M.M. Sundresh ORDER
M.M. Sundresh, J.
1. The petitioner in W.P. No. 17987 of 2015 is an Association consists of Members, who migrated from other States to Union Territory of Pondicherry and reside therein for more than five years and thus, seeking admission for their wards under the Schedule Caste category. The other two writ petitions viz., W.P. Nos. 19369 and 20675 of 2015, have been filed by individual petitioners seeking similar relief.
2. As the issue involved in all these writ petitions is one and the same, they have been taken up together and disposed of by way of a common order.
3. The only issue requires to be answered by this Court is as to whether a "migrant" to the Union Territory of Pondicherry has to be given the status of a "resident" after completion of five years and their claim would be regarded as a Member of a Scheduled Caste under the "Constitution (Pondicherry) Scheduled Castes Order, 1964" dated 05.03.1964 for the purpose of availing the benefit under Article 15(4) of the Constitution of India.
4. Background Facts
4.1. Over a total number of available seats, 64 have been earmarked for the MBBS., Courses and 97 seats for other Biology Based Degree Courses under the Scheduled Caste category in the Union Territory of Pondicherry, for which 674 applications have been received. Now the grievance of the petitioners is that though they are migrants, in view of the five years stay in the Union Territory of Pondicherry, they should be termed as a "resident" as mentioned in the Presidential order dated 05.03.1964.
4.2. The Presidential order dated 05.03.1964 is reproduced hereunder:
"In exercise of the powers conferred by clause (1) of Article 341 of the Constitution of India, the president is pleased to make the following Order, namely:-
1. This Order may be called the Constitution (Pondicherry) Scheduled Castes Order, 1964.
2. The castes, races or tribes or parts of or groups within castes, races or tribes specified in the Schedule to this Order shall for the purposes of the, Constitution, be deemed to be Scheduled Castes in relation to the Union territory of Pondicherry so far as regards members thereof resident in that Union territory.
Provided that no person, who professes a religion different from the Hindu (the Sikh or the Buddist) religion, shall be deemed to be a member of a Scheduled Caste.
THE SCHEDULE
1. Adi Andhra
2. Adi Dravida
3. Chakkiliyan
4. Jambuvulu
5. Kuravan
6. Madiga
7. Mala, Mala Masti
8. Paky
9. Pallan
10. Parayan, Sambavar
11. Samban
12. Thoti
13. Valluvan
14. Vetan
15. Vettiyan
16. Puthirai Vannan"
Thus, the Presidential Order deals with 16 Scheduled Castes qua resident of Union Territory of Pondicherry.
4.3. A clarification was issued by the Under Secretary to Government in and by the order dated 22.03.1977 regarding the issuance of Scheduled Caste and Scheduled Tribe Certificates. The following recapitulation of para 2 would be apposite.
"2. As required under Articles 341 and 342 of the Constitution, the President has, with respect to every State and Union Territory and where it is State after consultation with the Governor of the concerned State, issued orders notifying various Castes and Tribes as Scheduled Castes and Scheduled Tribes in relation to that State or Union Territory from time to time. The inter-state area restrictions have been deliberately imposed so that the people belonging to the specific community residing in a specific area, which has been assessed to qualify for the Scheduled Caste or Scheduled Tribe status, only benefit from the facilities provided for them. Since the people belonging to the same caste but living in different State/Union Territories may not necessarily suffer from the same disabilities, it is possible that two persons belonging to the same caste but residing in different States/U.Ts may not both be treated to belong to Scheduled Caste/Tribe/or vice-versa. Thus the residence of a particular person in a particular locality assumes a special significance. This residence has not to be understood in the literal or ordinary sense of the word. On the other hand it connotes the permanent residence of a person on the date of the notification of the Presidential order scheduling his caste/tribe in relation to that locality. Thus a person who is temporarily away from his permanent place of abode at the time of the notification of the Presidential Order applicable in his case, say, for example, to earn a living or seek education, etc., can also be regarded as a Scheduled Caste or a Scheduled Tribe, as the case may be, if his caste/tribe has been specified in that Order in relation to his State/UT. But he cannot be treated as such in relation to the place of his temporary residence notwithstanding the fact that the name of his caste/tribe has been scheduled in respect of that area in any Presidential Order."
4.4. A subsequent letter was also issued by the Government of India dated 22.02.1985, in which, the following passage would be apposite.
"2. It is also clarified that a scheduled caste/tribe person who has migrated from the State of origin to come other State for the purpose of seeking education, employment etc., will be deemed to a Scheduled caste/tribe of the State of his origin and shall be entitled to derive benefits from the State of origin and not from the State to which he has migrated."
4.5. Thus, the Government of India had in specific terms clarified that for the purpose of Article 15(4) of the Constitution of India, a benefit of reservation would be available to a person only to the State in which he is permanently residing and not in the migrant State/Union Territory. In other words, a mere status of a resident given for living for a period of five years per se cannot be a ground to avail the benefit under Article 15(4) of the Constitution of India.
4.6. The prospectus of the respondents also reiterate the said position, which states as follows:
"4.0 DETAILS OF RESERVATION AND SPECIAL ALLOCATION:
4.1. UT Puducherry Candidates in Colleges run by the Societies of Government of Puducherry
Reservations in admission to various degree courses offered by colleges run by the societies of Government of Puducherry for Puducherry UT candidates belonging to different categories are given below. Further, SC/BT/EBC/MBC/BCM/OBC candidates are also eligible for selection under Open competition/General category in addition to the reservations made to them.
** MBBS 1% and for all other courses 3% of seats are reserved.
• Horizontal Reservation: Seats reserved/allocated under these categories will become operational, only if the minimum numbers of seats earmarked for each of these categories are not filled up under normal process of selection in any category. Such arrived number of seats against vertical and horizontal reservation is given in Annexure-IV.
4.1.2 Scheduled Caste Candidates (SC)
Candidates claiming admission under this category should belong to a caste which is recognized as Scheduled Caste under "the Constitution (Pondicherry) Scheduled Castes Order 1964" dated 05.03.1964, read with "The Constitution (Scheduled Caste) Order (Second Amendment) Act 2002 (Central Act 61 of 2002) and should enclose the required certificate issued by an Officer of the Department of Revenue & Disaster Management., Puducherry not below the rank of Deputy Tahsildar."
4.7. Admittedly, the members of the petitioner in W.P. No. 17987 of 2015 and the petitioners in other two writ petitions viz., W.P. Nos. 19369 and 20675 of 2015, do not have any Certificate that they belong to a Schedule Caste community in the Union Territory of Pondicherry as recognised under the Presidential Order. On the contrary, they have been treated as migrants. Now, the grievance of the petitioners is that as they belong to Scheduled Caste community, the term used as a "resident" in a Presidential Order shall be made applicable to them as well.
4.8. The representation made by the petitioner in W.P. No. 17987 of 2014 has been rejected by the respondents by passing a speaking order stating that only the castes mentioned in the Presidential order alone can be treated as Scheduled Castes subject to the rider that they must be residents. The petitioners seeking to quash the merit list and treat them as Scheduled Castes, as such, under the Presidential Order, have filed the present writ petitions. These are the background facts.
5. Submissions of the Petitioners:-
The learned Counsels appearing for the petitioner submitted that the fact that the members of the petitioner in W.P. No. 17987 of 2015 and the parents of the petitioners in W.P. Nos. 19369 and 20675 of 2015 are the residents after completion of five years at Union Territory of Pondicherry is not in dispute. Treating them as such they have been considered for the Government Posts under the reserved category. The issues raised have already been dealt with and concluded by the Apex Court in S. PUSHPA AND OTHERS V. SIVACHANMUGAVELU AND OTHERS (MANU/SC/0091/2005 : (2005) 3 Supreme Court Cases 1) and PUDUCHERRY SCHEDULED CASTE PEOPLE WELFARE ASSOCIATION V. CHIEF SECRETARY TO GOVERNMENT, UNION TERRITORY OF PONDICHERRY AND OTHERS (MANU/SC/0715/2014 : (2014) 9 Supreme Court Cases 236). Therefore, the respondents cannot re-agitate the same in a different form. Any such attempt per se would amount to contempt apart from the principles governing estoppel being attracted. The Apex Court has considered the submissions and passed appropriate orders. Being a mandate of the Apex Court, Articles 141 and 142 of the Constitution of India would come into play. Therefore, not only the respondents, but even this Court is bound by the same. As the decisions rendered by the Apex Court in MARRI CHANDRA SHEKHAR RAO V. DEAN, SETH G.S. MEDICAL COLLEGE AND OTHERS (MANU/SC/0457/1990 : (1990) 3 Supreme Court Cases 130) has been distinguished, the same cannot be relied upon. Having taken a stand earlier differently in S. PUSHPA AND OTHERS V. SIVACHANMUGAVELU AND OTHERS (MANU/SC/0091/2005 : (2005) 3 Supreme Court Cases 1) referred supra it is not open to the official respondents to contend to the contrary. In support of their contention, the learned counsels had made reliance upon the following judgments.
"(1) MARRI CHANDRA SHEKHAR RAO V. DEAN, SETH G.S. MEDICAL COLLEGE AND OTHERS (MANU/SC/0457/1990 : (1990) 3 Supreme Court Cases 130);
(2) 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 (MANU/SC/0791/1994 : (1994) 5 Supreme Court Cases 244);
(3) S. PUSHPA AND OTHERS V. SIVACHANMUGAVELU AND OTHERS (MANU/SC/0091/2005 : (2005) 3 Supreme Court Cases 1);
(4) PUDUCHERRY SCHEDULED CASTE PEOPLE WELFARE ASSOCIATION V. CHIEF SECRETARY TO GOVERNMENT, UNION TERRITORY OF PONDICHERRY AND OTHERS (MANU/SC/0715/2014 : (2014) 9 Supreme Court Cases 236).
(5) DEEPAK KUMAR AND OTHERS V. DISTRICT AND ASSOCIATIONS JUDGE, DELHI AND OTHERS - W.P. No. 5390 OF 2010 DATED 12.09.2012.
(6) AMBIKA PRASAD MISRA V. STATE OF U.P., (MANU/SC/0581/1980 : (1980) 3 SCC 719);
(7) B.M. LAKSHMI v. MUNICIPAL COMMITTEE (MANU/SC/0391/1970 : (1970) 2 SCC 267;
(8) DIRECTOR OF SETTLEMENTS, ANDHRA PRADESH AND OTHERS v. M.R. APPARAO AND ANOTHER MANU/SC/0269/2001 : (2001) 4 SCC 638;
(9) J. KUMARAN V. UNION OF INDIA, REP. BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT OF PUDUCHERRY, PUDUCHERRY AND OTHERS (MANU/TN/0101/2015 : (2015) 2 MLJ 1; and
(10) S. NANDHIVARMAN v. J. KUMARAN AND OTHERS-Rev. A. Nos. 69 & 70 of 2015 dated 01.04.2015."
6. Submissions of the Respondents:-
The counsels appearing for the respondents led by the learned Additional Solicitor General submitted that the judgments cannot be read like a statute. The decisions rendered by the Apex Court in MARRI CHANDRA SHEKHAR RAO V. DEAN, SETH G.S. MEDICAL COLLEGE AND OTHERS (MANU/SC/0457/1990 : (1990) 3 Supreme Court Cases 130) and 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 (MANU/SC/0791/1994 : (1994) 5 Supreme Court Cases 244) hold the field till now. A technical interpretation of the word "resident" cannot be given. It is not of mere physical resident or domicile. It only means a resident on the date of the Presidential Order dated 05.03.1964. Such a clarification has also been accepted by the Apex Court. The entitlement of a migrant has already been clarified by the Central Government as approved by the Apex Court in the Action Committee case cited above. In the decision relied upon by the learned counsel appearing for the petitioners the issue was one of Article 16(4) as against Article 15(4) of the Constitution of India in the present case. In PUDUCHERRY SCHEDULED CASTE PEOPLE WELFARE ASSOCIATION V. CHIEF SECRETARY TO GOVERNMENT, UNION TERRITORY OF PONDICHERRY AND OTHERS (MANU/SC/0715/2014 : (2014) 9 Supreme Court Cases 236), the Apex Court was merely concerned with the substitution of the word "origin" with "resident" as shown in the Presidential Order. The petitioners having their status in fact in their respective States with their permanent residents cannot seek the said benefit before the migrant States/Union Territory having its own peculiar characteristics. The two Division Bench decisions relied upon by the learned counsel for the petitioners do not apply to the case on hand as they also dealt with Article 16(4) of the Constitution of India. Placing reliance upon the very same judgment from which the learned counsel appearing for the petitioners drew their support, it is submitted that the writ petitions are liable to be dismissed.
7. Heard the learned counsels appearing for the parties and perused the written submissions and other documents.
8. ANALYSIS:-
8.1. A Presidential Order has its own sanctity. Neither a State Government/Union Territory nor a Court of Law is allowed to go beyond it. The words "Castes" or "Tribes" in the expression Scheduled Casts and Scheduled Tribes are not used in the ordinary terms, but in the light of the definition under Articles 326(24) and 326(25) of the Constitution of India. Thus, a caste is a Schedule Caste or a Tribe would become as such only if it is included in the Presidential Order issued under Articles 341 and 342 of the Constitution of India. It is the parliament alone, which is competent to include/exclude the castes from the list of Scheduled Castes. A Presidential Order once issued has to be varied only by a law made by the Parliament. Considering this issue, the Apex Court in STATE OF KERALA AND ANOTHER V. N.M. THOMAS AND OTHERS (MANU/SC/0479/1975 : (1976) 2 SCC 310) held as follows:
"Scheduled Castes and Scheduled Tribes are not a caste within the ordinary meaning of caste. In Bhaiyalal v. Harikishan Singh and Ors. (1) this Court held that an enquiry whether the appellant there belonged to the Dohar caste which was not recognised as a Scheduled Caste and his declaration that he belonged to the Chamar caste which was a Scheduled Caste could not be permitted because of the provisions contained in Article 341. No Court can come to a finding that any caste or any tribe is a Scheduled Caste or Scheduled Tribe. Scheduled Caste is a caste as notified under Article 366(25). A notification is issued by the President under Article 341 as a result of an elaborate enquiry. The object of Article 341 is to provide protection to the members of Scheduled Castes having regard to the economic and educational backwardness from which they suffer."
8.2. On the scope of Article 341 of the Constitution of India, it has been held by the Apex Court in AKHIL BHARATIYA SOSHIT KARAMCHARI SANGH (RAILWAY) REPRESENTED BY ITS ASSISTANT GENERAL SECRETARY ON BEHALF OF THE ASSOCIATION ETC., V. UNION OF INDIA AND OTHERS (MANU/SC/0058/1980 : (1981) 1 Supreme Court Cases 246).
"40. Article 341 makes it clear that a 'Scheduled Caste' need not be a 'caste' in the conventional sense and, therefore, may not be a caste within the meaning of Arts. 15(2) or 16(2). Scheduled Castes become such only if the President specifies any castes, races or tribes or parts or groups within castes, races or tribes for the purpose of the Constitution. So, a group or a section of a group, which need not be a caste and may even be a hotchpotch of many castes or tribes or even races, may still be a Scheduled Caste under Art. 341. Likewise, races or tribal communities or parts thereof or part or parts of groups within them may still be Scheduled Tribes (Art. 342) for the purpose of the Constitution. Under this definition, one group in a caste may be a Scheduled Caste and another from the same caste may not be. It is the socioeconomic backwardness of a social bracket, not mere birth in a caste, that is decisive. Conceptual errors creep in when traditional obsessions obfuscate the vision.
41. This aspect has been referred to in the State of Kerala v. N.M. Thomas by me, and dealt with at more length by Ray, C.J.:
Scheduled Castes and Scheduled Tribes are not a caste within the ordinary meaning of caste. In Bhaiyalal v. Hari kishan Singh and Ors. (2) this Court held that an enquiry whether the appellant there belonged to the Dohar caste which was not recognised as a Scheduled Caste and his declaration that he belonged to the Chamar caste which was a Scheduled Caste could not be permitted because of the provisions contained in Article 341. No Court can come to a finding that any Caste or any tribe is a Scheduled Caste or Scheduled Tribe. Scheduled Caste is a caste as notified under Article 366(25). A notification is issued by the President under Article 361 as a result of an elaborate enquiry. The object of Article 341 is to provide protection to the members of Scheduled Castes having regard to the economic and educational backwardness from which they suffer."
8.3. The Apex Court in STATE OF MAHARASHTRA V. MILLIND AND OTHERS (MANU/SC/0724/2000 : (2001) AIR Supreme Court Cases 393) while denying the word "Scheduled Caste" and the scope of Articles 341 and 342 of the Constitution of India as well as the jurisdiction of the authorities including the Court, was pleased to observe as follows:
"10. By virtue of powers vested under Articles 341 and 342 of the Constitution of India, the President is empowered to issue public notification for the first time specifying the castes, races or tribes or part of or groups within castes, races, or tribes which shall, for the purposes of the Constitution be deemed to be Scheduled Casts or Schedules Tribes in relation to a State or Union Territory, as the case may be. The language and terms of Articles 341 and 342 are identical. What is said in relation to Article 341 mutatis mutandis applies to Article 342. The laudable object of the said Articles is to provide additional protection to the members of the Scheduled Castes and Scheduled Tribes having regard to social and educational backwardness from which they have been suffering since a considerable length of time. The words 'castes' or 'tribes' in the expression 'Scheduled Castes' and 'Scheduled Tribes' are not used in the ordinary sense of the terms but are used in the sense of the definitions contained in Article 366(24) and 366(25). In this view, a caste is a Scheduled Caste or a tribe is a Scheduled Tribe only if they are included in the President's Orders issued under Articles 341 and 342 for the purpose of the Constitution. Exercising the powers vested in him, the President has issued the Constitution (Scheduled Castes) Order, 1950 and the Constitution (Scheduled Tribes) Order, 1950. Subsequently, some Orders were issued under the said Articles in relation to Union Territories and other States and there have been certain amendments in relation to Orders issued, by Amendment Acts passed by the Parliament.
12. Plain language and clear terms of these Articles show (1) the President under Clause (1) of the said Articles may with respect to any State or Union Territory and where it is a State, after consultation with the Governor, by public notification specify the castes, races or tribes or parts of or groups within the castes, races or tribes which shall for the purposes of the Constitution be deemed to be Scheduled Castes/Scheduled Tribes in relation to that State or Union Territory as the case may be; (2) Under Clause (2) of the said Articles, a notification issued under Clause (1) cannot be varied by any subsequent notification except by law made by Parliament. In other words, Parliament alone is competent by law to include in or exclude a caste/tribe from the list of Scheduled Castes and Scheduled Tribes specified in notifications issued under Clause (1) of the said Articles. In including castes and tribes in Presidential Orders, the President is authorized to limit the notification to parts or groups within the caste or tribe depending on the educational and social backwardness. It is permissible that only parts or groups within them could be specified and further to specify castes or tribes thereof in relation to parts of the State and not to the entire State on being satisfied that it was necessary to do so having regard to social and educational backwardness. States had opportunity to present their views through Governors when consulted by the President in relation to castes or tribes, parts or groups within them either in relation to entire State or parts of State. It appears that the object of Clause (1) of Articles 341 and 342 was to keep away disputes touching whether a caste/tribe is a Scheduled Caste/Scheduled Tribe or not for the purpose of the Constitution. Whether a particular caste or a tribe is Scheduled Caste or Scheduled Tribe as the case may be within the meaning of the entries contained in the Presidential Orders issued under clause (1) of Articles 341 and 342 is to be determined looking to them as they are. Clause (2) of the said Articles does not permit any one to seek modification of the said orders by leading evidence that the caste/tribe (A) alone is mentioned in the Order but caste/tribe (B) is also a part of caste/tribe (A) and as such caste/tribe (B) should be deemed to be a scheduled Caste/Scheduled Tribe as the case may be. It is only the Parliament that is competent to amend the Orders issued under Articles 341 and 342. As can be seen from the Entries in the Schedules pertaining to each State whenever one caste/tribe has another name it is so mentioned in the brackets after it in the Schedules. In this view it serves no purpose to look at gazetteers or glossaries for establishing that a particular caste/tribe is a Schedule Caste/Scheduled Tribe for the purpose of Constitution, even though it is not specifically mentioned as such in the Presidential Orders. Orders once issued under clause (1) of the said Articles, cannot be varied by subsequent order or notification even by the President except by law made by Parliament. Hence it is not possible to say that State Governments or any other authority or courts or tribunals are vested with any power to modify or vary said Orders. If that be so, no enquiry is permissible and no evidence can be let in for establishing that a particular caste or part or group within tribes or tribe is included in Presidential Order if they are not expressly included in the Orders. Since any exercise or attempt to amend the Presidential Order except as provided in clause (2) of Articles 341 & 342 would be futile, holding any enquiry or letting in any evidence in that regard is neither permissible nor useful.
13. In the debates of Constituent Assembly (Official Report, Vol. 9) while moving to add new Articles 300-A and 300-B after Article 300 (corresponding to Articles 341 and 342 of the Constitution), Dr. B.R. Ambedker explained as follows:-
"The object of these two articles, as I stated, was to eliminate the necessity of burdening the Constitution with long lists of Scheduled Castes and Scheduled Tribes. It is now proposed that the President in consultation with the Governor or Ruler of a State should have the power to issue a general notification in the Gazette specifying all the Castes and Tribes or groups thereof deemed to be Scheduled Castes and Scheduled Tribes for the purpose of this privileges which have been defined for them in the Constitution. The only limitation that has been imposed is this: that once a notification has been issued by the President, which, undoubtedly, he will be issuing in consultation with and on the advice of the Government of each State, thereafter, if any elimination was to be made from the List so notified or any addition was to be made that must be made by Parliament and not by the President. The object is to eliminate any kind of political factors having a play in the matter of the disturbance in the Schedule so published by the President."
(emphasis supplied)
14............... Allowing the State Governments or courts or other authorities or tribunals to hold enquiry as to whether a particular caste or tribe should be considered as one included in the Schedule of the Presidential Order, when it is not so specifically included, may lead to problems. In order to gain advantage of reservations for the purpose of Articles 15(4) or 16(4) several persons have been coming forward claiming to be covered by Presidential Orders issued under Articles 341 and 342. This apart when no other authority other than the Parliament, that too by law alone can amend the Presidential Orders, neither the State Governments nor the courts nor tribunals nor any authority can assume jurisdiction to hold enquiry and take evidence to declare that a caste or a tribe or part of or a group within a caste or tribe is included in Presidential Orders in one Entry or the other although they are not expressly and specifically included. A court cannot alter or amend the said Presidential Orders for the very good reason that it has no power to do so within the meaning, content and scope of Articles 341 and 342. It is not possible to hold that either any enquiry is permissible or any evidence can be let in, in relation to a particular caste or tribe to say whether it is included within Presidential Orders when it is not so expressly included."
Thus, merely because a person belong to a Scheduled Caste community in some other State, he would not carry the said status to other State automatically.
8.4. In MARRI CHANDRA SHEKHAR RAO V. DEAN, SETH G.S. MEDICAL COLLEGE AND OTHERS (MANU/SC/0457/1990 : (1990) 3 Supreme Court Cases 130), the Apex Court has considered the expression "in relation to the State". In that case, the petitioner was born in the State of Andhra Pradesh and thereafter, migrated to Bombay. It was held that a migrant does not carry forward the caste or community with him, just because he was declared so in his original State. A fruitful recapitulation of the relevant passage is produced hereunder.
"13. It is trite knowledge that the statutory and constitutional provisions should be interpreted broadly and harmoniously. It is trite saying that where there is conflict between two provisions, these should be so interpreted as to give effect to both. Nothing is surplus in a Constitution and no part should be made nugatory. This is well-settled. See the observations of this Court in Sri Venkataramana Devaru & Ors. v. State of Mysore & Ors., MANU/SC/0026/1957 : [1958] SCR 895 at 918, where Venkatarama Aiyar, J. reiterated that the rule of construction is well-settled and where there are in an enactment two provisions which cannot be reconciled with each other, these should be so interpreted that, if possible, effect could be given to both. It, however, appears to us that the expression 'for the purposes of this Constitution' in Articles 341 as well as in Article 342 do imply that the Scheduled Castes and the Scheduled Tribes so specified would be entitled to enjoy all the constitutional rights that are enjoyable by all the citizens as such. Constitutional right, e.g., it has been argued that right to migration or right to move from one part to another is a right given to all--to scheduled castes or tribes and to non-scheduled castes or tribes. But when a Scheduled Caste or tribe migrates, there is no inhibition in migrating but when he migrates, he does not and cannot carry any special rights or privileges attributed to him or granted to him in the original State specified for that State or area or part thereof. If that right is not given in the migrated state it does not interfere with his constitutional right of equality or of migration or of carrying on his trade, business or profession. Neither Article 14, 16, 19 nor Article 21 is denuded by migration but he must enjoy those rights in accordance with the law if they are otherwise followed in the place where he migrates. There should be harmonious construction, harmonious in the sense that both parts or all parts of a constitutional provision should be so read that one part does not become nugatory to the other or denuded to the other but all parts must be read in the context in which these are used. It was contended that the only way in which the fundamental rights of the petitioner under Article 14, 19(1)(d), 19(1)(e) and 19(1)(f) could be given effect to is by construing Article 342 in a manner by which a member of a Scheduled Tribe gets the benefit of that status for the purposes of the Constitution throughout the territory of India. It was submitted that the words "for the purposes of this Constitution" must be given full effect. There is no dispute about that. The words "for the purposes of this Constitution" must mean that a Scheduled Caste so designated must have right under Articles 14, 19(1)(d), 19(1)(e) and 19(1)(f) inasmuch as these are applicable to him in his area where he migrates or where he goes. The expression "in relation to that State" would become nugatory if in all States the special privileges or the rights granted to Scheduled Castes or Scheduled Tribes are carried forward. It will also be inconsistent with the whole purpose of the scheme of reservation. In Andhra Pradesh, a Scheduled Caste or a Scheduled Tribe may require protection because a boy or a child who grows in that area is inhibited or is at disadvantage. In Maharashtra that caste or that tribe may not be so inhibited but other castes or tribes might be. If a boy or a child goes to that atmosphere of Maharashtra as a young boy or a child and goes in a completely different atmosphere or Maharashtra where this inhibition or this disadvantage is not there, then he cannot be said to have that reservation which will denude the children or the people of Maharashtra belonging to any segment of that State who may still require that protection. After all, it has to be borne in mind that the protection is necessary for the disadvantaged castes or tribes of Maharashtra as well as disadvantaged castes or tribes of Andhra Pradesh. Thus, balancing must be done as between those who need protection and those who need no protection, i.e., who belong to advantaged castes or tribes and who do not. Treating the determination under Articles 341 and 342 of the Constitution to be valid for all over the country would be in negation to the very purpose and scheme and language of Articles 341 read with Article 15(4) of the Constitution.
22. In that view of the matter, we are of the opinion that the petitioner is not entitled to be admitted to the medical college on the basis of Scheduled Tribe Certificate in Maharashtra. In the view we have taken, the question of petitioner's right to be admitted as being domicile does not fall for consideration.
23. Having construed the provisions of Article 341 and 342 of the Constitution in the manner we have done, the next question that falls for consideration, is, the question of the fate of those scheduled caste and scheduled tribe students who get the protection of being classed as scheduled caste or scheduled tribes in 'the States of origin when, because of transfer or movement of their father or guardian's business or service, they move to other States as a matter of voluntary transfer, will they be entitled to some sort of protective treatment so that they may continue or pursue their education. Having considered the facts and circumstances of such situation, it appears to us that where the migration from one State to other is involuntary, by force of circumstances either of employment or of profession, in such cases if students or persons apply in the migrated State where without affecting prejudicially the rights of the scheduled castes or scheduled tribes in those States or areas, any facility or protection for continuance of study or admission can be given to one who has so migrated then some consideration is desirable to be made on that ground. It would, therefore, be necessary and perhaps desirable for the legislatures or the Parliament to consider appropriate legislations bearing this aspect in mind so that proper effect is given to the rights given to scheduled castes and scheduled tribes by virtue of the provisions under Articles 341 and 342 of the Constitution, This is a matter which the State legislatures or the Parliament may appropriately take into consideration."
8.5. In 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 (MANU/SC/0791/1994 : (1994) 5 Supreme Court Cases 244), the very same principle has been reiterated. The Apex Court has also dealt with the meaning of a "resident" and an "ordinary resident". While doing so, the various communications from the Central Government, including the one dated 22.03.1977, letter dated 05.08.1975 and the communication dated 08.09.1985 have been taken into consideration, as they speak about the procedure and entitlement of the migrant to be considered in the migrated States of Union Territory as against the State of his permanent residence, in which, he was given a special status. The following paragraph would be apposite.
"17. Lastly the Constitution Bench referred to the cleavage in the views of different High Courts on the interpretation of Articles 341 and 342 of the Constitution and the consequential orders passed by the Government of India and the State Governments. It referred to the two decisions of the Gujarat High Court as well as the decision of the Karnataka High Court which place the interpretation canvassed before us by Mr. Raju Ramachandran. The other side referred to the decisions of the Orissa High Court in K. Appa Rao v. Director of Posts & Telegraphs, Orissa, the decision of the Full Bench of the Bombay High Court in M.S. Malathi v. Commissioner, Nagpur Division" and the decision of the Punjab & Haryana High Court in V.B. Singh v. State of Punjab which take the contrary view canvassed before us by the respondents. All these decisions were considered by the Constitution Bench which agreed with the latter view. It upheld the view expressed in the communication dated 22-2-1985 and negatived the challenge of the petitioner that the said view was ultra vires Articles 14, 15, 16 or 21. It, however, observed that in the facts and circumstances of the case and having regard to the fact that the petitioner student's career was involved it directed the authorities to consider whether the petitioner was a 'Goudi' and if yes, the institution may consider if he can be allowed to complete his studies in the institution. However, on the interpretation of the relevant provisions of the Constitution this Court was clear in its view that legally speaking he was not entitled to admission in the Scheduled Tribe quota."
Thus, the Apex Court has reiterated the earlier decision apart from relying upon the communications of the Central Government. From the above, it is clear that the "residents" as indicated in the Presidential Order dated 05.03.1964 would only mean such residents who were available on that date and not thereafter.
8.6. The learned counsels appearing for the petitioners made substantial reliance upon the decision in S. PUSHPA AND OTHERS V. SIVACHANMUGAVELU AND OTHERS (MANU/SC/0091/2005 : (2005) 3 Supreme Court Cases 1). The said decision is a precedent for Article 16(4) of the Constitution of India. Similarly, in the said case, the Government of Pondicherry has taken a stand in view of then prevailing situation qua appointments to the migrants. The Apex Court has clearly held that it is well open to the respondents to formulate a policy, even by extending the benefits of reservation only to such Scheduled Caste and Scheduled Tribe, which is recognised as such in relation to the State or Union Territory concerned. Thus, the said judgment makes it clear that such an action, if taken, is not contrary to the Presidential Order and rather it would be in consonance with it. The following is the appropriate paragraph dealing with the said proposition.
"21. Clauses (1) and (2) of Article 16 guarantee equality of opportunity to all citizens in the matter of appointment to any office or of any other employment under the State. Clauses (3) to (5), however, lay down several exceptions to the above rule of equal opportunity. Article 16(4) is an enabling provision and confers a discretionary power on the State to make reservation in the matter of appointments in favour of "backward classes of citizens" which in its opinion are not adequately represented either numerically or qualitatively in services of the State. But it confers no constitutional right upon the members of the backward classes to claim reservation. 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 recognized 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 recognized 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 U.T. of Pondicherry having adopted a policy of 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."
8.7. In SUBHASH CHANDRA AND ANOTHER V. DELHI SUBORDINATE SERVICES SELECTION BOARD AND OTHERS (MANU/SC/1460/2009 : (2009) 15 Supreme Court Cases 458), the Apex Court, after taking into consideration of the earlier judgments, held that the decision in S. PUSHPA's case cited supra was with respect to the direction given by the Central Government to an Administrator acting under the authority of a President of India in terms Article 239 of Constitution of India. Incidentally, the Apex Court was also of the opinion that MARRI CHANDRA SHEKHAR RAO's case thus would apply to the Union Territory as well. The following are the relevant paragraphs.
"59. This Court in S. Pushpa case proceeded on the basis that as the Administrator while acting under the authority given to him by the President in terms of Article 239 of the Constitution was bound by the directions issued by the Central Government in terms whereof the vacancies occurring in the Union Territory was to be treated as that of Central Civil Services which practice had consistently been followed by the Administration in terms whereof migrant SC/ST candidates were held to be eligible for appointment in the reserved posts in the Pondicherry Administration.
63. Can it be said that Marri Chandra Shekhar Rao does not apply to Union Territory? The answer thereto, in our opinion, is a big emphatic 'no'. Both Articles 341 and 342 not only refer to the State but also to the Union Territory.
65. If the principle applied in S. Pushpa (supra) is to be given a logical extension, it will lead to an absurdity, that the Scheduled Castes Order in a State brought under the control of the President under Article 356 could be altered by virtue of a notification issued in pursuance of Article 16(4) of the Constitution."
8.8. Considering the law of precedence, particularly, with reference to the decision governing the State case, the Supreme Court held in the following manner.
"96. A decision, as is well known, is an authority for what it decides and not what can logically be deduced therefrom. In S. Pushpa (supra), decisions of the Constitution Benches of this Court in Milind (supra) had not been taken into consideration. Although the case of Chinnaiah (supra) was decided later on, we are bound by the same. It is now a well settled principle of law that a division bench, in case of conflict between a decision of a Division Bench of two Judges and a decision of a larger Bench and in particular Constitution Bench, would be bound by the latter. [See M/s. Sardar Associates v. Punjab & Sind Bank, CAs @ SLP (C) Nos. 5249-5250 of 2008 decided on 31st July, 2009]
97. This Court in Marri Chandra Shekhar Rao (supra) categorically held that when a person is held to be a member of scheduled caste for one State, he cannot be treated as such in another. In Milind (supra), it was categorically held that the High Court, in exercise of its supervisory jurisdiction, under Article 227 of the Constitution of India, cannot make any roving inquiry for the purpose of finding out as to whether a person belonging to one caste would, for one reason or the other, can be held to be belonging to another caste or tribe which had been notified as scheduled caste or scheduled tribe.
98. It is also well known that a decision rendered in ignorance of a binding precedent and/or in ignorance of a constitutional provision, would be held to have been rendered per incuriam.
110. Should we consider Pushpa to be an obiter following the said decision is the question which arises herein. We think we should. The decisions referred to hereinbefore clearly suggest that we are bound by a Constitution Bench decision. We have referred to two Constitution Bench decisions, namely Marri Chandra Shekhar Rao and E.V. Chinnaiah. Marri Chandra Shekhar Rao had been followed by this Court in a large number of decisions including Three Judge Bench decisions. Pushpa, therefore, could not have ignored either Marri Chandra Shekhar Rao or other decisions following the same only on the basis of an administrative circular issued or otherwise and more so when the Constitutional scheme as contained in clause (1) of Articles 341 and 342 of the Constitution of India putting the State and Union Territory in the same bracket. Following Dayanand (supra), therefore, we are of the opinion that the dicta in Pushpa is an obiter and does not lay down any binding ratio."
8.9. In PUDUCHERRY SCHEDULED CASTE PEOPLE WELFARE ASSOCIATION V. CHIEF SECRETARY TO GOVERNMENT UNION TERRITORY OF PONDICHERRY AND OTHERS (MANU/SC/0715/2014 : (2014) 9 Supreme Court Cases, 236), the issue before the Apex Court was as to whether the word "resident" can be read as "origin". It has been held in categorical term as held by the Apex Court in the earlier decisions referred supra that no executive power, amendment, modification, alteration or variance in the Presidential Order is permissible. Here again, the Apex Court was dealing with Article 16(4) of the Constitution of India. It would be appropriate to reproduce the following passage of the said judgment.
"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 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, the 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 the 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."
9. CONCLUSION:-
From the above decisions, it is clear that neither the Court nor the respondents have any power to modify or alter the Presidential Order. However, as held in the Action Committee case, it has taken note of various communications of the Central Government. The word "resident" will have to necessarily mean to apply to such of the Scheduled Caste members residing at the relevant point of time i.e., 05.03.1964 at the Union Territory of Pondicherry. In other words, merely because a person resides for various reasons in the Union Territory of Pondicherry, he cannot be given the status and he cannot be allowed to be brought under the umbrella of Presidential Order. Such a person does not lose his right to be considered for the purpose of availing the benefit under Article 15(4) of the Constitution of India in the State in which he is a permanent resident. A presidential Order enumerating the Scheduled Castes is made after a thorough research on empirical data. A certificate of resident given after completion of five years cannot be used to define a "resident" as mentioned in the Presidential Order. In fact, such a certificate has been given to every other person, who comes to the Union Territory of Pondicherry and resides therein for five years. It is given merely based upon the period of stay and therefore, nothing to do with the status. In other words, a Scheduled Caste person not having five years of a resident in Pondicherry is the same as that of the others living for five years in so far as seeking a benefit under Article 15(4) of the Constitution of India is concerned. A disadvantage would not arise merely after five years of residence. The purpose of reservation is meant to overcome backwardness and other disadvantages of a caste in a particular place and thus, it does not have any relevancy to the period of subsequent stay. The reason why the Presidential order refers to a resident as on that date was because of the peculiar situation prevailed at the relevant point of time. There was no difference between the "origin" and a "resident" as on 05.03.1964 as both are suffering from the same disadvantages. A mere issuance of certificate of "resident" issued to a migrant, would not give a vested right to be treated under the reservation category for the purpose of education. As discussed above, the decisions in S. Pushpa's case and Puducherry Scheduled Case People Welfare Association's case do not apply to the case on hand. They have been rendered on a different fact situation. Even in the S. Pushpa's case, the benefit was not extended for the purpose of education. The Government in Circular dated 06.01.1993 confines the said benefit to the Scheduled Caste of Union Territory alone and the same has also been taken note of. The said position has been in prevalence atleast from 1993 onwards. The said circular has never be put into challenge and in any case, they are not the subject matter before any Court till now.
10. The learned counsels appearing for the petitioners also made reliance upon the two Division Bench judgments of this Court. This Court, after going through the same, is of the considered view that they are also not dealing with the issue on hand.
11. Thus, in the light of the discussions made above and after analysing the decisions cited supra, this Court does not find any merit in these writ petitions. Accordingly, the same are dismissed. No costs. Consequently, connected miscellaneous petitions are also dismissed.
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