Clauses 3 and 4 of the Bill)

(iii)The Indian evidence Act, 1872 is being amended to provide that where a woman has committed suicide within a period of seven years from date of her marriage and it is shown that her husband or any relative of her husband and subjected her to cruelty, the court may presume that such suicide had been abetted by her husband or by such relative of her husband (vide Clause 7 of the Bill) 3. The Bill seeks to achieve the above objectives."

3. Regarding the constitutionality of Section 498-A IPC, in Sushil Kumar Sharma v. Union of India and others (2005) 6 SCC 281 : AIR 2005 SC 3100, it was held by the Supreme Court:-

 

"Provision of S. 498A of Penal Code is not unconstitutional and ultra vires. Mere possibility of abuse of a provision of law does not per se invalidate a legislation. Hence plea that S. 498A has no legal or constitutional foundation is not tenable. The object of the provisions is prevention of the dowry menace. But many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial.

Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment.

It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame-work."

4. In B.S. Joshi and others v. State of Haryana and another (2003) 4 SCC 675 : AIR 2003 SC 1386, the Court observed:-
 
"There is no doubt that the object of introducing Chapter XX-A containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry.

The hyper-technical view would be counter productive and would act against interests of women and against the object for which this provision was added. There is eveiy likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XXA of Indian Penal Code."

5. In Brij Lal v. Prem Chand and another 3(1989) 2 SCR 612, this Court ruled thus:-

 

“It would not be out of place for us to refer here to the addition of Sections 113-A and 113-B to the Indian Evidence Act and Sections 498-A and 304-B to the Indian Penal Code by subsequent amendments. Section 113-A Evidence Act and 498-A Indian Penal Code have been introduced in the respective enactments by the Criminal Law (Second amendment) Act, 1983 (Act 46 of 1983) and Section 113-B of the Evidence Act and 304-B Indian Penal Code have been introduced by Act No. 43 of 1986.

The degradation of society due to the pernicious system of dowry and the unconscionable demands made by greedy and unscrupulous husbands and their parents and relatives resulting in an alarming number of suicidal and dowry deaths by women has shocked the Legislative conscience to such an extent that the Legislature has deemed it necessary to provide additional provisions of law, procedural as well as substantive, to combat the evil and has consequently introduced Sections 113-A and 113-B in the Indian

Evidence Act and Sections 498-A and 304-B in the Indian Penal Code. By reason of Section 113-A, the Courts can presume that the commission of suicide by a woman has been abetted by her husband or relation if two factors are present viz. (1) that the woman had committed suicide within a period of seven years from her marriage, and (2) that the husband or relation had subjected her to cruelty.

We are referring to these provisions only to show that the Legislature has realised the need to provide for additional provisions in the Indian Penal Code and the Indian Evidence Act to check the growing menace of dowry deaths…”

6. Presently, to the factual score. The instant Petitions have been preferred under Article 32 of the Constitution of India seeking directions to the respondents to create an enabling environment for married women subjected to cruelty to make informed choices and to create a uniform system of monitoring and systematically reviewing incidents of violence against women under Section 498-A IPC including their prevention, investigation, prosecution and rehabilitation of the victims and their children at the Central, State and District levels.

That apart, prayer has been made to issue a writ of mandamus to the respondents for a uniform policy of registration of FIR, arrest and bail in cases of Section 498-A IPC in consonance with the law of the land, i.e., to immediately register FIR on complaint of cruelty and harassment by married women as per the IPC.

7. It has been averred by the petitioners that hundreds of women are being subjected to horrific acts of violence often in the guise of domestic abuse or to extract more money from the girl’s natal family due to absence of any uniform system of monitoring and systematic review of incidents of violence against married women which has led to dilution of the legislative intent behind Section 498-A IPC.

And, in the wake of ever increasing crimes leading to unnatural deaths of women in marital homes, any dilution of Section 498-A IPC is not warranted.

8. It has been contended that Section 498-A IPC, since its introduction, has increasingly been vilified and associated with the perception that it is misused by women who frequently use it as a weapon against their in-laws. As per the petitioners, though there is general complaint that Section 498-A IPC is subject to gross misuse, yet there is no concrete data to indicate how frequently the provision has been misused.

Further, the Court, by whittling down the stringency of Section 498-A IPC, is proceeding on an erroneous premise that there is misuse of the said provision, whereas in fact misuse by itself cannot be a ground to repeal a penal provision or take away its teeth.

9. It is set forth in the petition that Section 498-A IPC has been specifically enacted to protect the vulnerable sections of the society who have been victims of cruelty and harassment. The social purpose behind Section 498-A IPC is being lost as the rigour of the said provision has been diluted and the offence has practically been made bailable by reason of various qualifications and restrictions prescribed by various decisions of this Court including Rajesh Sharma and others v. State of U.P. and another  AIR 2017 SC 3869 : 2017 (8) SCALE 313, a recent pronouncement.

10. It has also been submitted by the petitioners that the police is hesitant to arrest the accused on complaint of married women and the same inaction is justified by quoting various judgments, despite the fact that Section 498-A IPC discloses a non-bailable offence and sufficient checks and balances have been provided in the law itself under Section 41 CrPC. To prevent arbitrary and necessary arrest, the statute very clearly states that the police shall record reasons for effecting arrest as well as for not arresting.

 

11. The petitioners have also asseverated that there is lack of monitoring mechanism to track cases registered under Section 498-A IPC including systematic study of the reason of low convictions and due to this absence, penal laws have not been able to secure a safe married environment to women. This, as per the petitioners, has also resulted in rise in cases under Section 498-A IPC because the deterrent effect of the said provision is getting diluted. It is also the case of the petitioners that investigation by the police of offence under Section 498-A IPC is often unprofessional and callous and the investigating officers perceptibly get influenced by both the parties which results in perpetrators escaping conviction.

12. It is further contended that in many cases under Section 498-A, IPC the Court has not considered mental cruelty caused to the woman but has concentrated only on any sign of physical cruelty due to which the courts do not look into a case if the evidence does not show that the woman was physically harassed. This has led the courts to brand the woman on many occasions as hyper-sensitive or of low tolerance level.

13. It has been further averred that the alleged abuse of the penal provision is mostly by well-educated women who know that the offence is both cognizable and non-bailable and impromptu works on the complaint of the woman by placing the man behind the bars, but this cannot be a ground for denying the poor and illiterate women the protection that is offered by Section 498-A IPC against cruelty, rather there is a need to create awareness specifically in the rural areas about the laws for protection of women and consequent available remedies in case of breach.

14. It is also set forth in the petition that despite the Dowry Prohibition Act, 1961 being passed, the irony still survives perhaps with more oxygen, for the social evil of dowry is on the increase and is openly 11
practised with pride. It is put forth that women today are still tortured and often the court, despite being the ultimate saviour, does not come to the rescue of these women as a consequence of which an atmosphere of ambivalence prevails and such societal ambivalence creates a situation of war between two classes though in actuality the offence is relatable to individuals. A sorry state of affairs is pronouncedly asserted.

15. On the aforesaid bedrock, a prayer in Writ Petition (Civil) No. 73 of 2015 has been made to have a uniform policy of registration of FIR, arrest and bail in cases of Section 498-A IPC. It is worthy to note here that during the pendency of this Writ Petition, the judgment had been pronounced in Rajesh Sharma (supra). The Court in Rajesh Sharma (supra) issued the following guidelines:-

“19.i) (a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.

(b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/ wives of working officers/other citizens who may be found suitable and willing.

(c) The Committee members will not be called as witnesses.
 
(d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication.

(e) Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint.

(f) The committee may give its brief report about the factual aspects and its opinion in the matter.

(g) Till report of the committee is received, no arrest should normally be effected.

(h) The report may be then considered by the Investigating Officer or the Magistrate on its own merit.

(i) Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time.

(j) The Members of the committee may be given such honorarium as may be considered viable.

(k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper.

ii) Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area.

Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate.

The training may be completed within four months from today;

iii) In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord;  

iv) If a bail application is filed with at least one clear day‟s notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed;

v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;
vi) It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and

vii) Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.

viii) These directions will not apply to the offences involving tangible physical injuries or death.”

16. In the meanwhile, Writ Petition (Criminal) No. 156 of 2017 had been filed. A prayer had been made in the said Writ Petition to implement the suggestion that out of three members, at least two members should be appointed in the Family Welfare Committee. When this Writ Petition was listed on 13.10.2017, the following order came to be passed:-  

“Mr. Alok Singh, learned counsel for the petitioner though has a different set of prayers in the writ petition, it fundamentally requires this Court to implement directions rendered in Criminal Appeal No.1265 of 2017 [Rajesh Sharma vs. State of U.P. and Another].

Additionally, learned counsel would submit that certain lady members, certain organizations and welfare committees are to be involved.
At this stage, we are obligated to state that we are not in agreement with the decision rendered in Rajesh Sharma (supra) because we are disposed to think that it really curtails the rights of the women who are harassed under Section 498A of the Indian Penal Code. That apart, prima facie, we perceive that the guidelines may be in the legislative sphere.

Issue notice to the respondent Nos.1 to 3. No notice need be issued to the respondent No.4. Even if the petitioner does not take steps, the Registry shall see to it that the respondents are served. Ms. Indu Malhotra and Mr. V. Shekhar, learned senior counsel are appointed as Amicus Curiae to assist the Court in the matter.

List the matter on 29th November, 2017.”

17. Mr. V. Shekhar, learned senior counsel, was appointed as Amicus Curiae to assist the Court in the matter.

18. It was submitted by the learned Amicus Curiae that the decision in Rajesh Sharma (supra) requires reconsideration, for the said judgment confers powers on the Family Welfare Committee to be constituted by the District Legal Services Authority which is an extra-judicial committee of para legal volunteers/social workers/retired persons/wives of working officers/other citizens to look into the criminal complaints under Sections 498-A IPC in the first instance and further, there has been a direction that till such time a report of the committee is received, no arrest should be made. It is urged that the constitution of FWC to look into the criminal complaints under Section 498-A IPC is contrary to the procedure prescribed under the Code of Criminal Procedure.

19. It is further propounded that the directions in certain paragraphs of the judgment in Rajesh Sharma (supra) entrusting the power to dispose of the proceedings under Section 498-A IPC by the District and Sessions Judge or any other senior judicial officer nominated by him in the district in cases where there is settlement, are impermissible, for an offence under Section 498-A is not compoundable and hence, such a power could not have been conferred on any District and Sessions Judge or any senior judicial officer nominated by him.

Elaborating the said submission, it is canvassed that the High Court is empowered under Section 482 CrPC to quash the proceeding if there is a settlement between the parties. Learned Amicus Curiae further submitted that the recovery of disputed dowry items may not itself be a ground for denial of bail which is the discretion of the court to decide the application of grant of bail in the facts and circumstances of the case and thus, this tantamounts to a direction which is not warranted in law. Criticism has been advanced with regard to the direction in paragraph 19(v) which states that for persons who are ordinarily residing out of India, impounding of passports or issuance of Red Corner Notice should not be done in a routine manner.

It is urged that if an accused does not join the investigation relating to matrimonial/family offence, the competent court can issue appropriate directions to the concerned authorities to issue Red Corner Notice which will depend on the facts of the case.

20. Learned Amicus Curiae has further put forth that dispensation of personal appearance of outstation family members is unwarranted, for in a criminal proceeding, the competent court which deals with application of exemption should be allowed to exercise the judicial discretion and there should not have been a general direction by this Court. Certain suggestions have been given by the learned Amicus Curiae which we shall refer to at the relevant stage.

21. To appreciate the controversy, it is necessary to understand the scope of Section 498-A of IPC. It reads thus:-

498-A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.—For the purpose of this section, “cruelty” means—

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

22. The said offence is a cognizable and non-bailable offence. This Court in Arnesh Kumar v. State of Bihar and another (2014) 8 SCC 273 has observed that the said offence which is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives.

The simplest way to harass is to get the husband and his relatives arrested under this provision. The Court has taken note of the statistics under “Crime in India 2012 Statistics” published by the National Crime Records Bureau, Ministry of Home Affairs which shows arrest of 1,97,762 persons all over India during the year 2012 for the offence under Section 498-A. Showing concern, the Court held that arrest brings humiliation, curtails freedom and casts scars forever and the police had not learnt its lesson which is implicit and embodied in the Criminal Procedure Code. Commenting on the police, the Court said:-

“It has not come out of its colonial image despite six decades of Independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasised time and again by the courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.”

23. The Court, thereafter, has drawn a distinction between the power to arrest and justification for the exercise of it and analysed Section 41 CrPC. Section 41 stipulates when police may arrest without warrant. The said provision reads as follows:-

41. When police may arrest without warrant.—(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person—

(a) who commits, in the presence of a police officer, a cognizable offence;

(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:–

(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;

(ii) the police officer is satisfied that such arrest is necessary–
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or 19
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured,
and the police officer shall record while making such arrest, his reasons in writing.

Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.
(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence.
(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or
(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
(f) who is reasonable suspected of being a deserter from any of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable 20
suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule made under subsection (5) of section 356; or
(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
(2) Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.”
24. Scrutinising the said provision, the Court held as under:-
“7.1. From a plain reading of the aforesaid provision, it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his 21
presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts.
x x x x x
7.3. In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 CrPC.”
25. The learned Judges, thereafter, referred to Section 41-A CrPC which has been inserted by Section 6 of the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009). The said provision is to the following effect:-
41-A. Notice of appearance before police officer.—(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the 22
offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent court in this behalf, arrest him for the offence mentioned in the notice.”
Explaining the said provision, it has been ruled:-
“9. …The aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1) CrPC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 CrPC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.”
The Court further went on to say that:-
“10. We are of the opinion that if the provisions of Section 41 CrPC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 CrPC for effecting arrest be discouraged and discontinued.”
The directions issued in the said case are worthy to note:-
11. Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and 23
mechanically. In order to ensure what we have observed above, we give the following directions:
11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC;
11.2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);
11.3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
11.4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;
11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;
11.6. Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;
11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction.
11.8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.”
26. The aforesaid decision, as is perceptible, is in accord with the legislative provision. The directions issued by the Court are in the nature of statutory reminder of a constitutional court to the authorities for proper 24
implementation and not to behave like emperors considering the notion that they can do what they please. In this context, we may refer with profit to a passage from Joginder Kumar v. State of U.P and others6:- “20. … No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person‟s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.” 27. Again, the Court in Joginder Kumar (supra), while voicing its concern regarding complaints of human rights pre and after arrest, observed thus:-
6 (1994) 4 SCC 260
“9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of 25
deciding which comes first—the criminal or society, the law violator or the law abider….”
28. In D.K. Basu v. State of W.B.7, after referring to the authorities in Joginder Kumar (supra), Nilabati Behera v. State of Orissa and others8 and State of M.P. v. Shyamsunder Trivedi and others9, the Court laid down certain guidelines and we think it appropriate to reproduce the same:- “(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. (2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. (3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
7 (1997) 1 SCC 416 8 (1993) 2 SCC 746 9 (1995) 4 SCC 262
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the 26
police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. (5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. (6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is. (7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any, present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee. (8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well. (9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record. (10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. (11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.”
29. In Lalita Kumari v. Government of Uttar Pradesh and others10, the Constitution Bench, referring to various provisions of CrPC, adverted
10 (2014) 2 SCC 1 27
to the issue of conducting a preliminary enquiry. Eventually, the Court opined that the scope of preliminary enquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence and, thereafter, proceeded to state thus:- 120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: (a) Matrimonial disputes/family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months‟ delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.” 30. From the aforesaid, it is quite vivid that the Constitution Bench had suggested that preliminary enquiry may be held in matrimonial/family disputes. 31. In Rajesh Sharma (supra), as is noticeable, the Court had referred to authorities in Arnesh Kumar (supra) and Lalita Kumari (supra) and observed that:-
“16. Function of this Court is not to legislate but only to interpret the law. No doubt in doing so laying down of norms 28
is sometimes unavoidable.11 Just and fair procedure being part of fundamental right to life,12 interpretation is required to be placed on a penal provision so that its working is not unjust, unfair or unreasonable. The court has incidental power to quash even a non-compoundable case of private nature, if continuing the proceedings is found to be oppressive.13 While stifling a legitimate prosecution is against public policy, if the proceedings in an offence of private nature are found to be oppressive, power of quashing is exercised. 17. We have considered the background of the issue and also taken into account the 243rd Report of the Law Commission dated 30th August, 2012, 140th Report of the Rajya Sabha Committee on Petitions (September, 2011) and earlier decisions of this Court. We are conscious of the object for which the provision was brought into the statute. At the same time, violation of human rights of innocent cannot be brushed aside. Certain safeguards against uncalled for arrest or insensitive investigation have been addressed by this Court. Still, the problem continues to a great extent. 18. To remedy the situation, we are of the view that involvement of civil society in the aid of administration of justice can be one of the steps, apart from the investigating officers and the concerned trial courts being sensitized. It is also necessary to facilitate closure of proceedings where a genuine settlement has been reached instead of parties being required to move High Court only for that purpose.” 32. After so stating, the directions have been issued which we have reproduced in paragraph 15 hereinabove.
11 Sahara India Real Estate Corporation Limited v. Securities and Exchange Board of India : (2012) 10 SCC 603, Para 52; SCBA v. Union of India : (1998) 4 SCC 409, Para 47; Union of India v. Raghubir Singh (d) by Lrs. : (1989) 2 SCC 754, Para 7; Dayaram v. Sudhir Batham : (2012) 1 SCC 333 12 State of Punjab v. Dalbir Singh : (2012) 3 SCC 346, Paras 46, 52 & 85 13 Gian Singh v. State of Punjab : (2012) 10 SCC 303, Para 61
33. On a perusal of the aforesaid paragraphs, we find that the Court has taken recourse to fair procedure and workability of a provision so 29
that there will be no unfairness and unreasonableness in implementation and for the said purpose, it has taken recourse to the path of interpretation. The core issue is whether the Court in Rajesh Sharma (supra) could, by the method of interpretation, have issued such directions. On a perusal of the directions, we find that the Court has directed constitution of the Family Welfare Committees by the District Legal Services Authorities and prescribed the duties of the Committees. The prescription of duties of the Committees and further action therefor, as we find, are beyond the Code and the same does not really flow from any provision of the Code. There can be no denial that there has to be just, fair and reasonable working of a provision. The legislature in its wisdom has made the offence under Section 498-A IPC cognizable and non-bailable. The fault lies with the investigating agency which sometimes jumps into action without application of mind. The directions issued in Arnesh Kumar (supra) are in consonance with the provisions contained in Section 41 CrPC and Section 41-A CrPC. Similarly, the guidelines stated in Joginder Kumar (supra) and D.K. Basu (supra) are within the framework of the Code and the power of superintendence of the authorities in the hierarchical system of the investigating agency. The purpose has been to see that the investigating agency does not abuse the power and arrest people at its whim and fancy. 30
34. In Rajesh Sharma (supra), there is introduction of a third agency which has nothing to do with the Code and that apart, the Committees have been empowered to suggest a report failing which no arrest can be made. The directions to settle a case after it is registered is not a correct expression of law. A criminal proceeding which is not compundable can be quashed by the High Court under Section 482 CrPC. When settlement takes place, then both the parties can file a petition under Section 482 CrPC and the High Court, considering the bonafide of the petition, may quash the same. The power rests with the High Court. In this regard, we may reproduce a passage from a three-Judge Bench in Gian Singh (supra). In the said case, it has been held that:-
“61. … Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim‟s family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc.; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having 31
overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim.”
35. Though Rajesh Sharma (supra) takes note of Gian Singh (supra), yet it seems to have it applied in a different manner. The seminal issue is whether these directions could have been issued by the process of interpretation. This Court, in furtherance of a fundamental right, has issued directions in the absence of law in certain cases, namely, Lakshmi Kant Pandey v. Union of India14, Vishaka and others v. State of Rajasthan and others15 and Common Cause (A Registered Society) v. Union of India and another16 and some others. In the obtaining factual matrix, there are statutory provisions and judgments in the field and, therefore, the directions pertaining to constitution of a Committee and conferment of power on the said Committee is
14 (1984) 2 SCC 244
15 (1997) 6 SCC 241 16 (2018) 5 SCC 1 32
erroneous. However, the directions pertaining to Red Corner Notice, clubbing of cases and postulating that recovery of disputed dowry items may not by itself be a ground for denial of bail would stand on a different footing. They are protective in nature and do not sound a discordant note with the Code. When an application for bail is entertained, proper conditions have to be imposed but recovery of disputed dowry items may not by itself be a ground while rejecting an application for grant of bail under Section 498-A IPC. That cannot be considered at that stage. Therefore, we do not find anything erroneous in direction Nos. 19(iv) and (v). So far as direction No. 19(vi) and 19(vii) are concerned, an application has to be filed either under Section 205 CrPC or Section 317 CrPC depending upon the stage at which the exemption is sought.
36. We have earlier stated that some of the directions issued in Rajesh Sharma (supra) have the potential to enter into the legislative field. A three-Judge Bench in Suresh Seth v. Commissioner, Indore Municipal Corporation and others17 ruled thus:-
17 (2005) 13 SCC 287
“5. … In our opinion, this is a matter of policy for the elected representatives of people to decide and no direction in this regard can be issued by the Court. That apart this Court cannot issue any direction to the legislature to make any particular kind of enactment. Under our constitutional scheme Parliament and Legislative Assemblies exercise sovereign power to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation. In Supreme Court Employees’ Welfare Assn. v. 33
Union of India18 (SCC para 51) it has been held that no court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of a subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which it has been empowered to do under the delegated legislative authority. …”
18 (1989) 4 SCC 187 19 (2015) 2 SCC 796 20 (2004) 9 SCC 362 21 (1970) 1 SCC 248 22 (1994) 2 SCC 691 23 (1997) 7 SCC 592 24 (2011) 7 SCC 639 25 (1998) 4 SCC 117
37. Another three-Judge Bench in Census Commissioner and others v. R. Krishnamurthy19, after referring to N.D. Jayal and another v. Union of India and others20, Rustom Cavasjee Cooper v. Union of India21, Premium Granites and another v. State of T.N. and others22, M.P. Oil Extraction and another v. State of M.P. and others23, State of Madhya Pradesh v. Narmada Bachao Andolan and another24 and State of Punjab and others v. Ram Lubhaya Bagga and others25, opined:- “33. From the aforesaid pronouncement of law, it is clear as noon day that it is not within the domain of the courts to embark upon an enquiry as to whether a particular public policy is wise and acceptable or whether a better policy could be evolved. The court can only interfere if the policy framed is absolutely capricious or not informed by reasons or totally arbitrary and founded ipse dixit offending the basic requirement of Article 14 of the Constitution. In certain matters, as often said, there can be opinions and opinions but the court is not expected to sit as an appellate authority on an opinion.” 34
38. In the aforesaid analysis, while declaring the directions pertaining to Family Welfare Committee and its constitution by the District Legal Services Authority and the power conferred on the Committee is impermissible. Therefore, we think it appropriate to direct that the investigating officers be careful and be guided by the principles stated in Joginder Kumar (supra), D.K. Basu (supra), Lalita Kumari (supra) and Arnesh Kumar (supra). It will also be appropriate to direct the Director General of Police of each State to ensure that investigating officers who are in charge of investigation of cases of offences under Section 498-A IPC should be imparted rigorous training with regard to the principles stated by this Court relating to arrest.
39. In view of the aforesaid premises, the direction contained in paragraph 19(i) as a whole is not in accord with the statutory framework and the direction issued in paragraph 19(ii) shall be read in conjunction with the direction given hereinabove.
40. Direction No. 19(iii) is modified to the extent that if a settlement is arrived at, the parties can approach the High Court under Section 482 of the Code of Criminal Procedure and the High Court, keeping in view the law laid down in Gian Singh (supra), shall dispose of the same.
41. As far as direction Nos. 19(iv), 19(v) and 19(vi) and 19(vii) are concerned, they shall be governed by what we have stated in paragraph 35. 35
42. With the aforesaid modifications in the directions issued in Rajesh Sharma (supra), the writ petitions and criminal appeal stand disposed of. There shall be no order as to costs.
…..………………………..,CJI
(Dipak Misra)
…..…………………………..,J
(A.M. Khanwilkar)
..………………………….….,J
(Dr. D.Y. Chandrachud)
New Delhi;
September 14 , 2018.

Forceful Donations By Co-op Hsg Societies Prohibited | Bombay High Court Judgement

MASTI

The Bombay High Court has clamped down on the menace of co-operative housing societies demanding donations from its members.

The donations are termed as voluntary though they are in fact compulsory.

The Bombay High Court has held in its judgement dated August 31, 2018 in Alankar Sahkari Griha Rachana Sanstha Maryadit vs. Atul Mahadev Bhagat that a co-operative housing Society is not expected to indulge into profiteering business from the members and if such amount is earned, then it is taxable under the law.

There is no bar for any member to pay donation to the Society, however, it should be voluntary without any compulsion and coercion. No manner the transfer fees can be charged under the pretext of donation.

Full text of Bombay High Court judgement prohibiting co-op hsg societies from taking donations from members

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION No. 4457 OF 2014
WITH
CIVIL APPLICATION No. 2589 OF 2015 IN W.P. No. 4457 OF 2014

Alankar Sahkari Griha Rachana Sanstha
Maryadit, through Chairman S.K. … Petitioner/Applicant

Vs.

Atul Mahadev Bhagat & Anr. … Respondents

WITH

CIVIL APPLICATION No. 1478 OF 2017 IN W.P. No. 4457 OF 2014

Atul Mahadev Bhagat & Anr. … Applicants

Vs.

Alankar Sahkari Griha Rachana Sanstha
Maryadit, through Chairman S.K. … Respondent

Mr. Nitin P. Deshpande, Advocate for the petitioners.

Mr. Sandesh Shukla a/w. Mr. Amit Singh I/b. Santosh Sawant,
Advocate for the respondents and applicants in CAW/1478/2017.

CORAM : MRS.MRIDULA BHATKAR, J.

RESERVED ON : 16th August, 2018.

PRONOUNCED ON : 31st August, 2018.

JUDGMENT:

In this Writ Petition, the order dated 12 th December, 2013 passed by the Member, Maharashtra State Cooperative Appellate Court, Mumbai Bench at Pune thereby directing the respondents to pay an amount of Rs.4,75,000/- with interest is challenged.

2. Respondent nos. 1 and 2 have filed Dispute No. 398 of 2005 before the Cooperative Court, Pune for recovery of amount of Rs.6,98,740/- alongwith interest, which the disputants have paid to the petitioner-Housing Society. The Cooperative Court has passed an order dated 1st October, 2007 directing the petitioner-Society to pay the disputant amount of Rs.5,00,000/- along with interest @ 11% from 29th December, 2005 till the realization of claim.

The petitioner- Society challenged the said order by filing Appeal No. 02 of 2008 before the Maharashtra State Cooperative Appellate Court, Mumbai Bench at Pune, which was partly allowed and the Society was directed to pay Rs.4,75,000/-, instead of Rs.5,00,000/-, with 11% interest from 29th December, 2005 till realization of the amount.

The said order is challenged by the petitioner-Housing Society. The respondents/original disputants were alloted plot No. 59 during the membership. Due to some violation of the conditions, the Society threatened to dispossess so the respondents filed Dispute No. 223 of 2000, which was compromised by filing consent terms and they agreed to deposit Rs.50000/- by way of security for completion of construction of the bungalow within three years.

Thereafter, the respondents were in dire need of the money and therefore, they decided to sell the flat to third party and for the sale, they agreed to pay transfer fees of Rs.25,000/- to the Society. However, they alleged that the Society demanded Rs.5,00,000/- for regularizing the transfer.

Therefore, the respondents, under pressure, paid Rs.5,00,000/- by issuing two demand drafts of Rs.2,50,000/- each on 27th April, 2005. After selling the plot, they sent a letter of demand on 4th July, 2005 which was replied denying such liability of payment and so the respondents filed the dispute before the Cooperative Court on 29th December, 2005.

3. The learned counsel for the petitioner-Society has submitted that both the Cooperative Court and the Appellate Court have not properly assessed the evidence of the respondents wherein they have given admission that they paid Rs.5,00,000/- towards donation to the petitioner-Society.

He pointed out that besides this admission, the respondents have admitted that they sent a letter to the Society on 9th December, 2004 where they offered to pay transfer charges @Rs.25/- per sq.ft. (D-14). The learned counsel has submitted that the respondents have admitted that they could not produce any evidence that the Society made demand of Rs.5,00,000/- towards the transfer charges.

The learned counsel has submitted that if at all the member of the Housing Society voluntarily agrees to pay money to the Society, then it is not to be covered as a restriction under the bye- laws. In support of his submissions, the learned counsel relied on the judgment of Single Judge of Bombay High Court in Writ Petition No. 1094 of 2004 in the case of Bharatiya Bhavan Cooperative Housing Society Ltd. & Anr. vs. Smt. Krishna H. Bajaj & Ors., pronounced on 17th February, 2010.

4. Per contra, the learned counsel for the respondents has submitted that the Society cannot demand any transfer fees more than Rs.25,000/- which is fixed as per the bye-laws No. 38 and section 38(e)(ix)of the Cooperative Housing Society, i.e., Notice of transfer of shares and interest in the capital/property of the Society.

He also relied on the Circular issued on 9 th August, 2001 by the Government in respect of transfer fee by which the transfer fee of the immovable property within the Corporation limit is fixed as Rs.25,000/- and the said circular is still in force.

The learned counsel has submitted that the respondents were in need of money and they have stated so in the evidence, therefore, the respondents sold the plot to third party.
Under such circumstances, there is no question of payment of donation of Rs.5,00,000/- voluntarily by the respondents.

On the point of illegality of charging fees by the Housing Society, the learned counsel relied on the observation made by the Division Bench of the Bombay High Court in the case of Sind Cooperative Housing Society vs. Income-tax Officer, reported in (2009) 317 ITR 47.

5. It is made clear that the amount which is accepted above the permissible limit towards the transfer fee is illegal or taxable. In the case of Sind Cooperative Housing Society (supra), the Division Bench has held that –

Firstly, whether it is voluntary or not would make no difference to the principle of mutuality. Secondly, payments are made under the bye-laws which constitute a contract between the society and its members which is voluntarily entered into and voluntarily conducted as a matter of convenience and discipline for running of the society. If it is the case that the amounts more than permissible under the notification had been received under pressure or coercion or contrary to the Government directions, then considering section 72 of the Contract Act, that amount will have to be refunded.

At any rate if the society retains the amount in excess of the binding Government notification or the bye- laws that amount will be exigible to tax as it has an element of profiteering.

6. In the present case, the question is whether the amount of Rs.5,00,000/- was paid voluntarily towards donation. While deciding this, one has to see who is in advantageous or dominant position.

7. In the case of Bharatiya Bhavan Cooperative Housing Society Ltd. (supra), similar issue of payment to the Society by the member was before the Single Judge of this Court.

However, in the said matter, the member and Society have entered into written agreement and the Judge has held that the member cannot fall within the protective umbrella of Section 72 of Contract Act if the party with knowledge enters into void agreement for some illegal act, then she would not get protection under section 72 of the Contract Act but the party will fall within the mischief under section 23 of the Contract Act.

The facts of this case are different than the facts of the present case. I respectfully state that I am not in agreement with the finding given by the Hon’ble Single Judge of this Court and I am supported by the judgment of the Hon’ble Supreme Court wherein the Supreme Court though did not interfere with the said judgment and order passed by the High Court, however expressed that they did not agree with the reasoning given by the learned Judge of the High Court in the case of Bharatiya Bhavan Cooperative Housing Society Ltd.

8. There is a history of dispute between the Society and the respondents in respect of completion of the construction of the bungalow within stipulated period of three years but the parties compromised the matter wherein the respondents agreed to deposit Rs.50,000/- by way of security. After its construction, the respondents were in need of money and therefore they decided to sell their bungalow.

On the background of these facts, the issue of donation of Rs.5,00,000/- is required to be appreciated. A person facing financial crises will not donate amount of Rs.5,00,000/- to the Housing Society. There is a ceiling of Rs.25,000/- for transfer fees.

Therefore, different ways are invented by the Society to earn more money other than legally permissible like the maintenance charges or transfer fees under the bye-laws.

The incoming and outgoing member both are having a subordinate position and the Society enjoys a dominant status in transfer of the premises. The incoming member somehow wants the possession of the premises and share certificate to be transferred in his name without any hassle.

So also outgoing member, who is in need of money, wants to get rid of further complications and is interested in smooth transaction. For this reason, the consent of Managing Body by passing necessary resolution to that effect is required. Under such circumstances, it cannot be inferred that the outgoing/incoming member has paid the donation voluntarily.

In the present case, though the respondents have given admission that they paid Rs.5,00,000/- towards donation to the petitioner-Society, it cannot be further read that it was paid voluntarily without any pressure.

9. When the persons come together with common object of housing, after formation of a Cooperative Society, they are governed under rules and bye-laws of Maharashtra Cooperative Societies Act. So far as the members are concerned, the Cooperative Housing Society can collect or increase its funds only by legally permissible charges or fees.

The Society is not expected to indulge into profiteering business from the members and if such amount is earned, then it is taxable under the law. There is no bar for any member to pay donation to the Society, however, it should be voluntary without any compulsion and coercion. No manner the transfer fees can be charged under the pretext of donation.

10. The respondents have admitted the letter sent to Society on 9 th December, 2004 where they have offered to pay transfer charges Rs.25/- per sq.ft. , still it hardly comes upto Rs.85,000/- to 90,000/- and the donation amount of Rs.5,00,000/- is much higher. It is necessary to see the time factor and the sequence of the payment of so called donation and the challenge given to the said payment by the respondent by filing Dispute No. 398 of 2005 before the Cooperative Court. The respondents sent letter to Society on 9th December, 2004 wherein the respondents have expressed that they are ready to pay Rs.25,000/-.

They expressed their willingness to pay Rs.25/- per sq.ft. after adjusting the deposit amount of Rs.50,000/- which was paid to the Society earlier by way of compromise. The payment was made by two demand drafts of Rs.2,50,000/- each on 27th April, 2005 and the said payment was challenged on 29th December, 2005 by filing Dispute No. 398 of 2005 before the Cooperative Court on the ground that it was paid under coercion.

Thus, from this conduct of taking immediate steps against the Society and challenging the said transaction, it can be safely concluded that the amount was not a donation but money was a transfer fee paid out of compulsion and it was not voluntary payment.

11. This Writ Petition is dismissed, however, with following modification in the rate of interest:

“The amount of Rs.4,75,000/- is to be returned to the respondents with simple interest @ 8% p.a. from 29 th December, 2005 till realization of the amount. The remaining order of the Maharashtra State Cooperative Appellate Court is maintained.

12. In view of dismissal of Writ Petition, Civil Applications do not survive and the same are disposed of accordingly.

(MRIDULA BHATKAR, J.)

Capital Gains From Penny Stocks | Rajasthan High Court Judgement

MASTI

On the question whether capital gains from penny stocks can be assessed as unexplained income, there is a recent judgement of the Rajasthan High Court in CIT vs. Pooja Agarwal.

The Rajasthan High Court has ruled in favour of the taxpayer and held that the capital gains from the penny stocks are genuine and the income-tax exemption has to be granted.

It was held by the High Court that when the relevant documents to prove the genuineness of the penny stocks are available, the fact of transactions entered into cannot be denied simply on the ground that in his statement the appellant denied having made any transactions in shares.

It was noted by the High Court that if the payments and receipts for the penny stocks are made through a/c payee cheques and the transactions are routed through Kolkata Stock Exchange.

It was stated that there is no evidence that the cash has gone back into the taxpayer’s account and so the transaction which are supported by documents appear to be genuine transactions.


HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Income Tax Appeal No. 385 / 2011

Commissioner of Income Tax-I,
New Central Revenue Building
Statue Circle, Jaipur —-Appellant

Versus

Smt. Pooja Agarwal, 1783, Telepada. Jaipur —-Respondent

Connected With D.B. Income Tax Appeal No. 603 / 2011 Commissioner of Income Tax-I, New Central Revenue Building Statue Circle, Jaipur
—-Appellant
Versus

Shir Jitendra Kumar Agarwal, P/o M/s Garg Jewellers, 222, Johari Bazar, Jaipur. –Respondent
_____________________________________________________

For Appellant(s) : Mr. Anuroop Singhi with Mr. Aditya Vijay
For Respondent(s) : Mr. N.L Agarwal with Mr. S.L.Poddar
_____________________________________________________

HON’BLE MR. JUSTICE K.S. JHAVERI
HON’BLE MR. JUSTICE VIJAY KUMAR VYAS

Order 11/09/2017

1. Since both these appeals arise out of the same order, they are being decided by this common order.

2. By way of these appeals, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has dismissed the appeal of the department confirming the order of CIT(A).

3. This Court while admitting the Income Tax Appeal (2 of 6) [ ITA-385/2011] No.385/2011 on 14.03.2012 has framed following substantial question of law:

“Whether the Tribunal as well as CIT(A) were justified in deleting the addition of Rs.98,56,872/- made by the Assessing Officer on account of bogus share transaction, which were nearly accommodation entries, made through one Shri P.K. Agarwal, who was found to be an entry provider, ignoring that the assessee in her deposition during survey specifically denying having made any share transactions in last 5 years?”

4. This Court also while admitting the Income Tax Appeal No.603/2011 on 03.07.2013 has framed following substantial question of law:

“Whether on the facts and in the circumstances of the case, the Tribunal was justified in deleting the addition of Rs.1,06,34,000/- which was made by the Assessing Officer and confirmed by CIT(A) on account of undisclosed investment of assessee in land and simply directing to compute 10% profit on the said investment as income of the assessee, even after holding that the investment is assessee’s own turnover in land dealing and not the investment made for others?”

5. However, subsequent to application which was moved by the Department, it was further amended by order dated 29.08.2017.

“1.Whether the Tribunal was justified in confirming the deletion of Rs.1,06,34,000/- which made by the Assessing Officer on account of undisclosed investment of the assessee, without giving any finding in respect of the same?

2.Whether the Tribunal as well as CIT(A) were justified in not confirming the addition of Rs.1,06,34,000/- ignoring that the said entries were merely accommodation entries in view of exchange of cash with broker Shri P.K.Agarwal?”

6. Counsel for the appellant has taken us to the order of AO stating that the assessee involved in jewelry business has taken entry for the purpose of converting the black money into white and referred this entry from broker, one Shri P.K.Agarwal.

Entry provided from Calcutta has been taken.

7. The assessee derives income from salary, capital gains and other sources. A survey under Section 133A of the Act was conducted as the business premises of M/s Royal Jewellers, Telipada of which assessee is 50% partner, on 21 st and 22nd of January, 2008, during which various incriminating documents were found and impounded wherein several unaccounted transaction were recorded. Reassessment proceedings were initiated by issuing notice under Section 147 R/W 148 of the Act. Vide Show Cause Notice the assessee was specifically asked as to why the amount of Rs.98,56,872/- should not be treated as an accommodation entry.

8. The assessee submitted reply to the Show Cause Notice contending therein that the share transactions are genuine and the ‘Short Term Capital Gain’ of Rs.98,56,872/- has been earned from the purchases and sales of shares of Konark Commercial Ltd.

And Limtux Investment Ltd. Investigation revealed that the entire share transactions were bogus and mere accommodation entries obtained from an entry provider Shri P.K.Agarwal form Kolkata.

The said fact was revealed during search carried out by the Investigation Wing, Jaipur in the case of B.C.Purohit Group.

9. It is pertinent to note that during the survey operation, it was admitted by the assessee that no investment in shares was made by him during the said period. It was further found that the company M/s Konark Commercial Ltd. Was never listed in Calcutta Stock Exchange and the assessee was never its shareholder.

10. After considering the entire factual matrix the Assessing Officer held that the assessee had arranged the said accommodation entries from entry providers for converting its undisclosed money into white money and thus the amount of Rs.98,56,872/- was treated as undisclosed income of the assessee.

11. Counsel for appellant has taken us to the order of AO.

12. However, counsel for the respondent has taken us to the order of CIT(A) and also to the order of Tribunal and contended that in view of the finding reached, which was done through Stock Exchange and taking into consideration the revenue transactions, the addition made was deleted by the Tribunal observing as under:-

“Contention of the AR is considered. One of the main reasons for not accepting the genuineness of the transactions declared by the appellant that at the time of survey the appellant in his statement denied having made any transactions in shares. However, subsequently the facts came on record that the appellant had transacted not only in the shares which are disputed but shares of various other companies like Satyam Computers, HCL, IPCL, BPCL and Tata Tea etc. Regarding the transactions in question various details like copy of contract note regarding purchase and sale of shares of Limtex and Konark Commerce & Ind. Ltd., assessee’s account with P.K. Agarwal & co. share broker, company’s master details from registrar of companies, Kolkata were filed.

Copy of depository a/c or demat account with Alankrit Assignment Ltd., a subsidiary of NSDL was also filed which shows that the transactions were made through demat a/c. When the relevant documents are available the fact of transactions entered into cannot be denied simply on the ground that in his statement the appellant denied having made any transactions in shares. The payments and receipts are made through a/c payee cheques and the transactions are routed through Kolkata Stock Exchange. There is no evidence that the cash has gone back in appellants’s account. Prima facie the transaction which are supported by documents appear to be genuine transactions.

The AO has discussed modus operandi in some sham transactions which were detected in the search case of B.C. Purohit Group. The AO has also stated in the assessment order itself while discussing the modus operandi that accommodation entries of long term capital gain were purchased as long term capital gain either was exempted from tax or was taxable at a lower rate. As the appellant’s case is of short term capital gain, it does not exactly fall under that category of accommodation transactions.

Further as per the report of DCIT, Central Circle-3 Sh. P.K. Agarwal was found to be an entry provider as stated by Sh. Pawan Purohit of B.C. Purihit and Co. group. The AR made submission before the AO that the fact was not correct as in the statement of Sh. Pawan Purohit there is no mention of Sh. P. K. Agarwal. It was also submitted that there was no mention of Sh. P. K. Agarwal in the order of Settlement Commission in the case of Sh. Sushil Kumar Purohit. Copy of the order of settlement commission was submitted.

The AO has failed to counter the objections raised by the appellant during the assessment proceedings. Simply mentioning that these findings are in the appraisal report and appraisal report is made by the Investing Wing after considering all thematerial facts available on record does not help much. The AO has failed to prove through any independent inquiry or relying on some material that the transactions made by the appellant through share broker P.K. Agarwal were non-genuine or there was any adverse mention about the transaction in question in statement of Sh. Pawan Purohi.

Simply because in the sham transactions bank a/c were opened with HDFC bank and the appellant has also received short term capital gain in his account with HDFC bank does not establish that the transaction made by the appellant were non genuine. Considering all these facts the share transactions made through Shri P.K. Agarwal cannot be held as non-genuine. Consequently denying the claim of short term capital gain made by the appellant before the AO is not approved. The AO is therefore, directed to accept claim of short term capital gain as shown by the appellant.”

13. The same was confirmed by CIT appeal, in view of this we are of the opinion that the view taken by the Tribunal as well as CIT is correct.

14. In that view of the matter, the issues are answered in favour of the assessee and against the department.

15. The appeals stand dismissed.

(VIJAY KUMAR VYAS),J.
(K.S. JHAVERI),J.

Supreme Court Order Staying Further Constructions In States/Union Territories Until Solid Waste Management Policy Is Framed

MASTI

The Supreme Court has in order dated 31st August 2018 stayed further constructions in the States/Union Territories until the Solid Waste Management Policy is framed.

The Supreme Court held that it is unfortunate that some States and Union Territories have not yet framed any Policy under the Solid Waste Management Rules, 2016.

It was pointed out by the Supreme Court that in case the States have the interest of the people in mind and cleanliness and sanitation, they should frame a Policy in terms of the Solid Waste Management Rules so that the States remain clean.

It was held by the Supreme Court that the attitude of the States/Union Territories in not yet framing a Policy even after two years is pathetic, to say the least.

ITEM NO.60 COURT NO.3 SECTION PIL-W
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
SMW (C) No(s).1/2015

IN RE: OUTRAGE AS PARENTS END LIFE AFTER CHILDS DENGUE

Date : 31-08-2018 This petition was called on for hearing today.

CORAM :
HON’BLE MR. JUSTICE MADAN B. LOKUR
HON’BLE MR. JUSTICE S. ABDUL NAZEER

UPON hearing the counsel the Court made the following

O R D E R

It is stated that the States of Bihar, Jammu and Kashmir, Tamil Nadu, Kerala and Arunachal Pradesh have deposited the costs.

Andhra Pradesh

The affidavit in terms of the order dated 10th July, 2018 has not been filed.

The Union of India is not aware whether the State Policy has been framed by the State of Andhra Pradesh since the affidavit has not been filed.

In any event, no one is present on behalf of the State of Andhra Pradesh to assist us. However, an appearance slip has been given on behalf of the advocate who is not present.

Costs of Rs.5,00,000/- (Rupees five lakhs only) is imposed on the State of Andhra Pradesh to be deposited with the Supreme Court Legal Services Committee within two weeks for utilization of juvenile justice issues.

U.T. of Chandigarh

The Union Territory of Chandigarh has not framed its State Policy.

Even there is no appearance on behalf of the Union Territory of Chandigarh. However, an appearance slip has been given on behalf of the advocate who is not present.

Costs of Rs.3,00,000/- (Rupees three lakhs only) is imposed on the Union Territory of Chandigarh to be deposited with the Supreme Court Legal Services Committee within two weeks for utilization of juvenile justice issues.

Kerala

As prayed for, two weeks’ time is granted to the State of Kerala for filing the affidavit.

Madhya Pradesh, Maharashtra, Odisha and Uttarakhand

Costs of Rs.3,00,000/- (Rupees three lakhs only) each is imposed on the States of Madhya Pradesh, Maharashtra and Uttarakhand for not framing the State Policy/not complying with the orders of this Court. The amount be deposited with the Supreme Court Legal Services Committee within two weeks for utilization of juvenile justice issues.

It is unfortunate that some States and Union Territories have not yet framed any Policy under the Solid Waste Management Rules, 2016.

In case the States have the interest of the people in mind and cleanliness and sanitation, they should frame a Policy in terms of the Solid Waste Management Rules so that the States remain clean.

The attitude of the States/Union Territories in not yet framing a Policy even after two years is pathetic, to say the least.

Further constructions in the States/Union Territories are stayed until the Policy is framed.

List the matter on 9th October, 2018.

INTERLOCUTORY APPLICATION NO 109465/2018 (Application for Modification of Court’s order dated 10.7.2018 filed by Mr. M. Shoeb Alam, Advocate on behalf of State of Jammu & Kashmir)

List the application on 9th October, 2018.

(SANJAY KUMAR-I) (KAILASH CHANDER)

AR-CUM-PS ASSISTANT REGISTRAR

Mr. Colin Gonsalves, Sr. Adv. (AC)
Ms. Nabila Hasan, Adv.
Ms. Sneha Mukharji, Adv.
Ms. Olivia Bang, Adv.

For Petitioner(s)

For Respondent(s)

UOI & Delhi Mr. A.N.S. Nadkarni, ASG
Moef Mr. S. Wasim A. Qadri, Adv.
Ms. Saudamini Sharma, Adv.
Ms. Suhasini Sen, Adv.
Mr. D.L. Chidanand, Adv.
Mr. Raj Bahadur, Adv.
Mr. Ritesh Kumar, Adv.
Mrs. Anil Katiyar, Adv.
Mr. G.S. Makker, Adv.
Mr. B.V. Balram Das, Adv.
Mr. Chirag M. Shroff, AOR
Ms. Neha Sangwan, Adv.
Ms. Sanjana Nangia, Adv.
EDMC Mr. Sanjiv Sen, Sr. Adv.
Mr. Praveen Swarup, Adv.

NHAI Mr. Mukesh Kumar, Adv.
for M/s. M.V. Kini & Associates
CPCB Mr. Avijit Roy, AOR

For States of
Arunachal Pradesh Mr. A. Tewari, Adv.

Ms. Eliza Bar, Adv.
Mr. Shree Pal Singh, Adv.
Assam Mr. Shuvodeep Roy, Adv.
Mr. Sayooj Mohandas, Adv.
Bihar Mr. M. Shoeb Alam, Adv.
Ms. Fauzia Shakil, Adv.
Mr. Ujjwal Singh, Adv.
Mr. Mojahid Karim Khan, Adv.
Chhattisgarh Mr. Atul Jha, Adv.
Mr. Sandeep Jha, Adv.
Mr. D.K. Sinha, Adv.
Goa Mr. A.N.S. Nadkarni, ASG
Ms. Mayuri Nayyar Chawla, Adv.
Mr. S.S. Rebello, Adv.
Mr. P.S. Sudheer, Adv.
Ms. Shruti Jose, Adv.
Gujarat Ms. Hemantika Wahi, Adv.
Ms. Mamta Singh, Adv.
Ms. Vishakha, Adv.
Ms. Pallavi Baghel, Adv.
Haryana Mr. Anil Grover, AAG
Mr. Shivam Kumar, Adv.
Mr. Sanjay Kumar Visen, Adv.
H.P. Mr. Vikas Mahajan, AAG
Mr. Vinod Sharma, Adv.
J&K Mr. M. Shoeb Alam, Adv.
Ms. Fauzia Shakil, Adv.
Mr. Ujjwal Singh, Adv.
Mr. Mojahid Karim Khan, Adv.
Jharkhand Mr. Tapesh Kumar Singh, Adv.
Mr. Mohd. Waquas, Adv.
Mr. Aditya Pratap Singh, Adv.
Karnataka Mr. V.N. Raghupathy, Adv.
Kerala Mr. K.N. Balgopal, Sr. Adv.
Mr. G. Prakash, Adv.
Mr. Jishnu M.L., Adv.
Ms. Priyanka Prakash, Adv.
Ms. Beena Prakash, Adv.
Madhya Pradesh Mr. Arjun Garg, Adv.
Mr. Devansh Shrivastava, Adv.
Maharashtra Ms. Deepa M. Kulkarni, Adv.
Mr. Nishant R. Katneshwarkar, Adv.
Manipur Mr. Leishangthem Roshmani, Adv.
Ms. Maibam Babina, Adv.
Meghalaya Mr. Ranjan Mukherjee, Adv.
Mr. Subhro Sanyal, Adv.

Nagaland Ms. K. Enatoli Sema, Adv.
Mr. Amit Kumar Singh, Adv.
Mr. Z.H. Isaac Haiding, Adv.
Odisha Mr. Som Raj Choudhury, Adv.
Mr. Prashant Kumar, Adv.
Punjab Mr. Naginder Benipal, Adv.
Mr. Abhigya, Adv.
Rajasthan Mr. S.S. Shamshery, AAG
Mr. Amit Sharma, Adv.
Mr. Sandeep Singh, Adv.
Mr. Ankit Raj, Adv.
Ms. Indira Bhakar, Adv.
Ms. Ruchi Kohli, AOR
Sikkim Ms. Aruna Mathur, Adv.
Mr. Avneesh Arputham, Adv.
Ms. Anuradha Arputham, Adv.
Ms. Geetanjali, Adv.
for M/s Arputham Aruna & Co.
Tamil Nadu Mr. Shekhar Naphade, Sr. Adv.
Mr. B. Vinodh Kanna, Adv.
Mr. A. Sriram, Adv.
Telangana Mr. P. Venkat Reddy, Adv.
Mr. Prashant Tyagi, Adv.
Tripura Mr. Shuvodeep Roy, Adv.
Mr. Rituraj Biswas, Adv.
Uttar Pradesh Ms. Aishwarya Bhati, AAG
Mr. Garvesh Kabra, Adv.
Mr. V.V.V. Pattabhiram, Adv.
Uttarakhand Mr. J.K. Sethi, Dy. AG
Mr. Ankur Prakash, Adv.
Mr. Ashutosh Kumar Sharma, Adv.
W.B Mr. Suhaan Mukerji, Adv.
Mr. Harsh Hiroo Gursahani, Adv.
Ms. Astha Sharma, Adv.
Mr. Abhishek Manchanda, Adv.
Ms. Kajal Dalal, Adv.
For M/s PLR Chambers & Co.
A&N Mr. K.V. Jagdishvaran, Adv.
Mrs. G. Indira, Adv.
Dadra & Nagar Mr. Deepak Jain, Adv.
Haveli Ms. Jaspreet, Adv.
Ms. Prabhleen Kaur, Adv.
Mr. Vaibhav Manu Srivastava, Adv.
Daman & Diu Mr. Deepak Jain, Adv.
Ms. Jaspreet, Adv.
Ms. Prabhleen Kaur, Adv.
Mr. Vaibhav Manu Srivastava, Adv.
Puducherry Mr. V.G. Pragasam, Adv.
Mr. S. Prabu Ramasubramanian, Adv.
Mr. S. Manuraj, Adv.

Latest Supreme Court Judgement On Employment Of Scheduled Caste candidates

MASTI

The latest judgement of the Supreme Court dated 30th August 2018 in BIR SINGH VERSUS DELHI JAL BOARD & ORS lays down the law on the important question 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?

Lordship Justice Ranjan Gogoi and Ladyship Justice R. BANUMATHI agreed that a person notified as a Scheduled Caste in State ‘A’ cannot claim the same status in another State on the basis that he is declared as a Scheduled Caste in State ‘A’ and that it will be in consonance with the constitutional scheme to understand the enabling provision under Article 16(4) to be available to provide reservation only to the classes or categories of Scheduled Castes/Scheduled Tribes enumerated in the Presidential orders for a particular State/Union Territory within the geographical area of that State/Union Territory (Union Territory added by me) and not beyond.

Hon’ble R. BANUMATHI, J. has given a dissenting judgement on the question whether so far as the National Capital Territory of Delhi is concerned the pan-India Reservation Rule in force is in accord with the constitutional scheme relating to services under the Union and the States/Union Territories.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1085 OF 2013

BIR SINGH ….APPELLANT(S)
VERSUS

DELHI JAL BOARD & ORS. ….RESPONDENT(S)
WITH

CIVIL APPEAL NO(S) 99359937 OF 2014
CIVIL APPEAL NO(S).10081 OF 2014
CIVIL APPEAL NO(S). 8141 OF 2014
CIVIL APPEAL NO(S). 8802 OF 2012
CIVIL APPEAL NO(S).1086 OF 2013
CIVIL APPEAL NO.9048 OF 2018
[ARISING OUT OF S.L.P(C) NO.36324 OF 2017]

J U D G M E N T

RANJAN GOGOI, J

1. Leave granted in Special Leave Petition (Civil) No.36324 of 2017

2. In State of Uttaranchal vs. Sandeep Kumar Singh and others1 [Civil Appeal No.4494 of 2006) the following question arose for consideration of this Court: "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?"

3. In the course of the deliberations that took place this Court noticed the Constitution Bench judgments of this Court in Marri Chandra Shekhar Rao vs. Dean, Seth G.S. Medical College and others2 and Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and another vs. Union of India and another3.

The view of a three Judge Bench of this Court in S. Pushpa and others vs. Sivachanmugavelu and others4 was also noticed and the same was perceived to be somewhat contrary to the view expressed by the Constitution Bench in the above two cases. This Court also took note of the fact that a two judge Bench of this Court in Subhash Chandra and another vs. Delhi Subordinate Services Selection Board and others5 held that the dicta in S. Pushpa (supra) is an obiter and does not lay down any binding ratio.

The Bench hearing the case i.e. State of Uttaranchal vs. Sandeep Kumar Singh and others (supra) took the view that "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". In this regard, the canons of judicial discipline carved out by this Court in Central Board of Dawoodi Bohra Community and another vs. State of Maharashtra and another6 were recalled and eventually in paragraph 13 of the opinion rendered in State of Uttaranchal vs. Sandeep Kumar Singh and others (supra) the reference of the question noted below was made to a larger Bench:

"13. A very important question of law as to interpretation of Articles 16(4), 341 and 342 arises for consideration in this appeal. Whether the 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."

4. The said Civil Appeal No.4494 of 2006 (State of Uttaranchal vs. Sandeep Kumar Singh and others) was disposed of by the larger Bench of this Court by order dated 6th August, 2014, in the light of the findings of the High Court recorded in paragraph 4 of the High Court order to the effect that the order impugned suffers from an apparent illegality as the appointing authority of the petitioner therein is the University and the University had acted at the dictate of the State Government, which has no power to ask for cancellation of an appointment made in accordance with the advertisement. In the aforesaid order dated 6th August, 2014 this Court took the view that the conclusions recorded in paragraph 4 of 4 the High Court order cannot be said to be legally flawed and accordingly closed the said Civil Appeal (No. 4494 of 2006) on the aforesaid basis. The question referred was not answered.

5. However, the question arising and referred to in the State of Uttaranchal vs. Sandeep Kumar Singh and others (supra) was felt to be surviving and subsisting in the present appeals also. Accordingly, by an order of the Court dated 7th August, 2014, the very same question as formulated in paragraph 13 of the judgment in State of Uttaranchal vs. Sandeep Kumar Singh and others (supra), as extracted above, has been referred for an answer by a five judge Bench of this Court. That is how we are in seisin of the matters.

6. The factual matrix need not detain us and a brief resume will suffice. The question as to whether a policy in furtherance of the enabling provision contained in Article 16(4) of the Constitution of 5 India could extend to giving of benefits beyond the Scheduled Castes and Scheduled Tribes of a State/Union Territory enumerated in the Presidential Orders framed/issued under Articles 341 and 342 of the Constitution of India had arisen in the bunch of writ petitions filed before the High Court of Delhi against the order/orders of the Central Administrative Tribunal.

The learned Tribunal following Marri Chandra Shekhar Rao (supra) and Action Committee (supra), in preference to the view expressed in S. Pushpa (supra) (three judge Bench) held that insofar as the Union Territory of Delhi is concerned, a migrant Scheduled Caste person would not be entitled to the benefits conferred on members of the Scheduled Castes enumerated in the list for the Union Territory of Delhi by the Presidential Order (i.e. the Scheduled Castes and Scheduled Tribes Lists (Modification) Order, 1956) in question.

The Delhi High Court sitting in a Full Bench (perhaps in view of the importance of the question) found the decision in S. Pushpa (supra) to be more directly relatable to the issue at hand i.e. being one of services in the Union Territory and, therefore, felt to be bound by the decision of the three judge Bench of this Court in S. Pushpa (supra). While doing so, the Delhi High court in paragraph 66 of the judgment emphasised on the necessity of an authoritative pronouncement on the issue(s) arising. Accordingly, certificate to appeal under Article 134A of the Constitution was granted by the High Court. Paragraph 66 of the judgment of the Full Bench of the Delhi High Court will require a specific notice and is, therefore, reproduced below:

"66. This court summarizes its conclusions, as follows:

(1) The decisions in Marri, Action Committee, Milind and Channaiah have all ruled that scheduled caste and tribe citizens moving from one State to another cannot claim reservation benefits, whether or not their caste is notified in the state where they migrate to, since the exercise of notifying scheduled castes or tribes is region (state) specific, i.e " in relation" to the state of their origin. These judgments also took note of the Presidential Notifications, which had enjoined such citizens to be "residents" in relation to the state which provided for such reservations.

(2) The considerations which apply to Scheduled Caste and Tribe citizens who migrate from state to state, apply equally in respect of those who migrate from a state to a union territory, in view of the text of Articles 341 (1) and 342 (1), i.e. only those castes and tribes who are notified in relation to the concerned Union Territory, are entitled to such benefits. This is reinforced by the Presidential Notification in relation to Union Territories, of 1951. Only Parliament can add to such notification, and include other castes, or tribes, in view of Articles 341 (2), Article 342(2) which is also reinforced by Article 16(3).

States cannot legislate on this aspect; nor can the executive Union or state, add to or alter the castes, or tribes in any notification in relation to a state or Union Territory, either through state legislation or through policies or circulars. Differentiation between residents of states, who migrate to states, and residents of states who migrate to Union Territories would result in invidious discrimination and overclassification thus denying equal access to reservation benefits, to those who are residents of Union Territories, and whose castes or tribes are included in the Presidential Order in respect of 8 such Union Territories. The Pushpa interpretation has led to peculiar consequences, whereby:

(i) The resident of a state, belonging to a scheduled caste, notified in that state, cannot claim reservation benefit, if he takes up residence in another state, whether or not his caste is included in the latter State’s list of scheduled castes;

(ii) However, the resident of a state who moves to a Union Territory would be entitled to carry his reservation benefit, and status as member of scheduled caste, even if his caste is not included as a scheduled caste, for that Union Territory;

(iii) The resident of a Union Territory would however, be denied the benefit of reservation, if he moves to a State, because he is not a resident scheduled caste of that State.

(iv) The resident of a Union Territory which later becomes a State, however, can insist that after such event, residents of other states, whose castes may or may not be notified, as scheduled castes, cannot be treated as such members in such newly formed states;

(v) Conversely, the scheduled caste resident of a state which is converted into a Union Territory, cannot protest against the treatment of scheduled caste residents of other states as members of scheduled caste of the Union Territory, even though their castes are not 9 included in the list of such castes, for the Union Territory.

(3) The ruling in Pushpa is clear that if the resident of a state, whose caste is notified as Scheduled caste or scheduled tribe, moves to a Union Territory, he carries with him the right to claim that benefit, in relation to the Union Territory, even though if he moves to another state, he is denied such benefit (as a result of the rulings in Marri and Action Committee). The ruling in Pushpa, being specific about this aspect visàvis Union Territories, is binding; it was rendered by a Bench of three judges.

(4) The later ruling in Subhash Chandra doubted the judgment in Pushpa, holding that it did not appreciate the earlier larger Bench judgments in the correct perspective. Yet, Subhash Chandra cannot be said to have overruled Pushpa, since it was rendered by a smaller Bench of two judges. This approach of Subhash Chandra has been doubted, and the question as to the correct view has been referred to a Constitution Bench in the State of Uttaranchal case.

(5) By virtue of the specific ruling applicable in the case of Union Territories, in Pushpa, whatever may be the doubts entertained as to the soundness of its reasoning, the High Courts have to apply its ratio, as it is by a formation of 10 three judges; the said decision did notice the earlier judgments in Marri and Action Committee. Article 141 and the discipline enjoined by the doctrine of precedent compels this Court to follow the Pushpa ruling.

(6) In matters pertaining to incidence of employment, such as seniority, promotion and accelerated seniority or promotional benefits, flowing out of Articles 16 (4A) and (4B) of the Constitution, there may be need for clarity, whichever rule is ultimately preferred i. e the Pushpa view or the Marri and Action Committee view. In such event, it may be necessary for the guidance of decision makers and High Courts, to spell out whether the correct view should be applied prospectively. Furthermore, it may be also necessary to clarify what would be meant by prospective application of the correct rule, and whether such employment benefits flowing after recruitment, would be altered if the Marri view is to be preferred."

7. Civil Appeal Nos.99359937 of 2014 from the decision of the Calcutta High court pertain to claims made by persons belonging to Uraons and Mundas members of the Scheduled Tribes 11 communities who have migrated to the Union Territory of Andaman & Nicobar Island. The High Court rejected the claim of reservation made by the aforesaid migrants Scheduled Tribes communities confining such benefits to the Scheduled Castes communities enumerated in the list appearing in the Presidential Order pertaining to the Union Territory of Andaman & Nicobar Island.

8. Before delving into the constitutional provisions which would be necessary to be dealt with for answering the reference a brief look at the preconstitutional position on the issue would throw considerable light and provide a sound insight to the multifaceted questions that the reference has given rise to.

9. The caste system in India, which is the bane of a just social order, has a long history which can be traced to the earliest times. Ancient Hindu religious scriptures refer to the practice. Division of Society based on birth and the calling/profession of a person has continued to dominate Hindu thinking and way of life and is perhaps one of the thorny problems inherited by the British Administration which had tried to resolve the same by giving legal recognition to what came to be termed as the "depressed classes". Such recognition was in the form of a protective regime which extended to representation in the Legislature and in the services under the State.

Exercises in finding out the numerical strength of the depressed class in the early 20th Century (By Southborough Committee) revealed a grim picture indicating such number to be as high as 20 per cent of the majority population (Hindu) in eight (08) Indian Provinces of Madras, Bombay, Bengal, United Provinces, Punjab, Bihar and Orissa, Central Provinces and Assam. The above figure did not include primitive or aboriginal tribes who later came to be known as the Scheduled Tribes and included in the list of Scheduled Tribes under the different Presidential Orders issued from time to time.

10. The Government of India Act, 1935 (hereinafter referred to as "1935 Act") (also referred to as "the Constitution Act") brought into force the expression "Scheduled Castes" for the first time in Indian Constitutional history. Entry 26 Part I of the First Schedule to the 1935 Act stipulates that "the Scheduled Castes mean such castes, races or tribes or parts of or groups within the castes, races or tribes, being castes, races, tribes, parts or groups, which appear to His Majesty in Council to correspond to the classes of persons formerly known as ‘the depressed classes’, as His Majesty in Council may specify".

11. Thereafter a Gazette Notification was published on 6th June, 1936 promulgating the Government of India (Scheduled Castes) Order, 1936 notifying the list of castes that are to be considered as "the Scheduled Castes" across the territory of India. A look at the Schedule which consisted of nine (09) parts i.e. Madras, Bombay, Bengal, United Provinces, Punjab, Bihar, Central Provinces, Assam, Orissa would indicate that identification of the different castes for inclusion as Scheduled Castes in the Schedule to the 1935 Act was based on an elaborate exercise conducted for each of the Provinces so much so that while some castes have been identified as Scheduled Castes throughout a Province, others have been so identified to limited areas within a province.

The post constitutional exercise by the Constitution (Scheduled Castes) Order, 1950 and the Constitution (Scheduled Tribes) Order, 1950, as originally enacted under Articles 341 and 342 of the Constitution, was basically an exercise in recasting the Schedule to the 1935 Act. The subsequent amendments to the aforesaid two Orders, from time to time, have been necessitated to bring the position in tune with the amendments to the First Schedule to the Constitution made at different points of time by creation of new States and alterations in the area and boundaries of existing States.

12. Article 366 of the Constitution which defines expressions appearing in the Constitution specifically defines ‘Scheduled Castes’ [clause (24)] to mean "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". Similarly, clause (25) of Article 366 defines "Scheduled Tribes" to mean "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".

13. Part XVI of the Constitution of India deals with special provisions relating to certain classes. Article 330 provides for reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People (Lok Sabha) whereas Article 332 contains similar provisions so far as the Legislative Assemblies of the States are concerned. Article 335 of the Constitution provides that "the claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State".

By the Constitution (Eighty Second) Amendment Act, 2000 a proviso to Article 335 was added to provide that the members of the Scheduled Castes and Scheduled Tribes may be granted relaxation in qualifying marks in any examination or standards of evaluation can be lowered in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State. Article 338 of the Constitution provides for a National Commission for Scheduled Cates which is invested with the following duties:

"(a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;

(b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes;

(c) to participate and advise on the planning process of socioeconomic development of the Scheduled Castes and to evaluate the progress of their development under the Union and any State; the Scheduled Castes and to evaluate the progress of their development under the Union and any State;

(d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards; deem fit, reports upon the working of those safeguards;

(e) to make in such reports recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socioeconomic development of the Scheduled Castes; and

(f) to discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Castes as the President may, subject to the provisions of any law made by Parliament, by the rule specify."

14. Similarly, Article 338A provides for a National Commission for Scheduled Tribes which is vested with similar duties as in the case of the Commission for the Scheduled Castes.

15. Article 341(1) of the Constitution empowers the President with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification, 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 in relation to that State or Union Territory, as the case may be.

16. In case of Scheduled Tribes the President has been similarly empowered under Article 342(1) of the Constitution. Subclause (2) of Article 341 and Article 342 empowers the Parliament by law to include in or exclude from the list of Scheduled Castes/Scheduled Tribes specified in the Notification issued under clause (1) thereof any caste, race or tribe/tribal community or part of or group within any caste, race or tribe/tribal community. It is further provided that except as provided i.e. by Parliament by law(s) made, the notification issued under Article 341(1) or Article 342(1) shall not be varied by any subsequent notification. The constitutional mandate, therefore, appears to be that any caste, race or tribe/tribal community or part of or group within any caste, race or tribe/tribal community as has been specified in the Presidential Order under clause (1) of Article 341 or Article 342 can be altered only by Parliament by law(s) made.

17. Article 341 and Article 342 also makes it clear that the caste, race or tribe or part of or group within any caste, race or tribe as specified in the Presidential Order under Article 341(1) or a tribe or tribal community as may be specified in the Presidential Order under Article 342(1) shall be deemed to be Scheduled Castes/Scheduled Tribes for the purposes of the Constitution in relation to that State or Union Territory, as the case may be. The above position is further made clear by clause (2) of the two Presidential Orders which are in the following terms.

"Clause 2 of the Constitution (Scheduled Castes) Order, 1950

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 XXV of the 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 that Schedule.

Clause 2 of the Constitution (Scheduled Tribes) Order, 1950

2. The Tribes or tribal communities, or parts of, or groups within, tribes or tribal communities, specified in Parts I to XXII of the Schedule to this Order shall, in relation to the States 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 Schedule."

18. There are various parameters by which a caste/race is recognized as ‘Scheduled Caste/Scheduled Tribe’ in a State/Union Territory or a particular part thereof. There is no doubt that before the Presidential Orders were issued under Article 341(1) or under Article 342(1), elaborate enquiries were made and only after such enquiries that the Presidential Orders were issued. While doing so, the Presidential Orders not only provided that even specified parts or groups of castes, races or tribes/tribal community could be Scheduled Castes/Tribes in a particular State/Union Territory but also made it clear that certain castes or tribes or parts/groups thereof could be Scheduled Castes/Tribes only in specified/particular areas/districts of a State/Union Territory.

The reason for such an exercise by reference to specific areas of a State is that judged by standards of educational, social backwardness, etc. races or tribes may not stand on the same footing throughout the State. The consideration for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes and Scheduled Tribes or Backward Classes in any given State depends on the nature and extent of the disadvantages and social hardships 22 suffered by the concerned members of the class in that State. These may be absent in another State to which the persons belonging to some other State may migrate.

19. The Presidential Orders which enumerate lists of castes/races, tribes recognized as ‘Scheduled Caste/Scheduled Tribe’ cannot be challenged or agitated in a court of law except, perhaps, on the limited ground as held in M. Nagaraj and others vs. Union of India and others7. A few illustrations may clarify the position. The question whether Dohar caste is a subcaste of Chamar caste which is recognized as a scheduled caste came up for consideration in Bhaiya Lal vs. Harikishan Singh8. This Court held that the court cannot enquire into whether Dohar caste is a subcaste of Chamar caste and whether the same must be deemed to have been included in the Presidential Order.

In Bhaiya Lal (supra), this Court held that before issuing notifications under Articles 341 and 342, an elaborate enquiry is made and as a result of the enquiry social justice is sought to be done to the castes, races or tribes as may appear to be necessary. It was further held that only Parliament is empowered to amend the Notification under Articles 341(2) and 342(2) of the Constitution, as is underlined by the expression "but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification" occurring in each of the said provisions. In Bhaiya Lal (supra), this Court held as under:"

10…The object of Article 341(1) plainly is to provide additional protection to the members of the Scheduled Castes having regard to the economic and educational backwardness from which they suffer. It is obvious that in specifying castes, races or tribes, the President has been expressly authorised to limit the notification to parts of or groups within the castes, races or tribes, and that must mean that after examining the educational and social backwardness of a caste, race or tribe, the President may well come to the conclusion that not the whole caste, race or tribe but parts of or groups within them should be specified. Similarly, the President can specify castes, races or tribes or parts thereof in relation not only to the entire State, but in relation to parts of the State where he is satisfied that the examination of the social and educational are backwardness of the race, caste or tribe justifies such specification.

In fact, it is well known that before a notification is issued under Article 341(1), an elaborate enquiry is made and it is as a result of this enquiry that social justice is sought to be done to the castes, races or tribes as may appear to be necessary, and in doing justice, it would obviously be expedient not only to specify parts or groups of castes, races or tribes, but to make the said specification by reference to different areas in the State. Educational and social backwardness in regard to these castes, races or tribes may not be uniform or of the same intensity in the whole of the State; it may vary in degree or in kind in different areas and that may justify the division of the State into convenient and suitable areas for the purpose of issuing the public notification in question…"

[Underlining added]

20. Whenever States’ reorganization had taken place in the past, Parliament had exercised its powers under Article 341(2) and Article 342(2) and provided for specific Castes/Tribes that were entitled to be recognised as Scheduled Castes and Scheduled Tribes in relation to the reorganized States/Union Territories. The Scheme of the Constitution (Scheduled Castes) and (Scheduled Tribes) Orders makes it clear that Parliament’s intention was to extend the benefits of reservation in relation to the States/Union Territories only to the castes, races or tribes as mentioned in the Presidential Orders.

21. The Orders of 1950 was amended by the Constitution (Scheduled Castes and Scheduled Tribes Order), by the Amendment Act, 1956 (Act 63/1956). Another amending Act was enacted by parliament in 1976. Earlier, orders had been made for the first time in relation to certain territories, such as the Constitution (Andaman and Nicobar Islands) Scheduled Tribes Order, 1959. Further, amendments had taken place as and when parliament reorganized states, through separate Reorganisation Acts, which led to large scale modification of the Presidential Orders.

Illustratively, when new States/Union Territories were formed such as, Nagaland, Pondicherry, or Sikkim, the Scheduled Castes or Scheduled Tribes Orders were made in relation to the new States/Union Territories, for instance, the Constitution (Nagaland) Scheduled Tribes Order, 1970after the reorganisation of Assam; the Constitution (Sikkim) Scheduled Castes Order, 1978; the Constitution (Sikkim) Scheduled Tribes Order, 1978) upon creation of the State of Sikkim; the recent ones being upon creation of the States of Uttarakhand, Chhattisgarh, and Jharkhand. Likewise, when previous Union Territories (such as Goa, Mizoram and Arunachal Pradesh) were constituted into States, consequential amendments were made to the Scheduled Castes and Tribes Orders. All such amendments/enactments were made by Parliament.

22. Though in a different context i.e. in relation to Backward Classes this Court in M.C.D. v. Veena and Ors.9, has specifically held that migrants are not entitled for reservation as Other Backward Classes (OBCs) in the States/Union Territories where they have migrated. The relevant portion of the judgment that may be noticed is as hereunder:"

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 belonging thereto goes by migration. It may also be that a caste belonging to the same nomenclature is specified in two States but the considerations on the basis of which they had been specified may be totally different.

So the degree of disadvantages of various elements which constitute the data 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 another State, a person belonging to that group is entitled to 28 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."

23. 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 the Gouda community which is recognised as "Scheduled Tribe" in the Constitution (Scheduled Tribes) Order, 1950 for the State of Andhra Pradesh 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 in Marri Chandra Shekhar Rao (supra) was an employee in Fertilizer Corporation of India, a public sector undertaking and thereafter in Rashtriya Chemicals and Fertilizers Limited, a Government of India undertaking. He belonged to the Gouda community, a recognized Scheduled Tribe of Andhra Pradesh.

On his appointment he was stationed at Bombay. The petitioner 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. This denial of admission was based on the Government of India circular dated 22nd February, 1985, according to which a person who migrates from one State to another is entitled to the benefit of being Scheduled Castes/Scheduled Tribes in the State of origin and not in the State to which he or she migrates. The appellant was held not entitled to be admitted to the Medical College on the basis that he belonged to a Scheduled Tribe in his original State i.e. Andhra Pradesh.

24. After referring to various provisions of the Constitution of India, the background in which the Presidential Orders were issued and several earlier judgments of this Court, it was held as under:

"9. It appears that Scheduled Castes and Scheduled Tribes in some States had to suffer the social disadvantages and did not have the facilities for development and growth. It is, therefore, necessary in order to make them equal in those areas where they have so suffered and are in the state of underdevelopment to have reservations or protection in their favour so that they can compete on equal terms with the more advantageous or developed sections of the community.

Extreme social and economic backwardness arising out of traditional practices of untouchability is normally considered as criterion for including a community in the list of Scheduled Castes and Scheduled Tribes. The social conditions of a caste, however, varies from State to State and it will not be proper to generalise any caste or any tribe as a Scheduled Tribe or Scheduled Caste for the whole country. This, however, is a different problem whether a member or the Scheduled Caste in one part of the country who migrates to another State or any other Union territory should continue to be treated as a Scheduled Caste or Scheduled Tribe in which he has migrated. That question has to be judged taking into consideration the interest and wellbeing of the Scheduled Castes and Scheduled Tribes in the country as a whole."

[underlining is ours]

25. In Marri Chandra Shekhar Rao (supra), rejecting the contention that a member of Scheduled Castes/Scheduled Tribes should get the benefit of the status ‘for the purpose of the Constitution throughout the territory of India’, it was observed that if such contention is to be accepted the expression "In relation of that State" would become nugatory.

26. Marri Chandra Shekhar Rao (supra) was followed by another Constitution Bench of this Court in Action Committee (supra). After referring to Articles 14, 15(1), 15(4), 16(4) and 19 and Part XVI of the Constitution of India and the decisions governing the field and also Articles 341 and 342, it was held as under:"

3. 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 32 Constitution, be deemed to be Scheduled Castes or Scheduled Tribes in relation to a 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. These are the relevant provisions with which we shall be concerned while dealing with the grievance made in this petition.

…. 16. 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 33 considerations on the basis of which they have been specified may be totally different. So also the degree of disadvantages of various elements which constitute the input for specification may also be totally different.

Therefore, merely because a given caste is specified in State A as a Scheduled Caste does not necessarily mean that if there be another caste bearing the same nomenclature in another State the person belonging to the former would be entitled to the rights, privileges and benefits admissible to a member of the Scheduled Caste of the latter State "for the purposes of this Constitution". This is an aspect which has to be kept in mind and which was very much in the minds of the Constitutionmakers as is evident from the choice of language of Articles 341 and 342 of the Constitution…."

[underlining is ours]

27. Marri Chandra Shekhar Rao (supra) and Action Committee (supra) were followed in Subhash Chandra and another (supra). After referring to various judgments on the point and also the various circulars, this Court in Subhash Chandra and another (supra) held as under:34

"69. 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 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 on a par on the ground of administrative exigibility (sic) 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. …….

75. If a caste or tribe is notified in terms of the Scheduled Castes Order or the Scheduled Tribes Order, the same must be done in terms of clause (1) of Article 341 as also that of Article 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) thereof must be resorted to."

28. In Marri Chandra Shekhar Rao (supra), the Constitution Bench observed that the expression "in relation to that State" must be read meaningfully and harmoniously. 35 It was observed that if a member of Scheduled Castes/Scheduled Tribes gets the benefit of that status throughout the territory of India, the expression "in relation to that State" would become nugatory. If the special privileges or the rights granted to scheduled castes or scheduled tribes in a particular State are to be made available in all the States and if such benefits are to be carried from State ‘A’ to State ‘B’ on migration, the mandate of Article 341/342 would get compromised. Such a consequence must be avoided for it is a fundamental rule of interpretation, be it of a statutory enactment or of the Constitution, that wherever and whenever there is a conflict between two provisions, the same should be so interpreted as to give effect to both. "…….Nothing is surplus in a Constitution and no part should be made nugatory…..". [Marri Chandra Shekhar Rao (supra)]

29. The issue has to be viewed from another perspective. If a member of a Scheduled Caste/ Scheduled Tribe of Andhra Pradesh who had migrated to Maharashtra is to be given the benefit of reservation it will amount to depriving a member of a Scheduled Caste/Scheduled Tribe of Maharashtra by reducing the reservation earmarked for them. It is in this context, in Marri Chandra Shekhar Rao (supra), that the Constitution Bench observed as under:"

14. ….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 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 nonScheduled Castes or nonScheduled Tribes in Maharashtra to the proportion that they are entitled to. This cannot be logical or correct result designed by the Constitution."

30. Unhesitatingly, therefore, it can be said that a person belonging to a Scheduled Caste in one State cannot be deemed to be a Scheduled Caste person in relation to any other State to which he migrates for the purpose of employment or education. The expressions "in relation to that State or Union Territory" and "for the purpose of this Constitution" used in Articles 341 and 342 of the Constitution of India would mean that the benefits of reservation provided for by the Constitution would stand 38 confined to the geographical territories of a State/Union Territory in respect of which the lists of Scheduled Castes/Scheduled Tribes have been notified by the Presidential Orders issued from time to time. A person notified as a Scheduled Caste in State ‘A’ cannot claim the same status in another State on the basis that he is declared as a Scheduled Caste in State ‘A’.

31. In S. Pushpa (supra), the Pondicherry Government had appointed Selection Grade Teachers in 1995 under the Scheduled Castes quota from amongst the scheduled castes candidates registered in the employment exchange in Pondicherry but also extended the benefit of reservation to scheduled castes candidates of other States and Union Territories. The Chennai Bench of Central Administrative Tribunal ("CAT" for short) quashed the selection process holding that migrant Scheduled Castes/Scheduled Tribes 39 candidates could not be considered for appointment for posts within the union territory of Pondicherry. In S. Pushpa (supra) the issue was with regard to the extent of benefit that Scheduled Castes candidates of other States/Union Territories would be entitled to in Pondicherry. This Court held that in the matter of providing reservation, it was open to the Pondicherry Government to apply or adopt a policy to give the benefit of reservation to migrant Scheduled Castes and Scheduled Tribes. In paragraphs 17 and 21 in S. Pushpa (supra), it was held as under:

"17. We do not find anything inherently wrong or any infraction of any constitutional provision in such a policy. The principle enunciated in Marri Chandra Shekhar Rao cannot have application here as UT of Pondicherry is not a State. As shown above, a Union Territory is administered by the President through an Administrator appointed by him. In the context of Article 246, Union Territories are excluded from the ambit of the expression "State" occurring therein.

This was clearly explained by a Constitution Bench in T.M. Kanniyan v. ITO. In New Delhi Municipal Council v. State of Punjab the majority has approved the ratio of T.M. Kanniyan and has held that the Union Territories are not States for the purpose of Part XI of the Constitution (para 145). The Tribunal has, therefore, clearly erred in applying the ratio of Marri Chandra Shekhar Rao in setting aside the selection and appointment of migrant SC candidates.

(underlining is ours)

*** *** ***

21. ….Article 16(4) is not controlled by a Presidential Order issued under Article 341(1) or Article 342(1) of the Constitution in the sense that reservation in the matter of appointment on posts may be made in a State or Union Territory only for such Scheduled Castes and Scheduled Tribes which are mentioned in the Schedule appended to the Presidential Order for that particular State or Union Territory. This article does not say that only such Scheduled Castes and Scheduled Tribes which are mentioned in the Presidential Order issued for a particular State alone would be recognised as backward classes of citizens and none else.

If a State or Union Territory makes a provision whereunder the benefit of reservation is extended only to such Scheduled Castes or Scheduled Tribes which are recognised as such in relation to that State or Union Territory then such a provision would be perfectly valid. However, there would be no infraction of clause (4) of Article 16 if a Union Territory by virtue of its peculiar position being governed by the President as laid down in Article 239 extends the benefit of reservation even to such migrant Scheduled Castes or Scheduled Tribes who are not mentioned in the Schedule to the Presidential Order issued for such Union Territory. The UT of Pondicherry having adopted a policy of the Central Government whereunder all Scheduled Castes or Scheduled Tribes, irrespective of their State are eligible for posts which are reserved for SC/ST candidates, no legal infirmity can be ascribed to such a policy and the same cannot be held to be contrary to any provision of law."

32. The upshot of the aforesaid discussion would lead us to the conclusion that the Presidential Orders issued under Article 341 in regard to Scheduled Castes and under Article 342 in regard to Scheduled Tribes cannot be varied or altered by any authority including the Court. It is the Parliament alone which has been vested with the power to so act, that too, by laws made. Scheduled Castes and Scheduled Tribes thus specified in relation to a State or a Union Territory does not carry the same status in another State or Union Territory. Any expansion/deletion of the list of Scheduled Castes/Scheduled Tribes by any authority except Parliament would be against the constitutional mandate under Articles 341 and 342 of the Constitution of India.

33. Article 16(4) is an enabling provision. It enables the State to provide to backward classes including Scheduled Castes and Scheduled Tribes reservation in appointments to public services. Such reservation is to be provided on the basis of quantifiable data indicating the adequacy or inadequacy, as may be, of the representation of such classes in Government service. The data which is the basis of the satisfaction of the State being verifiable, is open to judicial scrutiny on the limited ground of relevance of the circumstances on which the satisfaction is moulded. The policy decision to provide 43 reservation, of course, is beyond the pale of judicial review.

34. It is an unquestionable principle of interpretation that interrelated statutory as well as constitutional provisions have to be harmoniously construed and understood so as to avoid making any provision nugatory and redundant. If the list of Scheduled Castes/Scheduled Tribes in the Presidential Orders under Article 341/342 is subject to alteration only by laws made by Parliament, operation of the lists of Scheduled Castes and Scheduled Tribes beyond the classes or categories enumerated under the Presidential Order for a particular State/Union Territory by exercise of the enabling power vested by Article 16(4) would have the obvious effect of circumventing the specific constitutional provisions in Articles 341/342.

In this regard, it must also be noted that the power under Article 16(4) is not only capable of being exercised by a legislative provision/enactment but also by an Executive Order issued under Article 166 of the Constitution. It will, therefore, be in consonance with the constitutional scheme to understand the enabling provision under Article 16(4) to be available to provide reservation only to the classes or categories of Scheduled Castes/Scheduled Tribes enumerated in the Presidential orders for a particular State/Union Territory within the geographical area of that State and not beyond.

If in the opinion of a State it is necessary to extend the benefit of reservation to a class/category of Scheduled Castes/Scheduled Tribes beyond those specified in the Lists for that particular State, constitutional discipline would require the State to make its views in the matter prevail with the central authority so as to enable an appropriate parliamentary exercise to be made by an amendment of the Lists of Scheduled Castes/Scheduled Tribes for that particular State. Unilateral action by States on the touchstone of Article 16(4) of the Constitution could be a possible trigger point of constitutional anarchy and therefore must be held to be impermissible under the Constitution.

35. The decision in S. Pushpa (supra) may now be taken up to understand the basis on which the conclusion recorded therein was recorded. In S. Pushpa (supra) a distinction was found by this Court in the constitutional status of a Union Territory and a State in relation to the Union/Central Government. The provisions of Article 239 and 239A of the Constitution; Section 3(8) of the General Clauses Act, 1897 defining ‘Central Government’ and the provisions of the Government of Union Territories Act, 1963 were considered to arrive at the following conclusion:

"14. The effect of these provisions is also that the Administrator (Lt Governor of Pondicherry) and his Council of Ministers act under the general control of and are under an obligation to comply with any particular direction issued by the President. Further, the Administrator (Lt Governor of Pondicherry) while acting under the scope of the authority given to him under Article 239 of the Constitution would be the Central Government."

36. It is on the aforesaid basis that the concerned Notification/Government Order dated 16th February, 1974 by which it was provided that Scheduled Castes/Scheduled Tribes candidates from outside the Union Territory of Pondicherry should also be considered for appointment to posts reserved for Scheduled Castes/Scheduled Tribes in the Union Territory Administration and the communication of the Government of India dated 6th October, 1995 to the same effect were upheld.

37. The First Schedule to the Constitution, as original enacted, provided for three (03) categories of States i.e. Part ‘A’, Part ‘B’ and Part ‘C’ States to comprise the territory of India.

The States Reorganization Act, 1956 and the consequential Constitution (Seventh Amendment) Act, 1956 drastically altered the provisions of the First Schedule to the 47 Constitution by establishment of new States; alteration in the area and boundaries of existing States and also by abolition of the three (03) categories of States; and by classification of certain areas as Union Territories. Pursuant thereto the Government of Union Territories Act, 1963 was enacted to provide for Legislative Assemblies and Councils of Ministers for certain Union Territories and for certain other incidental matters.

It will not be necessary to specifically deal with the provisions of the aforesaid Act in any great detail except to say that in course of time most of the Union Territories (except for Pondicherry), which had been provided with their own Legislatures and Councils of Ministers have graduated to become fullfledged States on the basis of enactment of several State Reorganisation Acts details of which have been mentioned (para 21). The Union Territory of Pondicherry, as on date, stands out as sole Union Territory which has a Legislature and Council of Ministers, apart from Delhi.

38. Delhi, which was one of the original Union Territories, came to be called as

"National Capital Territory of Delhi".

This change was introduced by the Constitution (SixtyNinth Amendment) Act, 1991 with effect from 1st February, 1992 by insertion of Article 239AA in Part VIII of the Constitution (i.e. Special provisions with respect to Delhi). Article 239AA( 3)(a) empower the Legislative Assembly of the National Capital Territory of Delhi to make laws with respect to any matters enumerated in the State List or in the Concurrent List (i.e. List II and List III of the Seventh Schedule to the Constitution of India) subject to certain exceptions.

It is here that the Union Territory of Delhi i.e. National Capital Territory of Delhi is enjoined a special status inasmuch as power to enact laws on any of the subjects in List II and List III is a constitutional conferment as opposed to the position in the erstwhile Union Territories and the present day Union Territory of Pondicherry where the power to frame/make laws has been conferred on the Union Territory Legislatures by a Parliamentary enactment i.e. Section 18 of the Government of Union Territories Act, 1963. The above narration has been considered necessary only to make the discussion complete. We make it clear that we are not entering into any discussion as to the special position/status of Delhi, if any, by virtue of the provisions contained in Article 239AA as the said issue does not arise for consideration in the present reference.

39. The above view coupled with the scope and ambit of the present reference may also not require us to go into the correctness of the view expressed by this Court in paragraph 14 of the decision in S. Pushpa (supra) (as already extracted). The resolution of the question formulated for an answer is capable of being reached by adopting an entirely different perspective which we intend to do hereinafter.

40. The federal nature of the Constitution finds broad manifestation in two principal areas i.e. division of legislative power and exercise thereof by the Union and the constituent States and secondly, which is more relevant and important to the subject in hand, is the constitutional provisions relating to services under the Union and the States as dealt with in Part XIV of the Constitution.

41. The subject finds an elaborate study by Dr. D.D. Basu in "Commentary on the Constitution of India"10. According to Dr. D.D. Basu, "In India though the Union and the States have their own public services, (vide Entry 70 of List I and Entry of List II) there is no clearcut bifurcation in the administration of the Union and the State laws as in the U.S.A. The State officials administer the State laws as well the Union laws applicable within that Sate whereas the members of the Union Services while working within a State, also carry out State laws, insofar as they may be applicable.

The second peculiarity of the Indian federal system of administration is that though the federal and State Governments have civil services of their own to manage their own households, there are certain services known as the AllIndia Services, which are common to both the federal and State Governments. The organisation of the Civil services in the Indian federal system may be demonstrated as thus:

All India Services

Central Civil Services

State Civil Services

Central Secretariat Services"

Subordinate Services

42. At the State Level, as Dr. D.D. Basu points out, "the State Civil Services administer the subject solely belonging to the State Governments, according to the federal distribution of subjects thus including the Judicial, Executive, Medical, Engineering, Police, Education branches. Their members are under the exclusive control of the respective State Governments and their duties are confined to the territories of the State by which they have been appointed, unless sent on deputation to the Union Government".11 These State Civil Services may be Administrative Services, Forest Services etc. [illustratively, in case of Himachal Pradesh, Himachal Pradesh Administrative Service (HPAS) is a type of service, so is, Himachal Pradesh Forest Service (HPFS). The recruitment to these services is conducted by way of Civil Services.

Examinations organised by the Statespecific Public Service Commission e.g. in case of Himachal Pradesh, it is Himachal Pradesh Public Service Commission. As stated earlier, persons inducted into the State Service of a particular State cannot be transferred to any other State. These officers are concerned with only the affairs of the state in which they are appointed. These services (like HPAS, HPFS) may, for convenience, be called as Superior Services/Higher Services with reference to a State. But in addition to these higher services, there are also services that may, again for convenience, be called as Subordinate Services/Lower Level Jobs. The posts in these services are like those of Clerks, School Teachers; Drivers, Attendants, Safai Workers, etc. For the purpose of recruitment of Subordinate Servants, states have in place Statespecific Selection Commissions.

43. At the Federal Level, civil administration is carried out by the members of –

(1) All India Services (specifically provided for in Article 312);

(2) Central Civil Services (although, not specifically provided for in the Constitution but are regulated by creation of statutory Rules framed under the proviso to Article 309). These are again Superior Services and the selection/recruitment is by the Union Public Service Commission.

ALL INDIA SERVICES

There are three All India Services (AIS) –

(a) Indian Administrative Service (IAS);

(b) Indian Forest Service (IFoS);

(c) Indian Police Service (IPS). As regards AIS, Dr. D.D. Basu12 says that, "the peculiarity of the AIS from the federal standpoint is that –

(a) Though they are recruited and their conditions of service are determined by the Union Government, they have to administer both Union and the State subjects, accordingly as their services are placed at the disposal of the Union or a State Government, in connection with the affairs of the Union or the State, as the case may be.

(b) While serving in a State, they are controlled by the State Government, except as regards the imposition of the penalty of dismissal, removal or compulsory retirement, which can be awarded only by the Union Government.

(c) In a sense, this system is an exception to the usual federal precedent inasmuch as it is intended to fill up the strategic posts both under the Union and State Governments by men of superior calibre, recruited on a uniform basis, through the UPSC. Thus, while a Deputy 56 Collector may be a member of the State Civil Service, the Additional Collector and the Collector may be members of the Indian Administrative Service. The category of AIS thus breaks through the federal division so far as the administrative services in India are concerned. In fact, the principal agents of a Sate administration are members of the AIS and it would be a mistake to suppose that the AIS exist for the administration of the Union subjects. Broadly, speaking, the administration of a State is run both by the members of the AIS and State Services, the latter supplying only the intermediate and subordinate tiers.

(d) Though the bulk of recruitment to the AIS is by competitive examination, a certain proportion is selected by promotion from amongst members of the State Civil Services.

(e) Though a member of AIS may be required to serve anywhere in India, on recruitment, he is usually assigned to a State or States jointly, or, in a technical language, is included in a State cadre or Joint cadre and continues to serve there until or unless he is called upon to serve the Union Government, in any of its Departments.

(f) While employed under a State, again, the members of the AIS do not have to work only in the Secretariat of the State but also in the Districts as already stated and members of these services are expected to acquire experience of the business in the district as well as Secretariat administration and there is a constant interchange of officers between the Secretariat and the Districts, just as there is such an 58 interchange between the States and the Union Secretariats on the other hand."

44. Therefore, the members of the All India Services are common to the Union and the States and they serve, by turn, both the Union and State Governments. The members of these services although recruited by the Centre their services are placed under various State cadres. "It is evident from Article 312(1) that the members of the AIS are common to the Union and the States. Curiously, however, there is a cadre for the Indian Administrative Service only in the States, according to the Indian Administrative Service (Cadre) Rules, 1954 and there is no separate cadre for members of this service in the Government of India. Each members of the Indian Administrative Service therefore, belongs to the cadre of one State or the other."

13

45. There are many State Cadres e.g. Bihar Cadre, Rajasthan Cadre and Joint Cadres like AGMUT (for Arunachal Pradesh + Goa + Mizoram + the 7 Union Territories). These officers remain in the allotted Cadres till they retire. They are not normally to be transferred from one State Cadre to another State Cadre though they have the accountability to serve both under the State and the Centre.

46. At this juncture, the Union of India’s Affidavit may also be referred to, which states with reference to AIS that, "the conditions of service of these services (AIS) are regulated by the DoPT by way of executive and statutory instructions, statutory rules formulated under Article 309 of the Constitution and Act of Parliament etc. The functional control of some of the services rests with other.

Ministries and Departments also.

The Ministry of Home Affairs exercises functional control on IPS and the Ministry of Environment & Forest & Climate Change exercises functional control on IFoS. Members of these services are allocated a cadre under a State or Union Territory and they serve the Union as well as the State, whichever is allotted to them. Thus their services are All India Services. Their recruitment is by the Union Public Service Commission and as they serve the Union as well as the States, their recruitment is on pan India basis. Every citizen of this country having the required qualification is eligible to be considered for the appointment.

It is pertinent to note that before selection in the AIS, there is no specification or indication of the cadre in Union, Union Territory or State, which they may serve. Upon selection alone, they would be allocated cadre depending upon the merit and the preferences they would have made at the time of applying. Upon selection they could be allocated to serve through any of the 25 states or 7 Union Territories of Delhi; Puducherry; Chandigarh; Daman & Diu; Dadra & Nagar Haveli; Andaman & Nicobar; Lakshadweep coupled with the states of Arunachal Pradesh, Goa and Mizoram"14.

47. CENTRAL CIVIL SERVICES

The Central Civil Services (CCS), as Dr. D.D. Basu points out, "are engaged in administering the Union subjects, such as the Posts and Telegraphs, Customs and Excise, Income Tax. In short, these constitute all the administrative services in the Central Departments which have not so far been included in the list of All India.

Services. They are under the exclusive control of the Union Government. Besides the Central Services, there are other Services intended for work solely in the Central Secretariat, or, in other words, those who are to manage the offices of the Central Departments. Both the Central Civil Services and Central Secretariat Services are subdivided into Class I, II, III, IV, (= Group A, B, C, D15) according to the rank and responsibilities of the officers… Members of the Central Services are also sent on transfer or deputation to States where offices relating to the Union subjects or Public Sector Undertakings relating thereto are located."

16 All that we would like to add is that though the members of these services are concerned only with the affairs of the Union/Centre they discharge such duties in the offices and establishments of the Union Government as may be located in the States and the Union Territories. The Central Civil Services (Classification, Control and Appeal) Rules, 1965 [CCS Rules, 1965] (enacted under the proviso to Article 309) are the governing statutory Rules with reference to these services. Rule 4 of CCS Rules, 1965 classifies the Central Civil Services into four types –

(i) Central Civil Services, Group A (45 services as per the Schedule to the Rules);

(ii) Central Civil Services, Group B (33 services as per the Schedule to the Rules);

(iii) Central Civil Services, Group C (5 services as per the Schedule to the Rules);

(iv) Central Civil Services, Group D (1 service as per the 64 Schedule to the Rules)17.

48. CCS Group A:

The Affidavit of the Union of India says that, "recruitment to Group A services is made by UPSC. The recruitment is again on all India basis. This is the reason the personnel belonging to these 45 services work in the posts of Union and the Union Territories (UT) across the length and breadth of the country. The Cadre Controlling Authority of Group A services are the respective ministries of the Government of India. For example, the first service being the Archaeological Service, the Cadre Controlling Authority is the Ministry of Culture, Central Government. Another example, the 12th service being the Indian Foreign Service and this is controlled by Ministry of External Affairs. No. 16 is the Indian Revenue Service and it is controlled by the Ministry of Finance. The members of these services being recruited pursuant to the Central Service Exams conducted by the UPSC are allocated to the respective services.

Whichever Ministry seeks recruitment to the service in this Group, sends requisition to UPSC as per procedure prescribed and UPSC accordingly advertises for the post in Group A. Every citizen of India is eligible to apply as per the qualifications and requirements in the notification. DOPT is the nodal Ministry for regulating the conditions of service of all Central Civil Services as per Allocation of Business Rules. As per the conditions of service, every employee is required to give an undertaking agreeing to the conditions of all India transfer liability at the time of 66 joining service. Central Civil Services employees belonging to Group A serve the Union of India and that is the reason why these services are across the length and breadth of the country, wherever there is an office of the Central Government.

Member of the Groups A service are governed by CCS Rules of 1965 as well as Central Civil Services (Conduct) Rules 1972; Central Civil Services (Pension) Rules 1972 and such other Rules made by the Central Ministries."

49. CCS Group B:

As mentioned earlier, there are 33 Group B Services. Amongst these, are the Union Territory Services listed at No. 28 and No. 29 and known as the ‘Delhi and Andaman and Nicobar Islands Civil Service’ abbreviated as ‘DANICS’ and ‘Delhi and Andaman and Nicobar Islands Police Service’ (Grade 67 II) abbreviated as ‘DANIPS’. While at this stage we may have also a look at Union Territory services in some detail.

UNION TERRITORY SERVICES

50. The Government of India (Ministry of Home Affairs) by way of a notification dated 6th August, 2003, and in the exercise of the proviso to Article 309, enacted ‘the National Capital Territory of Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadra and Nagar Havel (Civil Service) Rules, 2003 [DANICS Rules, 2003]. As also, ‘the National Capital Territory of Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadra and Nagar Havel (Police Service) Rules, 2003 [DANIPS Rules, 2003].

51. The DANICS/DANIPS Rules, 2003 define:

* ‘Administration’ to mean the Government of the National Capital Territory of Delhi in respect National Capital 68 Territory of Delhi and Union Territory Administration in respect of the Union Territories of – Andaman & Nicobar Islands; Lakshadweep; Daman & Diu; Dadra & Nagar Haveli [under Rule 2(a)]

* ‘Commission’ to mean the Union Public Service Commission [under Rule 2(h)].

* ‘Scheduled Castes and Scheduled Tribes’ to have the same meaning as are assigned to them by Articles 366(24) and 366(25) [under Rule 2(n)].

The DANICS/DANIPS Rules, 2003, further, state that posts in Junior Administrative GradeI, Junior Administrative GradeII, Selection Grade will be Central Civil Services (Group A), whereas Entry Grade shall be Central Civil Services (Group B) [Rule 3]. The vacancies in DANICS/DANIPS shall be filled in on the basis of the Civil Services Examination conducted by UPSC [Rule 7].

Every member of DANICS/DANIPS allocated to an Administration shall be posted against a duty post18 under the Administration by the Administrator [Rule 12]. More importantly, the Government of India shall, from time to time, allocate a member of DANICS/DANIPS to any Administration for posting [Rule 12]. Nothing in the Rules affects reservations, relaxation in agelimit and other concessions required to be provided for the Scheduled Castes, the Scheduled Tribes, Other Backward Classes and other special categories of persons in accordance with the orders issued by the Government of India from time to time in this regard [Rule 17: the Saving clause]. The Sanctioned Strength for DANICS and DANIPS is in the DANICS/DANIPS Rules, 2003 (approximately 398 DANICS; approximately 355 DANIPS).

52. As per the Union of India’s Affidavit, DANICS and DANIPS are ‘Union Territory Services’19.

The Affidavit says, "…at Serial 28 and 29 of the Schedule (to CCS Rules, 1965), we have the Union Territory Services known as DANICS and DANIPS". The Affidavit, further, says that, "DANICS/DANIPS Officers are posted in Delhi; Andaman & Nicobar Islands; Lakshadweep; Daman & Diu; Dadra & Nagar Haveli. The recruitment to all the Union Territories for these Group B posts are common. They are also centralised and the Appointing Authority is none other than the Ministry of Home Affairs (Joint Secretary). For the recruitment to these services, it is the very same examination meant for AIS and CCS Group A. Any citizen of India is eligible to apply, subject to the conditions prescribed.

As per the Service Rules, transfer undertakings throughout the Union Territories covered under DANICS/DANIPS is taken from these officers. This is the reason why the Union of India while inviting applications for recruitment considers all candidates, including reserved candidates on all India basis. Group B Cadre of DANICS/DANIPS is the Feeder Cadre for IAS and IPS respectively (i.e. AIS). They retire invariably in these Offices, some of them reaching high positions in the Central Government. Recruitment to AIS; CCS Group A; CCS Group B (Gazetted) is conducted through UPSC. In the Civil Services Examination, the applicants are common when the applications are made. Every aspirant seeks recruitment to the services and it is only as per the marks and ranking that allocations are made eventually to AIS; CCS Group A; CCS Group B. Therefore, when UPSC undertakes the recruitment, it is naturally a pan India recruitment and therefore, it is necessary to seek applications including from reserved candidates from all over India.

"20

53. But it is not the Members of the All India Services (AGMUT Cadre); Central Civil Services (Group ‘A’ and ‘B’) and the ‘DANICS’ and ‘DANIPS’ who alone are the public servants in the States and the Union Territories engaged in the discharge of duties in connection with the affairs of the Union. There are and bound to be public servants that work the subordinate services.

CCS Group C:

54. At the subordinate level these are the Group ‘C’ posts. In the Schedule to CCS Rules, 1965, there are 5 such services. The Union of India’s Affidavit says that, "These posts, in so far, as they relate to services under the Union of India are concerned are recruited by the Staff Selection Commission (which is the Recruiting Agency under the DoPT). The members of CCS Group C get promoted to CCS Group B. Recruitment to posts in this group arise out of requisition made by the concerned ministries all over India.

These requisitions, upon reaching, the Staff Selection Commission are processed and selection takes place and appointments are made. Even from these appointees, undertaking for all India transfer liability is taken. As these are posts under the Central Government and these employees are liable to transferred anywhere in the country and the recruitment being centralised for all such posts in the country, it has been consistent policy of the Union of India to have pan India eligibility."

55. With regard to CCS Group D posts, in the affidavit of the Union it is stated that "the posts under this category are primarily of what used to be Class IV employees now referred to as the Multi Tasking staff. In recent years, Central Pay Commission has recommended against any further recruitment to these posts in Group D. Further it has also been recommended that the existing posts will be merged with Group C. Hence, this is now a vanishing cadre21."

56. The broad picture that emanates from the above discussion and narration is that insofar as the services in connection with the affairs of the Union is concerned (Central Services), wherever the establishment may be located i.e. in the National Capital Territory of Delhi or in a State or within the geographical areas of Union Territory, recruitment to all positions is on an All India basis and reservation provided for is again a panIndia reservation. This by itself, from one perspective, may appear to be in departure from the rule set out in Part XVI of the Constitution of India (Articles 341 and 342). However, the close look undertaken hereinbefore indicates such a position is fully in accord with the constitutional structure of a federal polity.

NATIONAL CAPITAL TERRITORY of DELHI

57. In case of National Capital Territory of Delhi, especially, to make the picture even clearer, a reference may be made to ‘Delhi Administration Subordinate Service Rules, 1967’. Rule 3 of the aforesaid Rules is to the following effect:

"3. Constitution of service and its classification.

(1) On and from the date of commencement of these Rules, there shall be constituted one Central Civil Service, known as the Subordinate Service of the Delhi Administration.

(2) The Service shall have four Grades, namely-

Grade I

Grade II

Grade III

Grade IV

(3) The posts in Grade I shall be Central Civil posts, Class II Group ‘B’ (Gazetted) and those in Grades II, III and IV shall be Central Civil posts Group ‘C’ (NonGazetted).

(4) Members of the service shall, in the normal course be eligible for appointment to various Grades of the service to which they belong and not to the other service."

(underlining is ours)

Subordinate services in the National Capital Territory of Delhi are, therefore, clearly Central Civil Services. The Affidavit of the Union also points out this feature by stating that, "The posts in CCS Group C are in the subordinate services. The equivalent in the Union Territory of Delhi is the Delhi Administrative Subordinate Services (DASS) and the Recruiting Agency in the place of Staff Selection Commission is the Delhi Subordinate Service Selection Board (DSSSB). Members of the Delhi Administrative Subordinate Services are the Feeder Cadre for Central Civil Services Group B (DANICS). It is for these reasons that the policy (of pan India eligibility) consistently adopted."22

58. A combined reading of these provisions of the DASS Rules, 1967 and CCS Rules, 1965, therefore, more than adequately explains the nature of Subordinate Services in the NCT of Delhi. These clearly are General Central Services and perhaps, it is owing to this state of affairs that the Union of India in its Affidavit has stated that, "Members of the Delhi Administrative Subordinate Services are the Feeder Cadre for Central Civil Services Group B (DANICS). It is for these reasons that the policy (of pan India eligibility) is consistently adopted."

59. While examining the validity of reservation of seats in medical colleges for local candidates in Delhi, this Court in Dr. Jagdish Saran and Others Vs. Union of India23 had made certain observations with regard to the special status that the capital city enjoys, which today, has come to be known as the National Capital Territory of Delhi. The observations of this Court in paragraphs 10 and 56 may be usefully recapitulated and, therefore, is set out below:

"10. The capital city is not just a part of India. It is miniaturised India, a fact often forgotten by the administration in the field of culture and education, especially visavis regional, minorities. It is magapolitan and people from all parts flock to this outsized city. But we cannot exaggerate this factor, for the presence of the farther regions like the South and the Northeast, populationwise, is minimal and precarious. Shri Balakrishnan insisted that the University was sustained by Central Government finances, collected from the whole country, and the benefits must likewise belong to all qualified students from everywhere. These are valuable aspects to shape policy but the court must test constitutionality and no more. To that extent alone we will weigh these factors in moulding our verdict.

xxx xxx xxx

56. We may windup by articulating the core thought that vitalises our approach. Anyone who lives inside India can never be considered an ‘outsider’ in Delhi. The people in the States are caught in a happy network of mutuality, woven into a lovely garment of humanity, whose warp and woof is India. This is the underlying fundamental of the preambular resolve registered in our National Parchment. So we insist that blind and bigoted local patriotism in xenophobic exclusivism is destructive of our Freedom and only if compelling considerations of gross injustice, desperate backwardness and glaring inequality desiderate such a purposeful course can protective discrimination gain entrance into the portals of college campuses. The Administration has a constitutional responsibility not to be a mere thermometer where mercury rises with populist pressure but to be a thermostat that transforms the mores of groups to stay in the conscience of the nation viz. the Constitution."

60. The Affidavit of the Union does not touch upon the details of Subordinate Services in other Union Territories. Neither the authorities of the other Union Territories have laid before the Court any relevant material in this regard. We, therefore, refrain from addressing the issue in question as far as other Union Territories are concerned and have confined our discussions and the consequential views only to the National Capital Territory of Delhi.

61. Accordingly, we answer the question referred in terms of the views expressed in para 34 of this opinion. We further hold that so far as the National Capital Territory of Delhi is concerned the pan India Reservation Rule in force is in accord with the constitutional scheme relating to services under the Union and the States/Union Territories.

62. In view of the conclusions reached as above, it will not be necessary to remit Civil Appeal Nos. 1085 of 2013, 10081 of 2014, 8141 of 2014, 8802 of 2012, 1086 of 2013 and Civil Appeal arising out of Special Leave Petition (Civil) 81 No.36324 of 2017 (pertaining to Delhi) for further consideration by the appropriate Bench. Accordingly, we dispose of the said appeals (pertaining to Delhi) in terms of the present order. So far as Civil Appeal Nos.99359937 of 2014 pertaining to the U.T. of Andaman and Nicobar Island are concerned the issue may be decided by the appropriate Bench in the light of the views expressed herein on adequate and sufficient materials being placed before the Bench by the contesting parties.

………………………………………J. [RANJAN GOGOI]

………………………………………J. [N.V. RAMANA]

………………………………………J. [MOHAN M. SHANTANAGOUDAR]

………………………………………J. [S. ABDUL NAZEER]

PLACE: NEW DELHI

DATE: 30th AUGUST, 2018

Bir Singh Vs. Delhi Jal Board & Ors.

[Civil Appeal No. 1085 of 2013]

[Civil Appeal Nos. 9935-37 of 2014]

[Civil Appeal No. 8375 of 2014]

[Civil Appeal No. 10081 of 2014]

[Civil Appeal No. 8141 of 2014]

[Civil Appeal No. 8802 of 2012]

[Civil Appeal No. 1086 of 2013]

[Civil Appeal No. 9048 of 2018 Arising Out of Slp(C) No. 36324 of 2017]

J U D G M E N T

R. BANUMATHI, J.

Reference Order:-

1. I have gone through the judgment proposed by His Lordship Justice Ranjan Gogoi. I agree with the following conclusions arrived 83 at in paras (30) and (34) and the reasonings thereon. "A person notified as a Scheduled Caste in State ‘A’ cannot claim the same status in another State on the basis that he is declared as a Scheduled Caste in State ‘A’……".

"…….It will, therefore, be in consonance with the constitutional scheme to understand the enabling provision under Article 16(4) to be available to provide reservation only to the classes or categories of Scheduled Castes/Scheduled Tribes enumerated in the Presidential orders for a particular State/Union Territory within the geographical area of that State/Union Territory (Union Territory added by me) and not beyond."

With due respect, I do not agree with the conclusion arrived at in para (61) and the reasonings thereon. "……So far as the National Capital Territory of Delhi is concerned the pan-India Reservation Rule in force is in accord with the constitutional scheme relating to services under the Union and the States/Union Territories."

For agreeing with the conclusion arrived at in paras (30) and (34) and for differing from the conclusions in para (61) and the reasonings thereon, I have given my own reasonings.

2. The extent and nature of interplay and interaction under Articles 16(4), 341(1) and 342(1) of the Constitution of India was referred to the Constitution Bench in State of Uttaranchal v. Sandeep Kumar 84 Singh and Ors., (2010) 12 SCC 794, with the following reference:-

"13. A very important question of law as to interpretation of Articles 16(4), 341 and 342 arises for consideration in this appeal. Whether the 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."

3. Territory of India:- Article 1(1) of the Constitution of India declares that India, that is Bharat, shall be a Union of States. As amended by the Constitution Seventh (Amendment) Act, 1956. Article 1 of the Constitution reads as under:-

1. Name and territory of the Union.-

(1) India, that is Bharat, shall be a Union of States.

(2) The States and the territories thereof shall be as specified in the First Schedule.

(3) The territory of India shall comprise-

(a) the territories of the States;

(b) the Union Territories specified in the First Schedule; and

(c) such other territories as may be acquired.

4. Under the Constitution of India, as initially enacted, the States were divided into Part A States, Part B States, Part C States and the territories in Part D. Substantial changes were made by the Constitution (Seventh Amendment) Act, 1956 which incorporated the recommendations of the States Reorganisation Commission and was to have effect in concert with the States Reorganisation Act, 1956. The four categories of States that existed were reduced to two categories. The first of these categories – Part A and Part B States comprised one class, called "States". The second category comprised the areas which had earlier been included in Part C and Part D States; these areas were called "Union Territories". Some additions and deletions were made to the existing lists. Now as per Schedule I, there are twenty-nine States and Seven Union Territories.

5. The expression "State" is not defined in the Constitution. It is defined in the General Clauses Act, 1897 which is made applicable to the interpretation of the Constitution by Article 367. As on the date of the commencement of the Constitution, clause (58) in Section 3 of the General Clauses Act, 1897 defined "State" in the following words:-

"3. (58) ‘State’, – shall mean a Part A State, a Part B State or a Part C State." The said definition was amended by the Adaptation of Laws Order 86 No. 1 of 1956 issued by the President in exercise of the power conferred upon him by Article 372-A of the Constitution introduced by the Constitution Seventh (Amendment) Act, 1956. The amended definition ‘State’ reads thus:-

"3. (58) ‘State’, –

(a) as respects any period before the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean a Part A State, a Part B State or a Part C State; and

(b) as respects any period after such commencement, shall mean a State specified in the First Schedule to the Constitution and shall include a Union Territory."

6. Clause (30) in Article 366 defines the "Union Territory" in the following words:-

"366. (30) ‘Union Territory’ means any Union Territory specified in the First Schedule and includes any other territory comprised with the territory of India but not specified in that Schedule."

7. Clause (24) of Article 366 defines "Scheduled Castes" and clause (25) of Article 366 defines "Scheduled Tribes". The latter 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 341(1) of the Constitution empowers the President, in consultation with the Governor of the State concerned, to specify Scheduled Castes by public notification.

Equally, Article 342(1) of the Constitution empowers the President "with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be ‘Scheduled Tribes’ in relation to that State or Union Territory, as the case may be". Article 342(2) of the Constitution empowers "Parliament, by law, to include in or exclude from the list of ‘Scheduled Tribes’ specified in a notification issued under clause (1), any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification."

Until the Presidential Notification is modified by appropriate amendment by Parliament in exercise of the power under Article 341(2) of the Constitution, the Presidential Notification issued under Article 341(1) is final and conclusive and any caste or group cannot 88 be added to it or subtracted by any action either by the State Government or by a Court on adducing of evidence. In other words, it is the constitutional mandate that the tribes or tribal communities or parts of or groups within such tribes or tribal communities specified by the President, after consultation with the Governor in the public notification, will be ‘Scheduled Tribes’ subject to the law made by Parliament alone, which may, by law, include in or exclude from the list of ‘Scheduled Tribes’ specified by the President. Thereafter, it cannot be varied except by law made by the Parliament.

8. The President of India alone is competent or authorized to issue an appropriate Notification in terms of Article 341(1) and Article 342(1). Cumulative reading of Articles 338, 341 and 342 indicate that:- a) Only the President could notify castes/tribes as Scheduled Castes/Tribes and also indicate conditions attaching to such declaration. A public Notification by the President specifying the particular castes or tribes as SC/ST shall be final for the purpose of Constitution and shall be exhaustive. 89 b) Once a notification is issued under clause (1) of Articles 341 and 342 of the Constitution, the 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 notification24.

9. It is stated that before notification was issued under Article 341(1) and Article 342(1) notifying certain caste/race or group as Scheduled Caste/Scheduled Tribe, an elaborate enquiry was made and also after such enquiry, the Presidential Order was issued. While doing so, Presidential Order not only specified parts or groups of caste, races or tribes but also made the said specification by reference to different areas in the State. By perusal of the Presidential Order, it is clear that some caste/race is actually confined with reference to a particular area; for instance, confined to a particular taluk in a district. The reason for such specification by reference to different areas in the State being educational, social backwardness, races or tribes cannot be the same throughout the State. The consideration for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes and Scheduled Tribes or Backward Classes in a given State would depend on the nature and extent of the disadvantages and social hardships suffered in that State. These may be absent in another State to which these persons belonging to other States may migrate.

10. Whenever States’ reorganization took place in the past, Parliament exercised its powers under Articles 341(2) and 342(2) and provided for specific Castes/Tribes that had to be Scheduled Castes and Scheduled Tribes in relation to the reorganized States/Union Territories. The Constitution Scheduled Caste Orders and the Constitution Scheduled Castes (Union Territories) Order, also clarify that Parliament’s intention was to extend benefits of reservation in relation to the States/Union Territories in terms of the castes, races or 91 tribes mentioned as per the Presidential Orders themselves.

11. Presidential Order which provided for castes/races, tribes recognized as ‘Scheduled Caste/Scheduled Tribe’ and their interpretation cannot be challenged or agitated in a court of law. The question whether Dohar caste is a sub-caste of Chamar caste which is recognized as a Scheduled Caste came up for consideration in Bhaiya Lal v. Harikishan Singh, AIR 1965 SC 1557, wherein this Court held that the court cannot enquire into whether Dohar caste is a sub-caste of Chamar caste and whether the same must be deemed to have been included in the Presidential Order.

In Bhaiya Lal’s case, this Court held "…that before a notification is issued under Article 341(1), an elaborate enquiry is made and it is as a result of this enquiry that social justice is sought to be done to the castes, races or tribes as may appear to be necessary, and in doing justice…" and while doing so, the notification not only to specify parts or groups of castes, races or tribes but to make specification by reference to different areas in the State. In Bhaiya Lal’s case, the Supreme 92 Court held that only the Parliament is empowered to amend the Notification under Articles 341(2) and 342(2) of the Constitution.

12. Presidential Notification (Scheduled Caste) Order 1950:-

The List of Scheduled Castes is contained in the Constitution (Scheduled Castes) Order 1950. The Presidential Notifications of 1950 and 1951 (as amended) in relation to Scheduled Castes and Scheduled Tribes of various States, very importantly provided that:-

"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 XXV] of the 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 members thereof resident in the localities specified in relation to them respectively in those Parts of that Schedule." The Presidential Notification of 1950 was amended by the Constitution (Scheduled Castes and Scheduled Tribes Order), Amendment Act, 1956, (Act No.63 of 1956).

Another amending Act was enacted by Parliament in 1976. Further, amendments had taken place as and when Parliament reorganized States like Bombay, Andhra Pradesh, Uttarakhand, Chhattisgarh and Jharkhand through separate Acts. All these were Parliamentary enactments. Presidential Notification pertaining to Union Territories, Scheduled Castes (Union Territories) Order, 1951 specifies Scheduled Castes resident in the Union Territories of Delhi, Chandigarh and Daman and Diu. When new Union Territories were formed such as Pondicherry, Sikkim, Goa, Daman and Diu, Arunachal Pradesh, Mizoram, the Scheduled Castes or Scheduled Tribes Orders were made in relation to those new Union Territories.

13. The Constitution (Scheduled Tribes) Order, 195025:- In exercise of the powers conferred by clause (1) of Article 342 of the Constitution of India the President has, after consultation with the Governors of the States concerned, made the Constitution (Scheduled Tribes) Order, 1950, specifying the tribes or communities which shall be deemed to be Scheduled Tribes in the States mentioned therein. This Order has been amended by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 (Act No.108 of 1976), the Constitution (Scheduled Tribes) Order (Amendment) Act, 1991 (16 of 1991), the Constitution (Scheduled Tribes) Order (Second Amendment) Act, 1991 (39 of 1991), the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 2002 (32 of 2002), the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 2002 (10 of 2003), the Constitution (Scheduled Tribes) Order (Amendment) Act, 2003 (47 of 2003), the Constitution (Scheduled Tribes) Order (Amendment) Act 2006 (48 of 2006), the Constitution (Scheduled Tribes) Order (Amendment) Act, 2008 (14 of 2008) and the Constitution (Scheduled Tribes) Union Territories Order (Amendment) Act, 2008 (2 of 2009). As it stands amended, it specifies the Scheduled Tribes resident in the States of Andhra Pradesh, Assam, Bihar, Gujarat, Himachal Pradesh, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Manipur, Meghalaya, Orissa, Rajasthan, Tamil Nadu, Tripura, West Bengal.

14. Article 16(4) is only an enabling provision to provide reservation to backward classes. Clause (4) of Article 16 of the Constitution cannot be made applicable for the purpose of grant of benefit of reservation for Scheduled Castes or Scheduled Tribes in a State or Union Territory, who have migrated to another State or Union Territory and they are not members of the Scheduled Castes and Scheduled Tribes in the State to which they have migrated. The Presidential Orders made under Article 341 and Article 342 have an overriding status. The presence of Articles 338, 338A, 341, 342 of the Constitution clearly shows that it precludes any tinkering or deviation from the list of castes or tribes notified in the Presidential Order which are reserved for that State or that Union territory.

15. India is huge. There is Unity in Diversity. Diversity in terms of language, culture, demography, geographical area, development of regions, opportunities available to individuals for education and to make social and economical advancement etc. Some States are well- 96 developed; some other States are developing; few other States are under-developed. All the affirmative action of the States is to provide equality of opportunity to the socially and economically disadvantaged group. Under Article 15(4) of the Constitution, State is empowered to make special provisions for the advancement of any socially and educationally backward class of citizens or for the Scheduled Castes or Scheduled Tribes.

Article 16 of the Constitution of India lays down that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Article 16(4) of the Constitution empowers the State to make provisions to provide reservation to the backward classes in employment or appointment to any posts and thereby to create equally opportunities for their socio-economic empowerment and their emancipation. Article 16(4) speaks of one type of reservation namely reservation of appointments/posts.

16. Article 16(4) of the Constitution is an enabling provision directed towards achieving equality of opportunity in services under 97 the State. Observing that Article 14 of the Constitution is the genus while Article 16 is the species, in E. P. Royappa v. State of Tamil Nadu and Anr., (1974) 4 SCC 3, it was held that:-

"85. ………Article 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged in the Constitution, Article 16 is only an instance of the application of the concept of equality enshrined in Article 14.

In other words, Article 14 is the genus while Article 16 is a species. Article 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose. J., "a way of life", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits…….."

[Underlining added]

17. The Constitution Bench of nine Judges in Indra Sawhney and Ors. v. Union of India and Ors., (1992) Supp 3 SCC 217, observed that Article 16(4) of the Constitution is aimed at ‘protective equality’ and it was held as under:-

"563. Thus, Article 16(1) and (4) operate in the same field. Both are directed towards achieving equality of opportunity in services under the State. One is broader in sweep and expansive in reach. Other is limited in approach and narrow in applicability. Former applies to ‘all’ citizens whereas latter is available to ‘any’ in Article 16(4) read together indicate that they are part of same scheme. The one is substantive equality and other is protective equality. Article 16(1) is fundamental right of a citizen whereas Article 16(4) is an obligation of the State. The former is enforceable in a Court of law, whereas the latter is ‘not constitutional compulsion’ but an enabling provision.

Whether Article 16(4) is in substance, ‘an exception’, ‘a proviso’, or an ’emphatic way of putting the extent to which equality of opportunity could be carried’, or ‘presumed to exhaust all exceptions in favour of backward class’, or ‘expressly designed as benign discrimination devoted to lifting to backward classes’, but if Article 16(1) is the positive aspect of equality of opportunity’, Article 16(4) is a complete Code for reservation for backward class of citizens as it not only provides for exercise of power but also lays down the circumstances, in which the power can be exercised, and the purpose and extent or its exercise. One is mandatory and operates automatically whereas the other comes into play on identification of backward class of citizens and their inadequate representation."

[Underlining added]

18. Article 16(4) of the Constitution is not an exception; but a facet of Article 14 and Article 16(1) of the Constitution; it enables the State to effectuate equality of opportunity to any backward class. As held in Chattar Singh and Ors. v. State of Rajasthan and Ors. (1996) 11 SCC 742 in paras (17) and (18), that "….It gives power to the state to effectuate the opportunity of equality to any backward class of 99 citizens. ……..The object of reservation for the Scheduled Casts and Scheduled Tribes is to bring them into the mainstream of national life, while the objective in respect of the backward classes is to remove their social and educational handicaps. Therefore, they are always treated dissimilar and they do not form an integrated class with Dalits and Tribes for the purpose of Article 16(4) or 15 (4)…".

19. In State of Kerala and Anr. v. N.M. Thomas and Ors. (1976) 2 SCC 310 in para (178), it was held that "…differences and disparities exist among men and things and they cannot be treated alike by the application of the same laws but the law has to come in terms with life and must be able to recognize the genuine differences and disparities that exist in human nature. Legislature has also to enact legislation to meet specific ends by making a reasonable and rational classification..".

20. A Constitution Bench of this Court in Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College and Ors., (1990) 3 SCC 130 had the occasion to consider the question as to whether a member of Gouda community which is recognised 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. Based on the Government of India circular dated 22.02.1985, the appellant was denied admission to the Medical College on the ground that Marri Chandra Shekhar Rao was not a ‘Scheduled Tribe’ in the migrated State i.e. State of Maharashtra.

21. After referring to various provisions of Constitution of India, background in which the Presidential Order was issued and earlier judgments, in Marri Chandra Shekhar Rao’s case, it was held as under:- "9. It appears that Scheduled Castes and Scheduled Tribes in some States had to suffer the social disadvantages and did not have the facilities for development and growth. It is, therefore, necessary in order to make them equal in those areas where they have so suffered and are in the state of underdevelopment to have reservations or protection in their favour so that they can compete on equal terms with the more advantageous or developed sections of the community.

Extreme social and economic backwardness arising out of traditional practices of untouchability is normally considered as criterion for including a community in the list of Scheduled Castes and Scheduled Tribes. The social conditions of a caste, however, varies from State to State and it will not be proper to generalise any caste or any tribe as a Scheduled Tribe or Scheduled Caste for the whole country. This, however, is a different problem whether a member or the Scheduled Caste in one part of the country who migrates to another State or any other Union territory should continue to be treated as a Scheduled Caste or Scheduled Tribe in which he has migrated. That question has to be judged taking into consideration the interest and well-being of the Scheduled Castes and Scheduled Tribes in the country as a whole."

22. Marri Chandra Shekhar Rao case was followed by another Constitution Bench of this Court in Action Committee on issue of caste certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and Anr. v. Union of India and Anr. (1994) 5 SCC 244. In Action Committee’s case, it was held as under:-

"3. 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 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 102 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.

These are the relevant provisions with which we shall be concerned while dealing with the grievance made in this petition. …. 16. We may add that considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/Schedule Tribes or backward classes in a given State would depend on the nature and extent of disadvantages and social hardships suffered by that caste, tribe or class in that State which may be totally non est in another State to which persons belonging thereto may migrate. Coincidentally it may be that a caste or tribe bearing the same nomenclature is specified in two States but the considerations on the basis of which they have been specified may be totally different. So also the degree of disadvantages of various elements which constitute the input for specification may also be totally different.

Therefore, merely because a given caste is specified in State A as a Scheduled Caste does not necessarily mean that if there be another caste bearing the same nomenclature in another State the person belonging to the former would be entitled to the rights, privileges and benefits admissible to a member of the Scheduled Caste of the latter State "for the purposes of this Constitution". 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…."

Marri Chandra Shekhar Rao’s case and Action Committee’s case were followed in Subhash Chandra and Anr. v. Delhi Subordinate Services Selection Board and Ors., (2009) 15 SCC 458. In Subhash Chandra case, the Supreme Court reiterated that "If a caste 103 or tribe is notified in terms of the Scheduled Castes Order or the Scheduled Tribes Order, the same must be done in terms of clause (1) of Article 341 as also that of Article 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) thereof must be resorted to."

23. In Marri Chandra Shekhar Rao’s case, it was held that a Scheduled Caste or Scheduled Tribe of any State which depends on the nature and extent of disadvantages and social hardships suffered by the caste, tribe or class in that State or area may be non-existent in another State. The inclusion of the castes, races or tribes is mainly based on the degree of disadvantages or hardships faced by the castes, races or tribes in that State or in some cases or in part area of the State. For instance, in the Presidential Order relating to the State of Tamil Nadu, the caste Kanikaran, Kanikkar (in Kanyakumari District and Shenkottah and Ambasaundram taluks of Tirunelveli district) are 104 notified as Scheduled Castes.

This shows that the President can specify castes, races or tribes or parts thereof in relation not only to the entire State but in relation to the parts of the State. The President has been authorised to limit the notification to parts of the State or groups within castes, races or tribes. In Marri Chandra Shekhar Rao case, the Constitution Bench therefore held that the expression "in relation to that State" must be read meaningfully; otherwise the expression "in relation to that State" would come nugatory.

24. The Presidential Order issued under Article 341 of the Constitution in regard to Scheduled Castes and Article 342 of the Constitution in regard to Scheduled Tribes cannot be varied by anyone or by the Court. Only the Parliament by law include or exclude from the list of Scheduled Castes or Scheduled Tribes specified in a notification issued under Article 341(1) and Article 342(1) of the Constitution respectively any caste, race or tribe or parts or group within any caste, race or tribe. The Scheduled Castes or Scheduled Tribes thus specified in relation to one State or Union 105 Territory does not carry their status in another State or Union Territory.

When the Scheduled Castes or Scheduled Tribes are specified for each State and in some cases, specific areas of the State or Union Territory, neither the State legislature nor the courts can include or exclude other Scheduled Castes or Scheduled Tribes so specified in some States or Union Territories which would be against the mandate of Articles 341 and 342 of the Constitution and the Presidential Orders issued thereon. If that is permitted, it would amount to addition or alteration of the Presidential Order which is violative of the Constitutional Scheme.

25. State of Maharashtra v. Milind and Ors. (2001) 1 SCC 4, dealt with a question as to whether the notified Scheduled Tribe being Halba or Halbi as contained in item 19 of the Presidential Order would include "Halba-Koshti". This Court held that addition of "Halba- Koshti" in the Presidential Order would amount to amendment thereto which is impermissible in law. In Milind’s case, it was held as under:-

"33……The jurisdiction of the High Court would be much more 106 restricted while dealing with the question 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 1 belonged to "Koshti" caste and has no identity with "Halba/Halbi" which is the Scheduled Tribe under Entry 19 of the Presidential Order, relating to the 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 Question 2 also in the negative. Hence it is answered accordingly."

26. When the Parliament restricts the benefit of reservation by inclusion of a caste as a Scheduled Caste to a State or part of State i.e. certain specified districts in a State, the Court cannot express any opinion as to its correctness. Hence, as regards the inclusion of caste "Mochi" in the list of Scheduled Castes within a particular area as per Constitution (Scheduled Castes) Order (Second Amendment) Act, 2002, it was held that it was not for the Court to render any opinion in regard to the correctness of the same. [vide Shree Surat Valsad Jilla K.M.G. Parishad v. Union of India and Ors. (2007) 5 SCC 360].

27. The executive instructions/circulars issued by the Government of India also reiterate to well-settled position. The circular No. BC-16014/1/82-SC & BCD-I dated 06.08.1984 of the Ministry of Home Affairs addressed to all State Governments and UT Administration states that SC and ST on migration from the State of his origin to another State will not lose his status as SC/ST; but will be entitled to the concession/benefits admissible to the SC/ST from the State of his origin and not from the State where he has migrated.

The relevant portion of the said circular reads as under:-

No. BC-16014/1/82-SC & BCD-I

Government of India/Bharat Sarkar

Ministry of Home Affairs/GrihMantralaya

New Delhi, the 6th August, 1984

To,

The Chief Secretaries of All State Governments and U.T. Administrations.

Subject: – Verification of claim of candidates belonging to Scheduled Castes and Scheduled Tribes and migrants from other States/Union Territories-Form of certificate-Amendment to.

Sir, ……..

2. The instructions issued in this Ministry’s letter of even number dated the 18.11.1982 will continue. It is, however, clarified that the Scheduled Caste/Scheduled Tribe person on migration 108 from the State of his origin to another State will not lose his status as Scheduled Caste/Scheduled Tribes but he will be entitled to the concessions/benefits admissible to the Scheduled Castes/Scheduled Tribes from the State of his origin and not from the State where he has migrated……

(Underlining added)

Yours faithfully

Sd/-

Joint Secretary to Govt. of India

28. The same thing was reiterated in the circular dated 22.02.1985 issued by the Ministry of Home Affairs which has also clarified that a Scheduled Caste/Scheduled 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.

29. My Conclusion for agreeing with the view taken in paras (30) and (32):-

It is now settled law that a person belonging to Scheduled Caste/Scheduled Tribe in State ‘A’ cannot claim the same status in another State ‘B’ on the ground that he is declared as a Scheduled Caste/Scheduled Tribe in State ‘A’. The expressions "in relation to that State or Union Territory" and "for the purpose of this Constitution" used in Articles 341 and 342 of the Constitution of India are to be meaningfully interpreted. A given caste or tribe can be a Scheduled Caste or a Scheduled Tribe in relation to that State or Union Territory for which it is specified. Thus, the person notified as a Scheduled Caste in State ‘A’ cannot claim the same status in another State on the basis that he was declared Scheduled Caste in State ‘A’. Article 16(4) has to yield to the Constitutional mandate of Articles 341 and 342.

Union Territories:

30. Part VIII of the Constitution of India deals with Union Territories. Article 239 provides that the Union Territory shall be administered by the President acting through an Administrator to be appointed by him. Article 239 reads as follows:-

"239. Administration of Union Territories

(1) Save as otherwise provided by Parliament by law, 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.

(2) Notwithstanding anything contained in Part VI, the President may appoint the Governor of a State as the administrator of an adjoining Union Territory, and where a Governor is so appointed, he shall exercise his functions as such administrator independently of his Council of Ministers."

31. Article 239A was inserted by the Constitution (Fourteenth Amendment) Act, 1962. Article 239A of the Constitution of India empowers the Parliament to create by law legislatures and Council of Ministers in the then Union Territories of Himachal Pradesh, Manipur, Goa, Daman & Diu and Pondicherry. Arunachal Pradesh and Mizoram were added later. With Himachal Pradesh, Manipur, Tripura, Goa and Mizoram all becoming full-fledged States, the only Union Territory left under Article 239A is Pondicherry. Now, Union Territory of Pondicherry (Puducherry) also has a legislature and Council of Ministers.

32. Article 341 empowers the President "with respect to any State or Union Territory, and where it is a State, after consultation with the 111 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 Caste in relation to that State or Union Territory as the case may be." Equally Article 342(1) empowers the President "with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of the Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be".

Articles 341(2) and 342(2) of the Constitution empower the Parliament alone by law to include or exclude from the list of Scheduled Castes/Scheduled Tribes specified by notification issued under Articles 341(1) and 342(1) of the Constitution of India. Until the Presidential Notification is modified by appropriate amendment by Parliament in exercise of the power under Articles 341(2) or 342(2) of the Constitution, the Presidential Notification issued under Articles 341(1) and 342(1) of the 112 Constitution is final and conclusive. No caste or group can be added to it or subtracted by any action either by the State Government or by a Court on adducing of evidence. Articles 341 and 342 of the Constitution do not make any distinction between a ‘State’ or ‘Union Territory’.

33. Constitution (Scheduled Castes) (Union Territories) Order, 1951:- In exercise of powers under Clause (1) of Articles 341 and 342 of the Constitution, the Presidential Notifications were issued specifying Scheduled Castes in relation to various Union Territories. List of Scheduled Castes are declared in relation to each Union Territory separately. Presidential Notification pertaining to Union Territories, Scheduled Castes (Union Territories) Order, 1951 specifies Scheduled Castes resident in the Union Territories of Delhi, Chandigarh and Daman and Diu.

The Presidential Order provided that:- "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 113 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 regards members thereof resident in the localities specified in relation to them respectively in those Parts of that Schedule." As and when there is reorganisation of the Union Territories, in exercise of the powers conferred under Article 341(1) of the Constitution, the President has made various orders.

34. The Constitution (Scheduled Tribes) (Union Territories) Order, 195126:- In exercise of the powers conferred by clause (1) of Article 342 of the Constitution of India, as amended by the Constitution (First Amendment) Act, 1951, the President made the Constitution (Scheduled Tribes) (Part C States) Order, 1951, specifying the tribes or communities which shall be deemed to be ‘Scheduled Tribes’ in Part C State. This Order was adapted for the Union Territories by the Scheduled Castes and Scheduled Tribes Lists (Modification) Order, 1956.

35. When new territories were formed, such as Pondicherry (Puducherry), or Sikkim, the Scheduled Castes or Scheduled Tribes Orders were made in relation to the new territories. In exercise of the powers under Articles 341(1) and 342(1), the President has made the orders – The Constitution (Dadra and Nagar Haveli) Scheduled Castes Order, 1962; The Constitution (Dadra and Nagar Haveli) Scheduled Tribes Order, 1962; The Constitution (Pondicherry) Scheduled Castes Order, 1964; The Constitution (Goa, Daman and Diu) Scheduled Caste Order, 1968; The Constitution (Goa, Daman and Diu) Scheduled Tribes Order, 1968; In the case of Goa, the Goa, Daman and Diu Reorganisation Act, 1987 (Act No.18 of 1987), by Section 19 amended the Scheduled Castes and Scheduled Tribes Orders.

36. Union Territories do not become merged with the Central Government:- The Union Territories are centrally administered by the 115 President acting through an administrator. As held by this Court in New Delhi Municipal Council v. State of Punjab & Ors. (1997) 7 SCC 339, the President, who is the executive head of a Union Territory while administering the Union Territory, does not function as the head of the Central Government, but as the head of the Union Territory under powers specially vested in him under Article 239 of the Constitution thereby occupying a position analogous to that of a Governor in a State. Though the Union Territories are centrally administered under the provisions of Article 239, they do not become merged with the Central Government as has been held by this Court in Satya Dev Bushahri v. Padam Dev and Ors. AIR 1954 SC 587.

They are centrally administered; but they retain their independent identity [Chandigarh Administration and Anr. v. Surinder Kumar and Ors. (2004) 1 SCC 530]. The Union Territory does not entirely lose its existence as an entity though large control is exercised by the Union of India. [Government of NCT Delhi v. All India Central Civil Accounts, Jao’s Association and Ors. (2002) 1 SCC 344] 116

37. View taken in Pushpa and Chandigarh Administration – not correct view:- Reliance was placed upon Pushpa’s case to contend that Article 16(4) is not controlled by the Presidential Order issued under Article 341(1) or Article 342(1) to the Officers appointed to the post in the Union Territories need not be confined to only such Schedule Castes/Schedule Tribes of the particular Union Territory. In Pushpa’s case, the Supreme Court was confined with the question as to whether, selection and appointment already made to migrants’ Schedule Caste candidates of other States against the quota reserved for the Schedule Caste candidates in the Union Territory of Pondicherry was legal and valid.

In S. Pushpa and Ors. v. Shivachanmugavelu and Ors. (2005) 3 SCC 1, Pondicherry Government appointed Selection Grade Teachers in 1995 under the Scheduled Castes quota not only from the Scheduled Castes candidates of Pondicherry but also such candidates of Scheduled Castes from other States. In Pushpa’s case, this Court upheld the policy of the Pondicherry Government extending the benefit of reservation of SC/ST seats even to those candidates who came from other States. The Pondicherry Government proceeded on the basis that since Central Government jobs were open to all SC/ST candidates irrespective of origin of their States, the same may apply to jobs with a Union Territory as well. In Pushpa’s case, this Court held that in the matter of providing reservation, it was open to the Pondicherry Government to extend the benefit of reservation to migrant Scheduled Caste and Scheduled Tribe candidates and that the same will not be an infraction of clause (4) of Article 16 of the Constitution of India.

38. In Pushpa’s case, the principle that "when members of Scheduled Castes/Scheduled Tribes migrate to another State, they do not carry with them the special privileges and advantages", was held not applicable in case of Union Territories. In para (21) of Pushpa’s case, it was held as under:-

"21…..Article 16(4) is not controlled by a Presidential Order issued under Article 341(1) or Article 342(1) of the Constitution in the sense that reservation in the matter of appointment on posts may be made in a State or Union Territory only for such Scheduled Castes and Scheduled Tribes which are mentioned in the Schedule appended to the Presidential Order for that particular State or Union Territory. This article does not say that only such Scheduled Castes and Scheduled Tribes which are mentioned in the Presidential Order issued for a particular State alone would be recognised as backward classes of citizens and none else.

If a State or Union Territory makes a provision whereunder the benefit of reservation is extended only to such Scheduled Castes or Scheduled Tribes which are recognised as such in relation to that State or Union Territory then such a provision would be perfectly valid. However, there would be no infraction of clause (4) of Article 16 if a Union Territory by virtue of its peculiar position being governed by the President as laid down in Article 239 extends the benefit of reservation even to such migrant Scheduled Castes or Scheduled Tribes who are not mentioned in the Schedule to the Presidential Order issued for such Union Territory.

The UT of Pondicherry having adopted a policy of the Central Government whereunder all Scheduled Castes or Scheduled Tribes, irrespective of their State are eligible for posts which are reserved for SC/ST candidates, no legal infirmity can be ascribed to such a policy and the same cannot be held to be contrary to any provision of law." (Underlining added) In my considered view, the above observation in Pushpa’s case is not a correct view. The judgment in Pushpa’s case is contrary to the views taken in Marri Chandra Shekhar Rao’s case. The judgment in Pushpa’s case is contrary to the views taken in Marri Chandra Shekhar Rao’s case.

Facts of Pushpa’s case disclose that the Government of Pondicherry had throughout proceeded on the basis that being a Union Territory all orders regarding reservation for SC/ST in respect of post/services under the Central Government were applicable to post/services as under the Pondicherry administration. The decision in Pushpa’s case therefore cannot be taken to be an authoritative pronouncement. Clause (2) of Article 341 of the Constitution empowers Parliament alone by law to include or exclude from the lists of Scheduled Castes specified in a notification issued under clause (1) of Article 341. No executive action or order or modification or variance of the same is possible and any such variance would be against the constitutional scheme.

39. In Pushpa’s case, the posts advertised were of Selection Grade Teachers under the Pondicherry Services and not for Central Government jobs. It may be that Pondicherry is a Union Territory; but the posts/services exclusively coming under Pondicherry administration is meant only for the Scheduled Casts/Scheduled Tribes as notified under the Presidential Order for Pondicherry. In fact, Pondicherry (Union Territory) itself by referring to Subhash Chandra’s case has taken the decision that reservation benefits to posts/services arising under the Union Territory of Pondicherry will be 120 confined only to the Scheduled Castes/Scheduled Tribes notified by virtue of Presidential Order. The said Government Order of the Pondicherry Government was upheld by this Court in Puducherry Scheduled Caste People Welfare Association v. Chief Secretary to Government, Union Territory of Pondicherry and Ors. (2014) 9 SCC 236, wherein this Court held as under:-

"13. It is important to bear in mind that it is by virtue of the notification of President under Article 341(1) that the Scheduled Castes come into being. The members of the Scheduled Castes are drawn from castes, races or tribes, they attain a new status by virtue of Presidential Order. Clause (2) of Article 341 empowers Parliament alone by law to include or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) by the President. By no executive power, amendment, modification, alteration or variance in the Presidential Order is permissible.

It is not open to the executive to do anything directly or indirectly which may lead to any change in the Presidential Order. Once Presidential Order has been issued under Article 341(1) or Article 342(1), any amendment in the Presidential Order can only be made by Parliament by law as provided in Article 341(2) or Article 342(2), as the case may be, and in no other manner. The interpretation of "resident" in the Presidential Order as "of origin" amounts to altering the Presidential Order."

40. The principle in Pushpa’s case was not accepted in Subhash Chandra’s case. It was held that although Union Territory is administered by the Union Government, socio-political aspect of the 121 Union Territory cannot be mixed up with administrative aspect. In Subhash Chandra’s case, it was held that if the principle applied in Pushpa’s case is to be given a logical extension, it will lead to an absurdity, that the Scheduled Castes Order in a State/Union Territory brought under the control of the President under Article 341 of the Constitution could be altered by virtue of a notification issued in pursuance of Article 16(4) of the Constitution, which is not in consonance with the Constitutional Scheme.

41. Let us refer to the facts of Chandigarh Administration and Another v. Surinder Kumar and Others (2004) 1 SCC 530. Ministry of Home Affairs, Government of India issued various circulars pertaining to the Scheduled Castes and Scheduled Tribes. The circular dated 22.02.1985 regarding "Issue of Scheduled Caste/Scheduled Tribe certificate to migrants from other States/Union Territories", issued by the Ministry of Home Affairs 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.

Based on the aforesaid circular of the Government of India, the Home Secretary, Chandigarh Administration vide his letter dated 28.07.1986 sought clarification from the Government of India, Ministry of Home Affairs, as to whether, these instructions are applicable in the Union Territory of Chandigarh. Chandigarh Administration received the reply dated 26.08.1986 from Ministry of Welfare stating that there is no discrimination in the employment under the Central Government between the Schedule Caste/Schedule Tribes of one State or another and Union Territories and that the same may be followed by the Chandigarh Administration. The letter dated 26.08.1986 stated that Scheduled Castes/Scheduled Tribes of any other State/Union Territory would be entitled to the benefits and facilities provided in the services under the Union Territory of Chandigarh. Further the said circular leaves it to the Chandigarh Administration to seek further clarification. The above letter of Government of India is in clear violation of Constitutional scheme.

42. Pursuant to the said letter, Chandigarh Administration sought clarification from the Department of Personnel and Training. However, they have not received any response. The clarification was issued by the Home Secretary, Chandigarh Administration vide letter dated 07.09.1999. The said letter had given a clarification based on the Government of India circular dated 02.02.1985 stating that a Schedule Caste/Schedule Tribe of any other State or Union Territory would not be entitled to the benefits of reservation in the services in the Chandigarh Administration and that the benefit of reservation to persons belonging to reserved categories in other States in the Chandigarh Administration is to be discontinued with effect from 07.09.1999.

In Chandigarh Administration case, the Supreme Court took the view that the stand taken by Chandigarh Administration discontinuing the benefits of reservation with effect 124 from 07.09.1999 was untenable. With due respect, I am not in agreement with the view taken in Chandigarh Administration case . The letter dated 26.08.1986 sent by the Ministry of Welfare/Kalyan Mantralaya is contrary to the letter dated 22.02.1985 sent by the Ministry of Home Affairs and also against the Constitutional scheme.

43. It was held in Subhash Chandra that Chandigarh Administration and Pushpa proceeded on the basis that Marri Chandra Shekhar Rao and Action Committee would have no application in relation to Union Territories. Observing that both Articles 341 and 342 not only refer to the State but also to the Union Territory. In para (64) of Subhash Chandra’s case, it was held as under:-

"64. Although Union Territories are administered by the Central Government, yet it is difficult to conceive that the 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 Castes) Order or the Constitution (Scheduled Tribes) 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."

44. As per the scheme of the Constitution under Articles 341, 342 and 239 of the Constitution, only those Scheduled Castes/Scheduled Tribes as notified in the Presidential Notification for the respective Union Territory can legitimately claim the benefit of reservation in that Union Territory. Even though the Union Territories are centrally administered, though the administrator/Lieutenant Governor so far as the administrative aspects of the Union Territories, each Union Territory has its own identity. Each of the Union Territories would be bound by their respective Presidential Order of Scheduled Castes/Scheduled Tribes for giving benefit of reservation to Scheduled Castes/Scheduled Tribes in employment.

Only those persons, who come within the purview of the Presidential Notification, would be entitled to constitutional and other statutory benefits of reservation in the respective Union Territory. If the benefit of reservation is to be extended to Scheduled Castes/Scheduled Tribes from all over the country then it would amount to inclusion of caste, races or tribes to the Presidential Order pertaining to that Union Territory.

As discussed earlier, such inclusion or exclusion in the 126 Presidential Order can be done only by the Parliament in the manner as indicated in Articles 341(2) and 342(2) of the Constitution of India. By no executive order, amendment, alteration or variance in the Presidential Order is permissible. Whether there can be PAN India reservation of SCs and STs to services under various Union Territories of India

45. Under Central Civil Services (Classification, Control and Appeal) Rules, 1965 [CCS(CCA) Rules, 1965], there are four categories of services namely:-

(i) Central Civil Services, Group A;

(ii) Central Civil Services, Group B;

(iii) Central Civil Services, Group C; and

(iv) Central Civil Services, Group D

Central Civil Services – Group A:-

46. As per the Schedule to Central Civil Services (CCA) Rules, 1965, under Group ‘A’, there are forty five services inter alia like –

(i) Archaeological Service (Serial No.1);

(ii) Central Health Service (Serial No.5);

(iii) Indian Defence Accounts Service (Serial No.11);

(iv) Indian Foreign Service (Serial No.12);

(v) Indian Meteorological 127 Service (Serial No.13);

(vi) Indian Postal Service (Serial No.14);

(vii) Indian Posts and Telegraphs Traffic Service (Serial No.15);

(viii) Indian Revenue Service (Serial No.16);

(ix) Indian Salt Service (Serial No.17);

(x) Directorate General of Mines Safety (Serial No.19);

(xi) Indian Telecommunication Service (Serial No.22);

(xii) Central Legal Service (Grades I,II, III and IV) (Serial No.25);

(xiii) Delhi and Andaman and Nicobar Islands Civil Service, Grade I (DANICS) (Serial No.28);

(xiv) Delhi and Andaman and Nicobar Islands Police Service, Grade II (DANIPS) (Serial No.29);

(xv) Company Law Board Service (Serial No.38);

(xvi) Labour Officers of the Central Pool (Serial No.39); and (xvii) Armed Forces Headquarters Civil Services (Serial No.44).

47. By reading of the categories of services, the said services of Group ‘A’ are concerned only with the services of the Union of India and the appointment to Group ‘A’ services are made by the President. The Cadre Controlling Authority of Group ‘A’ services are the respective ministries of the Government of India. Recruitment to 128 Group ‘A’ services is made by the Union Public Service Commission (UPSC) and the recruitment is on all-India basis. So far as the recruitment to Group ‘A’ services is concerned, Union of India in its counter affidavit has stated as under:-

"a. ……… Recruitment to Group A services is made by the UPSC. This recruitment is again on all India basis…………

b. Whichever ministry seeks recruitment to the service in this Group sends requisition to UPSC as per procedure prescribed and UPSC accordingly advertises for the post in Group A. Every citizen of India is eligible to apply as per the qualifications and requirements in the notification.

c. DoPT is the nodal ministry for regulating the conditions of service of all Central Civil Services as per Allocation of Business Rules. As per the conditions of service, every employee is required to give an undertaking agreeing to the conditions of the all India transfer liability at the time of joining the service.

d. Central Civil Services employees belonging to Group A serve the Union of India and that is the reason why these services are across the length and breadth of the country, wherever there is an office of the Central Government.

e. Member of the Group A service are governed by Central Civil Services (Class, Control & Appeal) Rules, 1965 as well as Central Civil Services (Conduct) Rules, 1972 & Central Civil Services (Pension) Rules, 1972 and such other rules made by the central ministries.

"27 Central Civil Services – Group B:-

48. Under Rule 5, the Central Civil Services – Group ‘B’ are specified in the Schedule and there are thirty-two such services mentioned. Some of the thirty-two services of Group ‘B’ and their appointing authorities are as under:-

PART II – Central Civil Services, Group ‘B’

(Except for Civilians in Defence Services)

Description of service (2)

Appointing Authority (3)

Description of service (2)

Appointing Authority (3)

Section Officer Grade of the Central Secretariat Service excluding Section Officers with Group ‘A’ status. (Serial No.1)

President

Postal Superintendents’ Service, Group ‘B’ (Serial No.7)

Director-General Posts

Postmasters’ Service, Group ‘B’ (Serial No.8)

Director-General Posts

Customs Preventive Service, Group ‘B’- Chief Inspectors (Serial No.15)

Collector of Customs

Botanical Survey of India, Group ‘B’ (Serial No.18)

Chief Botanist, Botanical Survey of India

Income Tax Service, Group ‘B’ (Serial No.17)

Commissioner of Income Tax

Geological Survey of India, Group ‘B’ (Serial No.19)

Director-General , Geological Survey of India

Survey of India, Group ‘B’ (Serial No.20)

Surveyor General of India

Zoological Survey of India, Group ‘B’ (Serial No.21)

Zoological Survey of India

Central Electrical Engineering Service Group ‘B’ (Serial No.22)

Director General (Works), Central Public Works Department

Central Engineering Service, Group ‘B’: (Serial No.24)

 

Indian Salt Service, Group ‘B’ (Serial No.26)

Joint Secretary, Ministry of Production

 

(i) Posts in the Ministry of Irrigation and Power.

Joint Secretary,

(ii) Posts in the Central Water and Power Commission

Chairman, Central Water and Power Commission

(iii) Posts in the Chambal Control Board

Joint Secretary, Ministry of Irrigation and Power

(iv) Posts in the Farakka Barrage Control Board

Commissioner (Ganga Basin), Ministry of Irrigation and Power

(v) Posts in the Ganga Discharge Circle

Commissioner (Ganga Basin), Ministry of Irrigation and Power

Delhi and Andaman and Nicobar Islands Civil Service, Grade II. (DANICS) (Serial No.28)

Joint Secretary, Ministry of Home Affairs

Delhi and Andaman and Nicobar Islands Police Service, Grade II. (DANIPS) (Serial No.29)

Joint Secretary, Ministry of Home Affairs

General Central Service, Group ‘B’- (Serial No.32)

 

Administrator All Group ‘B’ posts of the Departmentalised Accounts Offices of the Government of India. (Serial No.33)

Chief Controller of Accounts or Joint Controller General of Accounts in a Ministry or Department where there is no Chief Controller of Accounts

(i) Post in any Ministry of Department of Government of India, other than the post in respect of which specific provision has been made by a general or special order of the President.

Secretary in the Ministry or Department

(i-a) Posts outside a Ministry or Department of Government of India, other than the posts in respect of which specific provision has been made by a general or special order of the president.

In respect of posts in an office under the control of a Head of Department directly under the Government.

-Head of the Department

In respect of other posts – Secretary in the Ministry or Department

(ii) Posts in Union Territories other than Delhi Administration, the Andaman and Nicobar Islands and the Laccadive, Minicoy and Amindive Islands

Administrator

 

(iii) Delhi Administration-All posts

Chief Secretary

 

(iv) The Andaman and Nicobar Islands-All Posts

Chief Commissioner

 

(v) The Lakshadweep Administration-All Posts

Administrator

Recruitment to Group ‘B’ services are conducted by the UPSC. The appointing authority to various Group ‘B’ services is the President of India/respective Ministries/respective Heads like Ministry of Home Affairs, Collector of Customs, Commissioner of Customs etc.

49. In Serial Nos. 28 and 29 of the Schedule, we have the Union Territories Service known as Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman & Diu and Dadra & Nagar Haveli Civil Services (DANICS) and Delhi, Andaman and Nicobar Islands, Lakshdweep, Daman & Diu and Dadra & Nagar Haveli Police Services (DANIPS). In the counter affidavit filed by the Union of India, it is stated as under:-

"a. …….DANICS/DANIPS officers are posted in Delhi, Andaman & Nicobar Islands, Lakshdweep, Daman & Diu and Dadra & Nagar Haveli. The recruitment to all the Union Territories for these Group B posts are common. They are also centralised and the appointing authority is none other than Ministry of Home Affairs, Government of India. The recruitment to these services is the very same examination meant for the All India Services (IAS/IPS) on the one hand and the Central Civil Services Group A on the other. Any citizen of India is eligible to apply, subject to the conditions prescribed. As per service rules, transfer undertakings throughout the Union Territories covered under DANICS/DANIPS is taken from these officers.

b. This is the reason why the Union of India while inviting applications for recruitment considers all candidates, including reserved candidates on all India basis. Group B cadre of DANICS and DANIPS is the feeder cadre for IAS and IPS respectively. They retire invariably in these offices, some of them reaching high positions in the central government. c. As indicated above recruitment to the All India Services, CCS Group A as well as CCS Group B (Gazetted) is conducted through UPSC in the Civil Services Examination, the applicants are common when the applications are made, every aspirant seeks recruitment to the services and it is only as per the marks and ranking that allocations are made eventually to All India Services, Group A and Group B.

Therefore, when UPSC undertakes the recruitment, it is naturally a PAN India recruitment and therefore it is necessary to seek applications including from reserved candidates from all over India."28

Central Civil Services – Group C:-

50. There are five services under Central Civil Services – Group ‘C’ under CCS (CCA) Rules. Some of the posts noted in Group ‘C’ and their appointing authorities are as under:-

PART III – Central Civil Services, Group ‘C’

(Except for Civilians in Defence Services)

Description of service (2)

Appointing Authority (3)

Description of service (2)

Appointing Authority (3)

Central Secretariat Clerical Service, Upper Division and Lower Division Grade (Serial No.1)

Deputy Secretary or Director, Cadre Authority

General Central Service, Group ‘C’ (Serial No.4)

Deputy Secretary or Director in the Ministry/Department of Government

 

 

(i) Posts in the Ministry/Department of Government other than the posts in respect of which specific provision has been made by a general or special order of the President

 

 

 

(ii) Posts in non-Secretariat Office other than posts in respect of which specific provision has been made by a general or special order of the President

Head of Office

 

 

(iii) Posts in Union Territories

Head of Office of such other authority as may be specified by the Administrator.

 

 

(iv) All Group ‘C’ posts of the Departmentalized Accounts Office of the Government of India

Controller of Accounts or Deputy Controller General of Accounts in a Ministry or Department where there is no Controller of Accounts.

 

Insofar as Group ‘C’ services of Union of India are concerned, they are recruited by the Staff Selection Commission (SSC) which is the recruiting agency under DoPT. Members of these services get promoted to CCS – Group ‘B’. In the counter affidavit filed by the Union of India, it is stated as under:-

"a. ……Recruitment to posts in Group C arise out of requisition made by the concerned ministries all over India. These requisitions upon reaching the Staff Selection Commission are processed and selection takes place and appointments are made. Even from these appointees undertaking for all India transfer liability is taken. As these are posts under Central Government and these employees are liable to be transferred anywhere in the country and the recruitment being centralised for all such posts in the country, it had been consistent policy of the Union of India to have PAN India eligibility.

b. The posts in CCS Group C are in the subordinate services. The equivalent in the Union Territory of Delhi is the Delhi Administrative Subordinate Services (DASS) and the recruiting agency in the place of Staff Selection Commission is the Delhi Subordinate Service Selection Board (DSSSB). Members of Delhi Administrative Subordinate Services are the feeder cadre for Central Civil Services Group B (DANICS). It is for these reasons that the policy is consistently adopted."29

Central Civil Services – Group D:-

51. Class IV employees now referred to as Multi-Tasking Staff (MTS) come under this category. Some of the posts noted in Group ‘D’ and their appointing authorities are as under:-

PART IV – Central Civil Services, Group ‘D’

(Except for Civilians in Defence Services)

Description of service (2)

Appointing Authority (3)

General Central Service, Group ‘D’ (Serial No.1)

 

(i) Posts in Ministries or Departments of Government other than posts in respect of which specific provision has been made by a general or special order of the President.

Under Secretary

(ii) Posts in non-Secretariat Offices other than posts in respect of which specific provision has been made by a general or special order of the President.

Head of Office

(iii) Posts in Union Territories

Head of Office or such other authority as may be specified by the Administrator

(iv) All Group ‘D’ posts of the Departmentalized Accounts Offices of the Government of India

Deputy Controller of Accounts or Assistant Controller General of Accounts in a Ministry or Department where there is no Deputy Controller of Accounts.

52. As pointed out earlier, there is centralised recruitment conducted by UPSC for the Central Civil Services in Group ‘A’ and Group ‘B’. For this centralised recruitment, applications are invited from candidates across the country and Scheduled Castes/Scheduled Tribes of all the States/Union Territories are entitled to apply for the reserved posts. Recruitment to various posts in Group ‘A’ and Group ‘B’ (Gazetted) categories for services in States/Union Territories are presently filled only through UPSC by centralised recruitment. After recruitment, the Group ‘A’ and Group ‘B’ officers are posted across the country wherever there are offices of Central Government.

53. Services mentioned at Serial No.28 that is Delhi and Andaman and Nicobar Islands Civil Service, Grade-II (DANICS) are Group ‘B’ civil services. DANICS officers are posted at Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli. DANICS – Group ‘B’ civil service officers are directly 136 recruited through the Central Civil Services examination conducted by UPSC. Since DANICS is a centralised recruitment conducted through UPSC naturally applications are invited from the candidates across the country including reserved candidates of Scheduled Castes/Scheduled Tribes.

54. Delhi, Andaman and Nicobar Islands Police Services (DANIPS) are recruited directly through centralised civil services examination conducted by UPSC. DANIPS are posted at Delhi and other Union Territories – Andaman and Nicobar Islands, Lakshadweep Islands, Daman and Diu and Dadar and Nagar Haveli.

The cadre strength is controlled by the Ministry of Home Affairs, Government of India. Two-thirds of DANIPS are filled by direct recruitment and remaining are promoted from non-gazetted police officers of Union Territory of Delhi and other Union Territories. Since, DANIPS officers are recruited through a centralised recruitment conducted through UPSC, applications are invited from candidates from across the country including reserved candidates of Scheduled Castes and Scheduled Tribes of all the States and Union Territories. Thus, up to Group ‘B’ (Gazetted) of Central Civil Services including the Group ‘B’ (Gazetted) services of Union Territories, there is Centralised Civil Services Examination conducted by UPSC with PAN INDIA reservation.

55. Serial No.32, Group ‘B’ of CCS (CCA) Rules refers to General Central Services. At the risk of repetition, we may usefully refer to Serial No.32 which reads as under:-

Serial No.

32 General Central Service, Group ‘B’-

 

 

(i) Post in any Ministry of Department of Government of India, other than the post in respect of which specific provision has been made by a general or special order of the President.

Secretary in the Ministry or Department

 

(i-a) Posts outside a Ministry or Department of Government of India, other than the posts in respect of which specific provision has been made by a general or special order of the president.

In respect of posts in an office under the control of a Head of Department directly under the Government.

-Head of the Department In respect of other posts

– Secretary in the Ministry or Department

 

(ii) Posts in Union Territories other than Delhi Administration, the Andaman and Nicobar Islands and the Laccadive, Minicoy and Amindive Islands

Administrator

 

(iii) Delhi Administration-All posts

Chief Secretary

 

(iv) The Andaman and Nicobar Islands-All Posts Secretary in the Ministry or Department In respect of posts in an office under the control of a Head of Department directly under the Government. -Head of the Department In respect of other posts – Secretary in the Ministry or Department Administrator Chief Secretary Chief Commissioner

Chief Commissioner

 

(v) The Lakshadweep Administration-All Posts Administrator

Administrator

As seen from the above, Serial No.32(i) and (i-a) relates to the posts under the Government of India for which the appointing authority is the Secretary in the Ministry or Department/Head of the Department respectively. Serial No.32 (ii) of Central Civil Services (CCA) Rules, 1965 relates to "Posts in Union Territories other than Delhi Administration, the Andaman and Nicobar Islands and the Laccadive, Minicoy and Amindive Islands".

The appointing authority is shown to be the ‘Administrator’. Serial No.32 (iii) to (v) relate to ‘All posts’ in Delhi administration, Andaman and Nicobar Islands and the Lakshadweep administration respectively. Serial No.32(ii) posts in the Union Territories (other than Delhi Administration, the Andaman & Nicobar Islands and the Laacadive, Minicoy and Amindive Islands) Group ‘B’ (Gazetted) posts for which recruitment is conducted by UPSC. Since there is centralised recruitment conducted by UPSC for Group ‘B’ (Gazetted), naturally applications are invited from the candidates across the country 139 including reserved candidates of Scheduled Castes/Schedules Tribes from all the States/Union Territories.

Up to the level of Group ‘B’ (Gazetted) of Central Civil Services, since there is centralised recruitment for which there is PAN INDIA reservation of Scheduled Castes and Scheduled Tribes, Scheduled Castes/Scheduled Tribes from any State/Union Territory are entitled to apply for the reserved posts for Group ‘B’ examinations conducted by UPSC.

56. When it comes to services under Union Territories, there are so many other services like teaching, clerical cadre, police services, Medical Officers, Health Services, Stenographers, Typists, services under the Revenue department, services under public-sector undertakings, services under the municipalities and the corporations in the Union Territories and various other services which are concerned with the administration of Union Territories. These services under the Union Territories would fall under Group ‘B’, Group ‘C’ and Group ‘D’ and their recruitment is within the exclusive domain of the respective Union Territories. Though the government servants under 140 the Union Territories are governed by Central Civil Services Rules, the services under the Union Territories are essentially different from All India Services. For recruitment to services under respective Union Territories, there are different modes of recruitment for the different Union Territories.

57. This Court posed the question whether there is other category of employees in UT administration and what is the practice followed for recruitment. In response to the question, Union of India, on instructions, filed the following response:-

SCOPE of SC/ST RESERVATION IN UTs

1. Puducherry :

Reserved posts confined to local reserved candidates.

2. Chandigarh :

Reserved posts filled up by candidates from all India.

3. Daman & Diu :

Reserved posts confined to local reserved candidates for Group C posts. For Group B it is opened to candidates from all India but local candidates get additional 20 marks.

4. Dadra & Nagar Haveli :

Reserved posts confined to local reserved candidates for Group C posts. For Group B it is opened to candidates from all India but local candidates get additional 20 marks.

5. Lakshadweep :

Reserved posts confined to local 141 reserved candidates.

6. A & N Islands :

For Group C posts locally reserved.

7. NCT of Delhi :

Reserved posts filled up by candidates from all India.

For the above response that there is PAN India reservation of the reserved candidates for recruitment by Union Territories of Chandigarh, Dadra and Nagar Haveli and NCT of Delhi, no authenticated documents were produced to substantiate the same. When there are Presidential Orders notifying the Scheduled Castes/Scheduled Tribes for Union Territories of Chandigarh, Dadra and Nagar Haveli, calling for application from the Scheduled Castes/Scheduled Tribes candidates from all over India for the reserved posts of services under various Union Territories, be it Group ‘B’ or Group ‘C’, is not in accordance with the constitutional scheme.

58. For Group ‘B’ and Group ‘C’ posts falling within the services of the Union Territories, recruitment is made by the Staff Selection Board of respective Union Territories. For instance, let me refer to the Staff Selection Board of UT Administration of Daman and Diu 142 whose home page reads as under:- "In exercise of the powers conferred by the provision of Article 239 of the Constitution of India, the Administrator of Daman & Diu is pleased to make following rules to regulate the method of recruitment to all Group ‘B’ and ‘C’ categories of posts under the Administration of Daman & Diu.

It aims to "ensure a uniform and transparent process and procedures for recruitment of all Group ‘B’ and ‘C’ categories of posts under the Administration of Daman and Diu through an autonomous body, without disturbing the existing recruitment processes and procedures and for ensuring that cumulative outcome of the recruitment is to provide just and fair opportunities to all the candidates and for matters connected therewith or incidental thereto30."

59. In response to the question posed by the court, Union of India filed response affidavit stating that in Union Territories Daman and Diu and Dadra and Nagar Haveli, for Group ‘B’, it is opened to candidates from all over India. Local candidates with domicile certificate get additional twenty per cent marks. Response filed by the Union of India that there is PAN India reservation for Group ‘B’ services of Daman and Diu and Dadra and Nagar Haveli, no authenticated documents/format of any application for Group ‘B’ posts conducted by Daman and Diu was produced before us. Even assuming that there is such PAN India reservation for recruitment of Group ‘B’ conducted by the Union Territory of Daman and Diu, when there are Scheduled Castes/Scheduled Tribes as notified in the Presidential Order (Reorganisation Act, 1987 in respect of SCs/STs), there cannot be PAN India reservation as it is not in accordance with the constitutional scheme.

60. Pointing out that services in the Union Territories are different from All India Services and that the mode of recruitment are also different, in para (29) of Subhash Chandra and another v. Delhi Subordinate Service Selection Board and others (2009) 15 SCC 458, it was held as under:-

"29. Concededly, in respect of education or service, there exists a distinction between State Services and State-run institutions including the 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 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 the 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." I am in full agreement with the view taken by Justice Sinha in Subhash Chandra case.

61. Rule 3 of Delhi Administration Subordinate Services (DASS) Rules, 1967 deals with constitution of services and its classification in Delhi Administration. As per Rule 3(3) of DASS Rules, the post in Grade-I, Class-II Group ‘B’ (Gazetted) and those in Grades II, III and IV shall be Central Civil Services Posts. But as noted earlier, as per Serial No.32 – General Central Service, Group ‘B’, insofar as Delhi Administration – All Posts (Serial No. 32 (iii)), the Appointing Authority is the Chief Secretary. The subordinate services in the National Capital Territory of Delhi though "Central Civil Services", they are neither All India Services nor services under Union of India so as to attract Pan India Reservation.

62. Even in the counter affidavit filed by the Union of India, by referring to Group ‘C’ services, it is stated that CCS – Group ‘C’ are in the subordinate services and there are equivalent services in the Union Territory of Delhi. For recruitment of other employees in the Union Territory of Delhi, there is Delhi Administrative Subordinate Services (DASS) and the recruiting agency is Delhi Subordinate Staff Selection Board (DSSSB). Members of Delhi Administrative Subordinate Services are stated to be the feeder cadre for Central Civil Services – Group ‘B’ (DANICS).

31 Merely because members of Delhi Administrative Subordinate Services are the feeder category for DANICS, PAN India reservation cannot be extended to Delhi Subordinate Services or to services under various Union Territories. Likewise, merely because, DANICS and DANIPS (Serial Nos. 28 and 29 of Group ‘B’ Services) are the feeder category for IAS and IPS, it cannot be said that the Pan India Reservation is applicable to services under National Capital Territory of Delhi.

63. So far as Group ‘B’ and Group ‘C’ posts falling under the services of the Union Territories, recruitment is done by the respective Staff Selection Board of respective Union Territories. Serial No.4 (iii) – ‘Posts in Union Territories’ of Group ‘C’ in CCS (CCA) Rules is shown and the appointing authority is stated as Head of the Office of such other authority as may be specified by the Administrator. Merely because the posts in the Union Territories and the appointing authority are shown in Group ‘C’ in CCS (CCA) Rules, that does not mean that those Group ‘C’ and Group ‘D’ posts are available for the Scheduled Castes and Scheduled Tribes of all the States/Union Territories.

For recruitment of Group ‘B’ and Group ‘C’ posts of services under the respective Union Territories, since the examination is conducted by the respective Union Territories like Delhi Subordinate Staff Selection Board and other Union Territories Staff Selection Boards of respective Union Territories, reservation of posts of Scheduled Castes/Scheduled Tribes must be confined only to those Scheduled Castes/Scheduled Tribes as notified in the Presidential Order of the respective Union Territories. For recruitment 147 of Group ‘B’ and Group ‘C’ posts under various Union Territories including Union Territory of Delhi, there cannot be PAN INDIA reservation of Scheduled Castes/Scheduled Tribes, lest, it would defeat the very object of the Presidential Orders issued specifying the Scheduled Castes/Scheduled Tribes for respective Union Territories.

64. As pointed out earlier, services under the Union Territories though they are Central Government services, they are services under the respective Union Territories and not under the direct control of Union of India/different Ministries. Procedure for recruitment to the various posts for the services of Union Territories are different as followed by respective Union Territories. The persons appointed for the services of Union Territories might be governed by CCS (CCA) Rules; but they are employees of respective Union Territories.

The appointing authorities are the authorities under the administration of Union Territories and not under the Ministries of Union of India. Central Civil Services are the services directly under Union of India. Contrarily, various services under the Union Territories are the 148 services under the respective Union Territories. Such services under Union Territories cannot be said to be Central Civil Services that is services under Union of India to extend the benefit of PAN India reservation for recruitment to the services under respective Union Territories including Union Territory of Delhi.

65. In exercise of the powers conferred by clause (1) of Article 341, the President issued the Constitution (Scheduled Castes) Union Territories Order, 1951 in the Presidential Order specifying Scheduled Castes in relation to Delhi and the thirty-six castes/groups notified are as under:-

Part 1 – Delhi

Throughout the Union Territory

1. Adi Dharmi

19. Kachhandha

2. Agria

20. Kanjar or Giarah

3. Aheria

21. Khatik

4. Balal

22. Koli

5. Banjara

23. Lalbegi

6. Bawaria

24. Madri

7. Bazigar

25. Mallah

8. Bhangi

26. Mazhabi

9. Bhil

27. Meghwal

10. Chamar, l Chanwan Chmanr, Jatya or Jatav Chamar, Mochi Ramadasia, Ravidasi, Reghgrh or Raigharh

28. Naribut

11. Chohra (Sweeper)

29. Nat (Rana), Badi

12. Chuhra (Balmiki)

30. Pasi

13. Dhanak or Dhanuk

31. Perna

14. Dhobi

32. Sansi or Bhedkut

15. Dom

33. Sapera

16. Gharrami

34. Sikligar

17. Julaha (Weaver)

35. Singiwala or Kalbelila

18. Karbirpanthi

36. Sirkiband

In relation to Delhi, there are thirty-six castes notified as Scheduled Castes in the Presidential Order.

The members of the Scheduled Castes in Delhi are drawn from castes, races and by virtue of the Presidential Order pertaining to Delhi, they attain the status of the Scheduled Caste. In view of the Presidential Order issued for the Scheduled Castes to Delhi, only those Scheduled Castes can claim the benefit of reservation in the employment under the Union Territory of Delhi who are notified in the Presidential Order. Neither the Delhi Government nor the court can add any caste or group to the list of Scheduled Castes notified in the Presidential Order.

Once a Presidential Order has been issued under Article 341(1) of the 150 Constitution, any addition or deletion to the Presidential Order can only be made by the Parliament by law as provided under Article 341(2) and in no other manner. Merely because, Delhi Subordinate Services is a feeder category for DANICS, there cannot be Pan India Reservation of the SCs and STs for the services under Group ‘C’ and ‘D’ categories, for which recruitment are made by the Delhi Subordinate Staff Selection Board (DSSSB).

66. Likewise, the Presidential Order has notified the following Scheduled Castes for the Union Territory of Chandigarh, Daman and Diu, Puducherry and Dadra and Nagar Haveli:-

Part II – Chandigarh

1. Adi Dharmi

19. Khatik

2. Bangali

20. Kori or Koli

3. Barar, Burar or Berar

21. Marjia or Marecha

4. Batwal, Barwala

22. Mazhabi

5. Bauria or Bawaria

23. Megh

6. Bazigar

24. Nat

7. Balmiki, Chura or Bhangi

25. Od

8. Bhanjra

26. Pasi

9. Chamar, Jatia Chamar, Rehgar, Raigar, Ramdasi

27. Perna or Ravidasi

10 . Chanal

28. Pherera

11 . Dagi

29. Sanhai

12 . Darain

30. Sanhal

13 . Dhanak

31. Sansoi

14 . Dhogri, Dhangri or Siggi

32. Sansi, Bhedkut or Manesh

15 . Dumna, Mahasha or Doom

33. Sapela

16 . Gagra

34. Sarera

17 . Gandhila or Gnadil Gondola

35. Sikligar

18 . Kabirpanthi or Julaha

36. Sirkiband

The Schedule – Puducherry

Adi Andhra

9. Pallan Adi Dravida

10. Parayan, Sambavar Chakkiliyan

11. Samban Jambuvulu

12. Thoti Kuravan

13. Valluvan Madiga

14. Vetan Mala, Mala Masti

15. Vetriyan Paky

16. Puthirai Vannan

The Schedule – Dadra and Nagar Haveli Bhangi

3. Mahar Chamar

4. Mahayavanshi

67. Let me take the case of Andaman & Nicobar Islands.

The PART III – Daman and Diu Bhangi (Hadi)

4. Mahyavanshi (Vankar) Chambhar, Moch

5i. Mang Mahar Constitution (Andaman and Nicobar Islands) Scheduled Tribes Order, 1959 has notified the following tribes or tribal communities who have been included in the Schedule for the Andaman & Nicobar Islands:-

The Schedule The Andamanese (including Chariar or Chari, Kora, Tabo or Bo, Yere, Kede, Bea Balawa, Bojigiyab, Juwai and Kol

4. Sentinelese Jarawas

5. The Nicoberese Onges

6. The Shompens When Andaman & Nicobar Islands is recruiting persons to the services of Group ‘B’, ‘C’ and ‘D’ under its administration, it has to necessarily follow the policy of recruiting members from amongst the Scheduled Tribes who are notified as Scheduled Tribes in the Presidential Notification for Andaman and Nicobar Islands.

It will not be appropriate to extend the benefit of reservation to the SCs and STs from other States/Union Territories, lest it would deprive the notified Scheduled Tribes of the Andaman and Nicobar Islands.

68. It may be that the candidates recruited by the respective Union Territories for Group ‘B’ and Group ‘C’ may become the feeder categories for further promotion in Group ‘A’ and Group ‘B’ of All India Services respectively in the Central Civil Services. The fact that the candidates who are recruited by the respective Union Territories become the feeder categories for further promotion in the Central Civil Services is not a ground for extending the benefit of all India reservation to the Scheduled Castes/Scheduled Tribes for the reserved posts in the respective Union Territories. Be it noted that the candidates recruited by the various State Governments under Group ‘A’ of respective State services become the feeder category for IAS and IPS.

The persons recruited for Group ‘B’ and Group ‘C’ by the respective Union Territories stand on the same footing as that of the candidates so recruited by the various States where only the Scheduled Castes/Scheduled Tribes of the respective States can apply.

69. A letter dated 10.05.2013 by Special Secretary (Services) addressed to all the Secretaries/Heads of Departments of NCT of Delhi has been filed by the Union of India. The letter relates to the subject "Reservation policy to be followed with regard to SCs/STs in 154 civil posts under GNCTD". The said letter refers to the judgment in Pushpa’s case and states that the Ministry of Law and Justice has opined that the law declared by the Supreme Court in Pushpa’s case applies to the NCT of Delhi and that Pushpa’s case cannot be ignored. Relevant portion of the said letter reads as under:-

"GOVERNMENT of NATIONAL CAPITAL TERRITORY of DELHI

(SERVICES DEPARTMENT BRANCH-IV)

7TH LEVEL, B-WING, DELHI SECRETARIAT, I.P. ESTATE,

NEW DELHI – 110002

No. F. 19(6)/2012/S-IV/883

Dated: 10-05-2013

…… The Government of National Capital Territory of Delhi follows the guidelines and instructions issued by the Government of India from time to time in matters regarding reservation to Scheduled Castes and Scheduled Tribes in recruitment to various civil posts in Government of Delhi. Ministry of Home Affairs, Govt. of India, in the context of order dated 11.02.2005 of Hon’ble Supreme Court of India in case titled S. Pushpa & Ors. Vs. Sivachanmugavelu & Ors. stated vide their letter dated 01.06.2005 that the matter has been examined in consultation with the Ministry of Law & Justice (Department of Legal Affairs).

That the Ministry had opined that the law declared by the Supreme Court of India cited above, applies to the National Capital Territory of Delhi. This was accordingly conveyed to the departments vide this department’s letter No.F.16 (73)/97-S-III/710 dated 30.06.2005, stating that all the Scheduled Castes/Scheduled Tribe candidates irrespective of their nativity, are eligible for reservation to the civil posts under Govt. of NCT of Delhi, which are reserved for SC/ST candidates and appropriate action for recruitment may be taken accordingly.

Subsequently, in view of order dated 04.08.2009 of Hon’ble Supreme Court in the matter of Sarv Rural & Urban Welfare Society vs. Union of India & Ors. and of the Hon’ble High Court dated 12.09.2012 in WP(C) No.5390/2010 under consideration in the Ministry of Home Affairs, Govt. of India. Now, Ministry of Home Affairs, Govt. of India, vide its letter 155 No.14012/09/2012-Delhi-I dated 03.04.2013 has informed that the subject matter has been re-examined in consultation with Ministry of Law & Justice.

In this matter Learned Attorney General for India has given his opinion dated 18.02.2013 (copy enclosed), which is self-explanatory and has been approved by the Hon’ble Minister of Law & Justice, Govt. of India. The opinion, inter alia, states that having regard to the order in the State of Uttaranchal’s case, till this issue is resolved by a larger bench, the decision in S. Pushpa case cannot be ignored. Ministry of Home Affairs has conveyed that it has been decided to proceed according to this opinion. Copy of above mentioned letter of the Ministry of Home Affairs is circulated for information & necessary action accordingly.

Yours faithfully,

(Kailash Chandra)

Spl. Secretary (Services)

Dated: 10-05-2013 ….."

70. PAN India reservation probably is followed by NCT of Delhi in its recruitment based on the above letter dated 10.05.2013. Since I have taken the view that the decision in Pushpa’s case is not a correct decision extending PAN India reservation for the reserved posts recruited by NCT of Delhi or any other Union Territories is against the Presidential Orders issued under Articles 341 and 342 of the Constitution of India and against the constitutional scheme.

71. As discussed earlier in para (8), in case of Union Territories, though administrative control to certain extent is exercised by the 156 Union of India, Union Territories do not lose their identity as an entity. The existing practice of PAN INDIA reservation followed in Delhi and Chandigarh is against the constitutional scheme and also against the executive instructions dated 06.08.1984 and 22.02.1985 issued by the Ministry of Home Affairs.

72. As pointed our earlier, the Ministry of Home Affairs in its circular dated 06.08.1984 addressed to all the State Governments and Union Territories administration stated that SCs and STs on migration from the State of his origin to other State will not loose his status as SCs/STs; but will be entitled to the concession/benefits to the SCs/STs from the State of his origin and not from the State where he has migrated.

The same thing was reiterated in the letter dated 22.02.1985 of the Ministry of Home Affairs, Government of India. If PAN India reservation is to be extended to the Union Territories like Delhi, Chandigarh, Puducherry, Andaman & Nicobar Islands or Daman & Diu for Group ‘C’ and ‘D’ services for which recruitment are made by the respective Union Territories, the very object of the 157 Constitutional Scheme of upliftment of the SCs/STs of these Union Territories will be defeated. All India reservation to the services under the Union Territories including the Union Territory of Delhi will be against the mandate of Articles 341 and 342 of the Constitution and against the Constitutional Scheme.

73. Marri Chandra Shekhar Rao and Action Committee are applicable to the States and they are applicable with equal force to the Union Territories including Union Territory of Delhi. There cannot be any distinction between the States and the Union Territories. Likewise, there can be no distinction between Union Territory of Delhi and other Union Territories. When Presidential Orders of Scheduled Castes/Scheduled Tribes are notified for various Union Territories including Union Territory of Delhi extending PAN India reservation to the employment falling under the services of Union Territories including Union Territory of Delhi, will be against the Constitutional scheme and the law laid down in Marri Chandra Shekhar Rao and Action Committee.

74. Article 16(4) of the Constitution has to yield to the constitutional mandate of Articles 341 and 342 of the Constitution. The Presidential Order issued under Article 341 in regard to Scheduled Castes and Article 342 in regard to Scheduled Tribes cannot be varied by anyone or by the Court. Only the Parliament by law include or exclude from the list of Scheduled Castes or Scheduled Tribes specified in the notification issued under Article 341 (1) and Article 342(1) respectively any caste, race or tribe or parts or group within any caste, race or tribe. The Scheduled Castes or Scheduled Tribes thus specified in relation to one State or Union Territory does not carry the status in another State or Union Territory.

When the Scheduled Castes or Scheduled Tribes are specified for each State in relation to one State or Union Territory, neither the State legislature, the administration of the Union Territories and nor the courts can include or exclude other Scheduled Castes or Scheduled Tribes so notified in the Presidential Order. Providing all India reservation to the services of Union Territories 159 including Union Territory of Delhi, would be against the mandate of Articles 341 and 342 and the Presidential Orders issued thereon. If that is permitted, it would amount to addition or alteration of the Presidential Order which is impermissible and violative of the Constitutional Scheme.

75. It is the responsibility of each State/Union Territory to provide for such reservation/affirmative action by positive discretion to bring backward classes/Scheduled Castes and Scheduled Tribes in the respective States/areas to provide socio-economic empowerment. If the reservation to the Scheduled Castes and Scheduled Tribes are to be extended to all categories of Scheduled Castes and Scheduled Tribes all over India or to the migrants then there is every possibility of the Scheduled Castes and Scheduled Tribes of other developed States and Union Territories squandering reservations to the Scheduled Castes and Scheduled Tribes who are disadvantaged in the respective States/Union Territories including Union Territory of Delhi. If this is permitted, it would defeat the very object of providing reservation to the disadvantaged Scheduled Castes and Scheduled Tribes in a particular State or Union territory. The enabling provision of Article 16(4) of the Constitution has to yield to the constitutional scheme of Article 341 and Article 342 of the Constitution.

76. Conclusion:-

  • Insofar as the States, I agree with the majority view that a person who is recognised as a member of Scheduled Castes/Scheduled Tribes in his original State, will be entitled to all the benefits of reservation under the Constitution in that State only and not in other States/Union Territories and not entitled to the benefits of reservation in the migrated State/Union Territory.
  • Marri Chandra Shekhar Rao and Action Committee are applicable to the States and they are applicable with equal force to the Union Territories including Union Territory of Delhi. There cannot be 161 any distinction between the States and the Union Territories. Likewise, there can be no distinction between Union Territory of Delhi and other Union Territories. When Presidential Orders of Scheduled Castes/Scheduled Tribes are notified for various Union Territories including Union Territory of Delhi extending PAN India reservation to the employment falling under the services of Union Territories including Union Territory of Delhi, will be against the Constitutional scheme and the law laid down in Marri Chandra Shekhar Rao and Action Committee.
  • Since there is centralised recruitment upto Group ‘B’ (Gazetted) services conducted by UPSC for the Central Civil Services posts in the States/Union Territories of India, there has to be necessarily PAN India reservation for Scheduled Castes/Scheduled Tribes for those recruitment conducted by UPSC. Sofaras Group ‘B’ and Group ‘C’ posts falling under services of Union Territories including Union Territory of Delhi for which recruitment is conducted by the respective Union Territories, benefit of reservation in employment (Article 16(4)) is to be extended only to those Scheduled Castes/Scheduled Tribes specified in the Presidential Order of the respective Union Territories. Insofar as the posts recruited by the Staff Selection Board of the respective Union Territories including the Union Territory of Delhi, there cannot be PAN India reservation for Group ‘B’, Group ‘C’ and Group ‘D’ posts falling under the services of various Union Territories and such PAN India reservation would be against the constitutional scheme and Marri Chandra Shekhar Rao and Action Committee.

………………………….J. [R. BANUMATHI]

New Delhi;

August 30, 2018

1 (2010) 12 SCC 794

2 (1990) 3 SCC 130

3 (1994) 5 SCC 244

4 (2005) 3 SCC 1

5 (2009) 15 SCC 458

6 (2005) 2 SCC 673

7 (2006) 8 SCC 212

8 AIR 1965 SC 1557

9 (2001) 6 SCC 571

10 8th Edition, 2011, Volume 9, Page 9858

11 8th Edition, Volume 9, 2011, Page 9860

12 8th Edition, 2011, Volume 9, Page 9858.

13 D.D. Basu, 8th Edition, 2011, Volume 9, Page 10585

14 Para 5 of the Affidavit.

15 Rule 6A of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 provides that, "All reference to Central Civil Services/Central Civil Posts, Class I, Class II, Class III and Class IV in all Rules, Orders, Schedules, Notifications, Regulations, Instructions in force, immediately before the commencement of these rules shall be construed as references to Central Civil Services/Central Civil Posts, Group ‘A’, Group ‘B’, Group ‘C’ and Group ‘D’ respectively, and any reference to "Class or Classes" therein in this context shall be construed as reference to "Group or Groups", as the case may be."

16 8th Edition. Volume 9, Page 9859.

17 Para 6 of the Affidavit

18 Duty Posts are mentioned in the Schedule to these Rules. To name a few, these are – Joint Director of Social Welfare/Delhi; Joint Director of Education/Delhi; Deputy Medial Superintendent of Lok Nayak Jai Prakash Narain Hospital/Delhi; Registrar of Cooperative Societies/Port Blair; Assistant Commissioner of Police/Delhi; Deputy Superintendent of Police/Andaman & Nicobar; Chief of Police/Dadra & Nagar Haveli etc.

19 Page 4, Para (ii)(a) of the Affidavit.

20 Page 4, 5 of the Affidavit.

21 Page 6, para iv.a. of the Affidavit

22 Page 6, Para (b) of the Affidavit.

23 (1980) 2 SCC 768

24 Ref. Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and Anr. v. Union of India (UOI) and Anr. (1994) 5 SCC 244.

25 Ref. Election Manual (1984), p.44 quoted in Commentary on the Constitution of India 8th Ed. by Durga Das Basu.

26 Ref. Ibid., p.53, quoted in Article 342 of commentary on the Constitution of India 8th Ed. by Durga Das Basu.

27 Para No. 6(i) of the Counter Affidavit filed by the Union of India at Pg. No.3-4

28 Para No. 6(ii) of the Counter Affidavit filed by the Union of India at Pg. No.4-5

29 Para No. 6(iii) of the Counter Affidavit filed by the Union of India at Pg. No.5-6

30 https://daman.nic.in/staff-selection-board-daman-diu.aspx#downloads (27.06.2018)

31 Para No. 6(iii) of the Counter Affidavit filed by the Union of India at Pg. No.6

STT on derivative contracts | Bombay High Court Judgement | CBDT Clarification

MASTI

Issue: What is the Securities Transaction Tax (STT) payable on derivative contracts which are settled by physical delivery of shares?

Answer: The transaction is not any different from transaction in equity share where the contract is settled by actual delivery or transfer of shares. The rates of STT as applicable to such delivery based equity transactions shall also be applicable to such derivative transaction

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION (L) NO.2604 OF 2018

Association of National Exchanges Members of India ….Petitioner.

V/s

Securities and Exchange Board of India and Others …. Respondents.

Dr. Birendra Saraf alongwith Mr. Aniket, Lohia, Mr. Nishirt Dhruva,

Mr. Prakash Shinde, Mr. Chirag Bhavsar I/b M/s MDP and Partners for the Petitioner.

Mr. Gaurav Joshi, Senior Counsel alongwith Mr. T. Francis, Mr. Vivek Shah I/b M/s Economic Laws Practice for Respondent No.1.

Mr. Jehangir Mistry, Senior Counsel alongwith Mr. Sachin Chandarana and Mr. Ujwal Trivedi I/b M/s. Manilal Kher Ambalal & Co. for Respondent No.2.

Mr. Anil Kumar Singh, ASG, alongwith Mr. Parag Vyas and Mr. Suresh Kumar for Respondent No.3.

CORAM:

B. R. GAVAI & M. S. KARNIK, JJ.

DATE: 28th AUGUST, 2018 1/6 (906)WPL-2604-18.doc

P.C.:1]

Petitioner has approached this Court being aggrieved by the communication dated 17th July, 2018 issued by Respondent No.2 – National Stock Exchange of India Limited.

2] By the said Circular, Respondent No.2 had informed the members of the Petitioner – Association that Respondent No.2 has decided to levy Securities Transaction Tax (hereinafter referred to as “STT”) at the rate of 0.10% (i.e. the rate applicable for taxable securities transaction settled by actual delivery in the CM segment) on the settlement price to be paid by the purchaser of the futures contract which are settled by way of physical delivery. The Circular also provided that, in the event if the CBDT issues any clarification or amendment in this regard in addition to or contrary to the above position, Respondent No.2 had reserved the right to recover such additional STT from the members effective from the date as may be notified by the CBDT.

3] It was the grievance of the Petitioner that there was some anomaly with regard to STT payable on future transactions. It was their grievance that, in the event, CBDT in future comes with a policy that rate of STT on such transaction is higher than what is provided in Circular dated 17th July, 2018, the members of the Association would be put to great prejudice inasmuch as they would not be in a position to recover the said STT from the parties whose transactions were already over.

4] Taking into consideration this anomalous situation, we had requested the learned Additional Solicitor General to appear in the matter and to get clarification from CBDT since we were prima facie satisfied that if such an eventuality arises, things would be beyond the control of the members of the Association and they would be put to great prejudice.

5] Today, Mr. Anil Singh, learned Additional Solicitor General, has placed on record, a copy of the communication dated 27th August, 2018 addressed to Principal Chief Commissioner of Income Tax, Mumbai by CBDT. The same is taken on record and marked “X” for the purpose of identification. It will not be necessary to refer to entire communication. Suffice it will be to refer to para 4 of the said communication, which reads thus:“

4. In a nutshell, CBDT is of the view that where a derivative contract is being settled by physical delivery of shares, the transaction would not be any different from transaction in equity share where the contract is settled by actual delivery or transfer of shares and the rates of STT as applicable to such delivery based equity transactions shall also be applicable to such derivative transaction.”

6] It could thus be seen that the CBDT has clarified that where a derivative contract is being settled by physical delivery of shares, the transaction would not be any different from transaction in equity share where the contract is settled by actual delivery or transfer of shares. It further states that, the rates of STT as applicable to such delivery based equity transactions shall also be applicable to such derivative transaction. As such, the position is clarified by CBDT that it does not differentiate between present transactions which are delivery based and derivative transactions. It has been clarified that the rate of both the transactions would be the same.

7] We find that the clarification from CBDT takes care of the situation. Once CBDT has clarified the position, all stake holders including Respondent No.2 and the members of the Petitioner – Association are now aware as to what is the amount of STT payable on the transactions which are subject matter of the present Petition.

In that view of the matter, it will not be difficult for the members of the Association to recover the amount of STT from the parties who were engaged in the derivative transactions.

8] Dr. Saraf, the learned Counsel appearing on behalf of the Petitioner, submitted that, however, there may be some difficulty with regard to past transactions.

9] We do not find it necessary to consider the contention of Dr. Saraf inasmuch as CBDT has clearly clarified the amount of STT which is to be paid. The said communication dated 27th August, 2018 sufficiently takes care of the concern of the stakeholders who are aware of the said communication and they are bound by the directions issued by the CBDT.

10] Petition is therefore disposed of with the aforesaid clarification.

11] Before parting, we must place on record our appreciation for the learned Additional Solicitor General for acting swiftly and getting assistance of CBDT at the earliest possible time.

(M. S. KARNIK, J.) (B. R. GAVAI, J.)