IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.7.2008 CORAM: THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE V.DHANAPALAN W.P.Nos.33305 and 33306 of 2006 The Puducherry S.C. People Welfare Association, R.No.456/2002, Rep. by its General Secretary, Veeramani, 46 years,S/o Pitchai, No.140, 5th Cross Street, Dr.Radhakrishnan Nagar, Reddiyarpalayam Post, Puducherry-605 010. .. Petitioner in both Writ Petitions vs. 1. The Chief Secretary to Government, Union Territory, Pondicherry, Pondicherry State. 2. The Joint Secretary to Government of India, Ministry of Home Affairs, New Delhi. 3. Puducherry State Origin Sceduled Caste Government Employees Welfare Association, rep. by its General Secretary P.Irissane, Son of Pavadai, Hindu, aged 54 years and residing at No.59, North Canal Street, Pichaveeran Post, Oulgaret Post, Puducherry-605 010. (Third respondent impleaded as per the Order of Court dated 18.8.2007 in M.P.No.1 of 2007 in W.P.No.33306 of 2006 and M.P.No.2 of 2007 in W.P.No.33305 of 2006) .. Respondents in both the Writ Petitions https://hcservices.ecourts.gov.in/hcservices/ Writ Petitions filed under Article 226 of the Constitution of India, praying for issuance of Writs of Certiorarified Mandamus, as stated therein. For petitioner : Mr.R.Sankara Subbu For respondents: Mr.T.Murugesan, Govt. Pleader (Pondicherry) for R-1 Mr.Y.Bhuvanesh Kumar for R-2 Mr.V.Ajaya Kumar for R-3 COMMON ORDER S.J.MUKHOPADHAYA,J Prayer in Writ Petition No.33305 of 2006 is for issuance of a Writ of Certiorarified Mandamus, to call for the records in G.O.Ms.NO.11/2005/Wel(SC.W.II), Chief Secretariat (Welfare), Pondicherry, dated 5.8.2005 on the file of the first respondent and quash the same as illegal and direct the first respondent to provide reservation benefits in promotion, employment to Group-C & D posts to all deserving Scheduled Caste members irrespective of their State of origin as directed by the first respondent in Presidential Order, 1964 and clarification order in 1974. Prayer in Writ Petition No.33306 of 2006 is for issuance of a Writ of Certiorarified Mandamus, to call for the records in G.O.Ms.NO.12/2005/Wel(SC.W.II), Chief Secretariat (Welfare), Pondicherry, dated 5.8.2005 on the file of the first respondent and quash the same as illegal and direct the first respondent to provide reservation benefits in professional courses viz., M.B.B.S., B.D.S. and Engineering courses to all deserving Scheduled Caste members irrespective of their State of origin as directed by the first respondent in Presidential Order, 1964 and clarification order in 1974. 2. As both these Writ Petitions are by the very same petitioner- The Puducherry S.C. People Welfare Association, against the very same respondents, against similar Government Orders, issued by the Government of Pondicherry from its Welfare Department, in G.O.Ms.No.11/2005/Wel(SC.W/II) and G.O.Ms.No.12/2005/Wel(SC.W/II), both dated 5.8.2005 and as common question of law is involved, they were heard together and disposed of by this common order. 3. The Writ Petitions relate to reservation benefits to the Schedule Castes in the matter of recruitment, promotion and admission https://hcservices.ecourts.gov.in/hcservices/ in the educational institutions in the Union Territory of Pondicherry. The first respondent-Government of Pondicherry, vide G.O.Ms.No.11/2005/Wel.(SCW II), issued from the Welfare Department, dated 5.8.2005, took the following decision: "(4) In consultation with the Govt. Pleader in High Court/CAT and after considering all the requests/demands received by the Government from various quarters of Scheduled Caste origins and from several Associations functioning in this Union territory for the welfare of Scheduled Castes (origin) a resolution has been passed in the Legislative Assembly and also a decision has been taken by the Government to extend reservation benefits in Govt. services including promotion and employment in Group 'C' and 'D' posts to Scheduled Caste origins of the Union Territory of Pondicherry only. The Cabinet decision is extracted below: "Resolution No.2005/M.37/183: Extension of reservation benefits in Govt. service including promotion and admission in all Educational Institutions in this Administration only to the Scheduled Castes of UT of Pondicherry. In accordance with the judgment of Supreme Court in Pusha and others Vs. Sivashanmugam and others, JT 2005 (2) SC 317 and considering the applicability of the Government of India order No.BC16014/1/82- SC&BCD-I dated 22.02.85 of Ministry of Home Affairs, Government of India, New Delhi, it was resolved that the Government of Pondicherry will extend benefits of reservation in the field of employment for Group C and D posts to the Scheduled Castes of Pondicherry origin. This would come into effect from the date of issue of GO. Further, it was resolved to continue extension of benefits as in the past in the field of education and welfare only to the members of Scheduled Castes of Pondicherry origin." https://hcservices.ecourts.gov.in/hcservices/ (5) Having examined the demand made by various Welfare Associations and Scheduled Castes (origin) people of the Union Territory of Pondicherry and taking into account the observations made by the Hon'ble Supreme Court at para 21 of the said judgment dated 11.02.2005, the Lieutenant Governor, Pondicherry is pleased to order that the reservation benefits in promotion, employment to Group 'C' and 'D' posts shall henceforth be extended only to the Scheduled Caste origins of this Union Territory as notified in the Constitution (Pondicherry) Scheduled Castes Order, 1964 read with the Constitution (Scheduled Castes) Order (Second Amendment) Act, 2002 (Central Act 61 of 2002). (6) This Order shall take immediate effect." Similar order regarding reservation of seats for admission in educational institutions, has been passed-Vide G.O.Ms.No.12/2005/Wel. (SCW.II) issued from the Welfare Department, dated 5.8.2005. 4. By the aforesaid Government Orders, both dated 5.8.2005, having resolved to continue the extension of benefits of reservation as in the past in the field of appointment, promotion, education and welfare only to the members of Scheduled Castes of Pondicherry origin (emphasis supplied), excluding the Schedule Castes migrated from other States, including the State of Tamil Nadu, residing at present within the Union Territory of Pondicherry, the petitioner-Association has challenged the same on the following grounds: (i) Once a Scheduled Caste or a Tribe is included in the President's Order issued under Articles 341 and 342 of the Constitution of India, for the purpose of the Constitution, the Government of Pondicherry has no jurisdiction to exclude a class of Scheduled Castes from such Presidential Order on the ground of migration. (ii) The impugned Government Orders denying reservation to deserving Scheduled Castes, the so-called migrated candidates, are arbitrary and violative of Articles 14, 15 and 16 of the Constitution of India. (iii) The impugned Government Orders in effect, take away the reservation conferred on 5,000 members of the petitioner-Association, contrary to the Presidential Order, 1964, and (iv) The impugned Government Orders are violative of the law laid down by the Supreme Court in the case of "S.Pushpa vs. Sivachanmugavelu, reported in 2005 (3) SCC 1. https://hcservices.ecourts.gov.in/hcservices/ 5. Learned counsel appearing for the petitioner-Association while referring to the different orders issued by the Government of India and Government of Pondicherry, for grant of reservation in favour of the Scheduled Castes including those who are residing having migrated from the other States, also placed reliance upon certain decisions of the Supreme Court, as discussed hereinafter. 6. On the other hand, according to the learned counsel appearing for the respondents, the relief as sought for to treat the migrant Scheduled Castes as the Scheduled Castes of Union Territory of Pondicherry, is in total violation of the Constitutional scheme envisaged under Articles 341 and 342 of the Constitution of India. Placing reliance on the decision of the Supreme Court in S.Pushpa's case (supra), it was also submitted that the impugned Government Orders have been issued in terms of the law laid down by the Supreme Court in the said S.Pushpa's case. 7. We have heard the learned counsel appearing for the parties, noticed the rival contentions, the impugned Government Orders and the decisions of the Supreme Court, including S.Pushpa's case, as referred to above. 8. For proper appreciation of the case, it is desirable to notice and extract one of the Government Orders, namely G.O.Ms.No.11, issued from Welfare Department, dated 5.8.2005, the other being almost similar. "ORDER During 1995, some Associations and individuals belonging to origin Scheduled Castes filed case in Hon'ble Central Administrative Tribunal, Madras Bench, Chennai against the selection of migrated Scheduled Castes candidates for the posts reserved for Scheduled Castes in the Secondary Grade Teacher Recruitment conducted by the Education Department, Pondicherry. The CAT, Madras Bench, Chennai in its final orders dated 05.11.1996 pronounced in O.A.No.199/1996 and O.A.No.214/1996 etc, 'set aside' the said recruitment and direction was issued to review the selection process with regard to the reserved quota after excluding the migrant Scheduled Castes candidates who had migrated after the issuance of the Presidential Notification in the year 1964. Subsequently, the Hon'ble High Court, Madras in its order issued in July, 1998 had also dismissed the case filed by the Govt. in August 1997 against the Order dated 05.11.1996 of the CAT, Madras Bench, Chennai. Further, the Hon'ble Supreme Court had https://hcservices.ecourts.gov.in/hcservices/ passed an interim order on 05.01.1998 to continue the CAT orders passed in 1996. (2) Further, the Apex Court has in its final judgment dated 11.02.2005 in the case No: Appeal (civil) 6-7 of 1998 filed by S.Pushpa and others (migrant SC) has observed in para 21 of its judgment 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. (3) It has been brought to the notice of the Pondicherry Government that a letter No.BC.16014/82- SC&BCD-1, dated 22.02.1985 was issued by the Ministry of Home Affairs addressed to all States/Union Territories clearly directing in para 2 of the letter as follows: It is also clarified that a Scheduled Caste/Tribe person who has migrated from the State of origin to some other State for the purpose of seeking education, employment etc. will be deemed to be a Scheduled Caste/Tribe of the State of his origin and shall be entitled to derive benefits from the State of origin and not from the State to which he has migrated." The letter was received in Pondicherry and communicated to all Secretaries/Head of Departments by Deputy Secretary (Revenue) vide endorsement No.12038/89/C2, dt.8th November 1989. Pondicherry being Union Territory is governed by Ministry of Home Affairs. As such, the orders of Ministry of Home Affairs are directly applicable to the Union Territory of Pondicherry. (4) In consultation with the Govt. Pleader in High Court/CAT and after considering all the requests/demands received by the Government from various quarters of Scheduled Caste origins and from several Associations functioning in this Union territory for the welfare of Scheduled Castes (origin) a resolution has been passed in the Legislative Assembly and also a decision has been taken by the Government to extend reservation benefits in Govt. services including promotion and https://hcservices.ecourts.gov.in/hcservices/ employment in Group 'C' and 'D' posts to Scheduled Caste origins of the Union Territory of Pondicherry only. The Cabinet decision is extracted below: "Resolution No.2005/M.37/183: Extension of reservation benefits in Govt. service including promotion and admission in all Educational Institutions in this Administration only to the Scheduled Castes of UT of Pondicherry. In accordance with the judgment of Supreme Court in Pusha and others Vs. Sivashanmugam and others, JT 2005 (2) SC 317 and considering the applicability of the Government of India order No.BC16014/1/82- SC&BCD-I dated 22.02.85 of Ministry of Home Affairs, Government of India, New Delhi, it was resolved that the Government of Pondicherry will extend benefits of reservation in the field of employment for Group C and D posts to the Scheduled Castes of Pondicherry origin. This would come into effect from the date of issue of GO. Further, it was resolved to continue extension of benefits as in the past in the field of education and welfare only to the members of Scheduled Castes of Pondicherry origin." (5) Having examined the demand made by various Welfare Associations and Scheduled Castes (origin) people of the Union Territory of Pondicherry and taking into account the observations made by the Hon'ble Supreme Court at para 21 of the said judgment dated 11.02.2005, the Lieutenant Governor, Pondicherry is pleased to order that the reservation benefits in promotion, employment to Group 'C' and 'D' posts shall henceforth be extended only to the Scheduled Caste origins of this Union Territory as notified in the Constitution (Pondicherry) Scheduled Castes Order, 1964 read with the Constitution (Scheduled Castes) Order (Second Amendment) Act, 2002 (Central Act 61 of 2002). (6) This Order shall take immediate effect." https://hcservices.ecourts.gov.in/hcservices/ 9. From the aforesaid Government Order, it would be evident that the Government of Pondicherry, while noticing the decision rendered in the case of S.Pushpa by the Tribunal and ultimately, by the Supreme Court (supra), took into consideration the findings of the Supreme Court in the said case, as evident from paragraphs 1 and 2 of the G.O., and taking the opinion of the Government Pleader of the Union Territory of Pondicherry (of the High Court) and after considering all the requests/demands received by the Government from various quarters of Scheduled Caste origins and the other Associations of the Scheduled caste, decided to continue the extension of benefits only to the members of the Scheduled Caste of Pondicherry origin and not to others, i.e. those Scheduled Caste migrated from other States and settled in the Union Territory of Pondicherry. 10. Learned counsel appearing for the respondents referred to different orders issued from time to time by the Union of India and the Union Territory of Pondicherry, to suggest that no reservation was given to migrated Scheduled Castes in the matter of employment for Group 'C' and 'D' posts, and it is only Group 'A' and 'B' posts, which are filled up through the Union Public Service Commission (for short, 'the UPSC') on "All India basis" and the Scheduled Castes, irrespective of their origin of the State, were allowed to compete. In this background, we have also noticed different instructions and the orders issued by the Union of India/Union Territory of Pondicherry from time to time, as also the Constitution (Pondicherry) Schedule Castes Order, 1964 (for short, '1964 Scheduled Castes Order'), as discussed below. 11. The President of India, in exercise of the powers conferred by Clause (1) of Article 341 of the Constitution of India, was pleased to issue "Constitution (Pondicherry) Scheduled Castes Order, 1964", (vide GSR.No.419, dated 5.3.1964, published in the Ministry of law Notification), relevant portion of which reads as follows: 1. This Order may be called the Constitution (Pondicherry) Scheduled Castes Orders, 1964. 2. The castes, races or tribes or parts of or groups within castes, races or tribes specified in the Schedule to this Order shall for the purposes of the Constitution, be deemed to be Scheduled Castes in relation to the Union Territory of Pondicherry so far as regards members thereof resident in that Union Territory." It will be evident that the castes, races or tribes or parts of or groups within castes, races or tribes as specified in the said 1964 Scheduled Castes Order, were deemed to be Scheduled Castes in https://hcservices.ecourts.gov.in/hcservices/ relation to the Union Territory of Pondicherry and were residents in that Union Territory. (emphasis added). The words "Scheduled Castes of Pondicherry origin", have not been inserted therein, but related to the Scheduled Castes in relation to the Union Territory of Pondicherry, who were the residents of that Union Territory, as on 5.3.1964, i.e. the date on which 1964 Scheduled Castes Order was issued. 12. Prior to the issuance of 1964 Scheduled Castes Order, "reservation" was to be made pursuant to the guidelines issued by the Union of India. The Policy of the Government of India in regard to the communal representation in the services before coming into force of the new Constitution, was noticed and vide the Resolution of the Ministry of Home Affairs, in Resolution No.42/21/49.NGS, dated 13.9.1950, the following guidelines were issued: "2. The Government of India have now reviewed their policy in this regard in the light of the provisions of the Constitution of India which lay down inter alia that with certain exceptions no discrimination shall be made in the matter of appointments to the Services under the State on grounds of race, religion, caste etc. The exceptions are that special provision shall be made for Scheduled Castes and Scheduled Tribes in all Services and for Anglo-Indians in those services in which they had special reservations on the 14th August, 1947 Pending the determination of the figures of population at the Census of 1951 the Government of India have decided to make the following reservations in recruitment to posts and services under them: (a) Scheduled Castes--The existing reservation of 12-1/2% of vacancies filled by direct recruitment in favour of the Scheduled Castes will continue in the case of recruitment of posts and services made, on an all-India basis, by open competition, i.e., through the Union Public Service Commission or by means of open competitive tests held by any other authority. Where recruitment is made otherwise than by open competition the reservation for Scheduled Castes will be 16-2/3% as at present. .... 3. The reservations prescribed in the previous paragraph will apply in the case of https://hcservices.ecourts.gov.in/hcservices/ recruitment made on an all-India basis. Under the Constitution all citizens of India are eligible for consideration for appointment to posts and services under the Central Government irrespective of their domicile or place of birth and there can be no recruitment to any Central Service which is confined by rule to the inhabitants of any specified area. In practice however recruitment to Class I and Class II services and posts is likely to attract candidates from all over India and will be on a truly all-India basis, while for the majority of Class III services and posts which are filled otherwise than through the Union Public Service Commission only those residing in the area or locality in which the Office is located are likely to apply. In the latter class of cases the percentages of reservations for Scheduled Castes and Scheduled Tribes will be fixed by Government taking into account the population of the Scheduled Casts and Scheduled Tribes in that area." (emphasis added) 13. The Government of India from the Ministry of Home Affairs, New Delhi, issued D.O. Letter No.14016/2/74-GP, dated 4.2.1974, wherein the following instruction was issued: "So far as reservation for Scheduled Castes/Tribes candidates in posts/services under the Central Government are concerned, the concession is admissible to all Scheduled Castes and Scheduled tribes which have been recognised 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 recognised as Scheduled Caste/Scheduled Tribe. Thus for a reserved vacancy in a Central Government office located in a State, any scheduled Caste candidate throughout the country would be eligible. Since Pondicherry is a Union Territory, all orders regarding reservation 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 Scheduled Caste/Tribe candidate from outside Pondicherry would also be eligible for a vacancy reserved for Scheduled Caste/Tribes in the U.T. Administration." https://hcservices.ecourts.gov.in/hcservices/ The aforesaid letter dated 4.2.1974 was circulated by the Government of Pondicherry, vide G.O.Ms.No.24, dated 16.2.1974 issued from the General Administrative Department, with the following guidelines: "3. In view of the clarifications of the Government of India, all Secretariat Department, Heads of Departments/Offices are informed that Scheduled Castes/Tribes candidates from outside the Union Territory of Pondicherry should also be considered for appointment to posts reserved for Scheduled Castes/Tribes in this Administration. These instructions should be followed strictly." 14. When the question relating to grant of Community Certificate was raised, the Government of Pondicherry, from its Revenue Department, vide Circular No.9330/82/J, dated 5.4.1983, forwarded the following instructions of the Government of India: "4. The request of the Sangam has been examined in the light of the instructions of the Government of India on the subject. The important instructions are reproduced below:- (i) The person and his parents actually should belong to the community claimed and that the community should be included in the Presidential orders vide the Constitution (Pondicherry Scheduled Caste Order 1964) issued in GSR 419 dated 5th March, 1964. (ii) The person should belong to the State in respect of which the community has been scheduled. (iii) He should process either Hindu or Sikh religion; (iv) Where a person has migrated from one State to another, he can claim to belong to a Scheduled caste only in relation to the State to which he originally belonged and not in respect of the State to which he has migrated. (v) The residence for the purpose is not to be understood in the literal or ordinary sense of the word. On the other hand, it connotes the permanent residence of a person on the date of the notification of the Presidential Order scheduling https://hcservices.ecourts.gov.in/hcservices/ his caste in relation to that locality. Thus a person who is temporarily away from his permanent place of abode at the time of the notification of the Presidential Order applicable in his case, say, for example, to earn a living or seek education, etc., can also be regarded as a Scheduled caste if his caste has been specific in that order in relation to his state. But he cannot be treated as such in relation to the place of his temporary residence notwithstanding the fact that the name of his caste has been scheduled in respect of that area in any Presidential Order. It is to ensure the veracity of this permanent residence of a person and that of the caste to which he claims to belong, the Government of India have made a special provision in the proforma prescribed for issue of such community certificate. (vi) The Government of India have advised that such certificates should be issued only by the revenue authorities. (vii) Before 18th November 1982, children of Scheduled caste persons who have migrated from one state to another have to obtain community certificates from the authorities of the State from which they (or their parents) have migrated. This position has changed from 18th November 1982. The Government of India have stated that the prescribed authority of the State Government may issue certificate to a person who has migrated from another state on the production of genuine certificates issued to his father/mother by the prescribed authority of the State of father's/mother's origin except where the prescribed authority feels that detailed enquiry is necessary, through the State of original irrespective of the fact whether the caste in question is scheduled or not in relation to the State to which the person has migrated. The form of the certificate has also been suitably modified by the Government of India." (emphasis added). 15. The Government of India from its Ministry of Home Affairs, vide Letter No.BC.16014/1/82/SC&BCD-I, dated 22.2.1985, clarified that, "a Scheduled Caste/Tribe person who has migrated from the State of origin to some other State for the purpose of seeking https://hcservices.ecourts.gov.in/hcservices/ education, employment, etc., will be deemed to be a Scheduled Caste/Tribe of the State of his origin and shall be entitled to derive benefits from the State of origin and not from the State to which he has migrated." By the aforesaid letter dated 22.2.1985, it was for the first time the words "State of origin" were informed and a definite guideline was issued by the Union of India with regard to those who migrated from other State. 16. When further clarification was sought for with regard to the appointment of migrant Scheduled Castes and Scheduled Tribes in the Union Territory of Pondicherry, the Government of India, from its Ministry of Welfare, vide Letter No.17012/82/95-SCD V, dated 6th October, 1995 issued the following instructions to the Government of Pondicherry: "Sir, 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 according to para 9 of Ministry of Home Affairs (now D.O.P.A) O.M.No.42/21/49-NGS, dated 28.1.1952, the Central Government instructions apply mutatis, mutandis to all Part C States (now UTs) as well. Such UTs have therefore to follow