IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29-09-2008 CORAM THE HONOURABLE MR. JUSTICE P.K.MISRA AND THE HONOURABLE MR. JUSTICE K.CHANDRU Writ Petition Nos. 4219, 4443, 4444 and 4850 of 2008 and M.P.Nos.1+1+1+2 of 2008 W.P.No.4219 of 2008 1.Union of India, The Government of Puducherry rep. by its Chief Secretary Chief Secretariat (Welfare), Puducherry. 2.Secretary to Government, Local Administration and Public Works Department, (Public Works Wing), Government of Puducherry. ... Petitioners. Vs 1. The Central Administrative Tribunal, Chennai rep. by its Registrar. 2. A.Anbalagan 3. A.Thirunarayanan 4. A.Murugesan 5. K.Veeraselvam 6. N.Balasubramanian 7. V.Lakshmanan 8. P.Velusamy 9. Dara Subramanian 10.S.Ramani 11.M.Balakrishnan 12.K.Elumalai 13.G.Packrisamy 14.N.Balasubramanian 15.K.Chandrasekaran 16.J.Jayaraman 17.S.Dhanabal ... Respondents. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.4443 of 2008 The Union of India rep. by the Development Commissioner-cum- Secretary to Government (Education), Government of Puducherry, Chief Secretariat, Puducherry. ... Petitioner vs 1.S.Jothidasan 2.M.Venkatakrishnan 3.The Central Administrative Tribunal, Chennai rep. by its Registrar. ... Respondents W.P.No.4444 of 2008 1.Union of India, rep. by its Chief Secretary to Govt., Government of Puducherry Chief Secretariat, Puducherry. 2.The Secretary to Government (Education), Chief Secretariat, Puducherry. 3.The Director of Education Department, Puducherry. 4. The Reporting Officer, Vice Principal, Calve College, Mission Street, Puducherry-1. ... Petitioners. Vs 1.G.Ammaji 2.K.Elumalai 3.M.Venkatakrishnan 4.Vetrivelu 5.The Central Administrative Tribunal, Chennai rep. by its Registrar. ... Respondents W.P.No.4850 of 2008 1.The Union of India, rep. by its Chief Secretary The Government of Puducherry Chief Secretariat, Puducherry. https://hcservices.ecourts.gov.in/hcservices/ 2.The Development Commissioner-cum- Secretary to Government (Education), Government of Puducherry. Chief Secretariat, Puducherry. 3. The Deputy Director (Admn.) Directorate of School Education, Govt. of Puducherry, Puducherry. 4. The Chairman, Departmental Promotion Committee, Government of Puducherry, Chief Secretariat (Education), Puducherry. ... Petitioners. Vs 1.V.Ranganathan 2.The Central Administrative Tribunal, Chennai rep by its Registrar. ... Respondents Prayer:- Writ Petitions filed under Article 226 of the Constitution of India to issue a writ of certiorari calling for the records pertaining to the order passed in O.A.No.125 of 2007, 922 of 2005, 268 of 2006 and 973 of 2005 dated 17.09.2007 on the file of the Central Administrative Tribunal, Madras Bench and to quash the same. For Petitioners : Mr.T. Murugesan in all WPs Govt. Pleader (Puducherry) for Mr. Syed Mustafa For Respondents 1to8: Mrs. Nalini Chidambaram in WP.No.4219/2008 Senior Counsel for Mr. Arun Natarajan For Respondents 9to17:Mr.K.M. Vijayan, In WP.No.4219/2008 Senior Counsel for M/s. La Law For Respondents 1&2 : M/s.R. Vaigai in WP.No.4443/2008 Anna Mathew For Respondent-1 in : Mr. Arun Natarajan WP.No.4444/2008 & WP.No.4850/2008 For Respondents2to4 : Mr. Ajaykumar in WP.No.4444/2008 - - - https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT P.K.MISRA,J. All these writ petitions have been filed by the Government of Puducherry and its Subordinate Officials challenging the common order of the Central Administrative Tribunal, Madras Bench, dated 17th September, 2007, in various original applications filed by different applicants. 2. The question relates to promotion in different departments of the Puducherry Government. The applicants before the Tribunal are members of Schedule Caste not of Puducherry origin but of the neighbouring States. In other words, they are considered as "migrant scheduled caste" belonging to the members of the Schedule Caste/Scheduled Tribe. 3. The contention of the applicants before the Tribunal was to the effect that even though such applicants had migrated to Puducherry, they are entitled to the benefit of reservation in the promotional posts, in spite of the fact that they are migrants and not of Puducherry origin. It was further contended by them that the community, to which they belong, had been notified as Scheduled Caste or Scheduled Tribe as the case may be, both in the neighbouring State as well as in Puducherry and therefore, such persons are entitled to the benefit of reservation. 4. The contention of the Government of Puducherry was to the effect that in the Notification issued by the President of India under Article 341, indicates that the members of the Castes therein can be considered to be members of Scheduled Castes for the concerned Union Territory or the concerned State as the case may be and a person belonging to the reserved category in one State cannot ipso facto claim the same benefit on his migration to another State or Union Territory. It was further contended that the Government of Puducherry had issued a Government Order dated 05.08.2005 wherein it has been indicated that only the members of Schedules Caste/Scheduled Tribe of Pondicherry origin would be entitled to the benefit of reservation. In the absence of any specific law, the members of Scheduled Caste/Scheduled Tribe belonging to the neighbouring States cannot claim any such benefit. 5. The Tribunal had posed the following questions to be answered:- i.Is Government of Pondicherry entitled to have its own reservation policy or they are governed by the provisions admissible for recruitment in Government of India, in all cases? https://hcservices.ecourts.gov.in/hcservices/ ii.Is the action of the respondents in recruiting and promoting Migrant SCs until the issue of GO dated 5.8.2005 after the Presidential Notification dated 5.3.1964 illegal and unconstitutional? iii.Is the GO dated 5.8.2005 applicable to Group 'A' and 'B' employees? iv.What is the status of migrant SCs employed so far, over the years until the issue of GO dated 5.8.2005, after the G.O. has been issued? 6. The Tribunal, after extracting paragraph Nos.16 to 22 from the decision of the Supreme Court in the case reported in S.Pushpa and Others -vs- Sivashanmughavelu {2000 (3) SCC 1}, held that the Government of Pondicherry can have its own reservation policy and it can also extend the benefit of reservation even to migrant Schedule Castes or Schedule Tribes, which are not mentioned in the Presidential Order issued for the Union Territory of Pondicherry. It was observed by the Tribunal as follows:- "38 ...........The UT of Pondicherry having adopted a policy of Central Government where under all SCs/STs irrespective of their state are eligible for posts which are reserved for SC/ST, no legal infirmity can be ascribed to such a policy and the same cannot be held to be contrary to any provisions of law and hence the action of the respondents in recruiting migrant SCs and giving SC status all along and until the GO dated 5.8.2005 is legal and not unconstitutional as tried to be made out by the respondents. Therefore, while we uphold the legality of the GO dated 5.8.2005 in respect of the recruitment and promotion to the Group 'C' and Group 'D' posts, and consider also as constitutional, all appointments and promotions made prior to the issue of the said GO for all grades from Migrant SCs as legal . . ." 7. Incidentally, it is to be pointed out that in the meantime, a Division Bench of this Court, by judgment dated 21.07.2008 in W.P.Nos.33305 and 33306 of 2006, has upheld the validity of the Government Order dated 05.08.2005. It is also to be noted that the correctness of the finding of the Tribunal relating to questions Nos.1 and 2 is not an issue before us in the present batch of cases. 8. While thus upholding the right of the Government of Pondicherry to frame its own reservation policy, the Tribunal https://hcservices.ecourts.gov.in/hcservices/ proceeded to consider the 3rd question, viz., whether such Government Order dated 05.08.2005 is applicable to Group 'A' and 'B' employees and the 4th question, as to what was the status of migrant SCs employed so far, until the issue of GO dated 5.8.2005, after such G.O. had been issued. Ultimately, the Tribunal concluded as follows:- " 38 . . . This G.O. does not have application for Group 'B' and Group 'A' employees. The GO is applicable only prospectively and it cannot have any retrospective effect. In this context, we agree with the applicants that the legal right vested in them at a point of time cannot be taken away by an executive order with retrospective application. . . ." 9. The Tribunal further proceeded to observe as follows:- "39........ Thus, the G.O. Dated 05.08.2005 which explicitly states "henceforth" the order shall be applied to Group 'C' and Group 'D' for recruitment/promotion employment and it has not in any way taken away the rights of the migrant SCs who have been already appointed under SC status in accordance with the ratio of the Hon'ble Supreme Court in Pushpa's case and also based on ratio of Hon'ble Apex Court decision on the Doctrine of Legitimate Expectations, and therefore, the respondents cannot do away with the SC status of Migrant SCs appointed so far by retrospective application of the G.O. dated 5.8.2005 to them. They have to continue to remain as SC in Group 'C' and Group 'D' while the effect of the GO dated 5.8.2005 will be that they will not be getting any new benefit in terms of promotion as their being SC in Group 'C' and 'D'. Further the respondents are well within their right to restrict employment and promotion prospectively in Group 'C' and 'D' in the light of the GO dated 5.8.2005. 40. We do not also agree with the respondents that as the Group 'C' is the feeder cadre for Group 'B' also which in turn is the feeder cadre for Group 'A' the G.O. is applicable to Group B and Group A services too. In this Context the respondents replies are referred to: "The origin SC Association contended that, inasmuch as the Govt. of Pondicherry issued orders vide GO Ms.No.11/2005/Wel(SCW.II) dated 5.8.2005 to the effect that reservation benefits in employment in Group 'D' and 'C' categories will be extended only to origin SC candidates, the seniority assigned to the migrant SC candidates in the feeder grade of Group 'C' post, consequent on their accelerated promotion by virtue of reservation under SC category, have to be re-assigned from the date of initial appointment on par with general https://hcservices.ecourts.gov.in/hcservices/ candidate appointed along with the applicants. The respondents submits that the matter was considered in detail by the Govt. of Pondicherry and a conscious decision was taken to take up the matter regarding appointment and promotion to Group 'B' and 'A' posts only to origin SC candidates with the Govt. of India. Pursuant to this, the Department of Personnel and Administrative Reforms (Personnel Wing) have addressed the Govt. of India in the matter and the reply is awaited." 10. On the basis of the aforesaid analysis, the Tribunal considered different original applications individually. So far as O.A.No.268 of 2006 is concerned, where the question was relating to promotion to the post of Vice Principal, by referring to the Circular dated 27.04.2005, the Tribunal observed as follows:- "42. . . . Therefore, the respondents are directed to consider the applicant who is a migrant SC for promotion to the post of Vice Principal, as they themselves claimed in the reply that they have inadvertently failed to consider the case of the applicant when the DPC met for the post of Vice Principal. In this context, they should also decide on the representation of the applicant against the adverse entries made, in accordance with law and also keeping in view the fact that the adverse entries were communicated to the applicant only after the DPC met, which is in clear violation of the directions issued by the nodal ministry of Govt. of India in this regard. After having decided on the adverse entries on the basis of the above directions within a period of four weeks from the date of receipt of a copy of this order, the respondents are directed to convene a review DPC and take appropriate decision regarding her promotion to the post of Vice Principal in accordance with extant orders and law within a period of 8 weeks from the date of receipt of a copy of this order and communicate the same to the applicant." 10.1 W.P.No.4444 of 2008 has been filed by the Government of Puducherry against such decision in respect of O.A.No.268 of 2006. The applicant before the Tribunal and Respondent No.1 in said writ petition have entered appearance through Mr.N.R..R.Arun Natarajan. 11. So far as O.A.No.973 of 2005 is concerned, which again was relating to the question of promotion to the post of Vice Principal, it was observed by the Tribunal as follows:- https://hcservices.ecourts.gov.in/hcservices/ "43. The respondents submitted clearly that they had considered the applicant in the DPC and found him fit and he was placed in position No.5 in the select list, he could not be actually promoted for want of SC vacancy. In the context of the decision conveyed in this order, the applicant will continue to remain eligible as migrant SC for promotion to Group B post and his case for promotion will not be affected by the GO dated 5.8.2005. The number of vacancies for SC will have to be reworked based on the provisions under Post Based Roster system in accordance with the total strength of the cadre and that the application of 16% reservation to that cadre strength and finally arrive at the actual number required to be promoted as Vice Principal, after taking into account the existing strength on rolls. This exercise shall be completed by the respondents expeditiously and if the respondents find additional vacancies to accommodate the applicant based on the computation of SC points in the Post Based Roster, necessary orders to that effect will be issued to the applicant within the period of 8 weeks from the date of receipt of this order." 11.1 W.P.No.4850 of 2008 has been filed by the Government of Puducherry against such direction in O.A.No.973 of 2005. The contesting respondents herein, the applicants before the Tribunal, have entered appearance through Mr.N.R.R.Arun Natarajan. 12. So far as O.A.No.922 of 2005 is concerned, which was again relating to the question of promotion to the post of Vice Principal, the Tribunal observed as follows:- "44. The applicants in this O.A. who are migrant SCs have been considered based on the circular dated 27.04.2005 for promotion to the post of Vice Principal in respect of all the SC candidates including migrant SCs, the DPC had also found them fit for promotion resulting in issue of promotion order were issued to them vide order dated 12.09.2005 in position Nos.20 and 22 and they also actually worked in that position, until the issue of memo dated 18.10.2005 by which their promotion to Vice Principal was 'withdrawn and kept in abeyance" a decision which is arbitrary and illegal. Hence the order dated 18.10.2005 is set aside. The respondents are directed to promote the two applicants herein as Vice Principal and issue necessary orders to them within a period of two weeks from the date of receipt of a copy of this order." 12.1 The Government of Puducherry has filed W.P.No.4443 of https://hcservices.ecourts.gov.in/hcservices/ 2008 against such direction of the Tribunal. The applicants therein, the contesting respondents 1 and 2 in the writ petition, have entered appearance through Ms.R.Vaigai. 13. So far as O.A.No.125 of 2007 is concerned, which involves the question of promotion from Junior Engineer Cadre to Assistant Engineer Cadre, the Tribunal has directed as follows:- "45.The applicants who are migrant SCs in J.E. Cadre, which is Group 'C', are eligible for consideration for promotion to the Grade of A.E. in Group 'B' the grade of Group 'B' is not covered by the G.O. dated 5.8.2005 and therefore, the respondents are directed to consider the case of all the applicants in the O.A. for promotion to the post of Asst. Engineer in accordance with extant order and law and issue necessary order to that effect within a period of 8 weeks from the date of receipt of a copy of this order. Their pay will be notionally fixed as if there was no break after the impugned order dated 18.10.2005 which is now set aside, and they will get actual monetary benefit prospectively in the grade of Vice Principal." 13.1 W.P.No.4219 of 2008 is filed by the Puducherry Government against such direction. The contesting respondents have entered appearance through Mr.N.R.R.Arun Natarajan and they have been represented by Mrs. Nailini Chidambaram, Senior Counsel, in the said case and the other respondents in the said case have been represented through the Senior Advocate, Mr.K.M.Vijayan, on behalf of M/s.La Law. 14. The learned counsel for the petitioners has submitted that since the validity of the Government Order dated 05.08.2005 has been upheld, even by the Tribunal itself, the Tribunal should not have allowed the concerned original applications. It has been further submitted that since the promotion posts have been filled up after the issue of the Government Order dated 05.08.2005, it cannot be said that there was an illegality in not giving the benefit of reservation to the applicants who were Migrant Scheduled Caste/ Scheduled Tribe. 15. The learned counsel appearing for the contesting respondents have submitted that the vacancies for promotion having arisen before the issuance of the Government Order dated 05.08.2005 and the Vice Principals having been promoted on the basis of the Circular dated 27.04.2005, there was no occasion to recall such orders of promotion or to keep such observation in abeyance. It has been further submitted that the Government Order dated 05.08.2005 relates to recruitment and promotion in Group 'C' and Group 'D' posts and such Government Order cannot have any effect for promotion to Group 'B' post from Group 'C' post and at https://hcservices.ecourts.gov.in/hcservices/ any rate, such a Government Order cannot have any retrospective effect. 16. Since the dispute revolves round the Government Order, G.O.Ms.No.11 of 2005 dated 5th August, 2005, it would be profitable to extract the relevant portion of such order. GOVERNMENT OF PONDICHERRY ABSTRACT Chief Secretariat (Welfare) – Extension of reservation benefits to Group 'C' and 'D' posts in Government Service to the Scheduled Caste Origins of the Union Territory of Pondicherry – Orders – issued. --------------------------------------------------------- CHIEF SECRETARIAT (WELFARE) G.O.Ms.No.11/2005/Wel(SCW II) Pondicherry, the 5th August 2005 Read (i) Judgement Order dated 11.02.2005 of the Supreme Court (bench) issued in the Appeal (Civil) 6-7 of 1998 filed by the petitioner viz. S.Pushpa and Others – vs – Sivachounmugavelu and others. (ii) Minutes of the meeting of the Council of Ministers held on 19.07.2005. (iii)Letter No.BC16014/1/82-SC & BCD-I, dt.22.2.85 of Ministry of Home Affairs, New Delhi. ORDER . . . (2) Further, the Apex Court has in its final judgement 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 judgement 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. . . . (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 https://hcservices.ecourts.gov.in/hcservices/ 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 Institution in this Administration only to the Scheduled Castes of UT of Pondicherry. In accordance with the judgment of Supreme Court in Pushpa 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 22.02.1985 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 Caste 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. (By Order of the Governor) sd/ Under Secretary to Govt. 17. The aforesaid Government Order dated 05.08.2005 is obviously inspired by the observations made in S.Pushpa's case (cited supra). At this stage, therefore, it would be appropriate https://hcservices.ecourts.gov.in/hcservices/ to refer to the aforesaid decision. Such decision of the Supreme Court arose out of an appeal against the judgment of the Central Administrative Tribunal, Madras. There was a selection to the post of Selection Grade Teachers wherein the Migrant Scheduled Caste candidates had been selected against the quota meant for Scheduled Castes. Such selected candidates, even though belonging to Scheduled Caste of neighbouring State and not of Pondicherry origin, had migrated to Pondicherry, after the issuance of the Presidential Notification under Article 341 of the Constitution of India in the year 1964. The Central Administrative Tribunal, Madras Bench, had held that such selected candidates, who had migrated to Pondicherry after the Presidential Notification, were not eligible for appointment to a post, which was reserved for Scheduled Caste candidates of the Union Territory of Pondicherry. Such decision was taken by the Tribunal, by placing reliance upon the decisions of the Supreme Court in Marri Chandra Shekhar Rao -vs- Dean, Seth G.S.Medical College {(1990) 3 SCC 130} and Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra -vs- Union of India {(1990) 5 SCC 244}. The Government of Pondicherry as well as some of the selected candidates (Migrant Scheduled Caste), whose selection had been set aside, had filed appeals before the Supreme Court. The Supreme Court, while allowing the appeals and setting aside the order of the Tribunal, observed as follows:- "16. These documents show that the Government of Pondicherry has throughout been proceeding on the basis that being a Union Territory, all orders regarding reservation for SC/ST in respect of posts/services under the Central Government are applicable to posts/ services under the Pondicherry Administration as well. Since all SC/ST candidates which have been recognised as such under the orders issued by the President from time to time irrespective of the State/Union Territory, in relation to which particular castes or tribes have been recognised as SCs/STs are eligible for reserved posts/services under the Central Government, they are also eligible for reserved posts/services under the Pondicherry Administration. Consequently, all SC/ST candidates from outside the UT of Pondicherry would also be eligible for posts reserved for SC/ST candidates in the Pondicherry Administration. Therefore, right from the inception, this policy is being consistently followed by the Pondicherry Administration whereunder migrant SC/ST candidates are held to be eligible for reserved posts in the Pondicherry Administration. 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 https://hcservices.ecourts.gov.in/hcservices/ 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 (1968) 2 SCR 103. In New Delhi Municipal Council v. State of Punjab (1997) 7 SCC 339 the majority has approved