In the High Court of Judicature at Madras Dated: 12/08/2004 Coram The Honourable Mrs. Justice PRABHA SRIDEVAN W.P. No.9158 of 2004 and W.P.Nos., 9740, 15652, 16067 and 17961 of 2004 W.P. No.9158 of 2004 1. Minor D. Ram 2. Minor D. Shyam, rep. by father and natural Guardian Dr. D. Balasubramanian. .. Petitioner -Vs- Jawaharlal Institute of Post Graduate Medical Education and Research, rep. by its Dean (Directorate General of Health Services) Pondicherry-605 006. .. Respondent W.P. No.9740 of 2004 : K. Sandirakasu .. Petitioner vs. 1. The Director General of Health Services, New Delhi. 2. The Director, Jawaharlal Institute of Post Graduate Medical Education and Research, Pondicherry. 3. The Government of Pondicherry, rep. by Collector, Revenue Department, Pondicherry. .. Respondents W.P. No.15652 of 2004 : S. Vijayashankar, Minor, rep. by father and natural guardian K. Sandirakasu. .. Petitioner vs. 1. The Director General of Health Services, New Delhi. 2. The Director, Jawaharlal Institute of Post Graduate Medical Education and Research, Pondicherry. 3. The Government of Pondicherry, rep. by Collector, Revenue Department, Pondicherry. 4. Arul Prakash 5. B. Priyavadhana 6. Anjani Nandan Vaddi 7. P. Shoba Rani 8. B. Sahithya 9. P. Shakthi 10.P. Sathesh 11.K. Elayavendhan 12.B.S. Arasu .. Respondents W.P. No.16067 of 2004 : Minor B. Sahithya, rep. by her mother Dr. N. Chitra. .. Petitioner vs. 1. Dean, Jawaharlal Institute of Post Graduate Medical Education and Research, Pondicherry-605 006. 2. The Registrar (Academic), Jawaharlal Institute of Post Graduate Medical Education and Research, Pondicherry-605 006. .. Respondents W.P. No.17961 of 2004 : P. Satheesh, Minor, rep. by his father and natural guardian Ponnarmeni. .. Petitioner vs. 1. The Director General of Health Services, New Delhi. 2. The Director, Jawaharlal Institute of Post Graduate Medical Education and Research, Pondicherry. 3. The Government of Pondicherry, rep. by Collector, Revenue Department, Pondicherry. 4. Arul Prakash Pandian 5. Priyavadhana 6. Anjani Nandan Vaddi 7. P. Shoba Rani 8. B. Sahithya 9. P. Shakthi .. Respondents PRAYER : Writ Petitions filed under Article 226 of the Constitution of India for the reliefs stated therein. For Petitioners : Mr. V. Ajay Kumar (For petitioner in W.P. No.15652 of 2004) Mr. R. Krishnamurthy, Senior Counsel for Mr. Vijay Narayan (For petitioners in W.P. No.9158 of 2004) Mr. A. Sasidharan and Mr. S. Ashok Kumar (in W.P. No.16067 of 2004) For Respondents : Mr. V.T. Gopalan, Additional Solicitor General of India, assisted by Mr. M.T. Arunan, A.C.G.S.C. Mr. Sasheedharan for Government Pleader (Pondicherry) (For R-3) Mr. T. Eswaradhas (For R-4 in W.P. No.15652 of 2004) :O R D E R In all these writ petitions, the Prospectus issued by the Jawaharlal Institute of Post Graduate Medical Education and Research (JIPMER), Pondicherry is being challenged with regard to Clause 3.1. Clause 3 .1 of the Prospectus reads thus :- "3.1 Number of Seats : Seventy-five seats are available for admission during 2004 to the First Year M.B.B.S. Course. These seats are distributed as under : (a) Open General 14 (b) Open Scheduled Caste 8 (c) Open Scheduled Tribe 4 (d) Pondicherry General 15 (e) Pondicherry Scheduled Caste 5 (f) Seats to be filled on the basis of Common All India Entrance Test by CBSE 11 (g) Government of India nomination subject to fulfillment of basic requirements laid down, vide para 2.1, 2.2 and 2.3 18 Total 75" Clause 3.5.1 reads thus :- "3.5.1 Definition of Pondicherry Union Territory Residents : The 20 Seats reserved for Pondicherry General and Pondicherry Scheduled Castes are open to applicants who are Pondicherry Residents provided he/she is an Indian National and satisfies either of the following two criteria: (a) Those candidates / their parents residing continuously in the Union Territory of Pondicherry for at least five years immediately preceding the date of application. (b) Children of Central/State Government Servants, including employees of Public Sector undertaking under the Central/State Government posted and serving in the Union Territory of Pondicherry for at least a minimum period of ONE year prior to the last date for submission of application. NOTE : Residence Certificate must be produced in the prescribed form at the time of admission." 2. In Writ Petition Nos.15652 and 17961 of 2004, the petitioners claim that when it is settled law that a person migrating from one State/Union Territory to another State/Union Territory cannot carry the benefit of reservation he has in the State or the Territory of his origin to the place where he has migrated, the definition is unconstitutional. The definition denies the Pondicherry Scheduled Caste persons who have Pondicherry as their place of origin, their right. The applicants who belong to the Scheduled Castes and who were born in Pondicherry are denied their right of reservation. 3. Writ Petition No.9158 of 2004 has been filed on the ground that when out of the seats reserved for Scheduled Castes a special concession has been made for Pondicherry Scheduled Castes, there is no justification to deny a similar concession to Pondicherry Scheduled Tribes. 4. Writ Petition No.9740 of 2004 has been filed by the petitioner in W.P. No.15652 of 2004 for quashing the Prospectus on the ground that it is unconstitutional. 5. Writ Petition No.16067 of 2004 has been filed by a student who is found her name in the students admitted under the Pondicherry Scheduled Caste category, but is denied her seat because of interim orders obtained in this Court, directing the respondent to reserve one seat. 6. W.P. Nos.9740, 15652 and 17961 of 2004 : In all these matters, the petitioners submit that the definition of Pondicherry Scheduled Castes is contrary to the law laid down in the judgments in 1990 (3) S.C.C. 130 [Marri Chandra Shekhar Rao vs. Dean, Seth G.S. Medical College & Others], and 1994 (5) S.C.C. 244 [Action Committee on Issue of Caste Certificate of Scheduled Castes and Scheduled Tribes in the State of Maharashtra & Another vs. Union of India & Another] and is also violative of Articles 341 and 342 of the Constitution of India. It was also submitted that the entitlement to the right to be considered for admission under the reservation quota should be based on the Presidential Order, and only a person who is resident as on that date will be entitled to the benefits of being considered as a Pondicherry Scheduled Caste. 7. Reference is also made to the Ministry of Home Affairs letter dated 22.3.1977 with regard to the issue of Scheduled Castes and Scheduled Tribes. In this, it is specified that as per Articles 341 and 342 of the Constitution, the President issues orders notifying the Scheduled Castes and Scheduled Tribes in relation to a particular State or Union Territory from time to time. But, the people belonging to the same caste, but living in different States may not suffer the same disability and therefore, the residence of a particular person in a particular locality has a special significance. This was stressed in order to give guidelines to the authorities to issue certificates. According to the learned counsel for the petitioners, when this is the legal position, the Prospectus must be quashed since the requirement of residence is contrary to the Constitutional requirements. Apart from the two judgments referred to above, the learned counsel also referred to the judgment of S.S. Subramani, J. in W.P. Nos.9343 of 1997 Batch as well as the judgment of a Division Bench in Writ Appeal Nos.247 and 818 of 1996. 8. As regards the petitioner in W.P. No.9158 of 2004, who claims that Pondicherry Scheduled Tribes should also be included, his case is that when there is a specific provision made for Pondicherry Scheduled Castes, the Pondicherry Scheduled Tribes who satisfy all the requirements - there can be no dispute that he belongs to the Scheduled Tribe, his father having graduated from the JIPMER under the Scheduled Tribe quota and also their having been residents of Pondicherry for more than five years - the omission to provide a quota for Pondicherry Scheduled Tribes violates the Constitutional right of the petitioner. It was also pointed out that during the earlier years, there was such a reservation and that has been removed, which has resulted in Constitutional violation. 9. The learned Additional Solicitor General of India appearing on behalf of the respondents would submit that this question had already been decided in 2000 Writ L.R. 496 [Puvvala Sujatha vs. Union of India & Others] by P. Shanmugam, J. That case also dealt with the admission to M.B.B.S. in JIPMER and this very Prospectus was challenged therein. The learned Judge in that case had considered the judgments reported in 1990 (3) S.C.C. 130 and 1994 (5) S.C.C. 244 cited supra and had dismissed the writ petitions, finding no illegality in the Prospectus. Therefore, according to the learned Additional Solicitor General, it is not possible to resuscitate the same question once again. Reference was also made to the judgment in 2001 (2) M.L.J. 311 [Bharathi vs. The Secretary to Government, Health and Family Welfare Department, Chennai], in which the petitioner challenged the clause in the Prospectus of the Tamil Nadu Professional Courses Medical / Dental / Paramedical which insisted that students should have studied both Plus One and Plus Two classes in the schools located in the Village Panchayat. In that case, D. Murugesan, J. held that reservation is only by way of concession and the petitioner cannot challenge it as a matter of right similar to a right which a candidate can claim under the rule of reservation. According to the learned Judge, a concession such as this is granted by the Government, which can also withdraw it if it chooses to do so, whereas the reservation quota cannot be withdrawn. 10. Learned Additional Solicitor General referred to the Scheduled Castes and Scheduled Tribes that are enumerated as per the Presidential Notification in each State or Territory, as the case may be. It was shown from a Model Roster for Reservation that as regards the Union Territory of Pondicherry, there are 16 Scheduled Castes, but no Scheduled Tribes and 27 O.B.Cs. The Note to this Model Roster which was produced shows that for Delhi, the Rosters which are prescribed for recruitment on an all India basis is to be followed; for Goa, it will be the same as in the Union Territories of Daman and Diu and therefore, when there are no Scheduled Tribes notified for the Union Territory of Pondicherry, the Prospectus did not allocate any seat for Pondicherry Scheduled Tribes. The judgment in 1978 (II) M.L.J. 27 [Miss Mary Varghese vs. Principal, Jawaharlal Institute] was referred to, in which the petitioner challenged the Constitutional validity of the selection made on the ground that the selection of students on the basis of nativity was unconstitutional. There, under the head ' Pondicherry General', seats were allotted also on the ground of nativity. The Pondicherry residents were defined in that as : (1) Natives of Pondicherry by virtue of birth; (2) Candidates having continuous residence for five years or more at the time of submission of application form; (3) The wards of Central Government employees including employees of Public Sector undertakings under Central Government posted in the Union Territory of Pondicherry irrespective of the period of their residence in the Union Territory. 11. In the present Prospectus, a native of Pondicherry is not included, but the definition of Pondicherry residents is somewhat similar to Category 2 and Category 3 above. In the above decision, the learned Judge held as follows :- "One can well understand that the persons having residence at Pondicherry being given encouragement to get admission in the local Medical College. Equally, it may be considered reasonable for the wards of the Central Government employees working in Pondicherry to gain admission on that score." It is now urged that the clause relating to residence and the clause relating to wards of Central Government were held to be reasonable and therefore, even in the year 1978, when a challenge was made, though only to the clause relating to nativity, the same was upheld. The learned Additional Solicitor General would submit that this question has already been decided by P. Shanmugam, J. The petitioners having participated in the examinations knowing fully well the definition of Pondicherry Residents and knowing fully well that no quota was reserved for Pondicherry Scheduled Tribes, cannot now challenge the Prospectus as held in the said judgment after having met with rejection. 12. The judgment reported in 2000 Writ L.R. 496 cited supra can be looked into first to see whether that judgment answers all the questions raised by the petitioners herein. The basic facts are almost identical inasmuch as the application is to JIPMER for the First Year M. B.B.S. Course. Even in that year, the number seats was 75 and the allotment of seats was made as in the instant case. The prayer was also for quashing of Clause 3.5.1. of the Prospectus. In that case, the petitioner had made a wrong statement and obtained a resident certificate on that basis. But, however, the learned Judge had considered the legal position of the Circular issued by the Government of India, Ministry of Home Affairs dated 22.3.1977, which is referred to in the above paragraph and it was held as follows :- "Thus, the legal position as per the circular is that the term residence for the purpose of acquiring Scheduled Caste status is the place of permanent abode of their parents at the time of notification of the Presidential Order under which they claim to belong to such a caste. The issue of Community Certificate is not to be confused with the eligibility criteria laid down by the second respondent." Further, it was observed as follows :- "The second respondent being a Central Government institution, they have reserved eight seats for all the Scheduled Caste candidates. However, as a concession, in the place of the location of the institution, five seats are set apart for residents of Pondicherry Scheduled Castes. This is not to be treated as a reservation under Article 16(4 ). It is only a concession shown and a source of selection for the colleges on the basis of the location. Just like Pondicherry General, where 15 seats are located to residents of Pondicherry, similarly, five seats are located to residents of Pondicherry. Those residents have no connection with the Scheduled Caste Presidential Notification. Further, it cannot be in any way, restricting the right of the Scheduled Castes in the reservation of allotment to the eight seats reserved for Scheduled Castes. ..... Thus, the allotment of seats on the basis of residential requirement to Scheduled Caste candidate is not a reservation under Article 15(4 ) or 16(4) of the Constitution of India. It is a concession or a source of selection decided by the Central Government on the basis of the location of the institution within Pondicherry State. " The learned Judge also referred to A.I.R. 1971 S.C. 1762 [D.N. Chanchala vs. State of Mysore], wherein it was observed by the Supreme Court, "The Government is entitled to lay down sources from which selection would be made. A provision laying down such sources is, strictly speaking, not a reservation. It is not a reservation as understood by Article 15 against which objection can be taken on the ground that it is excessive." This is applicable to educational institutions run by the Central Government and not the State Government. Therefore, the ratio laid down in the judgments in 1990 (3) S.C.C. 130 and 1994 (5) S.C.C. 544 will not apply to the facts of the present case since they related to admissions in institutions run by the State Government. The submissions made by the counsel have already been decided by P. Shanmugam, J. and I am not persuaded to differ from that view. 13. Further, as far as Central Government institutions are concerned, no distinction is made between Scheduled Caste candidates who have the origin in a particular State or Union Territory and Scheduled Caste candidates who have migrated. This clarification is obtained in the Government of India, Department of Telecom Letter No.1-13/92-SCT dated 18/31.8.1992. As per the clarification obtained from the Ministry of Welfare and Ministry of Home Affairs, Department of Personnel and Training, there is no distinction between origin and migration cases as far as Central Government institutions are concerned. They are applicable only to State Government services and State Government educational institutions. Applying this criteria and in view of the fact that the conditions in Clause 3.5.1 of the Prospectus were met, respondents 4 to 12 have been admitted. The percentage of reservation for Scheduled Caste candidates in the respondent Institution is 15% and out of the 75 seats, 20 seats are reserved on residential basis and for the remaining 55, if 15% reservation is applied, it comes to 8.25 and therefore, 8 seats are given under the Open Scheduled Caste category. As regards the 20 seats, 15% reservation will actually come to three seats. On the other hand, five seats are given for Pondicherry Scheduled Castes. Therefore, the quota for Scheduled Castes has not been diminished. Out of that quota, as a concession, the Pondicherry Scheduled Caste candidates, as defined in the Prospectus, have been given five seats. The petitioner has participated in the examination quite aware of the reservation for Pondicherry Scheduled Castes. Having participated in the examinations, he now finds himself out of the running since other students who also applied under the Pondicherry Scheduled Caste category have acquired more marks than him; so, he has laid the challenge. There is no violation of the Constitutional requirement of reservation. 14. Further, from the counter affidavits filed by the respondents, it is seen that the fourth respondent belongs to Pallar Community, which is listed as No.9 in the Constitution (Pondicherry) Scheduled Castes Order, 1964. As regards the fifth respondent, the petitioner has no grievance since according to him, the fifth respondent is a Pondicherry origin Scheduled Caste candidate. As regards the seventh respondent, it is seen that he belongs to Adi Dravida Community, which is No.2 in the Schedule and they are Scheduled Caste candidates of Pondicherry and they are also residents of Pondicherry. The same is the case with the eighth respondent, who filed W.P. No.16067 of 2004. Her Admission Card which has been filed in the typed set of papers shows her as a Pondicherry Scheduled Caste candidate and therefore, she claims that her entitlement to one of the five seats which has also been granted by the College cannot be thwarted by the petitioners in these two writ petitions on the ground that the definition of Pondicherry Scheduled Castes is contrary to the Constitution. 15. The same issue had come up for consideration, of course, with regard to employment, in 2004 (1) S.C.C. 530 (Chandigarh Administration vs. Surinder Kumar) with regard to the Union Territory of Chandigarh, wherein it was held, "In the present case we have noticed that the Government of India instructions contained in the letter dated 26-8-1986 specifically permit that a recognised Scheduled Caste/Scheduled Tribe of any other State or Union Territory would be entitled to the benefits and facilities provided for Scs/STs in the services in the Union Territory of Chandigarh. This letter is specifically addressed by the Government of India to the Home Secretary, Chandigarh Administration and deals with employment in the Union Territory of Chandigarh. Therefore, there is no reason to ignore the instructions contained in the said letter." The decisions in 1990 (3) S.C.C. 130 (cited supra) and 1994 (5) S.C. C. 244 (cited supra) were also referred to and the Supreme Court held, "The judgments relied upon by the learned counsel for the appellant only decide the constitutional aspect of the government policy on the subject at a given time while leaving the policy decision as to what benefits are to be conferred on persons belonging to reserved categories with the Government of India. In the present case the Government of India has conveyed its decision on the point vide its letter dated 26-8-1986 which has not been modified. Therefore, the instructions contained in the said letter which were admittedly being followed till 7-9-1999, in our view, continue to be in force. There is no reasonable basis to discontinue the said decision with effect from 7-9-99 9. No reason or basis has been disclosed for discontinuing the same with effect from the said date." It is seen that in this case the Supreme Court had accepted the decision taken by the Government to permit in the letter dated 26-08-1980 referred above. 16. But this decision came up again for consideration in 2004 (3) S.C.C. 132 (S. Pushpa vs. Sivachanmugavelu) in a case that arose out of a decision of Central Administrative Tribunal at Madras with regard to the matter of reservation in the Union Territory of Pondicherry, wherein the Supreme Court held as follows : "Some persons belonging to the Scheduled Castes in relation to the State of Tamil Nadu migrated to the Union Territory of Pondicherry and on the basis of certain notifications issued by the Government of India, as also the Union Territory of Pondicherry the benefit of reservation was made available to them and such persons thus got employment in the Union Territory of Pondicherry. The Central Administrative Tribunal, Bench at Madras, set aside such appointments/promotions with a direction to review the selection in regard to the reserved quota excluding the migrated Scheduled Caste candidates from consideration." Relying on 1990 (3) SCC 130(cited supra) and 1994 (5) SCC 244 (cited supra) the Central Administrative Tribunal and this Court held, "he would not carry with him the status of a Scheduled Caste candidate to the State to which he has migrated, nor can he claim such benefit in that State as available to him as a Scheduled Caste candidate in his State." The attention of the Supreme Court was referred to certain G.O. and letters. "GO issued by the Government of India dated 4-2-1974 by which a clarification was conveyed to the Lt. Governor of Pondicherry that Scheduled Caste/Tribe candidates from outside the Union Territory of Pondicherry should also be considered for appointment to posts reserved for Scheduled Castes/Tribes in Pondicherry. Our attention has also been drawn to another notification dated 6-1-1993 issued by the Government of Pondicherry referring to, amongst others, the government order dated 4-2-1974 issued by the Government of India clarifying that since Pondicherry is a Union Territory, all orders regarding reservation for Scheduled Castes, Scheduled Tribes in respect of posts/services under the Central Government are applicable to posts/services under the Pondicherry Administration also. Therefore, Scheduled Caste/ Scheduled Tribe candidates from outside Pondicherry would also be eligible for vacancies reserved for Scheduled Castes, Scheduled Tribes in the Union Territory Administration." It was also contended that, "in view of the provisions contained under Article 239 of the Constitution of India. The Union Territory of Pondicherry itself has also issued a circular on the same lines." Finally, the Supreme Court held, "It is true that some distinction has been sought to be drawn by the respondents between the decision rendered by us in the case of Chandigarh Admn.(Arising out of SLP(C)No.20366 of 2002 From the Judgment and Order dated 16-08-2002 of the Bombay High Court in SA No.248 of 2002) and the cases in hand, also on the basis that the points raised here were not under consideration in the case of Chandigarh Admn. we, however feel that in case the impugned decisions of the High Court and the Central Administrative Tribunal are upheld, in support of which some arguable points having prima facie merit have been raised, it may sound some conflict with the decision rendered by us in the case of Chandigarh Admn. Therefore, in our view, it would be appropriate that these cases are placed before a Bench of three Hon'ble Judges,so as to consider the broader issues raised and lay down the law considering all aspects and provisions of the Constitution and other laws on the subject." So the law declared by the Supreme Court as