WP(C) 11056/2004 Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 11056/2004 Reserved on: 26.08.2008 % Pronounced on: 03.11.2008 KAVITA KHORWAL . .... Petitioner Through Mr. Rakesh Dhingra, Advocate versus THE DELHI UNIVERSITY & ORS. ..... Respondents Through Mr. Amitesh Kumar, Advocate for the UGC. Mr. A. Mariarputham, Advocate for the Delhi University. Mr. Som Dutt Kaushik, Advocte for R-2. Mr. P.P. Malhotra, ASG with Mr. Gaurav Sharma, Mr. Chetan Chawla, Advocates for UOI. CORAM: MR. JUSTICE S. RAVINDRA BHAT 1. Whether reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported Yes in the Digest? MR. JUSTICE S. RAVINDRA BHAT 1. Courts in India have often traversed questions relating to the principle of equality and affirmative action. This constant engagement with affirmative action policies has not only raised questions relating to their validity and reach, but also crucial questions about the beneficiaries of such policies. This petition raises one such short, yet important question. 2. The petitioner avers that she is an originally listed Delhi Scheduled Caste (hereafter “SC”) candidate who appeared for the LLB entrance examination conducted by the first respondent on 20.06.2004. As per result of the entrance examination, the WP(C) 11056/2004 Page 2 petitioner was at S.No. 118 in the SC category ranking and it is stated that she could not obtain admission in the said course due to the inclusion of ineligible SC candidates belonging to states/ union territories (UTs) other than Delhi. It is alleged that by virtue of Articles 341 and 342 of the Constitution of India and the notifications issued under those provisions, only Delhi listed scheduled caste candidates could be considered for admission in the SC category rank list in the entrance examination of the LL.B. examination of the first respondent. She submits that by treating SC candidates from other States at par with SC candidates from Delhi, the first respondent is conferring privileges that violate her rights under the Constitution, as it equates people entitled under law for affirmative action policies in a specific State with other who are given similar status, though in a different State or Union Territory. Therefore, she seeks an order directing the first respondent to implement order no. Nos. 35/1/72/RU (SCT-V) dated 02.05.1975 and BC.12025/2/76-SCT-I dated 22.03.1977 passed by the Ministry of Home Affairs, Government of India, which mandates that the SC category quota be filled from Delhi listed Scheduled castes only. 3. The Petitioner submits that the Constituent Assembly while debating provisions relating to reservations and equality, had agreed that those communities, which have been historically discriminated against should be given a “ look in” and special treatment should be given to them. This intention is manifested from a reading of Article 15, Article 16, Article 341 and Article 342 of the Constitution. Under Articles 15 and 16 special treatment is to be given to those categories of people who are identified and notified as so, by notification of the President under Articles 341 and 342. It is submitted that in furtherance of this power, the President, in 1950, notified the list of Castes and Tribes, who shall be the beneficiaries of policies implemented under WP(C) 11056/2004 Page 3 Article 16 and Article 15. It is submitted that a plain reading of Article 341 would reveal that the benefit of reservation is to be provided only to those persons who belong to Scheduled Castes and Scheduled Tribes, in relation to particular State or Union territory. It is in furtherance of this objective that in the year 1975, the Union Ministry of Home Affairs (MHA) issued a notification declaring the terms and conditions which were applicable for reservation of seats in case of migration of Scheduled Castes & Scheduled Tribes from one state to another. Para 2(ii) of the said order is reproduced as under: "Where a person migrates from one state to another, he can claim to belong to SC or ST only in relation to the state to which he originally belongs and not in respect of the state to which he has migrated". In the year 1977, the MHA brought another notification clarifying the earlier order of 1975, i with regard to residence, wherein it was stated as under: "As required under Article 341 and 342 of the Constitution the President has with respect to every State and Union Territory and where it is State after consultation with governor of the concerned state issued orders notifying various castes and tribes as SC and ST in relation to that State or UT from time to time. The inter State area restriction have been deliberately imposed so that the people belonging to the specific community residing in specific area, which has been assessed to quality for SC or ST status, only benefit from the facilities provided for them. Since the people belonging to the same caste but living in different States/UTs may not necessarily suffer from the same disabilities, it is possible that wo persons belonging to same caste but residing in different states/UTs may not be treated to belong to SC/ST or vice versa. Thus the residence of a particular person in a particular locality assumes a special significance. This residence has not to be understood in the literal or ordinary sense of the word. On the other had it connotes the permanent residence of a person on the date of notification of the Presidential Order scheduled his caste/tribe 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 scheduled caste or scheduled tribe, as the case may be, if his caste/tribe has been specified in that order in relation to his state/UT. But he cannot be treated as such in relation to place of his temporary residence not withstanding the fact that the name of his WP(C) 11056/2004 Page 4 caste/tribe 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/tribe to which he claims to belong that the Government of India has made a special provision in the proforma prescribed for the issue of such certificate. In order that the certificates are issued to be deserving person it is necessary that proper verification based primarily on revenue record and if need be, through reliable inquires, is made before such certificates are issued. As it is only Revenue Authorities who, decide having access to relevant revenue records are in a position to make reliable inquiries. Government of India insists upon the production of certificates, from such authorities only. In order to be competent to issue such certificate therefore authority mentioned in Appendix 15 of this Brochure should b e the one concerned with the locality in which person applying for the certificate had his place of permanent abode at the time of the notification of the relevant order. Thus the Revenue Authority of one District would not be competent to issue such a certificate in respect to persons belonging to another District. No can such an authority of one state/UT issue such certificate in respect of persons whose place of permanent resident at the time of the notification of a particular Presidential Order, has been in a different state/Union Territory. In the case of persons born after the date of notification of the relevant Presidential Order, the place of residence for the purpose of acquiring Scheduled Casts or Scheduled Tribes status, is the place of permanent abode of their parents at the time of the notification of Presidential Order under which they claim to belong to such caste/tribe." 4. It is against this backdrop, the petitioner submits, that policy of the Delhi University in providing reservations to candidates of castes not included in Delhi state SC list, is unconstitutional. The petitioner avers that such policy is violative of her fundamental right to equality embodied in Article 14 and 15 of the Constitution and also to a dilution of the reservation policy. 5. Mr Dahiya learned counsel appearing on behalf of the petitioner, contended that a constitutionally mandated policy, endorsed by the Parliament and followed by the Government of India cannot be modified to suit fancies of the first respondent. He did not dispute that the admission for the LLB course was conducted on All India basis, but asserted that the Government of NCT funds most of the colleges under the first WP(C) 11056/2004 Page 5 respondent. Even though it is a Central University, scholarships, library funding, book grants, hostel facilities are all provided by the Government of NCT. He pointed out that the policy adopted by the first respondent resulted in two anomalies. Firstly, it created multiple opportunities for the SC candidates of other States, to avail benefits under the reservation policy; they could chose to avail it in their state of origin or in Delhi. Two, it created a disability for Delhi SC candidates since they could avail of reservation elsewhere and they have limited opportunity elsewhere due to the domicile requirement prescribed in those states. 6. Placing reliance on the decisions in Marri Chandrasekhara Rao Vs. The Dean, Seth GS Medical College, (1990) 3 SCC 130 and Action Committee vs. Union of India, (1994) 5 SCC 244, learned counsel contended that is it not possible for a person belonging to a SC category in one State to avail of reservation in another State if that caste is not categorized as SC in that state. Nor is it possible for her to avail of benefits, even if the caste of the same nomenclature is mentioned as a Scheduled Caste in state to which she has migrated. Further reliance was placed on State of Maharashtra v. Milind, (2001) 1 SCC 4 to assert that the order of the President under Article 341, enlisting castes as beneficiaries of reservations policies is specific to geographical regions, that is specific States and Union Territories or even regions within the States. It is only Parliament that is competent to amend the order of the President and the Executive cannot extend benefits to those to whom it was intended to be conferred. This is further borne out from the recent decision of the Supreme Court in Shree Surat Valsad Jilla KMG Parishad v. Union of India, (2007) 5 SCC 360, where the Court held that inclusion of a caste as scheduled one in respect of a particular area within a state is an exercise for the President and the Parliament to conduct and is not to be gone into by WP(C) 11056/2004 Page 6 the Courts. 7. The respondents on the other hand contend that the petitioner’s plea that in so far as seats reserved for SC/ST in the LL.B. Course, should be confined to SC/ST belonging to Delhi alone, has no basis in law. Issues concerning whether all seats should be filled up by open merit on all India basis or some seats should reserved for students belonging to any particular region such as Delhi students etc. are matters of policy and in so far as the LL.B. course is concerned admissions are made on all India basis with no specific reservation in favour of students from Delhi. In as much as the petitioner or any other person cannot seek a direction from this Court that the Delhi University shall reserve any specified percentage of seats for students form Delhi, similarly no direction can be sought that in a course where seats are filled up on all India basis, the seats reserved for scheduled Castes/Scheduled Tribes shall be filled up by Scheduled Castes/Scheduled Tribes candidates belonging to Delhi only. In substance it amounts to seeking a direction for making reservation in a particular manner in favour of a particular group, which is not permissible in law. It is averred that the plea of the petitioner that in Delhi only those people who have been notified as Scheduled Castes/Scheduled Tribes in the Presidential Notification applicable to Delhi are entitled to the benefits of reservation for SC/ST, has no relevance or signification in so far as the present case is concerned, where admission is made on all India basis. It would have relevant and significance if admissions are confined to students from Delhi or any particular percentage of admissions are confined to students from Delhi and in the said seats some seats are earmarked to be filled up by SC/ST candidate. Only in such a situation those candidates belonging to SC/ST as notified for Delhi would be entitled to the benefit of the same to the exclusion of SC/ST from other parts of the WP(C) 11056/2004 Page 7 country. This is not the situation in the present case. In as much as in the present case the admission is on all India basis, against the seats reserved for SC/ST all candidates who belong to SC/ST irrespective of the State of place they belong to, are/would be entitled to admission as SC/ST candidates. 8. It is contended that the first respondent is a Central University covered by Entry 63 of List I of the Seventh Schedule, wholly administered by the Government of India and therefore, the Academic Council of the University by resolution dated 14.6.1983, in consonance with the Central Government policy that all SC and ST candidates are eligible for reservation in educational institutions controlled by the Central Government, irrespective of the region they come from, adopted such a policy. It is submitted that relevant criterion is the character of the University and not its location. Besides, Delhi being a Union Territory the benefit of reservation ought to be extended to SC/ST candidates not only belonging to Delhi but also to similar candidates from other States. In this regard counsel placed reliance on S. Pushpa v. Sivachnamugavelu, (2005) 3 SCC 1. The Court in this case distinguished the earlier rule in Marri (supra), as being applicable only to cases in which SC/ST candidates migrate from one state to another, not from a State to an Union Territory or from Union Territory to another. Delhi being a Union territory the proposition enunciated in Pushpa (supra) is squarely applicable. The Government of Delhi in consultation with the Government of India, it was submitted, has on 30/6/2005 issued a circular to the effect that SC/ST candidates irrespective of their origin are entitled to avail the benefits of reservation in Delhi. Moreover, it is submitted that the Court in Marri (supra) itself had created exceptions in relation to All India Services and educational institutions controlled by the Central Government. The said circular reads as follows: WP(C) 11056/2004 Page 8 ―Sub: Reservation for SCs/STs in the jobs under the Government of NCT of Delhi Ref: Letter NO. 14011/2005-Delhi-I dated 01.06.2005 of the Ministry of Home Affairs, Government of India Sir/Madam, I am to inform you that the matter regarding grant of reservation to SCs/STs in jobs under the Government of NCT of Delhi has been examined by the Ministry of Home Affairs in consultation with the Ministry of Law and Justice (Department of Legal Affairs), Government of India in light of the judgment of the Hon‘ble Supreme Court dated 11.02.2005 in CA NO. 6-7 of 1998 in the matter of S Pushpa v. Sivachanmugavelu & Ors. It has been stated by the Ministry of Home Affairs, Government of India vide their letter cited above that the Ministry of Law and Justice (Department of Legal Affairs) has opined that the law declared by the Hon‘ble Supreme Court of India in its judgment dated 11.02.2005 applies to the National Capital Territroy of Delhi and also shall be binding on all courts within the territory of India under Article 141 of the Constitution of India. In light of the above, all the Scheduled Caste/Scheduled Tribe candidates irrespective of their nativity are eligible for reservation to the civil posts under Government of NCT of Delhi, which are reserved for SC/ST candidates and appropriate action for recruitment may be taken accordingly.‖ 9. It is averred and urged that though the petitioner has claimed in the writ petition that she is at serial No. 118; as per the rank wise result of SC candidates she is at 773 and she has secured only 150 marks out of 700 marks. At rank No. 773 also there are 11 candidates. The total numbers of seats reserved for SC candidates in the LL.B. course in all the three centres are only 225. The last candidate admitted has secured No. 292 and 238 marks. In view of the above, the petitioner would not be entitled to secure admission in the LL.B. Course. 10. It is thus evident that the petitioner’s grievance is that in the absence of amendments to the Presidential notifications issued under Article 341 and in the WP(C) 11056/2004 Page 9 absence of any notification under Article 342, of the Constitution of India, for the Union Territory of Delhi, castes which are not specifically notified as scheduled castes, for Delhi, and tribes (in the absence of any scheduled tribe in Delhi) reservations cannot be effected in the Union Territory of Delhi for admission to educational institutions under located in Delhi, either established by the Central Government, or the Government of NCT Delhi or funded by any of them. 11. The scheme envisioned by the Constitution, by virtue of Article 341 reveals that under a Presidential Notification, Indian citizens in various states and Union Territories can be categorized as belonging to the Scheduled Castes; by another Presidential Notification, issued under Article 342, categories of Indian citizens belonging to Scheduled Tribes, in various states and union territories can be enlisted. These provisions, i.e Article 341 and Article 342 of the Constitution of India read as under: ―341. Scheduled Castes— (1) The President [may 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 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 Castes in relation to that State [or Union territory, as the case may be]. (2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under Clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification. 342 . Scheduled Tribes— (1) The President [may 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 of 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]. (2) Parliament may by law 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.‖ WP(C) 11056/2004 Page 10 12. A textual reading of Articles 341 and 342 of the Constitution of India shows that Presidential Notifications, whether in respect of Scheduled Castes or in respect of Scheduled Tribes are “for the purposes of this Constitution” and “in relation to that State (or Union Territory, as the case may be).” Also, if there is a Presidential Notification under Article 341(1) or Article 342(2), Parliament may be law include or exclude caste, race, tribe or group in the list of Scheduled Caste and Schedules Tribes notified under the Presidential Notification. 13. Part VIII of the Constitution of India deals with the Union Territories. It inter alia, consists of Articles 239 to 241. Article 239 provides for the administration of every Union Territory by the President acting through an Administrator. It 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.‖ 14. As far as the Union Territory of Delhi is concerned, Article 239AA was introduced in the Constitution of India by the Constitutional (69th Amendment) Act, 1991 with effect from 1.1.1992 provides for a Legislative Assembly, seats whereof require to be filled by members chosen by direction election from Territorial Constituencies in the National Capital Territory. By Article 239AA (3) (a) the Legislative Assembly has powers to make laws for the Union Territory of Delhi in respect to the matters specified under said Clause (3)(a) of Article 239AA of the WP(C) 11056/2004 Page 11 Constitution of India. 15. The Constitution (Scheduled Castes) (Union Territories) Order, 1951, is a Presidential Notification, issued under Article 341 of the Constitution of India specifying Scheduled Castes in relation to the Union Territory of Delhi. However, no such notification exists under Article 342 of the Constitution of India, listing scheduled tribes for the Union Territory of Delhi. The question therefore is, whether in the absence of a Presidential Notification, listing any group of persons as a Scheduled Tribe in Delhi, can by policy, the Delhi University (a central university) direct that benefit of reservation be accorded to the Scheduled Tribe in the Union Territory of Delhi for admission. Likewise, the other question is whether in the absence of enlistment of specific tribes and castes as scheduled castes or tribes, in relation to the NCT of Delhi, can such castes/ tribes yet be eligible for the benefit, for purposes of admission to NCT managed educational institutions, and Central Government institutions, for the purpose of Article 15(4) of the Constitution. 16. The expressions “in relation to that State or Union Territory” and “for the purposes of this Constitution” used in Articles 341 and 342 of the Constitution of India are relevant and would be determinative of the issues in this case at hand. According to the respondents since, the Constitutional scheme, the Union Territory NCT of Delhi has to be administered by the President acting through an Administrator, the Union of India is within its rights in issuing instructions, either under specific statutes, or generally of executive nature, requiring reservations to be made for admissions to institutions in the Union Territory of Delhi. The Petitioner on the other hand urges that Article 239 has should be read harmoniously with Articles 341 and 342 of the Constitution of India. It is argued that Article 15(4) is one such “purpose” of the Constitution and, therefore, there WP(C) 11056/2004 Page 12 being no Presidential Notification under Article 342 of the Constitution of India, for the purposes of reservation under Article 16(4), the sine qua non being missing, no reservation can be effected for members belonging to Scheduled Tribes. 17. Shri. P.P. Malhotra learned Additional Solicitor General appearing for some of the respondents urged that the issue stands conclusively decided by the judgment of S. Pushapa (supra). The petitioner, on the other hand, contends that the issue in Pushpa related to reservations in public employment, under Article 16(4); whereas the previous Constitution Bench judgment in Marri affirmed later, by two Constitution Benches in Action Committee