1/30 502.02-wp .sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO. 502 OF 2002 [ENTITY], employed as Junior Engineer and holding charge of Assistant Engineer (Elect.) (Group 'B') (Gazetted) in the Electricity Department, Sub-Division II, [ENTITY], and residing at House No.165/1, Firangiwada, Near [ENTITY] Musuem, [ENTITY], PIN 362 520. Petitioner. V/s. 1. The Administrator, [ENTITY] & [ENTITY] Secretariat, MOTI DAMAN 396 220. 2. The Secretary (Power), Secretariat, [ENTITY] & [ENTITY] Secretariat, MOTI DAMAN 396 220. 3. The Executive Engineer, Department of Electricity, Division Office, Power House Building, Katharia, NANI DAMAN 396 210. 4. [ENTITY], working as Junior Engineer (Electrical), presently working in Division Office under Downloaded on - 03/07/2014 23:50:46 2/30 502.02-wp .sxw Executive Engineer (Elect.), Power House Bldg., Katharia, NANI DAMAN 396 210, promoted as Assistant Engineer (Elect.) (Group 'B') (Gazetted), as posted to Electricity Department, Sub-Divn. II, DIU 362 520. Respondents. WITH WRIT PETITION NO. 3891 OF 2003 1. THE ADMINISTRATOR, [ENTITY] & [ENTITY], [ENTITY] - 396 220. 2. CHIEF SECRETARY, Union of Territory of [ENTITY] And [ENTITY], [ENTITY] - 396 220. 3. EXECUTIVE ENGINEER, Department of Electricity, Neelkanth Building, Nani [ENTITY] - 396 210. Petitioners. V/s. [ENTITY], Working as a Junior Engineer (Electrical) under the Administration of [ENTITY] & [ENTITY]. Respondents. Downloaded on - 03/07/2014 23:50:46 3/30 502.02-wp .sxw [ENTITY] with [ENTITY] for the petitioner (in [CASE NUMBER]) [ENTITY] for respondent Nos.1 to 3 (in W.P. No.502/2002) and for the petitioners (in [CASE NUMBER]) [ENTITY] for the respondent- Shri [ENTITY]. CORAM : [ENTITY] AND [ENTITY], JJ. RESERVED ON : 19th June 2014. PRONOUNCED ON: ig 2nd July 2014. JUDGMENT :
(PER [ENTITY], J.) In these two petitions, identical question is involved as to whether a migrant from the State of Maharashtra to [ENTITY] and [ENTITY] would be entitled to claim the same caste status as was available to him in the State of Maharashtra. The question raised being identical in both petitions, we are disposing of these petitions finally by this common judgment and order.
2. [CASE NUMBER] has been filed by one Mr.[ENTITY] who was employed as Junior Engineer in the Electricity Department in the administration of [ENTITY] and [ENTITY]. [CASE NUMBER] has been filed by the Administrator, [ENTITY] and [ENTITY]. Briefly stated, the facts are summarized as under:
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3. The petitioner- [ENTITY] contends that he was appointed as a Junior Engineer in the Electricity Department of the administration of [ENTITY] and [ENTITY]. Prior thereto, he was working as In-charge Assistant Engineer under the order passed on 1st October 1997. The respondent No.4- [ENTITY] was also working as Junior Engineer in the same department of the administration of [ENTITY] and [ENTITY]. A final seniority list of Junior Engineers (Elect.) was issued under the circular dated 25 th July 1992 by the office of the Collector, [ENTITY]. It is contended that respondent No.4 belongs to the Scheduled Caste (Mahar) from the State of Maharashtra. The said caste is mentioned at serial No.37 in the list of scheduled castes in the State of Maharashtra. Respondent No.4 was issued caste certificate on 7th February 1989 by the [ENTITY]. According to the petitioner, Respondent No.4 is native of Yawatmal district of the State of Maharashtra.
4. It is further contended that respondent No.4 filed [CASE NUMBER] before the Central Administrative Tribunal, Bench at Mumbai ("Tribunal" for short) claiming promotion to the post of Assistant Engineer (Elect.) in the administration of [ENTITY] and [ENTITY]. The said original application was disposed of by the Tribunal by judgment and order dated 1 st 5/30 502.02-wp .sxw June 1995. As the order passed by the Tribunal was not complied with, respondent No.4 filed contempt petition bearing [CASE NUMBER]. The contempt petition came to be rejected by the Tribunal vide order dated 22nd June 1998. The petitioner has annexed both these orders to the petition. Respondent No.4- [ENTITY] thereafter filed Original Application bearing No.802/1996 which was disposed of by judgment and order dated 30th March 2001. It is contended by the petitioner that the Tribunal erroneously held that respondent No.4 must be held to be eligible for being considered against the scheduled caste quota in the [ENTITY] and [ENTITY].
The Tribunal directed respondents therein to consider present respondent No.4 for promotion accordingly. A meeting of the departmental promotion committee was convened on 1 st November 2001 wherein the Committee recommended promotion to respondent No.4 to the post of the Assistant Commissioner (Elect) (Group-B) (Gazetted). The Union Territory issued orders accordingly. The petitioner contends that posting of respondent No.4 as Assistant Engineer (Elect) in [ENTITY] was made against the post of which the petitioner was holding charge as per order dated 17 th April 2000. According to the petitioner- [ENTITY], instead of giving him regular promotion, respondent No.4 was promoted.
5. The petitioner in [CASE NUMBER] is the Administrator of the [ENTITY] and [ENTITY]. The Administrator has 6/30 502.02-wp .sxw also questioned the judgment and order passed by the Tribunal in [CASE NUMBER] dated 30 th March 2000. The petitioner stated that the Tribunal erred in law by imposing the circulars issued by the Government of [ENTITY] and [ENTITY] on the Government of [ENTITY] and [ENTITY] administration. The [ENTITY] and [ENTITY] was separated from the erstwhile Government of Union Territory of Goa, [ENTITY] and [ENTITY] and was separate Union Territory since 1987. It is contended that by directing the Union Territory to consider respondent No.4 for promotion, the Tribunal has virtually accepted respondent No.4- [ENTITY] as Scheduled Caste within the Territory of [ENTITY] and [ENTITY].
The direction issued by the Tribunal are contrary and inconsistent to the [ACT] and statutory provisions.
6. The respondent No.4- [ENTITY] appeared in these petitions and filed affidavit-in-reply and additional affidavit. On behalf of [ENTITY] and [ENTITY] affidavit was filed in [CASE NUMBER]. In the affidavit-in-reply filed by respondent No.4- [ENTITY], he has taken a stand that no separate rules have been framed by the [ENTITY] and [ENTITY] in respect of acceptance of caste status of migrants in the Union Territory. According to respondent No.4, he belongs to the scheduled caste. He was the only person to be eligible for promotion from the scheduled caste in the Union Territory. He, therefore, claimed that he was entitled to 7/30 502.02-wp .sxw be promoted. It is contended by respondent No.4 that [ENTITY] and [ENTITY] was governed by the Central Government and the rules, circulars, instructions issued by it were applicable to the Union Territory. No distinction could be made between the persons belonging to other States for the purpose of employment in the union territory. The respondent No.4 was appointed in the erstwhile Union Territory of Goa, [ENTITY] and [ENTITY] in the year 1983 and, therefore, the reservation policy continues to be applicable to all the union territories including [ENTITY] and [ENTITY] even after reorganization of the State. It is contended that the caste "Mahar" is also recognized as scheduled caste in the [ENTITY] and [ENTITY].
7. Shri [ENTITY], learned counsel appearing for the petitioner in [CASE NUMBER] submitted that the service recruitment in the Electricity Department was not done on all India basis. The petitioner- [ENTITY] was senior amongst all, in the cadre of Junior Engineers in the Electricity Department. At no point of time, the Central Government had directed the administration of [ENTITY] and [ENTITY] to accept the caste status of migrants for the purpose of service benefits. It is submitted that, admittedly, respondent No.4- [ENTITY] was migrant from the State of Maharashtra to the union territory. In the submission of learned counsel for the petitioner, the law laid down by the Supreme Court in the cases of 8/30 502.02-wp .sxw [ENTITY] v. Dean, S.G.S.Medical College, (1990) 14 ATC 671 and Action Committee on issue of caste certificate to [PRECEDENT] is applicable to the facts of the case. In the facts of the case, learned counsel submits that the judgment of the Supreme Court in the case of [ENTITY] v. Sivachanmugavelu, (2005) 3 SCC 1 cannot be made applicable as the said case relate to the appointment in the Union Territory of Pondicherry.
8. Shri [ENTITY], learned counsel appearing for respondent No.4- [ENTITY] submitted that the petition filed by the petitioner- [ENTITY] is not maintainable in this Court as the petitioner has alternate efficacious remedy of approaching the Tribunal. In the submission of the learned counsel, that the Tribunal has upheld the contentions of respondent No.4 in correct, reasonable and proper manner. The administration of [ENTITY] and [ENTITY] did not frame any policy in respect of caste status of the migrants, therefore, the policy followed and implemented by the Central Government in this regard ought to have been followed by the [ENTITY] and [ENTITY]. Respondent No.4 was the sole candidate belonging to scheduled caste working as Junior Engineer in the administration of [ENTITY] and [ENTITY]. The administration of [ENTITY] and [ENTITY] did not raise any protest to the circulars issued by the Central Government in respect of the subject matter. The 9/30 502.02-wp .sxw petitioner had taken voluntary retirement in the year 2007.
According to the learned counsel, respondent No.4 was promoted in the year 2001 and, therefore, considering the peculiar facts and circumstances, no interference is warranted by this Court in the impugned orders and the prayer made by the petitioners for grant of service benefits in his favour is liable to be rejected. Learned counsel further submitted that for securing employment with the Central Government a person having a caste status in the State of origin could compete. Therefore, there shall not be any difficulty in accepting the same proposition for securing employment, by the person belonging to the reserved caste, with the union territory.
9. The learned counsel appearing for [ENTITY] and [ENTITY] submitted that at no point of time administration of [ENTITY] and [ENTITY] accepted the migrants' caste status. The Tribunal erred in directing the administration of [ENTITY] and [ENTITY] to consider respondent No.4 for promotion. Learned counsel further submitted that the circulars, notifications, instructions issued by the Central Government are not addressed specifically to the administration of [ENTITY] and [ENTITY]. It is further submitted that the judgment of the Supreme Court in the case of [ENTITY] (supra) is applicable to the administration of Union Territory of Pondicherry. As the respondent- 4 is a scheduled caste person in State of Maharashtra and a migrant 10/30 502.02-wp .sxw he is not entitled to claim caste status in the service cadre of the administration of [ENTITY] and [ENTITY].
10. The learned counsel appearing for the contesting parties placed reliance on case-laws which we have referred as under:
11. The petitioner relied upon the judgment of Supreme Court in the case of [ENTITY] (supra); Action Committee on issue of caste certificate to SC & ST (supra); the judgment of Full Bench of this Court in the case of [ENTITY] v. State of Maharashtra, 2010 (2) Mh.L.J. 904.
In [ENTITY] (supra), the Apex Court has held as under:
"10. Scheduled Castes and Scheduled Tribes belonging to a particular area of the country must be given protection so long as and to the extent they are entitled in order to become equal with others. But equally those who go to other areas should also ensure that they make way for the disadvantaged and disabled of that part of the community who suffer from disabilities in those areas. In other words, Scheduled Castes and Scheduled Tribes say of Andhra Pradesh do require necessary protection as balanced between other communities. But equally the Scheduled Castes and Scheduled Tribes say of Maharashtra in the instant case, do require protection in the State of Maharashtra, which will have to be in balance to other communities. This must be the basic approach to the problem "
11/30 502.02-wp .sxw In Action Committee on issue of caste certificate to SC & ST (supra), the Apex Court observed as under:
"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 nonest 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 [ACT]". This is an aspect which has to be kept in mind and which was very much in the minds of the [ACT]-makers as is evident from the choice of language of [SECTION] and [SECTION] of the [ACT]. That is why in answer to a question by Mr.[ENTITY], Dr [ENTITY] answered as under:
"He asked me another question and it was 12/30 502.02-wp .sxw this. Supposing a member of a Scheduled Tribe
living in a tribal area migrates to another part of the territory of India, which is outside both the scheduled area and the tribal area, will he be residing within the scheduled area or within the tribal? It is a difficult question on a matter like this would lie, we would certainly be able to give some answer to the question in the form of some clause in this [ACT]. But so far as the present [ACT] stands, a member of a Schedule Tribe outside the scheduled area or tribal area wold certainly not be entitled to carry with him the privileges that he is entitled to when he is residing in a scheduled area or a tribal area. So far as I an see, it will be practically impossible to enforce the provisions that apply to tribal areas or scheduled areas, in areas other than those which are covered by them "
The Full Bench of this Court in the case of [ENTITY] (supra) held as under:
"18. A person does not cease to belong to his caste/tribe on migration to an area more advanced with a more liberal atmosphere. The long residence in such State of migration could result in the handicaps suffered by belonging to a socially disadvantageous community being tempered down. While enacting [SECTION] and [SECTION], the [ACT] Fathers did note these aspects. Firstly, by limiting it initially for a time-frame with the hope and expectation that education and socioeconomic justice would result in these communities becoming socially and economically forward. At the same time, the [ACT] 13/30 502.02-wp .sxw Fathers in relation to the State also noted that benefits must go to those socially and economically disadvantaged in the geographical area of that State. Considering the tribes and castes notified by the Presidential Orders, all such castes and tribes would be getting benefits of reservation in the State of their origin. The Court in Marri [ENTITY] also noted where there may be cases of persons migrating individually for the purpose of employment, etc. but having construed [SECTION], the Court left it to the wisdom of Parliament to provide benefits in the State of migration."
12. The respondent No.4 relied upon the judgments of the Supreme Court in the case of [ENTITY] (supra); [PRECEDENT]; judgments of Division Bench of this Court in the case of [ENTITY] v. Oil & Natural Gas Commission, 2006 (5) ALL MR 126; [PRECEDENT]; and that of Division Bench of Delhi High Court in the case of Union of India v. B.R.[ENTITY] Memorial Fund, IV 2007 (1) AISLJ 449.
The Apex Court in the case of [ENTITY] (supra) observed :-
"15. The Central Government has issued several orders and circulars extending the benefit to SC candidates of other States in the matter of employment in the UT of Pondicherry which need to be noticed. A DO letter was sent by the Joint Secretary, Government of India, Ministry of Home Affairs, to the Lt Governor of Pondicherry on 4-2-
14/30 502.02-wp .sxw 1974 and the same is being reproduced below :
"So far as reservations for SCs/STs candidates in posts/services under the Central Government are concerned, the concession is admissible to all SCs and STs which have been recognized as such under the orders issued from time to time irrespective of the State/Union Territory in relation to which particular castes or tribes have been recognized as SCs/Tribes. Thus for a reserved vacancy in a Central Govt. office located in a State, any SC candidate throughout the country would be eligible. Since Pondicherry is a Union Territory all orders regarding reservations for Scheduled Castes/Tribes issued by the Department of Personnel in respect of posts/services under the Central Government are applicable to posts/services under the Pondicherry Administration. Also as such a SC/Tribe candidate from outside Pondicherry should also be eligible for a vacancy reserved for SCs/STs in the Union Territory Administration."
15.3 It appears that Government of Pondicherry sought some clarifications from the Central Government regarding admissibility of reservation benefit to migrant SC/ST candidates vide their letter dated 21.9.1995. This was replied to by the Ministry of Welfare, Government of India vide their letter dated 6.10.1995 and the relevant part thereof is reproduced below:
"I am directed to refer to your letter No. A.27265/12/23/CS(EC)/95 dated 21-9-
1995 on the above subject and to say that 15/30 502.02-wp .sxw according to para 9 of MHA (Now DoPT) OM No. 42/21/49-NGS dated 23-1-1952, the Central Government instructions apply mutatis mutandis to all Part C States (now UTs) as well. Such UTs have therefore to follow all Central Government instructions.
In view of the above position explained above, Pondicherry being UT, services under the Administration will be open to all the SCs/STs irrespective of their State of origin. Further in regard to posts filled on all-India basis through UPSC or SSC on open competition basis, SC/ST candidates irrespective of their state of origin can apply. In regard to the posts filled through SSC, Madras all the SC/ST candidates from the southern region will be eligible to apply. "
In the case of [ENTITY] (supra), the Division Bench of this Court observed:
"8. As we have held that the selection process was according to law, the next issue is whether the petitioner was eligible to be appointed as he did not belong to a Scheduled Caste notified for the State of Maharashtra. Employment in Respondent No.1 is employment in the Central Government organisation. Normally all citizen should be eligible to apply unless there are rules of the country. In the instant case the rules required the selection to be done in terms of Central Government directives. Even though, the procedure to be followed is appointment on a local basis, yet all eligible persons amongst notified Scheduled Castes must be considered. On behalf of 16/30 502.02-wp .sxw the petitioner, learned Counsel has drawn our attention to the notification issued by the Government of India, Ministry of Home Affairs dated 13th September, 1950, which set out that insofar as the employment in a Central Government undertaking the Scheduled Castes and Scheduled Tribes of the State could be considered. Further there is subsequent notification dated 18/31st August, 1992, which reads as under:
"3. It is clarified that above instructions are applicable only for the State Government services, admissible in State Government's educational institutions, etc All Scheduled Castes and Scheduled Tribes are treated alike for jobs in the Central Government. In view of this clarification, SC/ST persons employed in Central Government services in the States/Union Territories are entitled to get the benefits admissible to them. Since Department of Telecommunications is Central Government, the benefits admissible to SC/ST persons under the Central Government should continue to be extended to SC/ST person in the Department to those also who have migrated from the State of their origin to another State."
From this paragraph, it would be clear that not only SC/ST of the State are to be considered, but, SC/ST from other States also are to be considered, bearing in mind that employment is in the Central Government and or Central Government Undertakings. The Supreme Court in the case of [ENTITY] & Ors. Vs. Sivachanmugavelu & Ors.
17/30 502.02-wp .sxw reported in AIR 2005 Supreme Court 1038, in case of recruitment in Union Territory of Pondicherry has held that considering Pondicherry to be Union Territory, administered by President, the employment to the post in the administration of the said Territory would be available to the reserved category of Scheduled Castes not only from the Territory, but, also for the Scheduled Castes from other States and Union Territories' in the country. In our opinion, considering that these are appointments to a post in the Government of India or a Government organisation, it is not possible to restrict employment to Scheduled Castes of only those States where the establishment is located, unless there are rules which would be constitutionally permissible. It is in these circumstances, the Government recognising the constitutional imperative in August, 1992 issued clarification, that make employment available to all Scheduled Castes and Scheduled Tribes from the other States also. At the highest when recruitment is being done on local basis all that is required is that the candidate's name is on the list of the local employment exchange. In the event the local employment exchange does not forward their names as per rules, the names are also to be called from Scheduled Castes organisations in that State from the records maintained by them. This has been done in the instant case. It cannot therefore be said that the petitioner was ineligible for consideration.
The Division Bench of Delhi High Court in the case of B.R.[ENTITY] Memorial Fund (supra) held as under:
18/30 502.02-wp .sxw "4. The short question in this case is that whether a person who has obtained an SC/ST certificate from some State migrates to the Union Territory of Delhi is entitled to the benefit of the notifications dated 21.8.2003 and 27.8.2003 and whether those notifications are valid.
5. When a person who gets an SC/ST certificate from State 'A' migrates to State 'B' he no doubt will not get the benefit of the SC/ST certificate from State 'A' and he will have to obtain another SC/ST certificate from State 'B'. The legal position is, however, different when a person who has got an SC/ST certificate from State 'A' migrates to a Union Territory. This matter is now covered by the judgment of the Supreme Court in [PRECEDENT].
7. Following the said decision, we are of the opinion that the matter is now no longer rest integra."
13. Learned counsel appearing for respondent Nos.1 to 3 placed reliance on the judgment of the Supreme Court in the case of [ENTITY] v. State of Uttaranchal, (2013) 14 SCC 710; [PRECEDENT]; judgment of Division Bench of this Court in the case of [ENTITY] v. State of Maharashtra, 2009 (3) Mh.L.J. 802. He also relied upon the judgment of Supreme Court in the case of 19/30 502.02-wp .sxw [ENTITY] (supra); Action Committee on issue of caste certificate to SC & ST (supra).
In [ENTITY] (supra), the Division Bench of this Court has observed as under:
"18. The law, therefore, as now settled by the [ACT] Bench judgments is that to be eligible for benefits for reservation, a person must be ordinary resident in that State on the date of the Presidential Notification notifying the Scheduled Caste and Scheduled Tribe under [SECTION] and [SECTION] respectively. Any other person who migrates to that State after that date and who incidentally would be a Scheduled Caste or Scheduled Tribe person having the same nomenclature of Scheduled Caste and Scheduled Tribe notified for the State would not be eligible for reservation in the State of Maharashtra, but would be entitled to reservation in the State of origin."
The Apex Court in the case of [ENTITY] (supra) has observed as under:
"14. The matter again came up for consideration before a two Judge Bench in [PRECEDENT]:. The two Judge Bench did not approve the approach adopted by another two Judge bench in [ENTITY]'s case and referred the matter to larger Bench by making the following observations:
"12. In our view, a two Judge Bench of this Court could not have held the decision rendered by a three Judge Bench in S. 20/30 502.02-wp .sxw Pushpa case to be obiter and per incuriam.
13. A very important question of law as to interpretation of [SECTION], [SECTION] and [SECTION] arises for consideration in this appeal. Whether Presidential Order issued under [SECTION] or [SECTION] of the [ACT] 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 [SECTION], [SECTION] and [SECTION] of the [ACT] is required to be resolved.
14. For the aforesaid reasons, therefore, in our view, it would be appropriate that this case is placed before the Hon'ble the Chief Justice of India for constituting a Bench of appropriate strength. The registry is, accordingly, directed to place the papers before the Hon'ble the Chief Justice of India for appropriate directions."
15. The question arising in this appeal is whether a person like the appellant, who is a Scheduled Caste in the State where she was born will not be entitled to the benefit of reservation after marriage in the State where her husband is living despite the fact that the husband also belongs to Scheduled Caste and the particular Caste falls in the same reserved category in the State of migration and that she is a permanent resident of that State.
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16. Since the other related matter has been referred to a larger Bench, we think that it would be just and proper to refer this matter also to the larger Bench. Ordered accordingly."
In the case of [PRECEDENT] (supra), the Apex Court observed as under:
"12. In our view, a two-Judge Bench of this Court could not have held the decision rendered by a three-Judge Bench in [ENTITY] case to be obiter and per incuriam."
14. We have perused the record placed before us, the judgments cited supra and considered the submissions advanced.
15. In the judgments cited supra, while interpreting the previsions of [SECTION] and [SECTION] of the [ACT] the principle of law has been laid down that a person who is of scheduled caste or tribe is entitle to the benefit of reservation in the State of origin. On migration from one State to another, such a person is not entitled to that benefit as was available to him/her in the State of origin.
16. It is a settled position that even in respect of a person who belongs to the caste notified in the State of origin though having the same nomenclature notified in the State of migration, yet such 22/30 502.02-wp .sxw migrant would not be entitled to reservation in the State of migration. Such a person would continue to get the benefit only in the State of origin.
17. The question in this case is that whether the above stated principle applies to the case of a migrant who is employed in the service of the Central Government or the Union Territory.
18. The [ENTITY] and [ENTITY] was part of Union Territory of Goa, [ENTITY] and [ENTITY]. The Parliament passed an enactment for reorganization of Union Territory of Goa, [ENTITY] and [ENTITY] viz., Goa, [ENTITY] and [ENTITY] [ACT], 1987. Under the said enactment on and from the appointed date, a new State to be known as State of Goa and [ENTITY] and [ENTITY] were formed. The respondent No.4 was the employee in the service of Union Territory of Goa, [ENTITY] and [ENTITY] since the year 1983 i.e. much prior to the passing of the [ACT]. Respondent No.4 is the migrant from the State of Maharashtra. The Executive Magistrate has issued caste certificate in his favour. After reorganization, respondent No.4 and the petitioner preferred to serve administration of [ENTITY] and [ENTITY].
19. On behalf of administration of [ENTITY] and [ENTITY] it is submitted that at no point of time the administration of 23/30 502.02-wp .sxw [ENTITY] and [ENTITY] had accepted the caste status of migrants in the service of union territory. Whatever circulars, notifications and instructions issued by the Central Government are not applicable to them. For appreciating this vital submissions, we may refer to some of the documents placed on record of [CASE NUMBER]. Exh.J is the communication dated 29 th September 1992 made by [ENTITY], Director, Ministry of Welfare, Government of India to Shri [ENTITY], Assistant Secretary to the Administrator, [ENTITY] and [ENTITY], Silvasa which reads as under:
"Subject: Clarifications on the letter No.BC.16014/1/82-SC&SCD.I dated 6.8.84.
Sir, I am directed to refer to your letter No.A.8- 6/92-ADM dated 30.8.92, on the subject and to say that in respect of employment under Central Government there is no discrimination between Scheduled Castes and the Schedule Tribes of one State or another. In respect of employment under Union Territories also legally, the position would be the same. Thus, in the case under reference, a recognized Scheduled Caste/Scheduled Tribe of Maharashtra or any other State/Union Territory would be entitled to the benefits and facilities provided for Scheduled Caste and Scheduled Tribes in the services under the Union Territory of [ENTITY] and [ENTITY]. In this connection, the Administration may kindly refer to their letter No.ADM/EST/C/4408/1978, dated 4.3.1978 and Ministry of Home Affairs [CASE NUMBER] dated 20.7.1978."
24/30 502.02-wp .sxw
20. Exh.L is the circular dated 10 th July 1995 issued by the Assistant Secretary (Personnel), Administrator's Office, [ENTITY] and [ENTITY] which reads as under:
"C I R C U L A R Attention is invited to Para-2 of the Government of India Ministry of Home Affairs, New Delhi's letter No.BC/16014/1/87-SC & ST CD-1 dated 6th August, 1984 wherein it is clarified that the Schedule Caste/Scheduled Tribe persons on migration from the State of his origin to other State will not lose his status as Scheduled Caste/Scheduled Tribe but he will be entitled to the concessions/benefits admissible to the Scheduled Castes/Scheduled Tribes from the State of his origin and from the State where he has migrated.
The Administration has adopted the Central procedure of reservation of vacancies in Govt. Offices for SC/ST candidates under which the Scheduled Castes and Scheduled Tribes from any part of India who has migrated to U.T. of [ENTITY] and [ENTITY] could derive the benefit. However from the year 1990 the U.T. of [ENTITY] and [ENTITY] Administration has stopped allowing benefits of reservation in state to the Scs/STs who have migrated from other parts of India.
Now, after careful consideration, a policy on the line of Goa Government, to allow all the benefits of reservations to the SC/ST employees who migrated from other States/U.T.s of India has been formulated and it has been now ordered by the Administrator, [ENTITY] and [ENTITY] and [ENTITY] & 25/30 502.02-wp .sxw [ENTITY] that the migrant SC/ST Employee who had already been appointed prior to 01.01.1990 will continue to enjoy all the benefits of the reservations as provided in the Rules.
The Policy regarding reservations to SC/ST migrants on direct Recruitment under the UT of D & NH Administration will be decided separately."
21. From the record placed before us and the submissions advanced on behalf of the administration of [ENTITY] and [ENTITY], it reveals that at no point of time the administration of [ENTITY] and [ENTITY] had adopted the policy of its own in respect of acceptance or otherwise of the status of the migrants or intimated the Central Government that the circulars issued by the Central Government and the policy statements according to the instructions given by the Central Government to the union territories are not acceptable to them. The administration of [ENTITY] and [ENTITY] being under the control and supervision of the Central Government shall have to follow instructions given by the Central Government unless it frames policies of its own on the subject matter. In the affidavit filed by [ENTITY], Deputy Secretary (Personnel), Administration of [ENTITY] and [ENTITY], a stand was adopted that the circulars issued by the Central Government were not circulated to the Heads of Offices in [ENTITY] and [ENTITY] and were not implemented in the [ENTITY] and [ENTITY]. The deponent has 26/30 502.02-wp .sxw referred to the instructions received from the Ministry of Home Affairs, Government of India vide their letter dated 9 th April 2001 which are reproduced as under:
"Where a person belonging to SC/ST in the State of his origin has migrated to another State after the date of notification of Scs/Sts in respect of the State to which he has migrated, he will not be entitled to carry the benefits and privileges of being a member of SC/ST in the migrated State even if the same caste/tribe is included in the notification issued in respect of that State/UT."
In para-7 of the affidavit, the deponent contends that the Government of India has notified a separate list of SC/ST for [ENTITY] and [ENTITY] (UT) as in the case of other States, so any relaxation and concessions of reservation to migrant SC/ST will be at the cost of the original resident SC/ST of the union territory. Under the presidential order caste "Mahar" was included in the schedule of Schedule Caste as applicable in the [ENTITY] and [ENTITY]. The respondent No.4- [ENTITY] belongs to scheduled caste (Mahar).
22. The [ENTITY] and [ENTITY] filed an affidavit through [ENTITY], Deputy Secretary (Personnel), Administration of [ENTITY] and [ENTITY] (UT). In para-6 of the affidavit, the deponent has stated as under:
"6 It is true that this Administration has not framed any separate rules regarding 27/30 502.02-wp .sxw reservation and continue to implement the reservation policy framed by Government of India before delinking as well as after delinking as permissible in law "
23. The respondent No.4 has referred to the notification dated 28th October 1980 published in the official gazette issued by the Government of Goa, [ENTITY] and [ENTITY] which has a saving clause:
"7. Saving.- Nothing in these rules shall affect reservations, relaxation of age-limit and other concessions required to be provided for Scheduled Caste and Scheduled Tribes and other special category of persons in accordance with the orders issued by the Central Government from time to time in this regard."
24. In case of [ENTITY] (supra), it was observed by the Apex Court that the Central Government had issued several orders and circulars extending the benefits to the Schedule Caste candidates of other States in the matter of employment in the Union Territory of Pondicherry. In view of the Apex Court, the union territories are administered by the President through the Administrator appointed by him. In the context of [SECTION] of the [ACT], the union territories are excluded from the ambit of expression "State" occuring therein. This was clearly explained by a [ACT] Bench of Apex Court in [PRECEDENT] and in New Delhi Municipal Council v. State of Punjab, AIR 28/30 502.02-wp .sxw 1997 SC 2847 it was observed by the Apex Court that the union territories are not States for the purpose of Part-XI of the [ACT].
25. In case of Pondicherry, [ACT] was issued by the President. In the case of [ENTITY] (supra), the Apex Court further observed that 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 recognized as such, in relation to that State or Union territory then such a provision would be perfectly valid.
However, there would be no infraction of [SECTION], if a Union territory by virtue of its peculiar position being governed by the President as laid down in [SECTION] 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. It was further observed that the Union Territory of Pondicherry had adopted the policy of Central Government.
26. The learned counsel appearing for the administration of [ENTITY] and [ENTITY] submitted that in the case of [PRECEDENT] (supra), the Apex Court had opined that the two Judge Bench of the Apex Court had 29/30 502.02-wp .sxw declared the view expressed by three Judge Bench in the case of [ENTITY] (supra) as per incuriam. The matter again came up before the two Judge Bench of the Apex Court in the case of State of Uttaranchal (supra) wherein the two Judge Bench referred the matter to the Hon'ble the Chief Justice of India for constituting a bench of appropriate strength. Learned counsel submits that the said reference is still pending.
27. We may refer to the view adopted by the Delhi High Court in the case of Union of India v. B.R.[ENTITY] Memorial Fund (supra) wherein by referring to the judgment in [ENTITY] (supra) it was observed by the Division Bench that the matter was no longer res integra.
28. Considering the aforementioned legal position and the record placed before this Court, we are not inclined to accept the contentions raised by the petitioners. However, the subsequent developments are also to be taken in to consideration. The petitioner- [ENTITY] has already availed the benefit of Voluntary Retirement Scheme in the year 2007 whereas respondent No.4- [ENTITY] is still in service. In the facts of the case, we do not find that unsettling the position of service benefits derived by the parties at this stage would be reasonable and proper.
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29. In the facts of the case and legal principles evolved so far, we do not find that the Tribunal committed any grave error. For the aforementioned reasons we are of the view that no interference by this Court in its extra ordinary writ jurisdiction is warranted. Both petitions are dismissed. Rule stands discharged with no order as to costs.
([ENTITY], J.) ([ENTITY], J.) [ENTITY], P.S