BIR SINGH versus DELHI JAL BOARD & ORS.
[2018] 10 S.C.R. 513, Supreme Court of India, 2018
Outcome: Reference answered
Segment: Ratio
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BIR SINGH
v.
DELHI JAL BOARD & ORS.
(Civil Appeal No.1085 of 2013)
AUGUST 30, 2018
[RANJAN GOGOI, N. V. RAMANA, R. BANUMATHI,
MOHAN M. SHANTANAGOUDAR AND
S. ABDUL NAZEER, JJ.]
Constitution of India – Arts. 16(4), 341(1) and 342(1) –
Interplay and interaction amongst – Extent and nature of – Whether
the Presidential Order issued u/Art.341(1) or Art.342(1) has any
bearing on the State’s action in making provision for the reservation
of appointments or posts in favour of any Backward Class of citizens
which, in the opinion of the State, is not adequately represented in
the services under the State – Held: [Per Ranjan Gogoi, J.
(for himself, N. V. Ramana, Mohan M. Shantanagoudar and
S. Abdul Nazeer, JJ.)] Art.16(4) is an enabling provision enabling
the State to provide to backward classes including SCs and STs
reservation in appointments to public services –  Art.16(4) provides
reservation only to the classes or categories of SCs/STs enumerated
in the Presidential orders for a particular State/Union Territory
within the geographical area of that State and not beyond –
Operation of the lists of SCs and STs beyond the classes or
categories enumerated under the Presidential Order for a particular
State/Union Territory by exercise of the enabling power vested by
Art.16(4) would have the obvious effect of circumventing the specific
constitutional provisions in Arts.341/342 – Thus, a person belonging
to a Scheduled Caste in one State cannot be deemed to be a
Scheduled
Caste person in relation to any other State to which he migrates for
the purpose of employment or education – So far as the National
Capital Territory of Delhi is concerned, the pan India Reservation
Rule in force is in accord with the constitutional scheme relating to
services under the Union and the States/Union Territories –
[Per Banumathi, J.(Partly Dissenting)] A given caste or tribe can
be SC or ST in relation to that State or Union Territory for which it
is specified – Person notified as Schedule Caste in State ‘A’ cannot
claim the same status in another State – Art.16(4) has to yield to the
  [2018] 10 S.C.R. 513
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mandate of Arts.341 and 342 – Though the services under the Union
Territories are Central Government services, but they are services
under the respective Union Territories and not under the direct
control of Union of India/different ministries – Such services cannot
be said to be Central Civil Services under Union of India so as to
extend the benefit of pan India reservation for recruitment to services
under the respective Union Territories including Union Territory of
Delhi.
Constitution of India – Arts.341(1) and 342(1) – Presidential
Orders issued under – Challenge to – Permissibility of – Held:
[Per
Ranjan Gogoi, J. (for himself, N.V. Ramana,
Mohan M. Shantanagoudar and  S. Abdul Nazeer, JJ.)] Presidential
Orders issued u/Art.341 in regard to Scheduled Castes and u/Art.342
in regard to Scheduled Tribes cannot be varied or altered by any
authority including the Court – It is the Parliament alone which has
been vested with the power to so act, that too, by laws made –
(Per Banumathi, J.) Until the Presidential Notification issued
u/Arts.341(1) and 342(1) is modified by appropriate amendment by
Parliament in exercise of the power u/Arts. 341(2) or 342(2), the
Presidential Notification is final and conclusive – No caste or group
can be added to it or subtracted by any action either by the State
Government or by a Court.
Interpretation of Statutes – Harmonious construction – Held:
Inter-related statutory as well as
constitutional provisions have to
be harmoniously construed and understood so as to avoid making
any provision nugatory and redundant.[Per Ranjan Gogoi, J.
(for himself, N. V. Ramana, Mohan M. Shantanagoudar and
S. Abdul Nazeer, JJ.)].
Words & Phrases – “in relation to that State or Union
Territory” and “for the purpose of this Constitution” – Meaning of
– Held: Said expression used in Arts. 341 and 342 would mean that
the benefits of reservation provided for by the Constitution would
stand confined to the geographical territories of a State/Union
Territory in respect of which the lists of Scheduled Castes/Scheduled
Tribes have been notified by the Presidential Orders issued from
time to time – Constitution of India – Arts. 341 and 342.
[Per
Ranjan Gogoi, J. (for himself, N.V. Ramana,
Mohan M. Shantanagoudar and  S. Abdul Nazeer, JJ.)].
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Central Civil Services (Classification, Control and Appeal)
Rules, 1965 [CCS Rules, 1965] – Central Civil Services under –
Discussed.
National Capital Territory of Delhi, Andaman and Nicobar
Islands, Lakshadweep, Daman and Diu and Dadra and Nagar
Haveli (Civil Service) Rules, 2003 – Union Territory Services under
– Discussed – National Capital Territory of Delhi, Andaman and
Nicobar Islands, Lakshadweep, Daman and Diu   and Dadra and
Nagar Haveli (Police Service) Rules, 2003 – Delhi Administration
Subordinate Services Rules, 1967.
Answering the referred question, the Court
HELD: Per Ranjan Gogoi, J. (for himself, N. V. Ramana,
          Mohan M. Shantanagoudar and S. Abdul Nazeer, JJ.]
1.1 Article 341(1) of the Constitution empowers the
President with respect to any State or Union Territory, and where
it is a State, after consultation with the Governor thereof, by public
notification, to specify the castes, races or tribes or parts of or
groups within castes, races or tribes which shall for the purposes
of the Constitution be deemed to be Scheduled Castes in relation
to that State or Union Territory, as the case may be. In case of
Scheduled Tribes the President has been similarly empowered
under Article 342(1) of the Constitution.  Sub-clause (2) of Article
341 and Article 342 empowers the Parliament by law to include
in or exclude from the list of Scheduled Castes/Scheduled Tribes
specified in the Notification issued under clause (1) thereof any
caste,
race or tribe/tribal community or part of or group within
any caste, race or tribe/tribal community. It is further provided
that except as provided i.e. by Parliament by law(s) made, the
notification issued under Article 341(1) or Article 342(1) shall
not be varied by any subsequent notification. The constitutional
mandate, therefore, appears to be that any caste, race or tribe/
tribal community or part of or group within any caste, race or
tribe/tribal community as has been specified in the Presidential
Order under clause (1) of Article 341 or Article 342 can be altered
only by Parliament by law(s) made.  Article 341 and Article 342
also makes it clear that the caste, race or tribe or part of or group
within any caste, race or tribe as specified in the Presidential
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Order under Article 341(1) or a tribe or tribal community as may
be specified in the Presidential Order under Article 342(1) shall
be deemed to be Scheduled Castes/Scheduled Tribes for the
purposes of the Constitution in relation to that State or Union
Territory, as the case may be. [Paras 15-17] [542-C-G]
1.2 There are various parameters by which a caste/race is
recognized as ‘Scheduled Caste/Scheduled Tribe’ in a State/Union
Territory or a particular part thereof.  There is no doubt that
before the Presidential Orders were issued under Article 341(1)
or under Article 342(1), elaborate enquiries were made and only
after such enquiries that the Presidential Orders were issued.
While doing so, the Presidential Orders not only provided that
even specified parts or groups of castes, races or tribes/tribal
community could be Scheduled Castes/Tribes in a particular State/
Union Territory but also made it clear that certain castes or tribes
or parts/groups thereof could be Scheduled Castes/Tribes only
in specified/particular areas/districts of a State/Union Territory.
The reason for such an exercise by reference to specific areas of
a State is that judged by standards of educational, social
backwardness, etc. races or tribes may not stand on the same
footing throughout the State. The consideration for specifying a
particular caste or tribe or class for inclusion in the list of Scheduled
Castes and Scheduled Tribes or
Backward Classes in any given
State depends on the nature and extent of the disadvantages and
social hardships suffered by the concerned members of the class
in that State. These may be absent in another State to which the
persons belonging to some other State may migrate.  The
Presidential Orders which enumerate lists of castes/races, tribes
recognized as ‘Scheduled Caste/Scheduled Tribe’ cannot be
challenged or agitated in a court of law except, perhaps, on the
limited ground. Whenever States’ reorganization had taken place
in the past, Parliament had exercised its powers under Article
341(2) and Article 342(2) and provided for specific Castes/Tribes
that were entitled to be recognised as Scheduled Castes and
Scheduled Tribes in relation to the reorganized States/Union
Territories. The Scheme of the Constitution (Scheduled Castes)
and (Scheduled Tribes) Orders makes it clear that Parliament’s
intention was to extend the benefits of reservation in relation to
the States/Union Territories only to the castes, races or tribes as
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mentioned in the Presidential Orders. [Paras 18-20] [543-E-G;
544-A; 545-C-D]
1.3 If the special privileges or the rights granted to
scheduled castes or scheduled tribes in a particular State are to
be made available in all the States and if such benefits are to be
carried from State ‘A’ to State ‘B’ on migration, the mandate of
Article 341/342 would get compromised. Such a consequence
must be avoided for it is a fundamental rule of interpretation, be
it of a statutory enactment or of the Constitution, that wherever
and whenever there is a conflict between two provisions, the same
should be so interpreted as to give effect to both. The issue has
to be viewed from another perspective.  If a member of a
Scheduled Caste/ Scheduled Tribe of Andhra Pradesh who had
migrated to Maharashtra is to be given the benefit of reservation
it will amount to depriving a member of a Scheduled Caste/
Scheduled Tribe of Maharashtra by reducing the reservation
earmarked for them. Therefore, it can be said that a person
belonging to a Scheduled Caste in one State cannot be deemed
to be a Scheduled Caste person in relation to any other State to
which he migrates for the purpose of employment or education.
The expressions “in relation to that State or Union Territory” and
“for the purpose of this Constitution” used in Articles 341 and 342
of the Constitution of India would mean that the benefits of
reservation provided for by the Constitution would stand confined
to the
geographical territories of a State/Union Territory in respect
of which the lists of Scheduled Castes/Scheduled Tribes have
been notified by the Presidential Orders issued from time to time.
A person notified as a Scheduled Caste in State ‘A’ cannot claim
the same status in another State on the basis that he is declared
as a Scheduled Caste in State ‘A’. [Paras 28-30] [550-B-D;
551-B-D]
1.4 The Presidential Orders issued under Article 341 in
regard to Scheduled Castes and under Article 342 in regard to
Scheduled Tribes cannot be varied or altered by any authority
including the Court.  It is the Parliament alone which has been
vested with the power to so act, that too, by laws made. Scheduled
Castes and Scheduled Tribes thus specified in relation to a State
or a Union Territory does not carry the same status in another
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State or Union Territory.  Any expansion/deletion of the list of
Scheduled Castes/Scheduled Tribes by any authority except
Parliament would be against the constitutional mandate under
Articles 341 and 342 of the Constitution of India.  Article 16(4) is
an enabling provision.  It enables the State to provide to backward
classes including Scheduled Castes and Scheduled Tribes
reservation in appointments to public services.  Such reservation
is to be provided on the basis of quantifiable data indicating the
adequacy or inadequacy, as may be, of the representation of such
classes in Government service.  The data which is the basis of
the satisfaction of the State being verifiable, is open to judicial
scrutiny on the limited ground of relevance of the circumstances
on which the satisfaction is moulded.  The policy decision to
provide reservation, of course, is beyond the pale of judicial
review. It is an unquestionable principle of interpretation that
interrelated statutory as well as constitutional provisions have
to be harmoniously construed and understood so as to avoid
making any provision nugatory and redundant.  If the list of
Scheduled Castes/Scheduled Tribes in the Presidential Orders
under Article 341/342 is subject to alteration only by laws made
by Parliament, operation of the lists of Scheduled Castes and
Scheduled Tribes beyond the classes or categories enumerated
under the Presidential Order for a particular
State/Union Territory
by exercise of the enabling power vested by Article 16(4) would
have the obvious effect of circumventing the specific constitutional
provisions in Articles 341/342.  In this regard, it must also be
noted that the power under Article 16(4) is not only capable of
being exercised by a legislative provision/enactment but also by
an Executive Order issued under Article 166 of the Constitution.
It will, therefore, be in consonance with the constitutional scheme
to understand the enabling provision under Article 16(4) to be
available to provide reservation only to the classes or categories
of Scheduled Castes/Scheduled Tribes enumerated in the
Presidential orders for a particular State/Union Territory within
the geographical area of that State and not beyond.  If in the opinion
of a State it is necessary to extend the benefit of reservation to a
class/category of Scheduled Castes/Scheduled Tribes beyond
those specified in the Lists for that particular State, constitutional
discipline would require the State to make its views in the matter
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prevail with the central authority so as to enable an appropriate
parliamentary exercise to be made by an amendment of the Lists
of Scheduled Castes/Scheduled Tribes for that particular State.
Unilateral action by States on the touchstone of Article 16(4) of
the Constitution could be a possible trigger point of constitutional
anarchy and therefore must be held to be impermissible under
the Constitution. [Paras 32-34] [553-A-H; 554-A-C]
1.5 The State Civil Services may be Administrative Services,
Forest Services etc. [illustratively, in case of Himachal Pradesh,
Himachal Pradesh Administrative Service (HPAS) is a type of
service, so is, Himachal Pradesh Forest Service (HPFS). The
recruitment to these services is conducted by way of Civil
Services Examinations organised by the State-specific Public
Service Commission. Persons inducted into the State Service of
a particular State cannot be transferred to any other State. These
officers are concerned with only the affairs of the state in which
they are appointed.  These services (like HPAS, HPFS) may, for
convenience, be called as Superior Services/Higher Services with
reference to a State.  But in addition to these higher services,
there are also services that may, again for convenience, be called
as Subordinate Services/Lower Level Jobs. The posts in these
services are like those of Clerks, School Teachers; Drivers,
Attendants, Safai Workers, etc.  For the purpose of recruitment
of Subordinate Servants,
States have in place State-specific
Selection Commissions. [Para 42] [557-B-D]
Dr. D.D. Basu in “Commentary on the Constitution of
India”  8th Edition, 2011, Volume 9, pp. 9858 and 9860
– referred to.
1.6  At the Federal Level, civil administration is carried out
by the members of – (1) All India Services (specifically provided
for in Article 312); (2) Central Civil Services (although, not
specifically provided for in the Constitution but are regulated by
creation of statutory Rules framed under the proviso to Article
309). These are again Superior Services and the selection/
recruitment is by the Union Public Service Commission. There
are three All India Services (AIS) – (a) Indian Administrative
Service (IAS); (b) Indian Forest Service (IFoS); (c) Indian Police
Service (IPS). Therefore, the members of the All India Services
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are common to the Union and the States and they serve, by turn,
both the Union and State Governments. The members of these
services although recruited by the Centre their services are
placed under various State cadres. [Paras 43, 44] [557-E-G;
559-B]
2.1 Though the members of the Central Civil Services
(CCS) are concerned only with the affairs of the Union/Centre
they discharge such duties in the offices and establishments of
the Union Government as may be located in the States and the
Union Territories. The Central Civil Services (Classification,
Control and Appeal) Rules, 1965 [CCS Rules, 1965] (enacted
under the proviso to Article 309) are the governing statutory
Rules with reference to these services. [Para 47] [560-F; 561-A]
2.2  Insofar as the services in connection with the affairs of
the Union is concerned (Central Services), wherever the
establishment may be located i.e. in the National Capital Territory
of Delhi or in a State or within the geographical areas of Union
Territory, recruitment to all positions is on an All India basis and
reservation provided for is again a pan- India reservation.  This
by itself, from one perspective, may appear to be in departure
from the rule set out in Part XVI of the Constitution of India
(Articles 341 and 342). However, such a position is fully in accord
with the constitutional structure of a federal polity.
[Para 56][565-D-E]
2.3 Subordinate services in the National
Capital Territory
of Delhi are clearly Central Civil Services. A combined reading
of the provisions of the Delhi Administration Subordinate Service
Rules, 1967’ (DASS Rules) and The Central Civil Services
(Classification, Control and Appeal) Rules, 1965 (CCS Rules,
1965) more than adequately explains the nature of Subordinate
Services in the NCT of Delhi.  These clearly are General Central
Services. [Paras 57, 58] [566-D, F]
3.  Accordingly, the question referred is answered in terms
of the views expressed in para 34 of this opinion. It is further
held that so far as the National Capital Territory of Delhi is
concerned the pan India Reservation Rule in force is in accord
with the constitutional scheme relating to services under the
Union and the States/Union Territories. [Para 61] [568-B]
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Bhaiya Lal v. Harikishan Singh  AIR 1965 SC 1557 :
[1965] 2 SCR  877 – followed.
State of Uttaranchal v. Sandeep Kumar Singh and
Others (2010) 12 SCC 794 ; Marri Chandra Shekhar
Rao v. Dean, Seth G. S. Medical College and Others
(1990) 3 SCC 130 : [1990] 2 SCR 843 ; Action
Committee on Issue of Caste Certificate to Scheduled
Castes and Scheduled Tribes in the State of Maharashtra
and Another v. Union of India and Another (1994) 5
SCC 244 : [1994] 1  Suppl. SCR  714 ; S. Pushpa and
Others v. Sivachanmugavelu and Others (2005) 3 SCC
1 : [2005] 1 SCR 1158 ; Subhash Chandra and Another
v. Delhi Subordinate Services Selection Board and
Others (2009) 15 SCC 458 : [2009] 12 SCR 978 ;
Central Board of Dawoodi Bohra Community and
Another v. State of Maharashtra and Another (2005) 2
SCC 673 : [2004] 6 Suppl. SCR 1054 ; M. Nagaraj
and Others v. Union of India and Others (2006) 8 SCC
212 : [2006] 7  Suppl. SCR 336 ;  M.C.D. v. Veena and
Ors. (2001) 6 SCC 571 : [2001] 1 Suppl.  SCR 493 ;
Dr. Jagdish Saran and Others v. Union of India
(1980) 2 SCC 768 : [1980] 2 SCR 831 – referred to.
Per R. Banumathi, J. (Partly Dissenting):
HELD: 1.1 A person belonging to Scheduled Caste/
Scheduled Tribe in State ‘A’ cannot claim the same status in
another State ‘B’ on the ground that he is declared as a Scheduled
Caste/Scheduled Tribe in State ‘A’.  The expressions “in relation
to that State or Union Territory” and “for the purpose of this
Constitution” used in Articles 341 and 342
of the Constitution of
India are to be meaningfully interpreted.  A given caste or tribe
can be a Scheduled Caste or a Scheduled Tribe in relation to that
State or Union Territory for which it is specified.  Thus, the person
notified as a Scheduled Caste in State ‘A’ cannot claim the same
status in another State on the basis that he was declared Scheduled
Caste in State ‘A’.  Article 16(4) has to yield to the Constitutional
mandate of Articles 341 and 342. [Para 29] [583-D-F]
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1.2 Article 341 empowers the President “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 Caste in relation to
that State or Union Territory as the case may be.”   Equally Article
342(1) empowers the President “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 or tribal
communities which shall for the purposes of the Constitution be
deemed to be Scheduled Tribes in relation to that State or Union
Territory, as the case may be”. Articles 341(2) and 342(2) of the
Constitution empower the Parliament alone by law to include or
exclude from the list of Scheduled Castes/Scheduled Tribes
specified by notification issued under Articles 341(1) and 342(1)
of the Constitution of India.  Until the Presidential Notification is
modified by appropriate amendment by Parliament in exercise of
the power under Articles 341(2) or 342(2) of the Constitution,
the Presidential Notification issued under Articles 341(1) and
342(1) of the Constitution is final and conclusive.  No caste or
group can be added to it or
subtracted by any action either by the
State Government or by a Court on adducing of evidence.  Articles
341 and 342 of the Constitution do not make any distinction
between a ‘State’ or ‘Union Territory’. [Para 32] [584-D-H]
1.3 The Union Territories are centrally administered by the
President acting through an administrator. Though the Union
Territories are centrally administered under the provisions of
Article 239, they do not become merged with the Central
Government. They are centrally administered; but they retain
their independent identity. The Union Territory does not entirely
lose its existence as an entity though large control is exercised
by the Union of India. [Para 36] [586-B, D-E]
1.4 In Pushpa’s case, the principle that “when members of
Scheduled Castes/Scheduled Tribes migrate to another State, they
do not carry with them the special privileges and advantages”, was
held not applicable in case of Union Territories. The observation
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in Pushpa’s case is not a correct view. Clause (2) of Article 341 of
the Constitution empowers Parliament alone by law to include or
exclude from the lists of Scheduled Castes specified in a
notification issued under clause (1) of Article 341.  No executive
action or order or modification or variance of the same is possible
and any such variance would be against the constitutional scheme.
In Pushpa’s case, the posts advertised were of Selection Grade
Teachers under the Pondicherry Services and not for Central
Government jobs. It may be that Pondicherry is a Union Territory;
but the posts/services exclusively coming under Pondicherry
administration is meant only for the Scheduled Castes/Scheduled
Tribes as notified under the Presidential Order for Pondicherry.
[Paras 37-39] [587-C; 588-D-F]
Whether there can be PAN India reservation of SCs and
STs to services under various Union Territories of India
2.1 Under Central Civil Services (Classification, Control
and Appeal) Rules, 1965 [CCS(CCA) Rules, 1965], there are four
categories of services namely:- (i) Central Civil Services, Group
A; (ii) Central Civil Services, Group B; (iii)Central Civil
Services, Group C; and (iv) Central Civil Services, Group D.
[Para 45] [592-B-C]
2.2  There is centralised recruitment conducted by UPSC
for the Central Civil Services in Group ‘A’ and Group ‘B’.  For
this centralised recruitment, applications are invited from
candidates across the country and Scheduled
Castes/Scheduled
Tribes of all the States/Union Territories are entitled to apply for
the reserved posts.  Recruitment to various posts in Group ‘A’
and Group ‘B’ (Gazetted) categories for services in States/Union
Territories are presently filled only through UPSC by centralised
recruitment.  After recruitment, the Group ‘A’ and Group ‘B’
officers are posted across the country wherever there are offices
of Central Government. [Paras 52] [599-F]
2.3 Since there is centralised recruitment conducted by
UPSC for Group ‘B’ (Gazetted), naturally applications are invited
from the candidates across the country including reserved
candidates of Scheduled Castes/Schedules Tribes from all the
States/Union Territories. Up to the level of Group ‘B’ (Gazetted)
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of Central Civil Services, since there is centralised recruitment
for which there is PAN INDIA reservation of Scheduled Castes
and Scheduled Tribes, Scheduled Castes/Scheduled Tribes from
any State/Union Territory are entitled to apply for the reserved
posts for Group ‘B’ examinations conducted by UPSC. When it
comes to services under Union Territories, there are so many
other services like teaching, clerical cadre, police services,
Medical Officers, Health Services, Stenographers, Typists,
services under the Revenue department, services under public-
sector undertakings, services under the municipalities and the
corporations in the Union Territories and various other services
which are concerned with the administration of Union Territories.
These services under the Union Territories would fall under
Group ‘B’, Group ‘C’ and Group ‘D’ and their recruitment is
within the exclusive domain of the respective Union Territories.
Though the government servants under the Union Territories
are governed by Central Civil Services Rules, the services under
the Union Territories are essentially different from All India
Services.  For recruitment to services under respective Union
Territories, there are different modes of recruitment for the
different Union Territories. [Paras 55, 56] [601-D-G]
2.4 When there are Presidential Orders notifying the
Scheduled Castes/Scheduled Tribes for Union Territories of
Chandigarh, Dadra and
Nagar Haveli, calling for application from
the Scheduled Castes/Scheduled Tribes candidates from all over
India for the reserved posts of services under various Union
Territories, be it Group ‘B’ or Group ‘C’, is not in accordance
with the constitutional scheme.  For Group ‘B’ and Group ‘C’
posts falling within the services of the Union Territories,
recruitment is made by the Staff Selection Board of respective
Union Territories.  Even assuming that there is such PAN India
reservation for recruitment of Group ‘B’ conducted by the Union
Territory of Daman and Diu, when there are Scheduled Castes/
Scheduled Tribes as notified in the Presidential Order
(Reorganisation Act, 1987 in respect of SCs/STs), there cannot
be PAN India reservation as it is not in accordance with the
constitutional scheme. [Paras 57-59] [602-G; 603-A, F]
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2.5 The subordinate services in the National Capital
Territory of Delhi though “Central Civil Services”, they are
neither All India Services nor services under Union of India so
as to attract Pan India Reservation. For recruitment of other
employees in the Union Territory of Delhi, there is Delhi
Administrative Subordinate Services (DASS) and the recruiting
agency is Delhi Subordinate Staff Selection Board (DSSSB).
Members of Delhi Administrative Subordinate Services are stated
to be the feeder cadre for Central Civil Services – Group ‘B’
(DANICS). Merely because members of Delhi Administrative
Subordinate Services are the feeder category for DANICS, PAN
India reservation cannot be extended to Delhi Subordinate
Services or to services under various Union Territories.
Likewise, merely because, DANICS and DANIPS are the feeder
category for IAS and IPS, it cannot be said that the Pan India
Reservation is applicable to services under National Capital
Territory of Delhi.  So far as Group ‘B’ and Group ‘C’ posts falling
under the services of the Union Territories, recruitment is done
by the respective Staff Selection Board of respective Union
Territories.  Merely because the posts in the Union Territories
and the appointing authority are shown in Group ‘C’ in CCS (CCA)
Rules, that does not mean that those Group ‘C’ and Group ‘D’
posts are available for the Scheduled Castes and Scheduled Tribes
of all the States/Union Territories. For recruitment of Group ‘B’
and Group ‘C’ posts of services under the respective Union
Territories, since the examination is conducted by the respective
Union Territories like Delhi Subordinate Staff Selection Board
and other Union Territories Staff Selection Boards of respective
Union Territories, reservation of posts of Scheduled Castes/
Scheduled Tribes must be confined only to those Scheduled
Castes/Scheduled Tribes as notified in the Presidential Order of
the respective Union Territories. For recruitment of Group ‘B’
and Group ‘C’ posts under various Union Territories including
Union Territory of Delhi, there cannot be PAN INDIA reservation
of Scheduled Castes/Scheduled Tribes, lest, it would defeat the
very object of the Presidential Orders issued specifying the
Scheduled Castes/Scheduled Tribes for respective Union
Territories. Services under the Union Territories though they
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are Central Government services, they are services under the
respective Union Territories and not under the direct control of
Union of India/different Ministries. [Paras 61-64] [604-G, H;
605-A-H]
2.6 Procedure for recruitment to the various posts for the
services of Union Territories are different as followed by
respective Union Territories.  The persons appointed for the
services of Union Territories might be governed by CCS (CCA)
Rules; but they are employees of respective Union Territories.
The appointing authorities are the authorities under the
administration of Union Territories and not under the Ministries
of Union of India.  Central Civil Services are the services directly
under Union of India. Contrarily, various services under the Union
Territories are the services under the respective Union
Territories.  Such services under Union Territories cannot be
said to be Central Civil Services that is services under Union of
India to extend the benefit of PAN India reservation for
recruitment to the services under respective Union Territories
including Union Territory of Delhi. [Para 64] [605-H; 606-A-C]
2.7 In exercise of the powers conferred by clause (1) of
Article 341, the President issued the Constitution (Scheduled
Castes) Union Territories Order, 1951 in the Presidential Order
specifying Scheduled Castes in relation to Delhi and the thirty-
six castes/groups were notified. In relation to Delhi, there are
thirty-six castes notified as Scheduled Castes in the Presidential
Order.  The members of the Scheduled Castes in Delhi are drawn
from castes, races and by virtue of the Presidential Order
pertaining to Delhi, they attain the status of the Scheduled Caste.
In view of the Presidential Order issued for the Scheduled Castes
to Delhi, only those Scheduled Castes can claim the benefit of
reservation in the employment under the Union Territory of Delhi
who are notified in the Presidential Order.  Neither the Delhi
Government nor the court can add any caste or group to the list
of Scheduled Castes notified in the Presidential Order. Once a
Presidential Order has been issued under Article 341(1) of the
Constitution, any addition or deletion to the Presidential Order
can only be made by the Parliament by law as provided under
Article 341(2) and in no other manner.  Merely because, Delhi
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Subordinate Services is a feeder category for DANICS, there
cannot be Pan India Reservation of the SCs and STs for the
services under Group ‘C’ and ‘D’ categories, for which
recruitment are made by the Delhi Subordinate Staff Selection
Board (DSSSB).  Likewise, the Presidential Order has notified
the Scheduled Castes for the Union Territory of Chandigarh,
Daman and Diu, Puducherry and Dadra and Nagar Haveli.
[Paras 65, 66] [606-C; 607-A-E]
2.8 The Constitution (Andaman and Nicobar Islands)
Scheduled Tribes Order, 1959 notified the tribes or tribal
communities who have been included in the Schedule for the
Andaman & Nicobar Islands. When Andaman & Nicobar Islands
is recruiting persons to the services of Group ‘B’, ‘C’ and ‘D’
under its administration, it has to necessarily follow the policy of
recruiting members from amongst the Scheduled Tribes who are
notified as Scheduled Tribes in the Presidential Notification for
Andaman and Nicobar Islands.  It will not be appropriate to extend
the benefit of reservation to the SCs and STs from other States/
Union Territories, lest it would deprive the notified Scheduled
Tribes of the Andaman and Nicobar Islands. It may be that the
candidates recruited by the respective Union Territories for
Group ‘B’ and Group ‘C’ may become the feeder categories for
further promotion in Group ‘A’ and Group ‘B’ of All India Services
respectively in the Central Civil Services. The fact that the
candidates who are recruited by the
respective Union Territories
become the feeder categories for further promotion in the Central
Civil Services is not a ground for extending the benefit of all
India reservation to the Scheduled Castes/Scheduled Tribes for
the reserved posts in the respective Union Territories.  Be it
noted that the candidates recruited by the various State
Governments under Group ‘A’ of respective State services
become the feeder category for IAS and IPS. The persons
recruited for Group ‘B’ and Group ‘C’ by the respective Union
Territories stand on the same footing as that of the candidates so
recruited by the various States where only the Scheduled Castes/
Scheduled Tribes of the respective States can apply. Extending
PAN India reservation for the reserved posts recruited by NCT
of Delhi or any other Union Territories is against the Presidential
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Orders issued under Articles 341 and 342 of the Constitution of
India and against the constitutional scheme. In case of Union
Territories, though administrative control to certain extent is
exercised by the Union of India, Union Territories do not lose
their identity as an entity.  The existing practice of PAN INDIA
reservation followed in Delhi and Chandigarh is against the
constitutional scheme and also against the executive instructions
dated 06.08.1984 and 22.02.1985 issued by the Ministry of Home
Affairs.  [Paras 67, 68, 70 and 71] [609-A, D-G; 611-G-H; 612-A]
2.9  If PAN India reservation is to be extended to the Union
Territories like Delhi, Chandigarh, Puducherry, Andaman &
Nicobar Islands or Daman & Diu for Group ‘C’ and ‘D’ services
for which recruitment are made by the respective Union
Territories, the very object of the Constitutional Scheme of
upliftment of the SCs/STs of these Union Territories will be
defeated.  All India reservation to the services under the Union
Territories including the Union Territory of Delhi will be against
the mandate of Articles 341 and 342 of the Constitution and against
the Constitutional Scheme.  Marri Chandra Shekhar Rao and Action
Committee are applicable to the States and they are applicable
with equal force to the Union Territories including Union Territory
of Delhi. There cannot be any distinction between the States and
the Union Territories. Likewise, there can be no
distinction
between Union Territory of Delhi and other Union Territories.
When Presidential Orders of Scheduled Castes/Scheduled Tribes
are notified for various Union Territories including Union
Territory of Delhi extending PAN India reservation to the
employment falling under the services of Union Territories
including Union Territory of Delhi, will be against the
Constitutional scheme and the law laid down in Marri Chandra
Shekhar Rao and Action Committee. Article 
16(4) 
of 
the
Constitution has to yield to the constitutional mandate of Articles
341 and 342 of the Constitution. The Presidential Order issued
under Article 341 in regard to Scheduled Castes and Article 342
in regard to Scheduled Tribes cannot be varied by anyone or by
the Court.  Only the Parliament by law include or exclude from
the list of Scheduled Castes or Scheduled Tribes specified in the
notification issued under Article 341 (1) and Article 342(1)
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respectively any caste, race or tribe or parts or group within any
caste, race or tribe.  The Scheduled Castes or Scheduled Tribes
thus specified in relation to one State or Union Territory does
not carry the status in another State or Union Territory. When
the Scheduled Castes or Scheduled Tribes are specified for each
State in relation to one State or Union Territory, neither the State
legislature, the administration of the Union Territories and nor
the courts can include or exclude other Scheduled Castes or
Scheduled Tribes so notified in the Presidential Order.  Providing
all India reservation to the services of Union Territories including
Union Territory of Delhi, would be against the mandate of Articles
341 and 342 and the Presidential Orders issued thereon. If that
is permitted, it would amount to addition or alteration of the
Presidential Order which is impermissible and violative of the
Constitutional Scheme. [Paras 72-74] [612-C-G; 613-A-C]
3. It is the responsibility of each State/Union Territory to
provide for such reservation/affirmative action by positive
discretion to bring backward classes/Scheduled Castes and
Scheduled Tribes in the respective States/areas to provide socio-
economic empowerment. If the reservation to the Scheduled
Castes and Scheduled Tribes are to be extended to all categories
of Scheduled Castes and Scheduled Tribes all over India or to
the migrants then there is every possibility of the Scheduled
Castes and Scheduled
Tribes of other developed States and Union
Territories squandering reservations to the Scheduled Castes
and Scheduled Tribes who are disadvantaged in the respective
States/Union Territories including Union Territory of Delhi.  If
this is permitted, it would defeat the very object of providing
reservation to the disadvantaged Scheduled Castes and Scheduled
Tribes in a particular State or Union territory. The enabling
provision of Article 16(4) of the Constitution has to yield to the
constitutional scheme of Article 341 and Article 342 of the
Constitution. [Para 75] [613-D-F]
4. In conclusion, it is held as follows-
(i) Insofar as the States, the majority view is agreed with
that a person who is recognised as a member of Scheduled Castes/
Scheduled Tribes in his original State, will be entitled to all the
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benefits of reservation under the Constitution in that State only
and not in other States/Union Territories and not entitled to the
benefits of reservation in the migrated State/Union Territory.
(ii) Marri Chandra Shekhar Rao and Action Committee are
applicable to the States and they are applicable with equal force
to the Union Territories including Union Territory of Delhi. There
cannot be any distinction between the States and the Union
Territories. Likewise, there can be no distinction between Union
Territory of Delhi and other Union Territories.  When
Presidential Orders of Scheduled Castes/Scheduled Tribes are
notified for various Union Territories including Union Territory
of Delhi extending PAN India reservation to the employment
falling under the services of Union Territories including Union
Territory of Delhi, will be against the Constitutional scheme and
the law laid down in Marri Chandra Shekhar Rao and Action
Committee.
(iii) Since there is centralised recruitment upto Group ‘B’
(Gazetted) services conducted by UPSC for the Central Civil
Services posts in the States/Union Territories of India, there has
to be necessarily PAN India reservation for Scheduled Castes/
Scheduled Tribes for those recruitment conducted by UPSC.
Sofaras Group ‘B’ and Group ‘C’ posts falling under services of
Union Territories including Union Territory of Delhi for which
recruitment is conducted by the respective Union
Territories,
benefit of reservation in employment (Article 16(4) is to be
extended only to those Scheduled Castes/Scheduled Tribes
specified in the Presidential Order of the respective Union
Territories.  Insofar as the posts recruited by the Staff Selection
Board of the respective Union Territories including the Union
Territory of Delhi, there cannot be PAN India reservation for
Group ‘B’, Group ‘C’ and Group ‘D’ posts falling under the
services of various Union Territories and such PAN India
reservation would be against the constitutional scheme and Marri
Chandra Shekhar Rao and Action Committee. [Para 76]
[613-G: 614-A-C, D-F]
S. Pushpa and Ors. v. Shivachanmugavelu and Ors.
(2005) 3 SCC 1 : [2005] 1 SCR 1158 ; Chandigarh
Administration and Another v. Surinder Kumar and
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Others (2004) 1 SCC 530 : [2003] 6 Suppl.  SCR 283
– held not correct view.
Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical
College and Ors. (1990) 3 SCC 130 : [1990] 2 SCR
843 ; Action Committee on issue of caste certificate to
Scheduled Castes and Scheduled Tribes in the State of
Maharashtra and Anr. v. Union of India and Anr. (1994)
5 SCC 244 : [1994] 1 Suppl. SCR 714 – followed.
State of Maharashtra v. Milind and Ors. (2001) 1
SCC 4 : [2000] 5 Suppl.  SCR  65 ; New Delhi Municipal
Council v. State of Punjab & Ors. (1997) 7 SCC 339 :
[1996] 10 Suppl. SCR  472 ; Satya Dev Bushahri v.
Padam Dev and Ors. AIR 1954 SC 587: [1955]  SCR
549 ; Chandigarh Administration and Anr. v. Surinder
Kumar and Ors. (2004) 1 SCC 530 : [2003] 6 Suppl.
SCR 283; Government of NCT Delhi v. All India Central
Civil Accounts, Jao’s Association and Ors. (2002) 1 SCC
344 : [2001] 3 Suppl. SCR 494 ; Subhash Chandra
and Another v. Delhi Subordinate Service Selection
Board and Others (2009) 15 SCC 458 : [2009] 12  SCR
978 – relied on.
State of Uttaranchal v. Sandeep Kumar Singh and Ors.
(2010) 12 SCC 794 ; Bhaiya Lal v. Harikishan Singh
AIR 1965 SC 1557 : [1965] 2 SCR  877 ; E. P. Royappa
v. State of Tamil Nadu and Anr. (1974) 4 SCC 3 :
[1974] 2 SCR  348 ; Indra Sawhney and Ors. v. Union
of India and Ors. (1992) 3 Suppl. SCC 217 : [1992] 2
Suppl. SCR  454 ; Chattar Singh and Ors. v. State of
Rajasthan and Ors. (1996) 11 SCC 742 : [1996] 6
Suppl. SCR 696 ; State of Kerala and
Anr. v.
N.M. Thomas and Ors. (1976) 2 SCC 310 : [1976] 1
SCR  906 ; Shree  Surat  Valsad  Jilla  K.M.G.  Parishad
v. Union of India and Ors. (2007) 5 SCC 360 :  [2007]
6 SCR 257; Puducherry Scheduled Caste People
Welfare Association v. Chief Secretary to Government,
Union Territory of Pondicherry and Ors. (2014)  9 SCC
236 – referred to.
Commentary on the Constitution of India 8th Edition by
Durga Das Basu, pp.44 & 53 – referred to.
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Case Law Reference
In the Judgment of Ranjan Gogoi, J. (for himself, N. V. Ramana,
Mohan M. Shantanagoudar and  S. Abdul Nazeer, JJ.]
(2010) 12 SCC 794
  referred to
Para 2
[1990] 2 SCR 843
  referred to
Para 3
[1994] 1 Suppl. SCR 714          referred to
Para 3
[2005] 1 SCR 1158
              referred to
Para 3
[2009] 12 SCR 978
  referred to
Para 3
[2004] 6 Suppl. SCR 1054       referred to
Para 3
[2006] 7 Suppl. SCR 336          referred to
Para 19
[1965] 2 SCR 877
              followed
Para 19
[2001] 1 Suppl. SCR 493          referred to
Para 22
[1980] 2 SCR 831
              referred to
Para 59
In the Judgment of R. Banumathi, J.
(2010) 12 SCC 794
  referred to
Para 2
[1965] 2 SCR 877
  referred to                Para 11
[1974] 2 SCR 348
  referred to
Para 16
[1992] 2 Suppl. SCR 454
  referred to
Para 17
[1996] 6 Suppl. SCR 696         referred to
Para 18
[1976] 1 SCR 906
  referred to
Para 19
[1990] 2 SCR 843
  followed
Para 20
[1994] 1 Suppl. SCR 714          followed
Para 22
[2000] 5 Suppl. SCR  65           relied on
Para 25
[2007] 6 SCR 257
              referred to
Para 26
[1996] 10 Suppl. SCR 472        relied on
Para 36
[1955] SCR 549
              relied on
Para 36
[2003] 6 Suppl. SCR 283          relied on
Para 36
[2001] 3 Suppl. SCR 494          relied on
Para 36
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[2005] 1 SCR 1158             held not correct view
 Para 37
(2014) 9 SCC 236               referred to
 Para 39
[2003] 6 Suppl. SCR 283    held not correct view      Para 41
[2009] 12 SCR 978
        relied on
             Para 60
CIVIL APPELLATE JURISDICTION :  Civil Appeal No. 1085
of 2013.
From the Judgment and Order dated 12.09.2012 of the High Court
of Delhi at New Delhi in Writ Petition (Civil) No. 1513 of 2011
WITH
Civil Appeal Nos. 9935-9937, 10081 and 8141 of 2014, Civil Appeal
No. 8802 of 2012, Civil Appeal No. 1086 of 2013 and Civil Appeal
No. 9048 of 2018.
P. S. Narasimha, ASG, Ms. V. Mohana, Krishnan Venugopal,
K. Radhakrishna,  Colin Gonsalves, Ms. Geeta Luthra, Sr. Advs.,
Ms. Rekha Pandey, Ms. Rashmi Malhotra, Ravindera Kumar Verma,
B. V. Balaram Das,  V. C. Shukla, M. K. Maroria,  S. Chatterjee,
Ms. Asha Gopalan Nair, Ms. Nivedita Nair,  Ms. Dimple Nagpal,
Shivendra Singh,    Ms. Deepanshi Ishar, Ravindera Kumar Verma, Raj
Bahadur,  Ms. Aditi Gupta, Ms. Jyoti Mendiratta, Ujjwal Jain, Prateek
Yadav,   D. N. Goburdhan, Pranav Vashishtha,  Pranav Malhotra,
Ms. Supriya Juneja, Ms. Pallavi Chopra, Sudhanshu S. Choudhari,
Ms. Jaikriti S. Jadeja, Shakul R. Ghatole, Ms. Surabhi Guleria,  Sushil
Karanjkar, Nishant Ramakantrao Katneshwarkar, Dr. Krishan Singh
Chauhan,  Ajit Kumar Ekka, Ravi Prakash, R. S. M. Kalky, Chand Kiran,
Aurneshwar Gupta, Varun Dewan, Bijan Kumar Ghosh, Naresh Kaushik,
Vardhaman Kaushik, Nishant Gautam, Manoj Joshi, Omung
Raj Gupta,
Devik. Singh, K. Deo Baghel, Ms. Lalita Kaushik, Abhinav Mukerji,
Praneet Ranjan, Bankey Bihari Sharma, Bhupesh Narula,
K. V. Jagdishvaran, Ms. G. Indira, Gaurav Agrawal, P. Parmeswaran,
Mrs. Anil Katiyar, Ajay Bansal, Praveen Swarup, Gaurav Yadava,
Ms. Veena Bansal, Ms. Sushma Suri, B. Krishna Prasad,  Annam D. N.
Rao, Annam Venkatesh, Sudipto Sircar, Rahul Mishra, Ms. Tulika Chikker,
Ms. Binu Tamta, Jatinder Kumar Bhatia, Manish Kumar, Advs. for the
appearing parties.
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The Judgment of the Court was delivered by
RANJAN GOGOI, J. 1. Leave granted in Special Leave Petition
(Civil) No.36324 of 2017.
2. In State of Uttaranchal vs. Sandeep Kumar Singh and
others1 (Civil Appeal No.4494 of 2006) the following question arose for
consideration of this Court:
“Whether a person belonging to a Scheduled Caste in relation to a
particular State would be entitled or not, to the benefits or
concessions allowed to Scheduled Caste candidate in the matter
of employment, in any other State?”
3. In the course of the deliberations that took place this Court
noticed the Constitution Bench judgments of this Court in Marri Chandra
Shekhar Rao vs. Dean, Seth G.S. Medical College and others2and
Action Committee on Issue of Caste Certificate to Scheduled Castes
and Scheduled Tribes in the State of Maharashtra and another vs.
Union of India and another3.  The view of a three Judge Bench of
this Court in S. Pushpa and others vs. Sivachanmugavelu and others4
was also noticed and the same was perceived to be somewhat contrary
to the view expressed by the Constitution Bench in the above two cases.
This Court also took note of the fact that a two judge Bench of this
Court in Subhash Chandra and another vs. Delhi Subordinate Services
Selection Board and others5 held that the dicta in S. Pushpa (supra) is
an obiter and does not lay down any binding ratio.  The Bench hearing
the case i.e. State of Uttaranchal vs.
Sandeep Kumar Singh and others
(supra) took the view that “it was not open to a two judge Bench to
say that the decision of a three judge Bench rendered following the
Constitution Bench judgments to be per incuriam”.  In this regard,
the canons of judicial discipline carved out by this Court in Central Board
of Dawoodi Bohra Community and another vs. State of Maharashtra
and another6 were recalled and eventually in paragraph 13 of the opinion
rendered in State of Uttaranchal vs.Sandeep Kumar Singh and others
(supra) the reference of the question noted below was made to a larger
Bench:
1(2010) 12 SCC 794
2(1990) 3 SCC 130
3(1994) 5 SCC 244
4(2005) 3 SCC 1
5(2009) 15 SCC 458
6(2005) 2 SCC 673
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“13. A very important question of law as to interpretation of Articles
16(4), 341 and 342 arises for consideration in this appeal. Whether
the Presidential Order issued under Article 341(1) or Article 342(1)
of the Constitution has any bearing on the State’s action in making
provision for the reservation of appointments or posts in favour of
any Backward Class of citizens which, in the opinion of the State,
is not adequately represented in the services under the State?
The extent and nature of interplay and interaction among Articles
16(4), 341(1) and 342(1) of the Constitution is required to be
resolved.”
4. The said Civil Appeal No.4494 of 2006 (State of Uttaranchal
vs. Sandeep Kumar Singh and others) was disposed of by the larger
Bench of this Court by order dated 6th August, 2014, in the light of the
findings of the High Court recorded in paragraph 4 of the High Court
order to the effect that the order impugned suffers from an apparent
illegality as the appointing authority of the petitioner therein is the
University and the University had acted at the dictate of the State
Government, which has no power to ask for cancellation of an
appointment made in accordance with the advertisement.  In the aforesaid
order dated 6th August, 2014 this Court took the view that the conclusions
recorded in paragraph 4 of the High Court order cannot be said to be
legally flawed and accordingly closed the said Civil Appeal (No. 4494 of
2006) on the aforesaid basis. The
question referred was not answered.
5. However, the question arising and referred to in the State of
Uttaranchal vs. Sandeep Kumar Singh and others (supra) was felt to
be surviving and subsisting in the present appeals also.  Accordingly, by
an order of the Court dated 7th August, 2014, the very same question as
formulated in paragraph 13 of the judgment in State of Uttaranchal
vs.Sandeep Kumar Singh and others(supra), as extracted above, has
been referred for an answer by a five judge Bench of this Court.  That
is how we are in seisin of the matters.
6. The factual matrix need not detain us and a brief resume will
suffice.
The question as to whether a policy in furtherance of the enabling
provision contained in Article 16(4) of the Constitution of India could
extend to giving of benefits beyond the Scheduled Castes and Scheduled
BIR SINGH  v. DELHI JAL BOARD & ORS.
[RANJAN GOGOI, J.]
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Tribes of a State/Union Territory enumerated in the Presidential Orders
framed/issued under Articles 341 and 342 of the Constitution of India
had arisen in the bunch of writ petitions filed before the High Court of
Delhi against the order/orders of the Central Administrative Tribunal.
The learned Tribunal following Marri Chandra Shekhar Rao(supra) and
Action Committee(supra), in preference to the view expressed in S.
Pushpa (supra) (three judge Bench) held that insofar as the Union
Territory of Delhi is concerned, a migrant Scheduled Caste person would
not be entitled to the benefits conferred on members of the Scheduled
Castes enumerated in the list for the Union Territory of Delhi by the
Presidential Order (i.e. the Scheduled Castes and Scheduled Tribes Lists
(Modification) Order, 1956) in question.  The Delhi High Court sitting in
a Full Bench (perhaps in view of the importance of the question) found
the decision in S. Pushpa (supra) to be more directly relatable to the
issue at hand i.e. being one of services in the Union Territory and, therefore,
felt to be bound by the decision of the three judge Bench of this Court in
S. Pushpa (supra).  While doing so, the Delhi High court in paragraph
66 of the judgment emphasised on the necessity of an authoritative
pronouncement on the issue(s) arising.  Accordingly, certificate to appeal
under Article 134-A of the Constitution was granted by the High Court.
Paragraph 66
of the judgment of the Full Bench of the Delhi High Court
will require a specific notice and is, therefore, reproduced below:
“66. This court summarizes its conclusions, as follows: (1) The
decisions in Marri, Action Committee, Milind and Channaiah have
all ruled that scheduled caste and tribe citizens moving from one
State to another cannot claim reservation benefits, whether or not
their caste is notified in the state where they migrate to, since the
exercise of notifying scheduled castes or tribes is region (state)
specific, i.e “ in relation” to the state of their origin. These
judgments also took note of the Presidential Notifications, which
had enjoined such citizens to be “residents” in relation to the state
which provided for such reservations.
(2) The considerations which apply to Scheduled Caste and Tribe
citizens who migrate from state to state, apply equally in respect
of those who migrate from a state to a union territory, in view of
the text of Articles 341 (1) and 342 (1), i.e. only those castes and
tribes who are notified in relation to the concerned Union
Territory, are entitled to such benefits. This is reinforced by the
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Presidential Notification in relation to Union Territories, of 1951.
Only Parliament can add to such notification, and include other
castes, or tribes, in view of Articles 341 (2), Article 342(2) which
is also reinforced by Article 16(3).  States cannot legislate on this
aspect; nor can the executive - Union or state, add to or alter the
castes, or tribes in any notification in relation to a state or Union
Territory, either through state legislation or through policies or
circulars. Differentiation between residents of states, who
migrate to states, and residents of states who migrate to Union
Territories would result in invidious discrimination and
over-classification thus denying equal access to reservation
benefits, to those who are residents of Union Territories, and whose
castes or tribes are included in the Presidential Order in respect
of such Union Territories. The Pushpa interpretation has led to
peculiar consequences, whereby:
(i) The resident of a state, belonging to a scheduled caste, notified
in that state, cannot claim reservation benefit, if he takes up
residence in another state, whether or not his caste is included in
the latter State’s list of scheduled castes;
(ii) However, the resident of a state who moves to a Union
Territory would be entitled to carry his reservation benefit, and
status as member of scheduled caste, even if his caste is not
included as a scheduled caste, for that Union Territory;
(iii) The resident of a Union
Territory would however, be denied
the benefit of reservation, if he moves to a State, because he is
not a resident scheduled caste of that State.
(iv) The resident of a Union Territory which later becomes a State,
however, can insist that after such event, residents of other states,
whose castes may or may not be notified, as scheduled castes,
cannot be treated as such members in such newly formed states;
(v) Conversely, the scheduled caste resident of a state which is
converted into a Union Territory, cannot protest against the
treatment of scheduled caste residents of other states as
members of scheduled caste of the Union Territory, even though
their castes are not included in the list of such castes, for the
Union Territory.
BIR SINGH  v. DELHI JAL BOARD & ORS.
[RANJAN GOGOI, J.]
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(3) The ruling in Pushpa is clear that if the resident of a state,
whose caste is notified as Scheduled caste or scheduled tribe,
moves to a Union Territory, he carries with him the right to claim
that benefit, in relation to the Union Territory, even though if he
moves to another state, he is denied such benefit (as a result of
the rulings in Marri and Action Committee). The ruling in Pushpa,
being specific about this aspect vis-à-vis Union Territories, is
binding; it was rendered by a Bench of three judges. (4) The later
ruling in Subhash Chandra doubted the judgment in Pushpa,
holding that it did not appreciate the earlier larger Bench
judgments in the correct perspective. Yet, Subhash Chandra
cannot be said to have overruled Pushpa, since it was rendered
by a smaller Bench of two judges. This approach of Subhash
Chandra has been doubted, and the question as to the correct
view has been referred to a Constitution Bench in the State of
Uttaranchal case.
(5) By virtue of the specific ruling applicable in the case of Union
Territories, in Pushpa, whatever may be the doubts entertained as
to the soundness of its reasoning, the High Courts have to apply
its ratio, as it is by a formation of three judges; the said decision
did notice the earlier judgments in Marri and Action Committee.
Article 141 and the discipline enjoined by the doctrine of
precedent compels this Court to follow the Pushpa ruling.
(6) In matters
pertaining to incidence of employment, such as
seniority, promotion and accelerated seniority or promotional
benefits, flowing out of Articles 16 (4A) and (4B) of the
Constitution, there may be need for clarity, whichever rule is
ultimately preferred - i.e the Pushpa view or the Marri and Action
Committee view. In such event, it may be necessary for the
guidance of decision makers and High Courts, to spell out whether
the correct view should be applied prospectively. Furthermore, it
may be also necessary to clarify what would be meant by
prospective application of the correct rule, and whether such
employment benefits flowing after recruitment, would be altered
if the Marri view is to be preferred.”
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7.  Civil Appeal Nos.9935-9937 of 2014 from the decision of the
Calcutta High court pertain to claims made by persons belonging to Uraons
and Mundas members of the Scheduled Tribes communities who have
migrated to the Union Territory of Andaman & Nicobar Island.  The
High Court rejected the claim of reservation made by the aforesaid
migrants Scheduled Tribes communities confining such benefits to the
Scheduled Castes communities enumerated in the list appearing in the
Presidential Order pertaining to the Union Territory of Andaman &
Nicobar Island.
8. Before delving into the constitutional provisions which would
be necessary to be dealt with for answering the reference a brief look at
the pre-constitutional position on the issue would throw considerable
light and provide a sound insight to the multi-faceted questions that the
reference has given rise to.
9. The caste system in India, which is the bane of a just social
order, has a long history which can be traced to the earliest times.  Ancient
Hindu religious scriptures refer to the practice. Division of Society based
on birth and the calling/profession of a person has continued to dominate
Hindu thinking and way of life and is perhaps one of the thorny problems
inherited by the British Administration which had tried to resolve the
same by giving legal recognition to what came to be termed as the
“depressed classes”.  Such recognition was in the form of a protective
regime which extended to
representation in the Legislature and in the
services under the State.  Exercises in finding out the numerical strength
of the depressed class in the early 20th Century (By Southborough
Committee) revealed a grim picture indicating such number to be as
high as 20 per cent of the majority population (Hindu) in eight (08) Indian
Provinces of Madras, Bombay, Bengal, United Provinces, Punjab, Bihar
and Orissa, Central Provinces and Assam.  The above figure did not
include primitive or aboriginal tribes who later came to be known as the
Scheduled Tribes and included in the list of Scheduled Tribes under the
different Presidential Orders issued from time to time.
10. The Government of India Act, 1935 (hereinafter referred to
as “1935 Act”) (also referred to as “the Constitution Act”) brought into
force the expression “Scheduled Castes” for the first time in Indian
Constitutional history.  Entry 26 Part I of the First Schedule to the 1935
BIR SINGH  v. DELHI JAL BOARD & ORS.
[RANJAN GOGOI, J.]
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Act stipulates that “the Scheduled Castes mean such castes, races or
tribes or parts of or groups within the castes, races or tribes, being
castes, races, tribes, parts or groups, which appear to His Majesty
in Council to correspond to the classes of persons formerly known
as ‘the depressed classes’, as His Majesty in Council may specify”.
11. Thereafter a Gazette Notification was published on 6th June,
1936 promulgating the Government of India (Scheduled Castes) Order,
1936 notifying the list of castes that are to be considered as “the Scheduled
Castes” across the territory of India.  A look at the Schedule which
consisted of nine (09) parts i.e. Madras, Bombay, Bengal, United
Provinces, Punjab, Bihar, Central Provinces, Assam, Orissa would indicate
that identification of the different castes for inclusion as Scheduled Castes
in the Schedule to the 1935 Act was based on an elaborate exercise
conducted for each of the Provinces so much so that while some castes
have been identified as Scheduled Castes throughout a Province, others
have been so identified to limited areas within a province.  The post
constitutional exercise by the Constitution (Scheduled Castes) Order,
1950 and the Constitution (Scheduled Tribes) Order, 1950, as originally
enacted under Articles 341 and 342 of the Constitution, was basically an
exercise in re-casting the Schedule to the 1935 Act.  The subsequent
amendments to the aforesaid two Orders,
from time to time, have been
necessitated to bring the position in tune with the amendments to the
First Schedule to the Constitution made at different points of time by
creation of new States and alterations in the area and boundaries of
existing States.
12.  Article 366 of the Constitution which defines expressions
appearing in the Constitution specifically defines ‘Scheduled Castes’
[clause (24)] to mean “such castes, races or tribes or parts of or
groups within such castes, races or tribes as are deemed under
Article 341 to be Scheduled Castes for the purposes of this
Constitution”. Similarly, clause (25) of Article 366 defines “Scheduled
Tribes” to mean “such tribes or tribal communities or parts of or
groups within such tribes or tribal communities as are deemed under
Article 342 to be Scheduled Tribes for the purposes of this
Constitution”.
13.  Part XVI of the Constitution of India deals with special
provisions relating to certain classes.  Article 330 provides for reservation
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of seats for Scheduled Castes and Scheduled Tribes in the House of the
People (Lok Sabha) whereas Article 332 contains similar provisions so
far as the Legislative Assemblies of the States are concerned.  Article
335 of the Constitution provides that “the claims of the members of the
Scheduled Castes and Scheduled Tribes shall be taken into
consideration, consistently with the maintenance of efficiency of
administration, in the making of appointments to services and posts
in connection with the affairs of the Union or of a State”.  By the
Constitution (Eighty-Second) Amendment Act, 2000 a proviso to Article
335 was added to provide that the members of the Scheduled Castes
and Scheduled Tribes may be granted relaxation in qualifying marks in
any examination or standards of evaluation can be lowered in matters of
promotion to any class or classes of services or posts in connection with
the affairs of the Union or of a State. Article 338 of the Constitution
provides for a National Commission for Scheduled Cates which is invested
with the following duties:
“(a) to investigate and monitor all matters relating to the safeguards
provided for the Scheduled Castes under this Constitution or under
any other law for the time being in force or under any order of the
Government and to evaluate the working of such safeguards;
(b) to inquire into specific complaints with respect to the deprivation
of rights and safeguards of the Scheduled Castes;
(c) to participate and
advise on the planning process of socio-
economic development of the Scheduled Castes and to evaluate
the progress of their development under the Union and any State;
the Scheduled Castes and to evaluate the progress of their
development under the Union and any State;
(d) to present to the President, annually and at such other times
as the Commission may deem fit, reports upon the working of
those safeguards; deem fit, reports upon the working of those
safeguards;
(e) to make in such reports recommendations as to the measures
that should be taken by the Union or any State for the effective
implementation of those safeguards and other measures for the
protection, welfare and socio-economic development of the
Scheduled Castes; and
BIR SINGH  v. DELHI JAL BOARD & ORS.
[RANJAN GOGOI, J.]
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(f) to discharge such other functions in relation to the protection,
welfare and development and advancement of the Scheduled
Castes as the President may, subject to the provisions of any law
made by Parliament, by the rule specify.”
14. Similarly, Article 338A provides for a National Commission
for Scheduled Tribes which is vested with similar duties as in the case of
the Commission for the Scheduled Castes.
15. Article 341(1) of the Constitution empowers the President
with respect to any State or Union Territory, and where it is a State,
after consultation with the Governor thereof, by public notification, to
specify the castes, races or tribes or parts of or groups within castes,
races or tribes which shall for the purposes of the Constitution be deemed
to be Scheduled Castes in relation to that State or Union Territory, as the
case may be.
16. In case of Scheduled Tribes the President has been similarly
empowered under Article 342(1) of the Constitution.  Sub-clause (2) of
Article 341 and Article 342 empowers the Parliament by law to include
in or exclude from the list of Scheduled Castes/Scheduled Tribes specified
in the Notification issued under clause (1) thereof any caste, race or
tribe/tribal community or part of or group within any caste, race or tribe/
tribal community. It is further provided that except as provided i.e. by
Parliament by law(s) made, the notification issued under Article 341(1)
or Article
342(1) shall not be varied by any subsequent notification.   The
constitutional mandate, therefore, appears to be that any caste, race or
tribe/tribal community or part of or group within any caste, race or tribe/
tribal community as has been specified in the Presidential Order under
clause (1) of Article 341 or Article 342 can be altered only by Parliament
by law(s) made.
17. Article 341 and Article 342 also makes it clear that the caste,
race or tribe or part of or group within any caste, race or tribe as specified
in the Presidential Order under Article 341(1) or a tribe or tribal
community as may be specified in the Presidential Order under Article
342(1) shall be deemed to be Scheduled Castes/Scheduled Tribes for
the purposes of the Constitution in relation to that State or Union Territory,
as the case may be.  The above position is further made clear by clause
(2) of the two Presidential Orders which are in the following terms.
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“Clause 2 of the Constitution (Scheduled Castes) Order, 1950
2. Subject to the provisions of this Order, the castes, races or
tribes or parts of, or groups within, castes or tribes specified in
Parts I to XXV of the Schedule to this Order shall, in relation to
the States to which those Parts respectively relate, be deemed to
be Scheduled Castes so far as regards member thereof resident
in the localities specified in relation to them in those Parts of that
Schedule.
Clause 2 of the Constitution (Scheduled Tribes) Order, 1950
2. The Tribes or tribal communities, or parts of, or groups within,
tribes or tribal communities, specified in Parts I to XXII of the
Schedule to this Order shall, in relation to the States to which
those Parts respectively relate, be deemed to be Scheduled Tribes
so far as regards members thereof residents in the localities
specified in relation to them respectively in those Parts of that
Schedule.”
18. There are various parameters by which a caste/race is
recognized as ‘Scheduled Caste/Scheduled Tribe’ in a State/Union
Territory or a particular part thereof.  There is no doubt that before the
Presidential Orders were issued under Article 341(1) or under Article
342(1), elaborate enquiries were made and only after such enquiries
that the Presidential Orders were issued. While doing so, the Presidential
Orders not only provided that even specified parts or groups of castes,
races or tribes/tribal community could be Scheduled
Castes/Tribes in a
particular State/Union Territory but also made it clear that certain castes
or tribes or parts/groups thereof could be Scheduled Castes/Tribes only
in specified/particular areas/districts of a State/Union Territory.  The
reason for such an exercise by reference to specific areas of a State is
that judged by standards of educational, social backwardness, etc. races
or tribes may not stand on the same footing throughout the State. The
consideration for specifying a particular caste or tribe or class for inclusion
in the list of Scheduled Castes and Scheduled Tribes or Backward Classes
in any given State depends on the nature and extent of the disadvantages
and social hardships suffered by the concerned members of the class in
that State. These may be absent in another State to which the persons
belonging to some other State may migrate.
BIR SINGH  v. DELHI JAL BOARD & ORS.
[RANJAN GOGOI, J.]
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19. The Presidential Orders which enumerate lists of castes/races,
tribes recognized as ‘Scheduled Caste/Scheduled Tribe’ cannot be
challenged or agitated in a court of law except, perhaps, on the limited
ground as held in M. Nagaraj and othersvs. Union of India and
others7.  A few illustrations may clarify the position.  The question whether
Dohar caste is a sub-caste of Chamar caste which is recognized as a
scheduled caste came up for consideration in Bhaiya Lal vs. Harikishan
Singh8. This Court held that the court cannot enquire into whether
Dohar caste is a sub-caste of Chamar caste and whether the same
must be deemed to have been included in the Presidential Order.  In
Bhaiya Lal  (supra), this Court held that before issuing notifications
under Articles 341 and 342, an elaborate enquiry is made and as a result
of the enquiry social justice is sought to be done to the castes, races or
tribes as may appear to be necessary.  It was further held that only
Parliament is empowered to amend the Notification under Articles 341(2)
and 342(2) of the Constitution, as is underlined by the expression “but
save as aforesaid a notification issued under the said clause shall
not be varied by any subsequent notification” occurring in each of
the said provisions. In Bhaiya Lal (supra),this Court held as under:-
“10...The object of Article 341(1) plainly is to provide additional
protection to the members of the Scheduled Castes
having regard
to the economic and educational backwardness from which they
suffer. It is obvious that in specifying castes, races or tribes, the
President has been expressly authorised to limit the notification to
parts of or groups within the castes, races or tribes, and that must
mean that after examining the educational and social
backwardness of a caste, race or tribe, the President may well
come to the conclusion that not the whole caste, race or tribe but
parts of or groups within them should be specified. Similarly, the
President can specify castes, races or tribes or parts thereof in
relation not only to the entire State, but in relation to parts of the
State where he is satisfied that the examination of the social and
educational are backwardness of the race, caste or tribe justifies
such specification. In fact, it is well known that before a notification
is issued under Article 341(1), an elaborate enquiry is made and it
is as a result of this enquiry that social justice is sought to be done
to the castes, races or tribes as may appear to be necessary, and
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in doing justice, it would obviously be expedient not only to specify
parts or groups of castes, races or tribes, but to make the said
specification by reference to different areas in the State.
Educational and social backwardness in regard to these castes,
races or tribes may not be uniform or of the same intensity in the
whole of the State; it may vary in degree or in kind in different
areas and that may justify the division of the State into convenient
and suitable areas for the purpose of issuing the public notification
in question...”
              [Underlining added]
20.  Whenever States’ reorganization had taken place in the past,
Parliament had exercised its powers under Article 341(2) and Article
342(2) and provided for specific Castes/Tribes that were entitled to be
recognised as Scheduled Castes and Scheduled Tribes in relation to the
reorganized States/Union Territories. The Scheme of the Constitution
(Scheduled Castes) and (Scheduled Tribes) Orders makes it clear that
Parliament’s intention was to extend the benefits of reservation in relation
to the States/Union Territories only to the castes, races or tribes as
mentioned in the Presidential Orders.
21. The Orders of 1950 was amended by the Constitution
(Scheduled Castes and Scheduled Tribes Order), by the Amendment
Act, 1956 (Act 63/1956).  Another amending Act was enacted by
parliament in 1976.  Earlier, orders had been made for the first time in
relation to certain territories, such as
the Constitution (Andaman and
Nicobar Islands) Scheduled Tribes Order, 1959.  Further, amendments
had taken place as and when parliament reorganized states, through
separate Reorganisation Acts, which led to large scale modification of
the Presidential Orders. Illustratively, when new States/Union
Territories were formed such as, Nagaland, Pondicherry, or Sikkim, the
Scheduled Castes or Scheduled Tribes Orders were made in relation to
the new States/Union Territories, for instance, the Constitution (Nagaland)
Scheduled Tribes Order, 1970- after the reorganisation of Assam; the
Constitution (Sikkim) Scheduled Castes Order, 1978; the Constitution
(Sikkim) Scheduled Tribes Order, 1978) upon creation of the State of
Sikkim; the recent ones being upon creation of the States of Uttarakhand,
Chhattisgarh, and Jharkhand. Likewise, when previous Union
Territories (such as Goa, Mizoram and Arunachal Pradesh) were
BIR SINGH  v. DELHI JAL BOARD & ORS.
[RANJAN GOGOI, J.]
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constituted into States, consequential amendments were made to the
Scheduled Castes and Tribes Orders.  All such amendments/enactments
were made by Parliament.
22. Though in a different context i.e. in relation to Backward
Classes this Court in M.C.D. v. Veena and Ors.9, has specifically held
that migrants are not entitled for reservation as Other Backward Classes
(OBCs) in the States/Union Territories where they have migrated.  The
relevant portion of the judgment that may be noticed is as hereunder:-
“6. Castes or groups are specified in relation to a given State or
Union Territory, which obviously means that such caste would
include caste belonging to an OBC group in relation to that State
or Union Territory for which it is specified. The matters that are
to be taken into consideration for specifying a particular caste in a
particular group belonging to OBCs would depend on the nature
and extent of disadvantages and social hardships suffered by that
caste or group in that State. However, it may not be so in another
State to which a person belonging thereto goes by migration. It
may also be that a caste belonging to the same nomenclature is
specified in two States but the considerations on the basis of which
they had been specified may be totally different. So the degree of
disadvantages of various elements which constitute the data for
specification may also be entirely different. Thus, merely because
a given
caste is specified in one State as belonging to OBCs does
not necessarily mean that if there be another group belonging to
the same nomenclature in another State, a person belonging to
that group is entitled to the rights, privileges and benefits
admissible to the members of that caste. These aspects have to
be borne in mind in interpreting the provisions of the Constitution
with reference to application of reservation to OBCs.”
23.  A Constitution Bench of this Court in Marri Chandra Shekhar
Rao (supra) had the occasion to consider the question as to whether a
member of the Gouda community which is recognised as “Scheduled
Tribe” in the Constitution (Scheduled Tribes) Order, 1950 for the State
of Andhra Pradesh would be entitled to admission in a medical institution
situated in the State of Maharashtra. This Court noticed the fact that the
father of the petitioner in Marri Chandra Shekhar Rao (supra)was
an employee in Fertilizer Corporation of India, a public sector undertaking
and thereafter in Rashtriya Chemicals and Fertilizers Limited, a
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Government of India undertaking.  He belonged to the Gouda community,
a recognized Scheduled Tribe of Andhra Pradesh.  On his appointment
he was stationed at Bombay. The petitioner came to Bombay at the age
of nine years. He completed his studies in Bombay; he submitted an
application for his admission in the medical institutions run by Bombay
Municipal Corporation which was denied.  This denial of admission was
based on the Government of India circular dated 22nd February, 1985,
according to which a person who migrates from one State to another is
entitled to the benefit of being Scheduled Castes/Scheduled Tribes in the
State of origin and not in the State to which he or she migrates. The
appellant was held not entitled to be admitted to the Medical College on
the basis that he belonged to a Scheduled Tribe in his original State i.e.
Andhra Pradesh.
24.  After referring to various provisions of the Constitution of
India, the background in which the Presidential Orders were issued and
several earlier judgments of this Court, it was held as under:-
“9. It appears that Scheduled Castes and Scheduled Tribes in
some States had to suffer the social disadvantages and did not
have the facilities for development and growth. It is, therefore,
necessary in order to make them equal in those areas where they
have so suffered and are in the state of underdevelopment to
have reservations or protection in their favour so that they can
compete on equal terms with the
more advantageous or developed
sections of the community. Extreme social and economic
backwardness arising out of traditional practices of untouchability
is normally considered as criterion for including a community in
the list of Scheduled Castes and Scheduled Tribes. The social
conditions of a caste, however, varies from State to State and it
will not be proper to generalise any caste or any tribe as a
Scheduled Tribe or Scheduled Caste for the whole country. This,
however, is a different problem whether a member or the Scheduled
Caste in one part of the country who migrates to another State or
any other Union territory should continue to be treated as a
Scheduled Caste or Scheduled Tribe in which he has migrated.
That question has to be judged taking into consideration the interest
and well-being of the Scheduled Castes and Scheduled Tribes in
the country as a whole.”
 [underlining is ours]
BIR SINGH  v. DELHI JAL BOARD & ORS.
[RANJAN GOGOI, J.]
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25. In Marri Chandra Shekhar Rao (supra), rejecting the
contention that a member of Scheduled Castes/Scheduled Tribes should
get the benefit of the status ‘for the purpose of the Constitution
throughout the territory of India’, it was observed that if such
contention is to be accepted the expression “In relation of that State”
would become nugatory.
26. Marri Chandra Shekhar Rao (supra)was followed by another
Constitution Bench of this Court in Action Committee (supra).  After
referring to Articles 14, 15(1), 15(4), 16(4) and 19 and Part XVI of the
Constitution of India and the decisions governing the field and also Articles
341 and 342, it was held as under:-
“3. On a plain reading of clause (1) of Articles 341 and 342 it is
manifest that the power of the President is limited to specifying
the castes or tribes which shall, for the purposes of the Constitution,
be deemed to be Scheduled Castes or Scheduled Tribes in relation
to a State or a Union Territory, as the case may be. Once a
notification is issued under clause (1) of Articles 341 and 342 of
the Constitution, Parliament can by law include in or exclude from
the list of Scheduled Castes or Scheduled Tribes, specified in the
notification, any caste or tribe but save for that limited purpose
the notification issued under clause (1), shall not be varied by any
subsequent notification. What is important to notice is that the
castes or tribes have to be specified
in relation to a given State or
Union Territory. That means a given caste or tribe can be a
Scheduled Caste or a Scheduled Tribe in relation to the State or
Union Territory for which it is specified. These are the relevant
provisions with which we shall be concerned while dealing with
the grievance made in this petition.
....
16.We may add that considerations for specifying a particular
caste or tribe or class for inclusion in the list of Scheduled Castes/
Schedule Tribes or backward classes in a given State would depend
on the nature and extent of disadvantages and social hardships
suffered by that caste, tribe or class in that State which may be
totally non est in another State to which persons belonging thereto
may migrate. Coincidentally it may be that a caste or tribe bearing
the same nomenclature is specified in two States but the
considerations on the basis of which they have been specified
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may be totally different. So also the degree of disadvantages of
various elements which constitute the input for specification may
also be totally different. Therefore, merely because a given caste
is specified in State A as a Scheduled Caste does not necessarily
mean that if there be another caste bearing the same nomenclature
in another State the person belonging to the former would be
entitled to the rights, privileges and benefits admissible to a member
of the Scheduled Caste of the latter State “for the purposes of
this Constitution”. This is an aspect which has to be kept in mind
and which was very much in the minds of the Constitution-makers
as is evident from the choice of language of Articles 341 and 342
of the Constitution....”
   [underlining is ours]
27. Marri Chandra Shekhar Rao (supra)and Action Committee
(supra) were followed in Subhash Chandra and another (supra).  After
referring to various judgments on the point and also the various circulars,
this Court in Subhash Chandra and another (supra) held as under:-
“69. Both the Central Government and the State Government
indisputably may lay down a policy decision in regard to reservation
having regard to Articles 15 and 16 of the Constitution of India
but such a policy cannot violate other constitutional provisions. A
policy cannot have primacy over the constitutional scheme. If for
the purposes of Articles 341 and 342 of the Constitution of India,
State and the Union Territory are on a par
on the ground of
administrative exigibility (sic) or in exercise of the administrative
power, the constitutional interdict contained in clause (2) of Article
341 or clause (2) of Article 342 of the Constitution of India cannot
be got rid of.
.......
75. If a caste or tribe is notified in terms of the Scheduled Castes
Order or the Scheduled Tribes Order, the same must be done in
terms of clause (1) of Article 341 as also that of Article 342 of the
Constitution of India, as the case may be. No deviation from the
procedure laid down therein is permissible in law. If any
amendment/alteration thereto is required to be made, recourse to
the procedure laid down under clause (2) thereof must be resorted
to.”
BIR SINGH  v. DELHI JAL BOARD & ORS.
[RANJAN GOGOI, J.]
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28. In Marri Chandra Shekhar Rao (supra), the Constitution
Bench observed that the expression “in relation to that State”must be
read meaningfully and harmoniously.  It was observed that if a member
of Scheduled Castes/Scheduled Tribes gets the benefit of that status
throughout the territory of India, the expression “in relation to that
State”would become nugatory.  If the special privileges or the rights
granted to scheduled castes or scheduled tribes in a particular State are
to be made available in all the States and if such benefits are to be
carried from State ‘A’ to State ‘B’ on migration, the mandate of Article
341/342 would get compromised.  Such a consequence must be avoided
for it is a fundamental rule of interpretation, be it of a statutory enactment
or of the Constitution, that wherever and whenever there is a conflict
between two provisions, the same should be so interpreted as to give
effect to both.  “…….Nothing is surplus in a Constitution and no part
should be made nugatory…..”. [Marri Chandra Shekhar Rao (supra)]
29. The issue has to be viewed from another perspective.  If a
member of a Scheduled Caste/ Scheduled Tribe of Andhra Pradesh who
had migrated to Maharashtra is to be given the benefit of reservation it
will amount to depriving a member of a Scheduled Caste/Scheduled
Tribe of Maharashtra by reducing the reservation earmarked for them.
It is in this context, in Marri Chandra Shekhar Rao
(supra), thatthe
Constitution Bench observed as under:-
“14. ....But having regard to the purpose, it appears to us that
harmonious construction enjoins that we should give to each
expression —”in relation to that State” or “for the purposes of
this Constitution” — its full meaning and give their full effect.
This must be so construed that one must not negate the other.
The construction that reservation made in respect of the Scheduled
Caste or Tribe of that State is so determined to be entitled to all
the privileges and rights under the Constitution in that State would
be the most correct way of reading, consistent with the language,
purpose and scheme of the Constitution. Otherwise, one has to
bear in mind that if reservations to those who are treated as
Scheduled Caste or Tribe in Andhra Pradesh are also given to a
boy or a girl who migrates and gets deducted (sic inducted) in the
State of Maharashtra or other States where that caste or tribe is
not treated as Scheduled Caste or Scheduled Tribe then either
reservation will have the effect of depriving the percentage to the
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member of that caste or tribe in Maharashtra who would be entitled
to protection or it would denude the other non-Scheduled Castes
or non-Scheduled Tribes in Maharashtra to the proportion that
they are entitled to. This cannot be logical or correct result designed
by the Constitution.”
30. Unhesitatingly, therefore, it can be said that a person belonging
to a Scheduled Caste in one State cannot be deemed to be a Scheduled
Caste person in relation to any other State to which he migrates for the
purpose of employment or education. The expressions “in relation to
that State or Union Territory” and “for the purpose of this
Constitution”used in Articles 341 and 342 of the Constitution of India
would mean that the benefits of reservation provided for by the
Constitution would stand confined to the geographical territories of a
State/Union Territory in respect of which the lists of Scheduled Castes/
Scheduled Tribes have been notified by the Presidential Orders issued
from time to time.  A person notified as a Scheduled Caste in State ‘A’
cannot claim the same status in another State on the basis that he is
declared as a Scheduled Caste in State ‘A’.
31. In S. Pushpa (supra),thePondicherry Government had
appointed Selection Grade Teachers in 1995 under the Scheduled Castes
quota from amongst the scheduled castes candidates registered in the
employment exchange in Pondicherry but also extended the benefit of
reservation to scheduled castes candidates of other
States and Union
Territories.  The Chennai Bench of Central Administrative Tribunal
(“CAT” for short) quashed the selection process holding that migrant
Scheduled Castes/Scheduled Tribes candidates could not be considered
for appointment for posts within the union territory of Pondicherry. In
S.Pushpa (supra)the issue was with regard to the extent of benefit that
Scheduled Castes candidates of other States/Union Territories would be
entitled to in Pondicherry.  This Court held that in the matter of providing
reservation, it was open to the Pondicherry Government to apply or
adopt a policy to give the benefit of reservation to migrant Scheduled
Castes and Scheduled Tribes.  In paragraphs 17 and 21 in S.Pushpa
(supra), it was held as under:
“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 not a State. As shown above, a Union
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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. In New Delhi Municipal Council v.
State of Punjab the majority has approved the ratio of T.M.
Kanniyan and has held that the Union Territories are not States
for the purpose of Part XI of the Constitution (para 145). The
Tribunal has, therefore, clearly erred in applying the ratio of Marri
Chandra Shekhar Rao in setting aside the selection and
appointment of migrant SC candidates.
   (underlining is ours)
*** *** ***
21. ....Article 16(4) is not controlled by a Presidential Order issued
under Article 341(1) or Article 342(1) of the Constitution in the
sense that reservation in the matter of appointment on posts may
be made in a State or Union Territory only for such Scheduled
Castes and Scheduled Tribes which are mentioned in the Schedule
appended to the Presidential Order for that particular State or
Union Territory. This article does not say that only such Scheduled
Castes and Scheduled Tribes which are mentioned in the
Presidential Order issued for a particular State alone would be
recognised as backward classes of citizens and none else. 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 recognised as such in relation to that
State or Union Territory then such a provision would be perfectly
valid. However, there would be no infraction of clause (4) of Article
16 if a Union Territory by virtue of its peculiar position being
governed by the President as laid down in Article 239 extends the
benefit of reservation even to such migrant Scheduled Castes or
Scheduled Tribes who are not mentioned in the Schedule to the
Presidential Order issued for such Union Territory. The UT of
Pondicherry having adopted a policy of the Central Government
whereunder all Scheduled Castes or Scheduled Tribes, irrespective
of their State are eligible for posts which are reserved for SC/ST
candidates, no legal infirmity can be ascribed to such a policy and
the same cannot be held to be contrary to any provision of law.”
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32. The upshot of the aforesaid discussion would lead us to the
conclusion that the Presidential Orders issued under Article 341 in regard
to Scheduled Castes and under Article 342 in regard to Scheduled Tribes
cannot be varied or altered by any authority including the Court.  It is the
Parliament alone which has been vested with the power to so act, that
too, by laws made. Scheduled Castes and Scheduled Tribes thus specified
in relation to a State or a Union Territory does not carry the same status
in another State or Union Territory.  Any expansion/deletion of the list of
Scheduled Castes/Scheduled Tribes by any authority except Parliament
would be against the constitutional mandate under Articles 341 and 342
of the Constitution of India.
33. Article 16(4) is an enabling provision.  It enables the State to
provide to backward classes including Scheduled Castes and Scheduled
Tribes reservation in appointments to public services.  Such reservation
is to be provided on the basis of quantifiable data indicating the adequacy
or inadequacy, as may be, of the representation of such classes in
Government service.  The data which is the basis of the satisfaction of
the State being verifiable, is open to judicial scrutiny on the limited ground
of relevance of the circumstances on which the satisfaction is moulded.
The policy decision to provide reservation, of course, is beyond the pale
of judicial review.
34. It is an unquestionable principle of interpretation
that
interrelated statutory as well as constitutional provisions have to be
harmoniously construed and understood so as to avoid making any
provision nugatory and redundant.  If the list of Scheduled Castes/
Scheduled Tribes in the Presidential Orders under Article 341/342 is
subject to alteration only by laws made by Parliament, operation of the
lists of Scheduled Castes and Scheduled Tribes beyond the classes or
categories enumerated under the Presidential Order for a particular State/
Union Territory by exercise of the enabling power vested by Article
16(4) would have the obvious effect of circumventing the specific
constitutional provisions in Articles 341/342.  In this regard, it must also
be noted that the power under Article 16(4) is not only capable of being
exercised by a legislative provision/enactment but also by an Executive
Order issued under Article 166 of the Constitution.  It will, therefore, be
in consonance with the constitutional scheme to understand the enabling
provision under Article 16(4) to be available to provide reservation only
to the classes or categories of Scheduled Castes/Scheduled Tribes
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enumerated in the Presidential orders for a particular State/Union
Territory within the geographical area of that State and not beyond.  If in
the opinion of a State it is necessary to extend the benefit of reservation
to a class/category of Scheduled Castes/Scheduled Tribes beyond those
specified in the Lists for that particular State, constitutional discipline
would require the State to make its views in the matter prevail with the
central authority so as to enable an appropriate parliamentary exercise
to be made by an amendment of the Lists of Scheduled Castes/Scheduled
Tribes for that particular State.  Unilateral action by States on the
touchstone of Article 16(4) of the Constitution could be a possible trigger
point of constitutional anarchy and therefore must be held to be
impermissible under the Constitution.
35. The decision in S. Pushpa (supra) may now be taken up to
understand the basis on which the conclusion recorded therein was
recorded. In S. Pushpa (supra) a distinction was found by this Court in
the constitutional status of a Union Territory and a State in relation to the
Union/Central Government.   The provisions of Article 239 and 239A of
the Constitution; Section 3(8) of the General Clauses Act, 1897 defining
‘Central Government’ and the provisions of the Government of Union
Territories Act, 1963 were considered to arrive at the following
conclusion:
“14. The effect of these provisions is also
that the Administrator
(Lt Governor of Pondicherry) and his Council of Ministers act
under the general control of and are under an obligation to comply
with any particular direction issued by the President. Further, the
Administrator (Lt Governor of Pondicherry) while acting under
the scope of the authority given to him under Article 239 of the
Constitution would be the Central Government.”
36. It is on the aforesaid basis that the concerned Notification/
Government Order dated 16th February, 1974 by which it was provided
that Scheduled Castes/Scheduled Tribes candidates from outside the
Union Territory of Pondicherry should also be considered for appointment
to posts reserved for Scheduled Castes/Scheduled Tribes in the Union
Territory Administration and the communication of the Government of
India dated 6th October, 1995 to the same effect were upheld.
37. The First Schedule to the Constitution, as original enacted,
provided for three (03) categories of States i.e. Part ‘A’, Part ‘B’ and
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Part ‘C’ States to comprise the territory of India.  The States
Reorganization Act, 1956 and the consequential Constitution (Seventh
Amendment) Act, 1956 drastically altered the provisions of the First
Schedule to the Constitution by establishment of new States; alteration
in the area and boundaries of existing States and also by abolition of the
three (03) categories of States; and by classification of certain areas as
Union Territories.  Pursuant thereto the Government of Union Territories
Act, 1963 was enacted to provide for Legislative Assemblies and Councils
of Ministers for certain Union Territories and for certain other incidental
matters.  It will not be necessary to specifically deal with the provisions
of the aforesaid Act in any great detail except to say that in course of
time most of the Union Territories (except for Pondicherry), which had
been provided with their own Legislatures and Councils of Ministers
have graduated to become full-fledged States on the basis of enactment
of several State Reorganisation Acts details of which have been mentioned
(para 21).  The Union Territory of Pondicherry, as on date, stands out as
sole Union Territory which has a Legislature and Council of Ministers,
apart from Delhi.
38. Delhi, which was one of the original Union Territories, came
to be called as “National Capital Territory of Delhi”.  This change was
introduced by the Constitution (Sixty-Ninth Amendment) Act, 1991 with
effect from 1st February, 1992
by insertion of Article 239-AA in Part
VIII of the Constitution (i.e. Special provisions with respect to Delhi).
Article 239-AA(3)(a) empower the Legislative Assembly of the National
Capital Territory of Delhi to make laws with respect to any matters
enumerated in the State List or in the Concurrent List (i.e. List II and
List III of the Seventh Schedule to the Constitution of India) subject to
certain exceptions.  It is here that the Union Territory of Delhi i.e. National
Capital Territory of Delhi is enjoined a special status inasmuch as power
to enact laws on any of the subjects in List II and List III is a constitutional
conferment as opposed to the position in the erstwhile Union Territories
and the present day Union Territory of Pondicherry where the power to
frame/make laws has been conferred on the Union Territory Legislatures
by a Parliamentary enactment i.e. Section 18 of the Government of
Union Territories Act, 1963.  The above narration has been considered
necessary only to make the discussion complete.   We make it clear that
we are not entering into any discussion as to the special position/status
of Delhi, if any, by virtue of the provisions contained in Article 239AA as
the said issue does not arise for consideration in the present reference.
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39. The above view coupled with the scope and ambit of the
present reference may also not require us to go into the correctness of
the view expressed by this Court in paragraph 14 of the decision in S.
Pushpa (supra) (as already extracted).  The resolution of the question
formulated for an answer is capable of being reached by adopting an
entirely different perspective which we intend to do hereinafter.
40. The federal nature of the Constitution finds broad manifestation
in two principal areas i.e. division of legislative power and exercise
thereof by the Union and the constituent States and secondly, which is
more relevant and important to the subject in hand, is the constitutional
provisions relating to services under the Union and the States as dealt
with in Part XIV of the Constitution.
41. The subject finds an elaborate study by Dr. D.D. Basu in
“Commentary on the Constitution of India”10. According to Dr. D.D.
Basu, “In India though the Union and the States have their own
public services, (vide Entry 70 of List I and Entry 41 of List II)
there is no clear-cut bifurcation in the administration of the Union
and the State laws as in the U.S.A. The State officials administer
the State laws as well the Union laws applicable within that Sate
whereas the members of the Union Services while working within a
State, also carry out State laws, insofar as they may be applicable.
The second peculiarity of the Indian federal
system of administration
is that though the federal and State Governments have civil services
of their own to manage their own households, there are certain
services known as the All-India Services, which are common to both
the federal and State Governments.
The organisation of the Civil services in the Indian federal
system may be demonstrated as thus:
                                   All India Services
Central Civil Services                             State Civil Services
Central Secretariat Services”              Subordinate Services
42. At the State Level, as Dr. D.D. Basu points out, “the State
Civil Services administer the subject solely belonging to the State
Governments, according to the federal distribution of subjects thus
including the Judicial, Executive, Medical, Engineering, Police,
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Education branches. Their members are under the exclusive
control of the respective State Governments and their duties are
confined to the territories of the State by which they have been
appointed, unless sent on deputation to the Union Government”.11
These State Civil Services may be Administrative  Services, Forest
Services etc. [illustratively, in case of Himachal Pradesh, Himachal
Pradesh Administrative Service (HPAS) is a type of service, so is,
Himachal Pradesh Forest Service (HPFS). The recruitment to these
services is conducted by way of Civil Services Examinations organised
by the State-specific Public Service Commission e.g. in case of Himachal
Pradesh, it is Himachal Pradesh Public Service  Commission.  As stated
earlier, persons inducted into the State Service of a particular State
cannot be transferred to any other State. These officers are concerned
with only the affairs of the state in which they are appointed.  These
services (like HPAS, HPFS) may, for convenience, be called as
Superior Services/Higher Services with reference to a State.  But in
addition to these higher services, there are also services that may, again
for convenience, be called as Subordinate Services/Lower Level Jobs.
The posts in these services are like those of Clerks, School Teachers;
Drivers, Attendants, Safai Workers, etc.  For the purpose of recruitment
of Subordinate Servants, states have in place State-specific Selection
Commissions.
43. At the Federal Level,
civil administration is carried out by the
members of – (1) All India Services (specifically provided for in
Article 312); (2) Central Civil Services (although, not specifically
provided for in the Constitution but are regulated by creation of statutory
Rules framed under the proviso to Article 309). These are again
Superior Services and the selection/recruitment is by the Union Public
Service Commission.
ALL INDIA SERVICES
There are three All India Services (AIS) – (a) Indian
Administrative Service (IAS); (b) Indian Forest Service (IFoS); (c)
Indian Police Service (IPS). As regards AIS, Dr. D.D. Basu12 says that,
“the peculiarity of the AIS from the federal standpoint is that –
(a) Though they are recruited and their conditions of service
are determined by the Union Government, they have to administer
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both Union and the State subjects, accordingly as their services are
placed at the disposal of the Union or a State Government, in
connection with the affairs of the Union or the State, as the case
may be.
(b) While serving in a State, they are controlled by the State
Government, except as regards the imposition of the penalty of
dismissal, removal or compulsory retirement, which can be awarded
only by the Union Government.
(c) In a sense, this system is an exception to the usual federal
precedent inasmuch as it is intended to fill up the strategic posts
both under the Union and State Governments by men of superior
calibre, recruited on a uniform basis, through the UPSC. Thus, while
a Deputy Collector may be a member of the State Civil Service, the
Additional Collector and the Collector may be members of the
Indian Administrative Service. The category of AIS thus breaks
through the federal division so far as the administrative services in
India are concerned. In fact, the principal agents of a Sate
administration are members of the AIS and it would be a mistake to
suppose that the AIS exist for the administration of the Union
subjects. Broadly, speaking, the administration of a State is run
both by the members of the AIS and State Services, the latter
supplying only the intermediate and subordinate tiers.
(d) Though the bulk of recruitment to the AIS is by
competitive examination, a certain proportion is selected by
promotion from amongst members of the State Civil Services.
(e) Though a member of AIS may be required to serve
anywhere in India, on recruitment, he is usually assigned to a State
or States jointly, or, in a technical language, is included in a State
cadre or Joint cadre and continues to serve there until or unless he
is called upon to serve the Union Government, in any of its
Departments.
(f) While employed under a State, again, the members of the
AIS do not have to work only in the Secretariat of the State but also
in the Districts as already stated and members of these services are
expected to acquire experience of the business in the district as
well as Secretariat administration and there is a constant
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interchange of officers between the Secretariat and the Districts,
just as there is such an interchange between the States and the Union
Secretariats on the other hand.”
44. Therefore, the members of the All India Services are
common to the Union and the States and they serve, by turn, both the
Union and State Governments. The members of these services although
recruited by the Centre their services are placed under various State
cadres. “It is evident from Article 312(1) that the members of the
AIS are common to the Union and the States. Curiously, however,
there is a cadre for the Indian Administrative Service only in the
States, according to the Indian Administrative Service (Cadre)
Rules, 1954 and there is no separate cadre for members of this
service in the Government of India. Each members of the Indian
Administrative Service therefore, belongs to the cadre of one State
or the other.”13
45. There are many State Cadres e.g. Bihar Cadre, Rajasthan
Cadre and Joint Cadres like AGMUT (for Arunachal Pradesh + Goa +
Mizoram + the 7 Union Territories). These officers remain in the
allotted Cadres till they retire. They are not normally to be transferred
from one State Cadre to another State Cadre though they have the
accountability to serve both under the State and the Centre.
46. At this juncture, the Union of India’s Affidavit may also be
referred to, which states with reference to AIS that, “the conditions of
service of these services (AIS) are regulated
by the DoPT by way of
executive and statutory instructions, statutory rules formulated
under Article 309 of the Constitution and Act of Parliament etc. The
functional control of some of the services rests with other Ministries
and Departments also. The Ministry of Home Affairs exercises
functional control on IPS and the Ministry of Environment &
Forest & Climate Change exercises functional control on IFoS.
Members of these services are allocated a cadre under a State or
Union Territory and they serve the Union as well as the State,
whichever is allotted to them. Thus their services are All India
Services. Their recruitment is by the Union Public Service
Commission and as they serve the Union as well as the States, their
recruitment is on pan India basis. Every citizen of this country
having the required qualification is eligible to be considered for the
13D.D. Basu, 8th Edition, 2011, Volume 9, Page 10585.
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[RANJAN GOGOI, J.]
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appointment. It is pertinent to note that before selection in the AIS,
there is no specification or indication of the cadre in Union, Union
Territory or State, which they may serve. Upon selection alone, they
would be allocated cadre depending upon the merit and the
preferences they would have made at the time of applying. Upon
selection they could be allocated to serve through any of the 25
states or 7 Union Territories of Delhi; Puducherry; Chandigarh;
Daman & Diu; Dadra & Nagar Haveli; Andaman & Nicobar;
Lakshadweep coupled with the states of Arunachal Pradesh, Goa
and Mizoram”14.
47. CENTRAL CIVIL SERVICES
The Central Civil Services (CCS), as Dr. D.D. Basu points out,
“are engaged in administering the Union subjects, such as the Posts
and Telegraphs, Customs and Excise, Income Tax. In short, these
constitute all the administrative services in the Central Departments
which have not so far been included in the list of All India Services.
They are under the exclusive control of the Union Government.
Besides the Central Services, there are other Services intended for
work solely in the Central Secretariat, or, in other words, those who
are to manage the offices of the Central Departments. Both the
Central Civil Services and Central Secretariat Services are
sub-divided into Class I, II, III, IV, (= Group A, B, C, D15)
according to the rank and responsibilities of the officers…
Members of the Central Services are also
sent on transfer or
deputation to States where offices relating to the Union subjects or
Public Sector Undertakings relating thereto are located.”16 All that
we would like to add is that though the members of these services are
concerned only with the affairs of the Union/Centre they discharge such
duties in the offices and establishments of the Union Government as
14 Para 5 of the Affidavit.
15 Rule 6A of the Central Civil Services (Classification, Control and Appeal) Rules,
1965 provides that, “All reference to Central Civil Services/Central Civil Posts, Class
I, Class II, Class III and Class IV in all Rules, Orders, Schedules, Notifications,
Regulations, Instructions in force, immediately before the commencement of these rules
shall be construed as references to Central Civil Services/Central Civil Posts, Group
‘A’, Group ‘B’, Group ‘C’ and Group ‘D’ respectively, and any reference to “Class or
Classes” therein in this context shall be construed as reference to “Group or Groups”,
as the case may be.”
16 8th Edition. Volume 9, Page 9859.
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may be located in the States and the Union Territories.  The Central
Civil Services (Classification, Control and Appeal) Rules, 1965 [CCS
Rules, 1965] (enacted under the proviso to Article 309) are the
governing statutory Rules with reference to these services. Rule 4 of
CCS Rules, 1965 classifies the Central Civil Services into four types –
(i)   Central Civil Services, Group A (45 services as per the
Schedule to the Rules);
(ii)   Central Civil Services, Group B (33 services as per the
Schedule to the Rules);
(iii)  Central Civil Services, Group C (5 services as per the
Schedule to the Rules);
(iv)  Central Civil Services, Group D (1 serviceas per the
Schedule to the Rules)17.
48.       CCS Group A:
The Affidavit of the Union of India says that, “recruitment to
Group A services is made by UPSC. The recruitment is again on all
India basis. This is the reason the personnel belonging to these 45
services work in the posts of Union and the Union Territories (UT)
across the length and breadth of the country. The Cadre Controlling
Authority of Group A services are the respective ministries of the
Government of India. For example, the first service being the
Archaeological Service, the Cadre Controlling Authority is the
Ministry of Culture, Central Government. Another example, the
12th service being the Indian Foreign Service and this is controlled
by Ministry of External Affairs. No. 16 is the Indian Revenue Service
and it is controlled by the Ministry of
Finance. The members of
these services being recruited pursuant to the Central Service Exams
conducted by the UPSC are allocated to the respective services.
Whichever Ministry seeks recruitment to the service in this Group,
sends requisition to UPSC as per procedure prescribed and UPSC
accordingly advertises for the post in Group A. Every citizen of
India is eligible to apply as per the qualifications and requirements
in the notification. DOPT is the nodal Ministry for regulating the
conditions of service of all Central Civil Services as per Allocation
of Business Rules.  As per the conditions of service, every employee
17 Para 6 of the Affidavit.
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is required to give an undertaking agreeing to the conditions of all
India transfer liability at the time of joining service. Central Civil
Services employees belonging to Group A serve the Union of India
and that is the reason why these services are across the length and
breadth of the country, wherever there is an office of the Central
Government. Member of the Groups A service are governed by CCS
Rules of 1965 as well as Central Civil Services (Conduct) Rules
1972; Central Civil Services (Pension) Rules 1972 and such other
Rules made by the Central Ministries.”
49.      CCS Group B:
As mentioned earlier, there are 33 Group B Services. Amongst
these, are the Union Territory Services listed at No. 28 and No. 29 and
known as the ‘Delhi and Andaman and Nicobar Islands Civil Service’
abbreviated as ‘DANICS’ and ‘Delhi and Andaman and Nicobar Islands
Police Service’ (Grade II) abbreviated as ‘DANIPS’.  While at this
stage we may have also a look at Union Territory services in some
detail.
     UNION TERRITORY SERVICES
50. The Government of India (Ministry of Home Affairs) by way
of a notification dated 6th August, 2003, and in the exercise of the
proviso to Article 309, enacted ‘the National Capital Territory of Delhi,
Andaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadra
and Nagar Havel (Civil Service) Rules, 2003 [DANICS Rules, 2003].
As also, ‘the National Capital Territory of Delhi, Andaman and Nicobar
Islands, Lakshadweep, Daman and Diu and Dadra and Nagar Havel
(Police Service) Rules, 2003 [DANIPS Rules, 2003].
51.        The DANICS/DANIPS Rules, 2003 define:-
· ‘Administration’ to mean the Government of the National
Capital Territory of Delhi in respect National Capital Territory of Delhi
and Union Territory Administration in respect of the Union Territories of
– Andaman & Nicobar Islands; Lakshadweep; Daman & Diu; Dadra
& Nagar Haveli [under Rule 2(a)]
· ‘Commission’ to mean the Union Public Service Commission
[under Rule 2(h)].
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· ‘Scheduled Castes and Scheduled Tribes’ to have the same
meaning as are assigned to them by Articles 366(24) and 366(25) [under
Rule 2(n)].
The DANICS/DANIPS Rules, 2003, further, state that posts in
Junior Administrative Grade-I, Junior Administrative Grade-II, Selection
Grade will be Central Civil Services (Group A), whereas Entry Grade
shall be Central Civil Services (Group B) [Rule 3]. The vacancies in
DANICS/DANIPS shall be filled in on the basis of the Civil Services
Examination conducted by UPSC [Rule 7].  Every member of DANICS/
DANIPS allocated to an Administration shall be posted against a duty
post18 under the Administration by the Administrator [Rule 12]. More
importantly, the Government of India shall, from time to time, allocate a
member of DANICS/DANIPS to any Administration for posting [Rule
12]. Nothing in the Rules affects reservations, relaxation in age-limit
and other concessions required to be provided for the Scheduled Castes,
the Scheduled Tribes, Other Backward Classes and other special
categories of persons in accordance with the orders issued by the
Government of India from time to time in this regard [Rule 17: the Saving
clause]. The Sanctioned Strength for DANICS and DANIPS is in the
DANICS/DANIPS Rules, 2003 (approximately 398 DANICS;
approximately 355 DANIPS).
52.  As per the Union of India’s Affidavit, DANICS and DANIPS
are ‘Union Territory Services’19. The Affidavit says, “...at Serial 28
and 29 of the Schedule (to CCS
Rules, 1965), we have the Union
Territory Services known as DANICS and DANIPS”. The Affidavit,
further, says that, “DANICS/DANIPS Officers are posted in Delhi;
Andaman & Nicobar Islands; Lakshadweep; Daman & Diu; Dadra
& Nagar Haveli. The recruitment to all the Union Territories for
these Group B posts are common. They are also centralised and
the Appointing Authority is none other than the Ministry of Home
Affairs (Joint Secretary). For the recruitment to these services, it is
18 Duty Posts are mentioned in the Schedule to these Rules. To name a few, these are -
Joint Director of Social Welfare/Delhi; Joint Director of Education/Delhi; Deputy Medial
Superintendent of Lok Nayak Jai Prakash Narain Hospital/Delhi; Registrar of
Cooperative Societies/Port Blair; Assistant Commissioner of Police/Delhi; Deputy
Superintendent of Police/Andaman & Nicobar; Chief of Police/Dadra & Nagar Haveli
etc.
19 Page 4, Para (ii)(a) of the Affidavit.
BIR SINGH  v. DELHI JAL BOARD & ORS.
[RANJAN GOGOI, J.]
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the very same examination meant for AIS and CCS Group A. Any
citizen of India is eligible to apply, subject to the conditions prescribed.
As per the Service Rules, transfer undertakings throughout the
Union Territories covered under DANICS/DANIPS is taken from
these officers. This is the reason why the Union of India while inviting
applications for recruitment considers all candidates, including
reserved candidates on all India basis. Group B Cadre of DANICS/
DANIPS is the Feeder Cadre for IAS and IPS respectively (i.e.
AIS). They retire invariably in these Offices, some of them reaching
high positions in the Central Government. Recruitment to AIS; CCS
Group A; CCS Group B (Gazetted) is conducted through UPSC. In
the Civil Services Examination, the applicants are common when
the applications are made. Every aspirant seeks recruitment to the
services and it is only as per the marks and ranking that allocations
are made eventually to AIS; CCS Group A; CCS Group B. Therefore,
when UPSC undertakes the recruitment, it is naturally a pan India
recruitment and therefore, it is necessary to seek applications
including from reserved candidates from all over India.”20
53.  But it is not the Members of the All India Services (AGMUT
Cadre); Central Civil Services (Group ‘A’ and ‘B’) and the ‘DANICS’
and ‘DANIPS’ who alone are the public servants in the States and the
Union Territories engaged in the discharge of duties in
connection with
the affairs of the Union.   There are and bound to be public servants that
work the subordinate services.
         CCS Group C:
54. At the subordinate level these are the Group ‘C’ posts.  In the
Schedule to CCS Rules, 1965, there are 5 such services. The Union of
India’s Affidavit says that, “These posts, in so far, as they relate to
services under the Union of India are concerned are recruited by
the Staff Selection Commission (which is the Recruiting Agency
under the DoPT). The members of CCS Group C get promoted to
CCS Group B. Recruitment to posts in this group arise out of
requisition made by the concerned ministries all over India. These
requisitions, upon reaching, the Staff Selection Commission are
processed and selection takes place and appointments are made.
Even from these appointees, undertaking for all India transfer
20Page 4, 5 of the Affidavit
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liability is taken. As these are posts under the Central Government
and these employees are liable to transferred anywhere in the country
and the recruitment being centralised for all such posts in the
country, it has been consistent policy of the Union of India to have
pan India eligibility.”
55. With regard to CCS Group D posts, in the affidavit of the
Union it is stated that “the posts under this category are primarily
of what used to be Class IV employees now referred to as the
Multi Tasking staff.  In recent years, Central Pay Commission
has recommended against any further recruitment to these posts
in Group D.  Further it has also been recommended that the
existing posts will be merged with Group C. Hence, this is now a
vanishing cadre21.”
56. The broad picture that emanates from the above discussion
and narration is that insofar as the services in connection with the affairs
of the Union is concerned (Central Services), wherever the establishment
may be located i.e. in the National Capital Territory of Delhi or in a State
or within the geographical areas of Union Territory, recruitment to all
positions is on an All India basis and reservation provided for is again a
pan- India reservation.  This by itself, from one perspective, may appear
to be in departure from the rule set out in Part XVI of the Constitution of
India (Articles 341 and 342).  However, the close look undertaken
hereinbefore indicates such a position is fully in accord with the
constitutional structure of a federal polity.
    NATIONAL CAPITAL TERRITORY OF DELHI
57. In case of National Capital Territory of Delhi, especially, to
make the picture even clearer, a reference may be made to ‘Delhi
Administration Subordinate Service Rules, 1967’.  Rule 3 of the aforesaid
Rules is to the following effect:
“3. Constitution of service and its classification.- (1) On and
from the date of commencement of these Rules, there shall be
constituted one Central Civil Service, known as the Subordinate
Service of the Delhi Administration.
(2) The Service shall have four Grades, namely—
21 Page 6, para  iv.a. of the Affidavit
BIR SINGH  v. DELHI JAL BOARD & ORS.
[RANJAN GOGOI, J.]
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   Grade I
Grade II
Grade III
Grade IV
(3) The posts in Grade I shall be Central Civil posts, Class II
Group ‘B’ (Gazetted) and those in Grades II, III and IV shall be
Central Civil posts Group ‘C’ (Non-Gazetted).
(4) Members of the service shall, in the normal course be eligible
for appointment to various Grades of the service to which they
belong and not to the other service.”
   (underlining is ours)
Subordinate services in the National Capital Territory of Delhi
are, therefore, clearly Central Civil Services. The Affidavit of the Union
also points out this feature by stating that, “The posts in CCS Group
C are in the subordinate services.The equivalent in the Union
Territory of Delhi is the Delhi Administrative Subordinate Services
(DASS) and the Recruiting Agency in the place of Staff Selection
Commission is the Delhi Subordinate Service Selection Board
(DSSSB). Members of the Delhi Administrative Subordinate Services
are the Feeder Cadre for Central Civil Services Group B (DANICS).
It is for these reasons that the policy (of pan India eligibility)
consistently adopted.”22
58. A combined reading of these provisions of the DASS Rules,
1967 and CCS Rules, 1965, therefore, more than adequately explains
the nature of Subordinate Services in the NCT of Delhi.  These clearly
are General Central Services and perhaps, it is owing to this state of
affairs that the Union of India in its Affidavit has stated that, “Members
of the Delhi Administrative Subordinate Services are the Feeder
Cadre for Central Civil Services Group B (DANICS). It is for these
reasons that the policy (of pan India eligibility) is consistently
adopted.”
59. While examining the validity of reservation of seats in medical
colleges for local candidates in Delhi, this Court in Dr. Jagdish Saran
and OthersVs. Union of India23 had made certain observations with
regard to the special status that the capital city enjoys, which today, has
22 Page 6, Para (b) of the Affidavit.
23 (1980) 2 SCC 768
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come to be known as the National Capital Territory of Delhi.  The
observations of this Court in paragraphs 10 and 56 may be usefully
recapitulated and, therefore, is set out below:
“10. The capital city is not just a part of India. It is miniaturised
India, a fact often forgotten by the administration in the field of
culture and education, especially vis-a-vis regional, minorities. It
is magapolitan and people from all parts flock to this outsized city.
But we cannot exaggerate this factor, for the presence of the
farther regions like the South and the North-east, population-wise,
is minimal and precarious. Shri Balakrishnan insisted that the
University was sustained by Central Government finances,
collected from the whole country, and the benefits must likewise
belong to all qualified students from everywhere. These are
valuable aspects to shape policy but the court must test
constitutionality and no more. To that extent alone we will weigh
these factors in moulding our verdict.
xxx   xxx   xxx
56. We may wind-up by articulating the core thought that vitalises
our approach. Anyone who lives inside India can never be
considered an ‘outsider’ in Delhi. The people in the States are
caught in a happy network of mutuality, woven into a lovely
garment of humanity, whose warp and woof is India. This is the
underlying fundamental of the preambular resolve registered in
our National Parchment. So we insist that blind and bigoted local
patriotism in xenophobic
exclusivism is destructive of our Freedom
and only if compelling considerations of gross injustice, desperate
backwardness and glaring inequality desiderate such a purposeful
course can protective discrimination gain entrance into the portals
of college campuses. The Administration has a constitutional
responsibility not to be a mere thermometer where mercury rises
with populist pressure but to be a thermostat that transforms the
mores of groups to stay in the conscience of the nation viz. the
Constitution.”
60.  The Affidavit of the Union does not touch upon the details of
Subordinate Services in other Union Territories.  Neither the authorities
of the other Union Territories have laid before the Court any relevant
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material in this regard.  We, therefore, refrain from addressing the issue
in question as far as other Union Territories are concerned and have
confined our discussions and the consequential views only to the National
Capital Territory of Delhi.
61. Accordingly, we answer the question referred in terms of the
views expressed in para 34 of this opinion.  We further hold that so far
as the National Capital Territory of Delhi is concerned the pan India
Reservation Rule in force is in accord with the constitutional scheme
relating to services under the Union and the States/Union Territories.
62. In view of the conclusions reached as above, it will not be
necessary to remit Civil Appeal Nos. 1085 of 2013, 10081 of 2014, 8141
of 2014, 8802 of 2012, 1086 of 2013 and Civil Appeal arising out of
Special Leave Petition (Civil) No.36324 of 2017 (pertaining to Delhi) for
further consideration by the appropriate Bench.  Accordingly, we
dispose of the said appeals (pertaining to Delhi) in terms of the present
order.
So far as Civil Appeal Nos.9935-9937 of 2014 pertaining to the
U.T. of Andaman and Nicobar Island are concerned the issue may be
decided by the appropriate Bench in the light of the views expressed
herein on adequate and sufficient materials being placed before the Bench
by the contesting parties.
R. BANUMATHI, J.
Reference Order:-
I have gone through the judgment proposed by His Lordship Justice
Ranjan Gogoi. I agree
with the following conclusions arrived at in paras
(30) and (34) and the reasonings thereon.
“A person notified as a Scheduled Caste in State ‘A’ cannot
claim the same status in another State on the basis that he is
declared as a Scheduled Caste in State ‘A’......”.
“.......It will, therefore, be in consonance with the constitutional
scheme to understand the enabling provision under Article
16(4) to be available to provide reservation only to the classes
or categories of Scheduled Castes/Scheduled Tribes
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enumerated in the Presidential orders for a particular State/
Union Territory within the geographical area of that State/
Union Territory (Union Territory added by me) and not
beyond.”
With due respect, I do not agree with the conclusion arrived at in
para (61) and the reasonings thereon.
“......So far as the National Capital Territory of Delhi is
concerned the pan-India Reservation Rule in force is in accord
with the constitutional scheme relating to services under the
Union and the States/Union Territories.”
For agreeing with the conclusion arrived at in paras (30) and
(34) and for differing from the conclusions in para (61) and the reasonings
thereon, I have given my own reasonings.
2. The extent and nature of interplay and interaction under Articles
16(4), 341(1) and 342(1) of the Constitution of India was referred to the
Constitution Bench in State of Uttaranchal v. Sandeep Kumar Singh
and Ors., (2010) 12 SCC 794, with the following reference:-
“13. A very important question of law as to interpretation of
Articles 16(4), 341 and 342 arises for consideration in this appeal.
Whether the Presidential Order issued under Article 341(1) or
Article 342(1) of the Constitution has any bearing on the State’s
action in making provision for the reservation of appointments or
posts in favour of any Backward Class of citizens which, in the
opinion of the State, is not adequately represented in the services
under the State? The extent and nature of interplay and
interaction
among Articles 16(4), 341(1) and 342(1) of the Constitution is
required to be resolved.”
3. Territory of India:- Article 1(1) of the Constitution of India
declares that India, that is Bharat, shall be a Union of States.  As amended
by the Constitution Seventh (Amendment) Act, 1956.  Article 1 of the
Constitution reads as under:-
1.  Name and territory of the Union.- (1) India, that is Bharat,
shall be a Union of States.
     (2) The States and the territories thereof shall be as specified
in the First Schedule.
BIR SINGH  v. DELHI JAL BOARD & ORS.
[R. BANUMATHI, J.]
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 (3) The territory of India shall comprise—
      (a) the territories of the States;
      (b) the Union Territories specified in the First Schedule; and
      (c) such other territories as may be acquired.
4. Under the Constitution of India, as initially enacted, the States
were divided into Part A States, Part B States, Part C States and the
territories in Part D. Substantial changes were made by the Constitution
(Seventh Amendment) Act, 1956 which incorporated the
recommendations of the States Reorganisation Commission and was to
have effect in concert with the States Reorganisation Act, 1956.  The
four categories of States that existed were reduced to two categories.
The first of these categories - Part A and Part B States comprised one
class, called “States”. The second category comprised the areas which
had earlier been included in Part C and Part D States; these areas were
called “Union Territories”. Some additions and deletions were made to
the existing lists.  Now as per Schedule I, there are twenty-nine States
and Seven Union Territories.
5. The expression “State” is not defined in the Constitution. It is
defined in the General Clauses Act, 1897 which is made applicable to
the interpretation of the Constitution by Article 367. As on the date of
the commencement of the Constitution, clause (58) in Section 3 of the
General Clauses Act, 1897 defined “State” in the following words:-
“3. (58) ‘State’, — shall
mean a Part A State, a Part B State or a
Part C State.”
The said definition was amended by the Adaptation of Laws Order
No. 1 of 1956 issued by the President in exercise of the power conferred
upon him by Article 372-A of the Constitution introduced by the
Constitution Seventh (Amendment) Act, 1956.  The amended definition
‘State’ reads thus:-
“3. (58) ‘State’, —
         (a) as respects any period before the commencement of
the Constitution (Seventh Amendment) Act, 1956, shall mean a
Part A State, a Part B State or a Part C State; and
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            (b) as respects any period after such commencement,
shall mean a State specified in the First Schedule to the Constitution
and shall include a Union Territory.”
6. Clause (30) in Article 366 defines the “Union Territory” in
the following words:-
“366. (30) ‘Union Territory’ means any Union Territory specified
in the First Schedule and includes any other territory comprised
with the territory of India but not specified in that Schedule.”
7. Clause (24) of Article 366 defines “Scheduled Castes” and
clause (25) of Article 366 defines “Scheduled Tribes”. The latter means
“such tribes or tribal communities or parts of or groups within such
tribes or tribal communities as are deemed under Article 342 to be
‘Scheduled Tribes’ for the purposes of this Constitution”. Article
341(1) of the Constitution empowers the President, in consultation with
the Governor of the State concerned, to specify Scheduled Castes by
public notification. Equally, Article 342(1) of the Constitution empowers
the President “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 or 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”. Article
342(2) of the Constitution empowers “Parliament, by law, to
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.” Until the Presidential
Notification is modified by appropriate amendment by Parliament in
exercise of the power under Article 341(2) of the Constitution, the
Presidential Notification issued under Article 341(1) is final and conclusive
and any caste or group cannot be added to it or subtracted by any action
either by the State Government or by a Court on adducing of evidence.
In other words, it is the constitutional mandate that the tribes or tribal
communities or parts of or groups within such tribes or tribal communities
specified by the President, after consultation with the Governor in the
BIR SINGH  v. DELHI JAL BOARD & ORS.
[R. BANUMATHI, J.]
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public notification, will be ‘Scheduled Tribes’ subject to the law made
by Parliament alone, which may, by law, include in or exclude from the
list of ‘Scheduled Tribes’ specified by the President. Thereafter, it cannot
be varied except by law made by the Parliament.
8. The President of India alone is competent or authorized to
issue an appropriate Notification in terms of Article 341(1) and Article
342(1). Cumulative reading of Articles 338, 341 and 342 indicate that:-
a) Only the President could notify castes/tribes as Scheduled
Castes/Tribes and also indicate conditions attaching to such
declaration. A public Notification by the President specifying
the particular castes or tribes as SC/ST shall be final for the
purpose of Constitution and shall be exhaustive.
b) Once a notification is issued under clause (1) of Articles 341
and 342 of the Constitution, the Parliament can by law include
in or exclude from the list of Scheduled Castes or Scheduled
Tribes, specified in the notification, any caste or tribe but save
for that limited purpose the notification issued under clause (1),
shall not be varied by any subsequent notification1.
9. It is stated that before notification was issued under Article
341(1) and Article 342(1) notifying certain caste/race or group as
Scheduled Caste/Scheduled Tribe, an elaborate enquiry was made and
also after such enquiry, the Presidential Order was issued. While doing
so, Presidential
Order not only specified parts or groups of caste, races
or tribes but also made the said specification by reference to different
areas in the State. By perusal of the Presidential Order, it is clear that
some caste/race is actually confined with reference to a particular area;
for instance, confined to a particular taluk in a district. The reason for
such specification by reference to different areas in the State being
educational, social backwardness, races or tribes cannot be the same
throughout the State. The consideration for specifying a particular caste
or tribe or class for inclusion in the list of Scheduled Castes and
Scheduled Tribes or Backward Classes in a given State would depend
on the nature and extent of the disadvantages and social hardships
suffered in that State. These may be absent in another State to which
these persons belonging to other States may migrate.
1 Ref. Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled
Tribes in the State of Maharashtra and Anr. v. Union of India (UOI) and Anr. (1994) 5
SCC 244.
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10. Whenever States’ reorganization took place in the past,
Parliament exercised its powers under Articles 341(2) and 342(2) and
provided for specific Castes/Tribes that had to be Scheduled Castes and
Scheduled Tribes in relation to the reorganized States/Union Territories.
The Constitution Scheduled Caste Orders and the Constitution Scheduled
Castes (Union Territories) Order, also clarify that Parliament’s intention
was to extend benefits of reservation in relation to the States/Union
Territories in terms of the castes, races or tribes mentioned as per the
Presidential Orders themselves.
11. Presidential Order which provided for castes/races, tribes
recognized as ‘Scheduled Caste/Scheduled Tribe’ and their
interpretation cannot be challenged or agitated in a court of law. The
question whether Dohar caste is a sub-caste of Chamar caste which is
recognized as a Scheduled Caste came up for consideration in Bhaiya
Lal v. Harikishan Singh, AIR 1965 SC 1557, wherein this Court held
that the court cannot enquire into whether Dohar caste is a sub-caste
of Chamar caste and whether the same must be deemed to have been
included in the Presidential Order. In Bhaiya Lal’s case, this Court
held “...that before a notification is issued under Article 341(1), an
elaborate enquiry is made and it is as a result of this enquiry that
social justice is sought to be done to the castes, races or tribes as
may appear to be necessary, and in doing justice...” and while doing
so,
the notification not only to specify parts or groups of castes, races or
tribes but to make specification by reference to different areas in the
State.  In Bhaiya Lal’s case, the Supreme Court held that only the
Parliament is empowered to amend the Notification under Articles 341(2)
and 342(2) of the Constitution.
12. Presidential Notification (Scheduled Caste) Order 1950:-
The List of Scheduled Castes is contained in the Constitution (Scheduled
Castes) Order 1950.  The Presidential Notifications of 1950 and 1951
(as amended) in relation to Scheduled Castes and Scheduled Tribes of
various States, very importantly provided that:-
“2.  Subject to the provisions of this Order, the castes, races or
tribes or parts of, or groups within, castes or tribes specified in
[Parts I to XXV] of the Schedule to this Order shall, in relation to
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[R. BANUMATHI, J.]
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the States to which those Parts respectively relate, be deemed to
be Scheduled Castes so far as regards members thereof resident
in the localities specified in relation to them respectively in those
Parts of that Schedule.”
The Presidential Notification of 1950 was amended by the
Constitution (Scheduled Castes and Scheduled Tribes Order),
Amendment Act, 1956, (Act No.63 of 1956).  Another amending Act
was enacted by Parliament in 1976.  Further, amendments had taken
place as and when Parliament reorganized States like Bombay, Andhra
Pradesh, Uttarakhand, Chhattisgarh and Jharkhand through separate Acts.
All these were Parliamentary enactments. Presidential Notification
pertaining to Union Territories, Scheduled Castes (Union Territories)
Order, 1951 specifies Scheduled Castes resident in the Union Territories
of Delhi, Chandigarh and Daman and Diu. When new Union
Territories were formed such as Pondicherry, Sikkim, Goa, Daman and
Diu, Arunachal Pradesh, Mizoram, the Scheduled Castes or Scheduled
Tribes Orders were made in relation to those new Union Territories.
13. The Constitution (Scheduled Tribes) Order, 19502:-
In exercise of the powers conferred by clause (1) of Article 342 of the
Constitution of India the President has, after consultation with the
Governors of the States concerned, made the Constitution (Scheduled
Tribes) Order, 1950, specifying the tribes or communities which shall be
deemed to be Scheduled
Tribes in the States mentioned therein.  This
Order has been amended by the Scheduled Castes and Scheduled Tribes
Orders (Amendment) Act, 1976 (Act No.108 of 1976), the Constitution
(Scheduled Tribes) Order (Amendment) Act, 1991 (16 of 1991), the
Constitution (Scheduled Tribes) Order (Second Amendment) Act, 1991
(39 of 1991), the Scheduled Castes and Scheduled Tribes Orders
(Amendment) Act, 2002 (32 of 2002), the Scheduled Castes and
Scheduled Tribes Orders (Amendment) Act, 2002 (10 of 2003), the
Constitution (Scheduled Tribes) Order (Amendment) Act, 2003 (47 of
2003), the Constitution (Scheduled Tribes) Order (Amendment) Act 2006
(48 of 2006), the Constitution (Scheduled Tribes) Order (Amendment)
Act, 2008 (14 of 2008) and the Constitution (Scheduled Tribes) Union
Territories Order (Amendment) Act, 2008 (2 of 2009).  As it stands
amended, it specifies the Scheduled Tribes resident in the States of Andhra
 2  Ref. Election Manual (1984), p.44 quoted in Commentary on the Constitution of
India 8th Ed. by Durga Das Basu.
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Pradesh, Assam, Bihar, Gujarat, Himachal Pradesh, Karnataka, Kerala,
Madhya Pradesh, Maharashtra, Manipur, Meghalaya, Orissa, Rajasthan,
Tamil Nadu, Tripura, West Bengal.
14.  Article 16(4) is only an enabling provision to provide reservation
to backward classes. Clause (4) of Article 16 of the Constitution cannot
be made applicable for the purpose of grant of benefit of reservation for
Scheduled Castes or Scheduled Tribes in a State or Union Territory,
who have migrated to another State or Union Territory and they are not
members of the Scheduled Castes and Scheduled Tribes in the State to
which they have migrated. The Presidential Orders made under Article
341 and Article 342 have an overriding status. The presence of Articles
338, 338A, 341, 342 of the Constitution clearly shows that it precludes
any tinkering or deviation from the list of castes or tribes notified in the
Presidential Order which are reserved for that State or that Union
territory.
15. India is huge.  There is Unity in Diversity.  Diversity in terms
of language, culture, demography, geographical area, development of
regions, opportunities available to individuals for education and to make
social and economical advancement etc. Some States are well-developed;
some other States are developing; few other States are under-developed.
All the affirmative action of the States is to provide equality of opportunity
to the socially and economically disadvantaged group. Under Article
15(4) of the
Constitution, State is empowered to make special provisions
for the advancement of any socially and educationally backward class
of citizens or for the Scheduled Castes or Scheduled Tribes.  Article 16
of the Constitution of India lays down that there shall be equality of
opportunity for all citizens in matters relating to employment or
appointment to any office under the State.  Article 16(4) of the Constitution
empowers the State to make provisions to provide reservation to the
backward classes in employment or appointment to any posts and thereby
to create equally opportunities for their socio-economic empowerment
and their emancipation. Article 16(4) speaks of one type of reservation
namely reservation of appointments/posts.
16. Article 16(4) of the Constitution is an enabling provision
directed towards achieving equality of opportunity in services under the
State.  Observing that Article 14 of the Constitution is the genus while
BIR SINGH  v. DELHI JAL BOARD & ORS.
[R. BANUMATHI, J.]
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Article 16 is the species, in E. P. Royappa v. State of Tamil Nadu and
Anr., (1974) 4 SCC 3, it was held that:-
“85. .........Article 16 embodies the fundamental guarantee that
there shall be equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the
State. Though enacted as a distinct and independent fundamental
right because of its great importance as a principle ensuring
equality of opportunity in public employment which is so vital to
the building up of the new classless egalitarian society envisaged
in the Constitution, Article 16 is only an instance of the application
of the concept of equality enshrined in Article 14. In other words,
Article 14 is the genus while Article 16 is a species. Article 16
gives effect to the doctrine of equality in all matters relating to
public employment. The basic principle which, therefore, informs
both Articles 14 and 16 is equality and inhibition against
discrimination. Now, what is the content and reach of this great
equalising principle? It is a founding faith, to use the words of
Bose. J., “a way of life”, and it must not be subjected to a narrow
pedantic or lexicographic approach. We cannot countenance any
attempt to truncate its all-embracing scope and meaning, for to do
so would be to violate its activist magnitude. Equality is a dynamic
concept with many aspects and dimensions and it cannot be
“cribbed, cabined and
confined” within traditional and doctrinaire
limits........” [Underlining added]
17. The Constitution Bench of nine Judges in Indra Sawhney
and Ors. v. Union of India and Ors., (1992) Supp 3 SCC 217, observed
that Article 16(4) of the Constitution is aimed at ‘protective equality’
and it was held as under:-
“563. Thus, Article 16(1) and (4) operate in the same field.  Both
are directed towards achieving equality of opportunity in services
under the State.  One is broader in sweep and expansive in reach.
Other is limited in approach and narrow in applicability.  Former
applies to ‘all’ citizens whereas latter is available to ‘any’ in Article
16(4) read together indicate that they are part of same scheme.
The one is substantive equality and other is protective equality.
Article 16(1) is fundamental right of a citizen whereas Article
16(4) is an obligation of the State.  The former is enforceable in a
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Court of law, whereas the latter is ‘not constitutional compulsion’
but an enabling provision.  Whether Article 16(4) is in substance,
‘an exception’, ‘a proviso’, or an ‘emphatic way of putting the
extent to which equality of opportunity could be carried’, or
‘presumed to exhaust all exceptions in favour of backward class’,
or ‘expressly designed as benign discrimination devoted to lifting
to backward classes’, but if Article 16(1) is the positive aspect of
equality of opportunity’, Article 16(4) is a complete Code for
reservation for backward class of citizens as it not only provides
for exercise of power but also lays down the circumstances, in
which the power can be exercised, and the purpose and extent or
its exercise.  One is mandatory and operates automatically whereas
the other comes into play on identification of backward class of
citizens and their inadequate representation.” [Underlining
added]
18. Article 16(4) of the Constitution is not an exception; but a
facet of Article 14 and Article 16(1) of the Constitution; it enables the
State to effectuate equality of opportunity to any backward class. As
held in Chattar Singh and Ors. v. State of Rajasthan and Ors. (1996)
11 SCC 742 in paras (17) and (18), that “....It gives power to the state
to effectuate the opportunity of equality to any backward class of
citizens.  ……..The object of reservation for the Scheduled Casts
and Scheduled Tribes is to bring them into the mainstream of national
life,
while the objective in respect of the backward classes is to
remove their social and educational handicaps. Therefore, they are
always treated dissimilar and they do not form an integrated class
with Dalits and Tribes for the purpose of Article 16(4) or 15 (4)...”.
19.  In State of Kerala and Anr. v. N.M. Thomas and Ors.
(1976) 2 SCC 310 in para (178), it was held that “...differences and
disparities exist among men and things and they cannot be treated
alike by the application of the same laws but the law has to come in
terms with life and must be able to recognize the genuine differences
and disparities that exist in human nature.  Legislature has also to
enact legislation to meet specific ends by making a reasonable and
rational classification..”.
20.  A Constitution Bench of this Court in Marri Chandra Shekhar
Rao v. Dean, Seth G.S. Medical College and Ors., (1990) 3 SCC 130
BIR SINGH  v. DELHI JAL BOARD & ORS.
[R. BANUMATHI, J.]
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had the occasion to consider the question as to whether a member of
Gouda community which is recognised as “Scheduled Tribe” in the
Constitution (Scheduled Tribes) Order, 1950 would be entitled to admission
in a medical institution situated in the State of Maharashtra. Based on
the Government of India circular dated 22.02.1985, the appellant was
denied admission to the Medical College on the ground that Marri Chandra
Shekhar Rao was not a ‘Scheduled Tribe’ in the migrated State i.e.
State of Maharashtra.
21. After referring to various provisions of Constitution of India,
background in which the Presidential Order was issued and earlier
judgments, in Marri Chandra Shekhar Rao’s case, it was held as under:-
“9. It appears that Scheduled Castes and Scheduled Tribes in
some States had to suffer the social disadvantages and did not
have the facilities for development and growth. It is, therefore,
necessary in order to make them equal in those areas where they
have so suffered and are in the state of underdevelopment to
have reservations or protection in their favour so that they can
compete on equal terms with the more advantageous or developed
sections of the community. Extreme social and economic
backwardness arising out of traditional practices of untouchability
is normally considered as criterion for including a community in
the list of Scheduled Castes and Scheduled Tribes. The social
conditions of a caste, however,
varies from State to State and it
will not be proper to generalise any caste or any tribe as a
Scheduled Tribe or Scheduled Caste for the whole country. This,
however, is a different problem whether a member or the Scheduled
Caste in one part of the country who migrates to another State or
any other Union territory should continue to be treated as a
Scheduled Caste or Scheduled Tribe in which he has migrated.
That question has to be judged taking into consideration the interest
and well-being of the Scheduled Castes and Scheduled Tribes in
the country as a whole.”
22. Marri Chandra Shekhar Rao case was followed by another
Constitution Bench of this Court in Action Committee on issue of caste
certificate to Scheduled Castes and Scheduled Tribes in the State of
Maharashtra and Anr. v. Union of India and Anr. (1994) 5 SCC 244.
In Action Committee’s case, it was held as under:-
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“3. On a plain reading of clause (1) of Articles 341 and 342 it is
manifest that the power of the President is limited to specifying
the castes or tribes which shall, for the purposes of the Constitution,
be deemed to be Scheduled Castes or Scheduled Tribes in relation
to a State or a Union Territory, as the case may be. Once a
notification is issued under clause (1) of Articles 341 and 342 of
the Constitution, Parliament can by law include in or exclude from
the list of Scheduled Castes or Scheduled Tribes, specified in the
notification, any caste or tribe but save for that limited purpose
the notification issued under clause (1), shall not be varied by any
subsequent notification. What is important to notice is that the
castes or tribes have to be specified in relation to a given State or
Union Territory. That means a given caste or tribe can be a
Scheduled Caste or a Scheduled Tribe in relation to the State or
Union Territory for which it is specified. These are the relevant
provisions with which we shall be concerned while dealing with
the grievance made in this petition.
        ....
16. We may add that considerations for specifying a particular
caste or tribe or class for inclusion in the list of Scheduled Castes/
Schedule Tribes or backward classes in a given State would depend
on the nature and extent of disadvantages and social hardships
suffered by that caste, tribe or class in that State which may be
totally non est in another State to which
persons belonging thereto
may migrate. Coincidentally it may be that a caste or tribe bearing
the same nomenclature is specified in two States but the
considerations on the basis of which they have been specified
may be totally different. So also the degree of disadvantages of
various elements which constitute the input for specification may
also be totally different. Therefore, merely because a given caste
is specified in State A as a Scheduled Caste does not necessarily
mean that if there be another caste bearing the same nomenclature
in another State the person belonging to the former would be
entitled to the rights, privileges and benefits admissible to a member
of the Scheduled Caste of the latter State “for the purposes of
this Constitution”. This is an aspect which has to be kept in mind
and which was very much in the minds of the Constitution-makers
BIR SINGH  v. DELHI JAL BOARD & ORS.
[R. BANUMATHI, J.]
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as is evident from the choice of language of Articles 341 and 342
of the Constitution....”
Marri Chandra Shekhar Rao’s case and Action Committee’s
case were followed in Subhash Chandra and Anr. v. Delhi
Subordinate Services Selection Board and Ors., (2009) 15 SCC 458.
In Subhash Chandra case, the Supreme Court reiterated that “If a caste
or tribe is notified in terms of the Scheduled Castes Order or the
Scheduled Tribes Order, the same must be done in terms of clause
(1) of Article 341 as also that of Article 342 of the Constitution of
India, as the case may be. No deviation from the procedure laid
down therein is permissible in law. If any amendment/alteration
thereto is required to be made, recourse to the procedure laid down
under clause (2) thereof must be resorted to.”
23. In Marri Chandra Shekhar Rao’s case, it was held that a
Scheduled Caste or Scheduled Tribe of any State which depends on the
nature and extent of disadvantages and social hardships suffered by the
caste, tribe or class in that State or area may be non-existent in another
State.  The inclusion of the castes, races or tribes is mainly based on the
degree of disadvantages or hardships faced by the castes, races or tribes
in that State or in some cases or in part area of the State.  For instance,
in the Presidential Order relating to the State of Tamil Nadu, the caste
Kanikaran, Kanikkar (in Kanyakumari District and Shenkottah and
Ambasaundram
taluks of Tirunelveli district) are notified as Scheduled
Castes.  This shows that the President can specify castes, races or
tribes or parts thereof in relation not only to the entire State but in relation
to the parts of the State.  The President has been authorised to limit the
notification to parts of the State or groups within castes, races or tribes.
In Marri Chandra Shekhar Rao case, the Constitution Bench therefore
held that the expression “in relation to that State” must be read
meaningfully; otherwise the expression “in relation to that State” would
come nugatory.
24. The Presidential Order issued under Article 341 of the
Constitution in regard to Scheduled Castes and Article 342 of the
Constitution in regard to Scheduled Tribes cannot be varied by anyone
or by the Court.  Only the Parliament by law include or exclude from the
list of Scheduled Castes or Scheduled Tribes specified in a notification
issued under Article 341(1) and Article 342(1) of the Constitution
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respectively any caste, race or tribe or parts or group within any caste,
race or tribe.  The Scheduled Castes or Scheduled Tribes thus specified
in relation to one State or Union Territory does not carry their status in
another State or Union Territory.  When the Scheduled Castes or
Scheduled Tribes are specified for each State and in some cases, specific
areas of the State or Union Territory, neither the State legislature nor the
courts can include or exclude other Scheduled Castes or Scheduled Tribes
so specified in some States or Union Territories which would be against
the mandate of Articles 341 and 342 of the Constitution and the
Presidential Orders issued thereon.  If that is permitted, it would amount
to addition or alteration of the Presidential Order which is violative of
the Constitutional Scheme.
25. State of Maharashtra v. Milind and Ors. (2001) 1 SCC 4,
dealt with a question as to whether the notified Scheduled Tribe being
Halba or Halbi as contained in item 19 of the Presidential Order would
include “Halba-Koshti”. This Court held that addition of “Halba-Koshti”
in the Presidential Order would amount to amendment thereto which is
impermissible in law.  In Milind’s case, it was held as under:-
“33......The jurisdiction of the High Court would be much more
restricted while dealing with the question whether a particular
caste or tribe would come within the purview of the notified
Presidential Order, considering the language of Articles 341
and
342 of the Constitution. These being the parameters and in the
case in hand, the Committee conducting the inquiry as well as the
Appellate Authority, having examined all relevant materials and
having recorded a finding that Respondent 1 belonged to “Koshti”
caste and has no identity with “Halba/Halbi” which is the Scheduled
Tribe under Entry 19 of the Presidential Order, relating to the
State of Maharashtra, the High Court exceeded its supervisory
jurisdiction by making a roving and in-depth examination of the
materials afresh and in coming to the conclusion that “Koshtis”
could be treated as “Halbas”. In this view the High Court could
not upset the finding of fact in exercise of its writ jurisdiction.
Hence, we have to essentially answer Question 2 also in the
negative. Hence it is answered accordingly.”
26.  When the Parliament restricts the benefit of reservation by
inclusion of a caste as a Scheduled Caste to a State or part of State i.e.
BIR SINGH  v. DELHI JAL BOARD & ORS.
[R. BANUMATHI, J.]
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certain specified districts in a State, the Court cannot express any opinion
as  to  its  correctness.  Hence,  as  regards  the   inclusion of caste
“Mochi”  in  the  list of  Scheduled Castes within a   particular area as
per Constitution (Scheduled Castes) Order  (Second Amendment)  Act,
2002, it  was  held  that  it  was  not  for the Court to render any opinion
in regard to the correctness of the same.  [vide Shree  Surat  Valsad
Jilla  K.M.G.  Parishad v. Union of India and Ors. (2007) 5 SCC
360].
27. The  executive instructions/circulars issued by the Government
of India also reiterate to well-settled position. The circular No. BC-
16014/1/82-SC & BCD-I dated 06.08.1984 of the Ministry of Home
Affairs addressed to all State Governments and UT Administration states
that  SC and ST on migration from  the  State  of his origin to another
State will not lose  his status as SC/ST; but will be entitled to the
concession/benefits admissible to the SC/ST from the State of his origin
and  not  from the State where he has migrated. The relevant portion of
the said circular reads as under:-
  No. BC-16014/1/82-SC & BCD-I
               Government of India/Bharat Sarkar
           Ministry of Home Affairs/GrihMantralaya
                 New Delhi, the 6th August, 1984
To,
      The Chief Secretaries of All State
      Governments and U.T. Administrations.
   Subject: - Verification of claim of candidates belonging to
Scheduled  Castes  and  Scheduled Tribes  and migrants
from other States/Union Territories-Form of certificate -
            Amendment to.
  Sir,
  ……..
2.  The instructions issued in this Ministry’s letter of even number
dated the 18.11.1982 will continue. It is, however, clarified that
the Scheduled Caste/Scheduled Tribe person on migration from
the State of his origin to another State will not lose his status as
Scheduled Caste/Scheduled Tribes but he will be entitled to the
concessions/benefits admissible to the Scheduled Castes/Scheduled
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Tribes from the State of his origin and not from the State where
he has migrated……                               (Underlining added)
Yours faithfully
Sd/-
Joint Secretary to Govt. of India
28. The same thing was reiterated in the circular dated 22.02.1985
issued by the Ministry of Home Affairs which has also clarified that a
Scheduled Caste/Scheduled 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 will be entitled to derive benefits from the State of
origin and not from the State to which he has migrated.
29. My Conclusion for agreeing with the view taken in paras
(30) and (32):-  It is now settled law that a person belonging to Scheduled
Caste/Scheduled Tribe in State ‘A’ cannot claim the same status in another
State ‘B’ on the ground that he is declared as a Scheduled Caste/Scheduled
Tribe in State ‘A’.  The expressions “in relation to that State or Union
Territory” and “for the purpose of this Constitution”used in Articles
341 and 342 of the Constitution of India are to be meaningfully interpreted.
A given caste or tribe can be a Scheduled Caste or a Scheduled Tribe in
relation to that State or Union Territory for which it is specified.  Thus,
the person notified as a Scheduled Caste in State ‘A’ cannot claim the
same status in another State on the basis that he was declared Scheduled
Caste in
State ‘A’.  Article 16(4) has to yield to the Constitutional mandate
of Articles 341 and 342.
Union Territories:
30. Part VIII of the Constitution of India deals with Union
Territories. Article 239 provides that the Union Territory shall be
administered by the President acting through an Administrator to be
appointed by him.   Article 239 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.
BIR SINGH  v. DELHI JAL BOARD & ORS.
[R. BANUMATHI, J.]
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(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.”
31. Article 239A was inserted by the Constitution (Fourteenth
Amendment) Act, 1962.  Article 239A of the Constitution of India
empowers the Parliament to create by law legislatures and Council of
Ministers in the then Union Territories of Himachal Pradesh, Manipur,
Goa, Daman & Diu and Pondicherry.  Arunachal Pradesh and Mizoram
were added later.  With Himachal Pradesh, Manipur, Tripura, Goa and
Mizoram all becoming full-fledged States, the only Union Territory left
under Article 239A is Pondicherry.  Now, Union Territory of Pondicherry
(Puducherry) also has a legislature and Council of Ministers.
32. Article 341 empowers the President “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 Caste in
relation to that State or Union Territory as the case may be.”   Equally
Article 342(1) empowers the President “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 or tribal communities
which shall for the purposes of the Constitution be deemed to be Scheduled
Tribes in relation to that State or Union Territory, as the case may be”.
Articles 341(2) and 342(2) of the Constitution empower the Parliament
alone by law to include or exclude from the list of Scheduled Castes/
Scheduled Tribes specified by notification issued under Articles 341(1)
and 342(1) of the Constitution of India.  Until the Presidential Notification
is modified by appropriate amendment by Parliament in exercise of the
power under Articles 341(2) or 342(2) of the Constitution, the Presidential
Notification issued under Articles 341(1) and 342(1) of the Constitution
is final and conclusive.  No caste or group can be added to it or subtracted
by any action either by the State Government or by a Court on adducing
of evidence.  Articles 341 and 342 of the Constitution do not make any
distinction between a ‘State’ or ‘Union Territory’.
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33. Constitution (Scheduled Castes) (Union Territories)
Order, 1951:-  In exercise of powers under Clause (1) of Articles 341
and 342 of the Constitution, the Presidential Notifications were issued
specifying Scheduled Castes in relation to various Union Territories. List
of Scheduled Castes are declared in relation to each Union Territory
separately.  Presidential Notification pertaining to Union Territories,
Scheduled Castes (Union Territories) Order, 1951 specifies Scheduled
Castes resident in the Union Territories of Delhi, Chandigarh and Daman
and Diu.  The Presidential Order provided that:-
“Subject to the provisions of this Order, the castes, races or tribes
or parts of, or groups within, castes or tribes, specified in *[Parts
I to III] of the Schedule to this Order shall, in relation to the *[Union
territories] to which those parts respectively relate, be deemed to
be Scheduled Castes so far as regards members thereof resident
in the localities specified in relation to them respectively in those
Parts of that Schedule.”
As and when there is reorganisation of the Union Territories, in
exercise of the powers conferred under Article 341(1) of the Constitution,
the President has made various orders.
34. The Constitution (Scheduled Tribes) (Union Territories)
Order, 19513 :-  In exercise of the powers conferred by clause (1) of
Article 342 of the Constitution of India, as amended by the Constitution
(First Amendment) Act, 1951, the President made the
Constitution
(Scheduled Tribes) (Part C States) Order, 1951, specifying the tribes or
communities which shall be deemed to be ‘Scheduled Tribes’ in Part C
State.  This Order was adapted for the Union Territories by the Scheduled
Castes and Scheduled Tribes Lists (Modification) Order, 1956.
35. When new territories were formed, such as Pondicherry
(Puducherry), or Sikkim, the Scheduled Castes or Scheduled Tribes Orders
were made in relation to the new territories. In exercise of the powers
under Articles 341(1) and 342(1), the President has made the orders -
The Constitution (Dadra and Nagar Haveli) Scheduled Castes Order,
1962; The Constitution (Dadra and Nagar Haveli) Scheduled Tribes
Order, 1962; The Constitution (Pondicherry) Scheduled Castes Order,
1964; The Constitution (Goa, Daman and Diu) Scheduled Caste Order,
3 Ref. Ibid., p.53, quoted in Article 342 of commentary on the Constitution of India
8th Ed. by Durga Das Basu.
BIR SINGH  v. DELHI JAL BOARD & ORS.
[R. BANUMATHI, J.]
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1968; The Constitution (Goa, Daman and Diu) Scheduled Tribes Order,
1968; In the case of Goa, the Goa, Daman and Diu Reorganisation Act,
1987 (Act No.18 of 1987), by Section 19 amended the Scheduled Castes
and Scheduled Tribes Orders.
36. Union Territories do not become merged with the
Central Government:- The Union Territories are centrally administered
by the President acting through an administrator.  As held by this Court
in New Delhi Municipal Council v. State of Punjab & Ors. (1997) 7
SCC 339, the President, who is the executive head of a Union Territory
while administering the Union Territory, does not function as the head of
the Central Government, but as the head of the Union Territory under
powers specially vested in him under Article 239 of the Constitution
thereby occupying a position analogous to that of a Governor in a State.
Though the Union Territories are centrally administered under the
provisions of Article 239, they do not become merged with the Central
Government as has been held by this Court in Satya Dev Bushahri v.
Padam Dev and Ors. AIR 1954 SC 587. They are centrally
administered; but they retain their independent identity [Chandigarh
Administration and Anr. v. Surinder Kumar and Ors. (2004) 1 SCC
530]. The Union Territory does not entirely lose its existence as an entity
though large control is exercised by the Union of India. [Government
of NCT Delhi v. All India Central Civil Accounts,
Jao’s Association
and Ors. (2002) 1 SCC 344]
37. View taken in Pushpa and Chandigarh Administration –
not correct view:-  Reliance was placed upon Pushpa’s case to contend
that Article 16(4) is not controlled by the Presidential Order issued under
Article 341(1) or Article 342(1) to the Officers appointed to the post in
the Union Territories need not be confined to only such Schedule Castes/
Schedule Tribes of the particular Union Territory. In Pushpa’s case, the
Supreme Court was confined with the question as to whether, selection
and appointment already made to migrants’ Schedule Caste candidates
of other States against the quota reserved for the Schedule Caste
candidates in the Union Territory of Pondicherry was legal and valid. In
S. Pushpa and Ors. v. Shivachanmugavelu and Ors. (2005) 3 SCC
1, Pondicherry Government appointed Selection Grade Teachers in 1995
under the Scheduled Castes quota not only from the Scheduled Castes
candidates of Pondicherry but also such candidates of Scheduled Castes
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from other States.  In Pushpa’s case, this Court upheld the policy of the
Pondicherry Government extending the benefit of reservation of SC/ST
seats even to those candidates who came from other States. The
Pondicherry Government proceeded on the basis that since Central
Government jobs were open to all SC/ST candidates irrespective of origin
of their States, the same may apply to jobs with a Union Territory as
well. In Pushpa’s case, this Court held that in the matter of providing
reservation, it was open to the Pondicherry Government to extend the
benefit of reservation to migrant Scheduled Caste and Scheduled Tribe
candidates and that the same will not be an infraction of clause (4) of
Article 16 of the Constitution of India.
38. In Pushpa’s case, the principle that “when members of
Scheduled Castes/Scheduled Tribes migrate to another State, they
do not carry with them the special privileges and advantages”, was
held not applicable in case of Union Territories. In para (21) of Pushpa’s
case, it was held as under:-
“21.....Article 16(4) is not controlled by a Presidential Order issued
under Article 341(1) or Article 342(1) of the Constitution in the
sense that reservation in the matter of appointment on posts may
be made in a State or Union Territory only for such Scheduled
Castes and Scheduled Tribes which are mentioned in the Schedule
appended to the Presidential Order for that particular State or
Union Territory. This article does not say that only
such Scheduled
Castes and Scheduled Tribes which are mentioned in the
Presidential Order issued for a particular State alone would be
recognised as backward classes of citizens and none else. 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 recognised as such in relation to that
State or Union Territory then such a provision would be perfectly
valid. However, there would be no infraction of clause (4) of Article
16 if a Union Territory by virtue of its peculiar position being
governed by the President as laid down in Article 239 extends the
benefit of reservation even to such migrant Scheduled Castes or
Scheduled Tribes who are not mentioned in the Schedule to the
Presidential Order issued for such Union Territory. The UT of
Pondicherry having adopted a policy of the Central Government
BIR SINGH  v. DELHI JAL BOARD & ORS.
[R. BANUMATHI, J.]
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whereunder all Scheduled Castes or Scheduled Tribes, irrespective
of their State are eligible for posts which are reserved for SC/ST
candidates, no legal infirmity can be ascribed to such a policy and
the same cannot be held to be contrary to any provision of law.”
(Underlining added)
In my considered view, the above observation in Pushpa’s case
is not a correct view.  The judgment in Pushpa’s case is contrary to the
views taken in Marri Chandra Shekhar Rao’s case.  The judgment in
Pushpa’s case is contrary to the views taken in Marri Chandra Shekhar
Rao’s case. Facts of Pushpa’s case disclose that the Government of
Pondicherry had throughout proceeded on the basis that being a Union
Territory all orders regarding reservation for SC/ST in respect of post/
services under the Central Government were applicable to post/services
as under the Pondicherry administration. The decision in Pushpa’s case
therefore cannot be taken to be an authoritative pronouncement.  Clause
(2) of Article 341 of the Constitution empowers Parliament alone by law
to include or exclude from the lists of Scheduled Castes specified in a
notification issued under clause (1) of Article 341.  No executive action
or order or modification or variance of the same is possible and any such
variance would be against the constitutional scheme.
39. In Pushpa’s case, the posts advertised were of Selection
Grade Teachers under the Pondicherry Services and not
for Central
Government jobs. It may be that Pondicherry is a Union Territory; but
the posts/services exclusively coming under Pondicherry administration
is meant only for the Scheduled Casts/Scheduled Tribes as notified under
the Presidential Order for Pondicherry.  In fact, Pondicherry (Union
Territory) itself by referring to Subhash Chandra’s case has taken the
decision that reservation benefits to posts/services arising under the Union
Territory of Pondicherry will be confined only to the Scheduled Castes/
Scheduled Tribes notified by virtue of Presidential Order. The said
Government Order of the Pondicherry Government was upheld by this
Court in Puducherry Scheduled Caste People Welfare Association v.
Chief Secretary to Government, Union Territory of Pondicherry and
Ors. (2014) 9 SCC 236, wherein this Court held as under:-
“13. It is important to bear in mind that it is by virtue of the
notification of President under Article 341(1) that the Scheduled
Castes come into being. The members of the Scheduled Castes
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are drawn from castes, races or tribes, they attain a new status
by virtue of Presidential Order. Clause (2) of Article 341 empowers
Parliament alone by law to include or exclude from the list of
Scheduled Castes specified in a notification issued under clause
(1) by the President. By no executive power, amendment,
modification, alteration or variance in the Presidential Order is
permissible. It is not open to the executive to do anything directly
or indirectly which may lead to any change in the Presidential
Order. Once Presidential Order has been issued under Article
341(1) or Article 342(1), any amendment in the Presidential Order
can only be made by Parliament by law as provided in Article
341(2) or Article 342(2), as the case may be, and in no other
manner. The interpretation of “resident” in the Presidential Order
as “of origin” amounts to altering the Presidential Order.”
40. The principle in Pushpa’s case was not accepted in Subhash
Chandra’s case. It was held that although Union Territory is
administered by the Union Government, socio-political aspect of the Union
Territory cannot be mixed up with administrative aspect. In Subhash
Chandra’s case, it was held that if the principle applied in Pushpa’s
case is to be given a logical extension, it will lead to an absurdity, that the
Scheduled Castes Order in a State/Union Territory brought under the
control of the President under Article 341 of the Constitution could be
altered by virtue of a
notification issued in pursuance of Article 16(4) of
the Constitution, which is not in consonance with the Constitutional
Scheme.
41. Let us refer to the facts of Chandigarh Administration and
Another v. Surinder Kumar and Others (2004) 1 SCC 530. Ministry
of Home Affairs, Government of India issued various circulars pertaining
to the Scheduled Castes and Scheduled Tribes. The circular dated
22.02.1985 regarding “Issue of Scheduled Caste/Scheduled Tribe
certificate to migrants from other States/Union Territories”, issued
by the Ministry of Home Affairs 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 will be
entitled to derive benefits from the State of origin and not from the State
BIR SINGH  v. DELHI JAL BOARD & ORS.
[R. BANUMATHI, J.]
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to which he has migrated. Based on the aforesaid circular of the
Government of India, the Home Secretary, Chandigarh Administration
vide his letter dated 28.07.1986 sought clarification from the Government
of India, Ministry of Home Affairs, as to whether, these instructions are
applicable in the Union Territory of Chandigarh. Chandigarh Administration
received the reply dated 26.08.1986 from Ministry of Welfare stating
that there is no discrimination in the employment under the Central
Government between the Schedule Caste/Schedule Tribes of one State
or another and Union Territories and that the same may be followed by
the Chandigarh Administration. The letter dated 26.08.1986 stated that
Scheduled Castes/Scheduled Tribes of any other State/Union Territory
would be entitled to the benefits and facilities provided in the services
under the Union Territory of Chandigarh. Further the said circular leaves
it to the Chandigarh Administration to seek further clarification. The
above letter of Government of India is in clear violation of Constitutional
scheme.
42. Pursuant to the said letter, Chandigarh Administration sought
clarification from the Department of Personnel and Training. However,
they have not received any response. The clarification was issued by
the Home Secretary, Chandigarh Administration vide letter dated
07.09.1999. The said letter had given a clarification based on the
Government of India circular
dated 02.02.1985 stating that a Schedule
Caste/Schedule Tribe of any other State or Union Territory would not be
entitled to the benefits of reservation in the services in the Chandigarh
Administration and that the benefit of reservation to persons belonging
to reserved categories in other States in the Chandigarh Administration
is to be discontinued with effect from 07.09.1999. In Chandigarh
Administration case, the Supreme Court took the view that the stand
taken by Chandigarh Administration discontinuing the benefits of
reservation with effect from 07.09.1999 was untenable. With due respect,
I am not in agreement with the view taken in Chandigarh
Administration case. The letter dated 26.08.1986 sent by the Ministry
of Welfare/Kalyan Mantralaya is contrary to the letter dated 22.02.1985
sent by the Ministry of Home Affairs and also against the Constitutional
scheme.
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43. It was held in Subhash Chandra that Chandigarh
Administration and Pushpa proceeded on the basis that Marri
Chandra Shekhar Rao and Action Committee would have no
application in relation to Union Territories. Observing that both Articles
341 and 342 not only refer to the State but also to the Union Territory. In
para (64) of Subhash Chandra’s case, it was held as under:-
“64. Although Union Territories are administered by the Central
Government, yet it is difficult to conceive that the socio-political
aspect can be mixed up with the administrative aspect. Article
341 leads to grant of constitutional rights upon a person whose
affinity to a caste/tribe would attract the Constitution (Scheduled
Castes) Order or the Constitution (Scheduled Tribes) Order. Once
a person comes within the purview of presidential promulgation,
he would be entitled to constitutional and other statutory or
administrative benefits attached thereto. In our opinion, such socio-
political rights created in our Constitution cannot be segregated
keeping in view the administrative exigencies.”
44.  As per the scheme of the Constitution under Articles 341, 342
and 239 of the Constitution, only those Scheduled Castes/Scheduled Tribes
as notified in the Presidential Notification for the respective Union
Territory can legitimately claim the benefit of reservation in that Union
Territory. Even though the Union Territories are centrally administered,
though the administrator/Lieutenant
Governor so far as the administrative
aspects of the Union Territories, each Union Territory has its own identity.
Each of the Union Territories would be bound by their respective
Presidential Order of Scheduled Castes/Scheduled Tribes for giving
benefit of reservation to Scheduled Castes/Scheduled Tribes in
employment.  Only those persons, who come within the purview of the
Presidential Notification, would be entitled to constitutional and other
statutory benefits of reservation in the respective Union Territory. If the
benefit of reservation is to be extended to Scheduled Castes/Scheduled
Tribes from all over the country then it would amount to inclusion of
caste, races or tribes to the Presidential Order pertaining to that Union
Territory. As discussed earlier, such inclusion or exclusion in the
Presidential Order can be done only by the Parliament in the manner as
indicated in Articles 341(2) and 342(2) of the Constitution of India.  By
no executive order, amendment, alteration or variance in the Presidential
Order is permissible.
BIR SINGH  v. DELHI JAL BOARD & ORS.
[R. BANUMATHI, J.]
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Whether there can be PAN India reservation of SCs and STs to
services under various Union Territories of India
45. Under Central Civil Services (Classification, Control and
Appeal) Rules, 1965 [CCS(CCA) Rules, 1965], there are four categories
of services namely:-
(i)   Central Civil Services, Group A;
(ii)  Central Civil Services, Group B;
(iii) Central Civil Services, Group C; and
(iv) Central Civil Services, Group D
Central Civil Services – Group A:-
46. As per the Schedule to Central Civil Services (CCA) Rules,
1965, under Group ‘A’, there are forty five services inter alia like – (i)
Archaeological Service (Serial No.1); (ii) Central Health Service (Serial
No.5); (iii) Indian Defence Accounts Service (Serial No.11); (iv) Indian
Foreign Service (Serial No.12); (v) Indian Meteorological Service (Serial
No.13); (vi) Indian Postal Service (Serial No.14); (vii) Indian Posts and
Telegraphs Traffic Service (Serial No.15); (viii) Indian Revenue Service
(Serial No.16); (ix) Indian Salt Service (Serial No.17); (x) Directorate
General of Mines Safety (Serial No.19); (xi) Indian Telecommunication
Service (Serial No.22); (xii) Central Legal Service (Grades I,II, III and
IV) (Serial No.25); (xiii) Delhi and Andaman and Nicobar Islands Civil
Service, Grade I (DANICS) (Serial No.28); (xiv) Delhi and Andaman
and Nicobar Islands Police Service, Grade II (DANIPS) (Serial No.29);
(xv) Company Law Board Service (Serial No.38); (xvi)
Labour Officers
of the Central Pool (Serial No.39); and (xvii) Armed Forces Headquarters
Civil Services (Serial No.44).
47. By reading of the categories of services, the said services of
Group ‘A’ are concerned only with the services of the Union of India
and the appointment to Group ‘A’ services are made by the President.
The Cadre Controlling Authority of Group ‘A’ services are the respective
ministries of the Government of India.  Recruitment to Group ‘A’ services
is made by the Union Public Service Commission (UPSC) and the
recruitment is on all-India basis.  So far as the recruitment to Group ‘A’
services is concerned, Union of India in its counter affidavit has stated
as under:-
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“a. ……… Recruitment to Group A services is made by the UPSC.
This recruitment is again on all India basis…………
b. Whichever ministry seeks recruitment to the service in this
Group sends requisition to UPSC as per procedure prescribed
and UPSC accordingly advertises for the post in Group A.  Every
citizen of India is eligible to apply as per the qualifications and
requirements in the notification.
c.  DoPT is the nodal ministry for regulating the conditions of
service of all Central Civil Services as per Allocation of Business
Rules.  As per the conditions of service, every employee is
required to give an undertaking agreeing to the conditions of
the all India transfer liability at the time of joining the service.
d.  Central Civil Services employees belonging to Group A serve
the Union of India and that is the reason why these services
are across the length and breadth of the country, wherever
there is an office of the Central Government.
e.   Member of the Group A service are governed by Central Civil
Services (Class, Control & Appeal) Rules, 1965 as well as
Central Civil Services (Conduct) Rules, 1972 & Central Civil
Services (Pension) Rules, 1972 and such other rules made by
the central ministries.” 4
Central Civil Services – Group B:-
48. Under Rule 5, the Central Civil Services – Group ‘B’ are
specified in the Schedule and there are thirty-two such services
mentioned. Some of the thirty-two services of Group ‘B’ and their
appointing authorities are as
under:-
           PART II - Central Civil Services, Group ‘B’
(Except for Civilians in Defence Services)
Description of service
(2) 
Appointing
Authority 
(3) 
Description of service
(2) 
Appointing
Authority 
(3) 
Section Officer Grade of 
the Central Secretariat 
Service excluding Section 
Officers with Group 'A' 
status. (Serial No.1)
President 
Postal 
Superintendents' 
Service, 
Group 
'B'   
(Serial No.7) 
Director-
General Posts 
Postmasters' 
Service, 
Group 'B' (Serial No.8) 
Director-General 
Posts 
Customs 
Preventive 
Service, Group 'B'- 
Chief 
Inspectors 
(Serial No.15) 
Collector 
of 
Customs 
BIR SINGH  v. DELHI JAL BOARD & ORS.
[R. BANUMATHI, J.]
4 Para No. 6(i) of the Counter Affidavit filed by the Union of India at Pg. No.3-4
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Botanical Survey of India, 
Group 'B' (Serial No.18) 
Chief Botanist, 
Botanical Survey 
of India
Income 
Tax 
Service, Group 'B' 
(Serial No.17)
Commissioner of 
Income Tax 
Geological Survey of India, 
Group 'B' (Serial No.19) 
Director-General 
Geological, 
Survey of India 
Survey of India, 
Group 'B' (Serial 
No.20) 
Surveyor 
General of India 
Zoological Survey of India, 
Group 'B' (Serial No.21) 
Zoological 
Survey of India 
Central Electrical 
Engineering 
Service Group 'B'  
(Serial No.22)
Director General 
(Works), Central 
Public 
Works 
Department
Central Engineering Service, 
Group 'B': (Serial No.24) 
(i) Posts in the Ministry of 
Irrigation and Power. 
(ii) Posts in the Central Water 
and Power Commission 
(iii) Posts in the Chambal 
Control Board 
(iv) Posts in the Farakka 
Barrage Control Board 
(v) Posts in the Ganga 
Discharge Circle 
Joint Secretary, 
Chairman, 
Central 
Water 
and 
Power 
Commission 
Joint Secretary, 
Ministry 
of 
Irrigation 
and 
Power 
Commissioner 
(Ganga 
Basin), 
Ministry 
of 
Irrigation 
and 
Power 
Commissioner 
(Ganga 
Basin), 
Ministry 
of 
Irrigation 
and 
Power 
Indian Salt Service, 
Group 'B' (Serial 
No.26) 
Joint Secretary, 
Ministry 
of 
Production 
Delhi and Andaman and 
Nicobar 
Islands 
Civil 
Service, 
Grade 
II. 
(DANICS) 
(Serial No.28) 
Joint Secretary, 
Ministry 
of 
Home Affairs 
Delhi 
and 
Andaman 
and 
Nicobar 
Islands 
Police 
Service, 
Grade 
II.
(DANIPS) (Serial 
No.29)
Joint Secretary, 
Ministry 
of 
Home Affairs

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General 
Central 
Service, 
Group 'B'- (Serial No.32) 
(i) Post in any Ministry of 
Department of Government 
of India, other than the post 
in respect of which specific 
provision has been made by a 
general or special order of the 
President. 
(i-a) Posts outside a Ministry 
or 
Department 
of 
Government of India, other 
than the posts in respect of 
which specific provision has 
been made by a general or 
special order of the president. 
(ii) 
Posts 
in 
Union 
Territories other than Delhi 
Administration, 
the 
Andaman 
and 
Nicobar 
Islands and the Laccadive, 
Minicoy 
and 
Amindive 
Islands  
(iii)Delhi 
Administration-
All posts 
(iv) The Andaman and 
Nicobar Islands-All Posts 
(v) 
The 
Lakshadweep 
Administration-All Posts
Secretary in the 
Ministry 
or 
Department 
In respect of posts 
in an office under 
the control of a 
Head 
of 
Department 
directly under the 
Government. 
-Head 
of 
the 
Department 
In respect of other 
posts - Secretary in 
the Ministry or 
Department 
Administrator 
Chief Secretary 
Chief 
Commissioner 
Administrator
All Group 'B' 
posts 
of 
the 
Departmentalise
d 
Accounts 
Offices of the 
Government of 
India. 
(Serial 
No.33) 
Chief Controller of 
Accounts or Joint 
Controller General 
of Accounts in a 
Ministry 
or 
Department where 
there is no Chief 
Controller 
of 
Accounts 
BIR SINGH  v. DELHI JAL BOARD & ORS.
[R. BANUMATHI, J.]
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Recruitment to Group ‘B’ services are conducted by the UPSC.
The appointing authority to various Group ‘B’ services is the President
of India/respective Ministries/respective Heads like Ministry of Home
Affairs, Collector of Customs, Commissioner of Customs etc.
49. In Serial Nos. 28 and 29 of the Schedule, we have the Union
Territories Service known as Delhi, Andaman and Nicobar Islands,
Lakshadweep, Daman & Diu and Dadra & Nagar Haveli Civil Services
(DANICS) and Delhi, Andaman and Nicobar Islands, Lakshdweep,
Daman & Diu and Dadra & Nagar Haveli Police Services (DANIPS).
In the counter affidavit filed by the Union of India, it is stated as under:-
“a. …….DANICS/DANIPS officers are posted in Delhi, Andaman
& Nicobar Islands, Lakshdweep, Daman & Diu and Dadra &
Nagar Haveli.  The recruitment to all the Union Territories for
these Group B posts are common.  They are also centralised
and the appointing authority is none other than Ministry of Home
Affairs, Government of India.  The recruitment to these services
is the very same examination meant for the All India Services
(IAS/IPS) on the one hand and the Central Civil Services Group
A on the other.  Any citizen of India is eligible to apply, subject
to the conditions prescribed.  As per service rules, transfer
undertakings throughout the Union Territories covered under
DANICS/DANIPS is taken from these officers.
b. This is the reason why the Union of India while
inviting
applications for recruitment considers all candidates, including
reserved candidates on all India basis.  Group B cadre of
DANICS and DANIPS is the feeder cadre for IAS and IPS
respectively.  They retire invariably in these offices, some of
them reaching high positions in the central government.
c. As indicated above recruitment to the All India Services, CCS
Group A as well as CCS Group B (Gazetted) is conducted
through UPSC in the Civil Services Examination, the applicants
are common when the applications are made, every aspirant
seeks recruitment to the services and it is only as per the marks
and ranking that allocations are made eventually to All India
Services, Group A and Group B.  Therefore, when UPSC
undertakes the recruitment, it is naturally a PAN India
recruitment and therefore it is necessary to seek applications
including from reserved candidates from all over India.”5
5 Para No. 6(ii) of the Counter Affidavit filed by the Union of India at Pg. No.4-5
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Central Civil Services – Group C:-
50. There are five services under Central Civil Services – Group
‘C’ under CCS (CCA) Rules.  Some of the posts noted in Group ‘C’ and
their appointing authorities are as under:-
PART III - Central Civil Services, Group 'C'
                         (Except for Civilians in Defence Services) 
Description of 
service 
(2) 
Appointin
g 
Authority 
(3) 
Description of service 
(2) 
Appointing 
Authority 
(3) 
Central Secretariat 
Clerical Service, 
Upper 
Division 
and 
Lower 
Division 
Grade   
(Serial No.1) 
Deputy 
Secretary 
or 
Director, 
Cadre 
Authority 
General 
Central 
Service, 
Group ‘C’ (Serial No.4) 
(i)
Posts 
in 
the 
Ministry/Department 
of 
Government other than 
the posts in respect of 
which specific provision 
has been made by a 
general or special order of 
the President 
(ii) Posts in non-Secretariat 
Office other than posts in 
respect of which specific 
provision has been made 
by a  general or special 
order   of the President 
(iii) Posts 
in 
Union 
Territories 
(iv) All Group ‘C’ posts of the 
Departmentalized 
Accounts Office of the 
Government of India 
Deputy Secretary 
or Director in the 
Ministry/Departm
ent of Government 
Head of Office 
Head of Office of 
such 
other 
authority as may 
be specified by 
the 
Administrator. 
Controller 
of 
Accounts 
or 
Deputy Controller 
General 
of 
Accounts 
in 
a 
Ministry 
or 
Department where 
there 
is 
no 
Controller 
of 
Accounts. 
BIR SINGH  v.
DELHI JAL BOARD & ORS.
[R. BANUMATHI, J.]