PUDUCHERRY S.C. PEOPLE WELFARE ASSOCIATIONversusCHIEF SECRETARY TO GOVT., UNION TERRITORY OF PONDICHERRY & ORS.

                   [2014] 13 S.C.R. 1087


 PUDUCHERRY S.C. PEOPLE WELFARE ASSOCIATION                    A
                              v.
  CHIEF SECRETARY TO GOVT., UNION TERRITORY OF
              PONDICHERRY & ORS.
         (Civil Appeal Nos. 10829-10830 of 2010)               B
                     AUGUST 07, 2014
       [R. M. LODHA, CJI, MADAN B. LOKUR AND
                  KURIAN JOSEPH, JJ.]
                                                               c
      Service Law - Reservation - For Scheduled Caste
candidates - Entitlement - Government Orders related to
reservation benefits in promotion and employment to Group
C and D posts and in professional courses - Challenge to -
Held: Impugned Government Orders not sustainable as they
                                                                0
were not in consonance with the Presidential Order, 1964 -
By no executive power, amendment, modification, alteration
or variance in the Presidential Order was permissible - It was
not open to the executive to do anything directly or indirectly
leading to any change in the Presidential Order - Once E
Presidential Order was issued u/Art. 341 (1) or Art. 342(1) of
Constitution, any amendment in the Presidential Order could
only be made by the Parliament by law as provided in Arts.
341 (2) or 342(2) of Constitution, as the case may be, and in
no other manner - Interpretation of 'resident' in the F
Presidential Order as 'of origin' amounted to altering the
Presidential Order - Constitution (Pondicherry) Scheduled
Castes Order, 1964 - Constitution of India, 1950-Arts. 341
and 342.
      The appellant is an association representing the G
Scheduled Caste residents having permanent
residence/place of abode in Pu du cherry. The association
filed Writ Petitions before the High Court challenging the
two Government Orders, 'G.O.M. 11/2005' and 'G.0.M. 12/
                                                               H
                           1087
1088      SUPREME COURT REPORTS             [2014] 13 S.C.R.


 A 2005'] both dated 05.08.2005. G.0.M. 11/2005 relates to
   reservation benefits in promotion and employment to
   Group C & D posts and the other G.O.M. 12/2005 relates
   to reservation benefits in professional courses. The High
   Court dismissed the Writ Petitions. The matter came up
 B before this Court.
         Allowing the appeals, the Court
        HELD : 1.1. The impugned Government Orders
   cannot be sustained on the short ground, viz., they being
 c not in consonance with the Constitution (Pondicherry)
   Scheduled Castes Order, 1964. It is seen from para 2 of
   the above Presidential Order that the castes, races or
   tribes or parts of or groups within castes, races or tribes
   (15 in all) specified in the Schedule appended thereto
 0 are deemed to be Scheduled Castes for the purposes of
   the Constitution in relation to the Union Territory of
   Pondicherry so far as regards members thereof are
   resident in the Union Territory. The Government Orders,
   however, have confined reservation benefits to
   Scheduled Castes origins of the Union Territory of
 E Pondicherry. It would be seen that the Presidential Order
   does not speak of "origins" of the Union Territory of
    Pondicherry, it only speaks of "resident". [Paras 11, 12
   and 13][1092-E-F; 1093-E-H]
  F     1.2. It is by virtue of the notification of President
   under Article 341(1) of the Constitution 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
 G 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
  H
 PUDUCHERRY S.C. PEOPLE WELFARE ASSN. v. CHIEF SEC.         1089
         TO GOVT., U.T. OF PONDICHERRY

variance in the Preside_ntial Order is permissible. It is not A
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 B
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. Thus, the impugned Government Orders - G.O.M. C
11/2005 and G.O.M. 12/2005 - not being in conformity
and consonance with the Presidential Order, 1964
cannot be sustained in law and have to be set aside.
[Paras 15, 16)(1094-D-H; 1095-A-B]
     S. Pushpa and others v. Sivachanmugavelu and            D
     others (2005) 3 SCC 1 ; State of Uttaranchal v.
     Sandeep Kumar Singh and Others (2010) 12 SCC
     794 and Subhash Chandra v. Delhi Subordinate
     Service Selection Board (2009) 15 SCC 458 -
     referred to.                                            E
                 CASE LAW REFERENCE
(2005) 3 sec 1              referred to        Para4
(2010) 12 sec 794           referred to        Para 8
                                                             F
(2009) 15 sec 458           referred to        Para 8
     CIVILAPPELLATE JURISDICTION: Civil Appeal Nos.
10829- 10830 of 2010.
     From the judgment and order dated 21.07.2008 passed G
by the High Court of Madras in WP No. 33305 & 33306 of
2006.
     Ms. V. Mahana, Adv., for the Appellant.

                                                            H
1090        SUPREME COURT REPORTS                  [2014] 13 S.C.R.


 A        R. Venkat Ramani, Guru Krishna Kumar, Sr. Advs.,
   V.G. Pragasam, S.J. Aristotle, Prabu Ramasubramanian,
   Ms. Neelam Singh, Sameer Singh, Ms. G. Indira,
    K. V. Jagdishvaran, Vishnu Sharma, Gopal Singh Amit Pawan,
   Sumit Kumar, Deepayan Manda!, Gaurav Agrawal, Ms. Asha
 B Gopalan Nair, Abhishek Kumar Pandey, B.V. Bairam Das,
    P. Parmeswaran, D.S. Mahra, Praneet Ranjan, Pradeep
    Kumar, Bankey Bihari Sharma, Aruneshwar Gupta, Naresh
    Kaushik, Sanjeev K. Bhardwaj, Ms. Lalita Kaushim Suresh
    Chandra Tripathy, Jitinder Kumar Bharia, A Subba Rao,
 c A. Venkatesh, Annam D. N. Rao, Ms. Neelam Jain, Ms. Vaishali
    R., Ms. Binu Tamta, Bijan Kumar Ghosh and S.K. Poddar,
   .Advs. for the Respondents.
            The Judgment of the Court was delivered by

 D          R. M. LODHA, C.J.I.
            1. The appellant is an association representing the
    Scheiduled Caste residents who have permanent residence/
    place of abode in Puducherry. The association filed two Writ
    Petitions before the High Court challenging the two
  E Government Orders being G.O.Ms.No.11/2005/Wel(SCW II)
    [for short, 'G. 0 .M. 11 /2005'] and G. 0 .Ms. No.12/2005/Wel(SCW
    II) [for short, 'G.O.M. 12/2005'] both dated 05.08.2005. G.O.M.
    11 /2005 relates to reservation benefits in promotion and
    employment to Group C & D posts and the other G.O.M. 12/
  F 2005 relates to reservation benefits in professional courses.
             2. The High Court was not persuaded by the arguments
       of the writ petitioner and dismissed the two Writ Petitions by a
       common order dated 21.07.2008.
  G          3. The present Civil Appeals, by special leave, arise from
       the above common judgment.
           4. Both Government Orders take note of the Constitution
       (Pondicherry) Scheduled Castes Order, 1964 and also the
       judgment of this Court in S. Pushpa and others Vs.
  H
     PUDUCHERRY S.C. PEOPLE WELFARE ASSN. v. CHIEF SEC.              1091
       TO GOVT., U.T. OF PONDICHERRY [R. M. LODHA, C.J.1.]

    Sivachanmugavelu and others 1 and then provide for A
    extension of reservation only to the Scheduled Castes origins
    of the Union Territory.
         5. Para5ofG.O.M.11/2005readsasfollows:-
        "Having examined the demand made by various Welfare B
        Associations and Scheduled Castes (origin) people of
        the Union Territory of Pondicherry and taking into account
        the observations made by the Hon'ble Supreme Court
        at para 21 of the said judgment dated 11.02.2005, the
        Lieutenant Governor, Pondicherry is pleased to order that c
        the reservation benefits in promotion, employment to
        Group 'C' and 'D' posts shall henceforth be extended
        only to the Scheduled Caste origins of the Union Territory
        as notified in the Constitution (Pondicherry) Scheduled
        Castes Order, 1964 read with the Constitution (Scheduled 0
        Castes) Order (Second Amendment) Act, 2002 (Central
        Act 61 of 2002)."
        6. Similarly, para 5 of G 0. M. 12/2005 reads as follows:-
        "Having examined the demand made by various Welfare
        Associations and Scheduled Castes (origin) people of E
        the Union Territory of Pondicherry and taking into account
        the observations made by the Hon'ble Supreme Court
        at para 21 of the said judgment dated 11.02.2005, the
        Lieutenant Governor, Pondicherry is pleased to order that
        the reservation benefits in the field of education and F
        welfare shall henceforth be extended only to the
        Scheduled Caste origins of this Union Territory as notified
        in the Constitution (Pondicherry) Scheduled Castes
        Order, 1964 read with the Constitution (Scheduled
        Castes) Order (Second Amendment) Act, 2002 (Central G
        Act 61 of 2002)."



(2005) 3 sec 1
1
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1092          SUPREME COURT REPORTS                  [2014] 13 S.C.R.


 A          7. Leave was granted in these matters on 13.12.2010
       and it was ordered that these matters be tagged with Civil
       Appeal No. 4494 of 2006.
            · 8. It so happened that subsequently by order dated
       October?, 2010, Civil Appeal No. 4494 of 2006 2 , came to be
 8     referred to a 3-Judge Bench as the 2-Judge Bench, inter alia,
       observed that in Subhash Chandra Vs. Delhi Subordinate
       Service Selection Board3 , the 2-Judge Bench could not have
       held that the decision rendered in S. Puspha 1 case is obiter
       and not binding.
 c
             9. Civil Appeal No. 4494 of 2006 2 has been dismissed
       by us yesterday (August 6, 2014) without answering the
       reference as it was not necessary in view of paragraph 4 of
       the impugned judgment therein.
 D           10. In the present case also, it is not necessary to answer
       the question raised in the reference only in Civil Appeal No.
       4494 of 20062 as we find that the impugned Government
       Orders cannot be sustained on the short ground, viz., they being
       not in consonance with the Presidential Order, 1964.
  E           11. The Presidential Order, 1964 reads as follows :-
            "THE CONSTITUTION (PONDICHERRY) SCHEDULED
                        CASTES ORDER, 1964
                                   (C.O. 68)
  F
                 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. The Order may be called the Constitution (Pondicherry)
  G            Scheduled Castes Order, 1964.
              2. The castes, races or tribes or parts of or groups within
        2
         (2010) 12 SCC 794, State of Uttaranchal Vs. Sandeep Kumar Singh
        and Others
  H     3(2009) 15 sec 458
  PUDUCHERRY S.C. PEOPLE WELFARE ASSN. v. CHIEF SEC.           1093
    TO GOVT., U.T. OF PONDICHERRY [R. M. LODHA, C.J.1.]

     castes, races or tribes specified in the Schedule to this A
     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         B
     different from the Hindu or the Sikh religion, shall be
     deemed to be a member of a Scheduled Caste.
                        THE SCHEDULE
     1.AdiAndhra                  9. Pallan                    c
     2. Adi Dravida               10. Parayan, Sambavar
     3. Chakkiliyan               11. Samban
     4. Jambuvulu                 12. Thoti
                                                               D
     5. Kuravan                   13. Valluvan
     6. Madiga                    14. Vetan
     7. Mala,. Mala Masti         15. Vettiyan
     8. Paky"                                                  E
      12. It will be seen from para 2 of the above Presidential
Order that the castes, races or tribes or parts of or groups
within castes, races or tribes (15 in all) specified in the
Schedule appended thereto are deemed to be Scheduled
Castes for the purposes of the Constitution in relation to the F
Union Territory of Pondicherry so far as regards members
thereof are resident in the Union Territory.
      13. The Government Orders, however, have confined
reservation benefits to Scheduled Castes origins of the Union G
Territory of Pondicherry. It would be seen that the Presidential
Order does not speak of "origins" of the Union Territory of
Pondicherry, it only speaks of "resident".


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1094         SUPREME COURT REPORTS                  [2014] 13 S.C.R.


 A          14. Article 341 of the Constitution of India provides as
       under:-
            "341. Scheduled Castes.-(1) The President may with
            respect to any State or Union territory, and where it is a
            State, after consultation with the Governor thereof, by
 B          public notification, specify the castes, races or tribes or
            parts of or groups within castes, races or tribes which
            shall for the purposes of this Constitution be deemed to
            be Scheduled Castes in relation to that State or Union
            territory, as the case may be.
 c
            (2) Parliament may by law include in or exclude from
            the list of Scheduled Castes specified in a notification
            issued under clause (1) any caste, race or tribe or part
            of or group within any caste, race or tribe, but save as
 D          aforesaid a notification issued under the said clause
            shall not be varied by any subsequent notification."
          15. It is important to bear in mind that it is by virtue of the
   notification of President underArticle 341 (1) that the Scheduled
   Castes come into being. The members of the Scheduled
 E 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
 F power, the amendment, modification, altera.tion 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),
 G 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.
 H
  PUDUCHERRY S.C. PEOPLE WELFARE ASSN. v. CHIEF SEC.            1095
    TO GOVT., U.T. OF PONDICHERRY [R. M. LODHA, C.J.1.]

     16. Thus, we find that the impugned Government A
Orders - GO.M.11/2005 andG.O.M.12/2005-notbeingin
conformity and consonance with the Presidential Order, 1964
cannot be sustained in law and have to be set aside. We order
accordingly.
     17. Civil Appeals are allowed as above with no order as 8
to costs.


Bibhuti Bhushan Bose                         Appeals allowed.