# BIR SINGH v. DELHI JAL BOARD & ORS

- **Citation:** [2018] 10 S.C.R. 513
- **Court:** Supreme Court of India
- **Decided:** 2018-08-30
- **Case number:** Civil Appeal No.1085 of 2013
- **Bench:** Ranjan Gogoi, N. V. Ramana, R. Banumathi, Mohan M. Shantanagoudar, S. Abdul Nazeer
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bir-singh-v-delhi-jal-board-ors-32196
- **Pages:** 102

## Headnote

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
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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
Terri

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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
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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 publicsector 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 thirtysix 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 socioeconomic 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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