Supreme Court of India
SUBHASH CHANDRA & ANR.versusDELHI SUBORDINATE SERVICES SELECTION BOARD & ORS.
- Citation
- 2009 INSC 1018
- Decided
- 4 August 2009
- Disposal
- Appeal(s) allowed
- Bench
- S B SINHA
Holding
Article 341 and 342 confer an exhaustive, exclusive status to Scheduled Castes and Tribes for each State/UT, and reservation benefits under Article 16(4) cannot be extended to migrants not listed in the Presidential order; executive circulars cannot alter this scheme, and the S. Pushpa decision is obiter and not binding.
Summary
The petitioners, members of Scheduled Castes who had migrated to Delhi, challenged a circular issued by the National Capital Territory that denied them reservation benefits in Delhi's subordinate services, arguing that they should retain their SC status under the Presidential orders. The Court examined whether Article 341 and 342 of the Constitution, which list Scheduled Castes and Tribes for each State or Union Territory, confer benefits that travel with the individual upon migration, and whether Article 16(4) can be used to extend reservation to such migrants. It held that the Presidential orders are exhaustive and exclusive; benefits cannot be extended to migrants unless they are listed in the order for the destination State/UT, and circulars cannot amend the constitutional scheme. The Court further clarified that the earlier decision in S. Pushpa, which extended such benefits, is merely obiter and not binding in view of the Constitution Bench precedents. Consequently, the circular and the lower court's orders were set aside, and the appeal and writ petition were allowed.
Issues considered
- Whether a person belonging to a caste or tribe designated as Scheduled under Article 341/342 retains that status upon migrating to another State or Union Territory.
- Whether Article 16(4) can be applied to grant reservation benefits to migrants who are not listed as Scheduled Castes/Tribes in the destination State/UT.
- Whether extending the benefit of reservation to migrants via executive circulars amounts to an impermissible alteration of the Presidential orders under Articles 341 and 342.
- Whether the decisions in S. Pushpa and Chandigarh Administration are binding precedents on the matter of migration and reservation.
- Whether the doctrine of protective discrimination and the strict scrutiny test apply to the challenged circular.
Legislation cited
- Constitution of Indias. Article 14, s. Article 15, s. Article 16, s. Article 162, s. Article 16(4), s. Article 239, s. Article 239AA, s. Article 246, s. Article 309, s. Article 341, s. Article 342, s. Article 77
Subjects
ReservationScheduled CastesScheduled TribesMigrationArticle 341Article 342Protective discriminationStrict scrutinyUnion TerritoryDelhiConstitutional law
Judgment
[2009) 12 S.C.R. 978
A SUBHASH CHANDRA & ANR. I
v.
DELHI SUBORDINATE SERVICES SELECTION BOARD
& ORS.
(Civil Appeal No. 5092 of 2009)
B AUGUST 4, 2009
[S.B. SINHA AND CYRIAC JOSEPH, JJ.]
-t
CONSTITUTION OF /NOIA, 1950:
c
Articles 341, 342, 338, 338A, 14, 15and16-Reservation
- Grant of benefit - Article 16(4) cannot be made applicable
for SC or ST in a State or Union Territory who have migrated
to another State or Union Territory and are not members of
SC or ST - By virtue of Article 341, the Presidential orders
D
made under Clause (1) thereof acquire an overriding status
- Presence of Articles 338, 338A, 341, 342 preclude the
Union and States to legislate upon or frame policies
concerning the subject of reservation vis-a-vis inclusion of
Castes/Tribes - When an amendment or alteration is to be
E brought ab.out by a Parliamentary legislation, the purpose
cannot be achieved by taking recourse to circular letters - It
cannot be said that SC/ST notified as such in other States
would come within the purview of backward classes within the
meaning of Clause (4) of Article 16 - No recruitment is
F permissible for a backward class against SC/ST quota.
PRACTICE & PROCEDURE:
In case of conflict between a decision of a Division Bench
of two Judges and a decision of a larger Bench, in particular
G
a Constitution Bench, the Division Bench is bound by the I
latter.
H 978
SUBHASH CHANDRA v. DELHI SUBORDINATE 979
SERVICES SELECTION BOARD
DOCTRINES/PRINCIPLES: A
Doctrine of Protective Discrimination - Applicability of.
Principle of strict scrutiny test or closer scrutiny test or
higher level of scrutiny - Applicability of.
B
In the appeal and the writ petition, the interpretation
and/or application of the notifications and/or the circulars
issued by the National Capital Territory of Delhi in terms
~- of Clause (1) of Article 341 of the Constitution of India is
involved. c
In view of the rival contentions of the parties, the
questions which arose for consideration were:
(1) Having regard to the decisions of this Court in
Marri Chandra Shekhar Rao (1990 (3) SCC 130) and Action D
t- Committee (1994 (5) SCC 244), the specification of a
particular Caste or Tribe to be a Scheduled Caste and
Scheduled Tribe being in relation to that State or Union
Territory, whether a person on his migration to another
State would carry the same status with him? E
(2) Whether in view of the decisions of this Court in
Action Committee even where the similar Caste bearing
the same name having been declared to be the Scheduled
Caste both in the State to which he originally belonged
F
and the State and/or Union Territory to which he has
migrated would make any difference in view of the
provisions contained in Article 341 of the Constitution of
India?
(3) Whether in view of the decisions of the G
x Constitution Bench of this Court in State of Maharashtra
vs. Mi/ind & ors. (2001) 1 SCC 4 and E. V. Chinnaia,'1 vs. State
of A.P. & ors. (2005) 1 sec 394 extension of notification
even to a migrant would amount to modification and/or
H
980 SUPREME COURT REPORTS [2009] 12 S.C.R.
A alteration of the notification which is impermissible in law
in view of clause (2) of Article 341 and clause (2) of Article t
342 of the Constitution of India?
(4) Whether having regard to the provisions
contained in Articles 239 and 239AA of the Constitution
8
in relation to Union Territory it is permissible for the
Central Government to direct recruitment to the Union
Territory Services treating it to be akin to Central Civil
Services in view of the decisions of this Court in
Chandigarh Administration (2004) 1 SCC 530 and S.
C Pushpa (2005) 3 sec 1?
(5) Whether the ratio laid down by this Court in
Chandigarh Administration and S. Pushpa having not
taken into consideration the binding precedents in
D Constitution Bench in Milind, Chinnaiah and M.C.O. vs.
Veena & Ors. (2001) 6 sec 571 would constitute binding
precedents?
Allowing the appeal and writ petition, the Court
E HELD: 1. When a Caste or a Tribe is designated as a
Scheduled Caste or Scheduled Tribe, the members
belonging thereto derive a bunch of benefits. Such
benefits may not only be confined to admission in
educational institutions, appointment in State or Central
F Civil Services, but also for contesting elections to the
seats reserved for them in the Panchayats and
Municipalities in lieu of the provisions of 73rd and 14th
Amendments to the Constitution. Benefits to the
members of the Scheduled Castes and Scheduled Tribes
G and other backward classes may also be conferred by
means of schemes formulated by the Central
Government or the State Government. [Para 25) [1008-G-
H; 1009-A]
2. Article 341 of the Constitution of India does not
H
SUBHASH CHANDRA v. DELHI SUBORDINATE 981
SERVICES SELECTION BOARD
make any distinction between a State and Union Territory A
__,;
' except for the purpose of consultation with the Governor
or the Administrator, as the case may be. Such
consultation is necessary in view of the fact that it is for
the State machinery to identify such Caste or Tribe who
had suffered the centuries old ignominy and/ or suffered B
other disadvantages. It is possible for a State to point out
that although a group of people may be belonging to a
caste or Tribe which is otherwise backward but having
regard to the social and economic advancement made by
that group, they should be excluded. [Para 25) [1009-B- c
CJ
3. Persons belonging to a particular Caste or Tribe
may suffer some disadvantages in one State but may not
suffer the same disadvantages in the other. The
constitutional scheme, therefore, seeks to identify the D
1- social and economic backwardness of people having
regard to the State or Union Territory as a unit. The same
principle applies even to the minorities. [Para 25] [1009-
D-E]
E
Marri Chandra Shekhar Rao vs: Dean, Seth G. S. Medical
College & Ors. (1990 (3) sec 130), relied on.
4. The reservation in terms of clause (4) of Article 16
of the Constitution of India is fixed on a percentage basis.
F
The advertisement issued by the Delhi Subordinate
Services Selection Board clearly shows that the
percentage of reservation having regard to the Central
Government Rules which are applicable to the National
Capital Territory of Delhi would be 7.5% for Scheduled
Tribes, 15% for Scheduled Castes and 27.5% for other G
backward classes. No Scheduled Tribe has been
identified in the Union Territory. The Presidential Order in
regard to the Scheduled Castes speaks of the residents
of Delhi alone. Some of the Castes identified as
H.
Scheduled Castes in some other States also find place
982 SUPREME COURT REPORTS [2009) 12 S.C.R.
A in the Presidential Order issued for Delhi. [Para 26) (1009-
H; 1010-A-C] ,•
5. The authoritative pronouncement of the
Constitution Bench in Ashok Kumar Thakur thus, clearly
shows that the proclamation made by the President of
8
India by Scheduled Caste Order is exhaustive. Only the
Parliament having regard to the Constitutional Scheme
can tinker therewith. [Para 34) (1022-B]
Ashok Kumar Thakur v. Union of India & Ors. (2008) 6
C SCC 1; Action Committee on Issue of Caste Certificate to
Scheduled Castes and Scheduled Tribes in the State of
Maharashtra & Anr. 1994 (5) SCC 244; K. Balakrishnan vs.
K. Kama/am & Ors. (2004) 1 SCC 580; S. Pushpa & Ors. vs.
Sivachanmugavelu & Ors. (2005) 3 SCC 1; Union of India &
D Ors. vs. Dudh Nath Prasad (2000) 2 SCC 20; Chandigarh
Administration & Anr. vs. Surinder Kumar & Ors. (2004) 1
SCC 530; State of Maharashtra vs. Mi/ind & Ors. (2001) 1
SCC 4; E. V. Chinnaiah vs. State of A.P. & Ors. (2005) 1 SCC
394; Mi/ind, Chinnaiah and M.C.O. vs. Veena & Ors. (2001)
E 6 SCC 571; T.M.A. Pai Foundation and Ors. v. State of
Kernataka and Ors. (2002) 8 SCC 481; U.P. Public ·Service
Commission, Allahabad vs. Sanjay Kumar Singh (2003) 7
SCC 657 and Shree Surat Va/sad Ji/la K. M. G. Parish ad vs.
..
Union of India & Ors. (2007) 5 SCC 360, relied on.
F 6. Although Union Territories are administered by the
Central Government, yet it is difficult to conceive that
socio political aspect can be mixed up with the
administrative aspect. Article 341 leads to grant of
constitutional rights upon a person whose affinity to a
G caste/Tribe would attract the Constitution (Scheduled
Caste) Order or Constitution (Scheduled Tribe) Order.
Once a person comes within the purview of Presidential
promulgation, he would be entitled to constitutional and
other statutory or administrative benefits attached
H thereto. Such socio political rights created in our
SUBHASH CHANDRA v. DELHI SUBORDINATE 983
SERVICES SELECTION BOARD
Constitution cannot be segregated keeping in view the A
administrative exigencies. If the principle applied in S.
Pushpa 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 B
pursuance of Article 16(4) of the Constitution. Clause (4)
of Article 16 of the Constitution, cannot be made
applicable for the purpose of grant of benefit of
reservation for Scheduled Castes or Scheduled Tribes in
a State or Union Territory, who have migrated to another c
State or Union Territory and they are not members of the
Scheduled Castes and Scheduled Tribes. By virtue of
Article 341, the Presidential orders made under clause (1)
thereof acquire an overriding status. But for Articles 341
and 342 of the Constitution, it would have been possible D
for both the Union and the States, to legislate upon, or
frame policies, concerning the subject of reservation, vis-
a-vis inclusion of Castes/Tribes. The presence of Articles
338, 338A, 341, 342 in the Constitution clearly preclude
that. [Paras 37 and 38] [1026-D-H; 1027-A-B]
E
Marri Chandra Shekhar Rao vs. Dean, Seth G. S. Medical
College & Ors. 1990 (3) SCC 130; S. Pushpa & Ors. Vs.
Sivachanmugavelu & Ors. (2005) 3 SCC 1; Chandigarh
Administration & Anr. vs. Surinder Kumar & Ors. (2004) 1
SCC 530; M.C.D. vs. Veena & Ors. (2001) 6 SCC 571 and F
State of Maharashtra vs. Kumari Tanuja (1999) 2 SCC 462,
referred to.
·,
~
7 .1. Both the Central Government and the State
Government indisputably may lay down a policy decision G
in regard to reservation having regard to Articles 15 and
16 of the Constitution of India but such a policy cannot
violate other constitutional provisions. A policy cannot
have primacy over the constitutional scheme. If for the
purposes of Articles 341 and 342 of the Constitution of H
984 SUPREME COURT REPORTS [2009] 12 S.C.R.
A India, State and the Union Territory are at par on the
ground of administrative exigibility or in exercise of the
administrative power, the constitutional interdict
contained in clause (2) of Article 341 or clause (2) of
Article 342 of the Constitution of India cannot be got rid
B of. [Para 40) [1028-G-H; 1029-A-B]
7.2. It is well known that what cannot be done directly
cannot be done indirectly. When an amendment or
alteration is to be brought about by a Parliamentary
Legislation, the same purpose cannot be achieved by
C taking recourse to circular letters. If the Central Civil
Services and the Union Territory Services are different,
keeping in view the constitutional schemes particularly
having regard to the proviso appended to Article 309 of
the Constitution of India, the same cannot be done away
D with only because a Union Territory administratively is
administered by the Central Government. Any direction
or policy decision, thus, must satisfy the constitutional
requirements laid down under Articles 341 and 342 of the
Constitution of India. If any other construction is made,
E a policy decision having regard to the decisions of this
Court will have to be treated as a proviso appended to
clause (2) of Article 341 of the Constitution of India and
would amount to deriding of the Constitution which is
impermissible in law. For identification of backward
F classes, it is necessary to undertake a study in a
particular State as to whether the migrants are required
to be treated as backward classes. Indisputably, the
classes contemplated by Article 16(4) may be wider than
those contemplated by Article 15(4). If they are backward
G classes for the purpose of Article 16(1) and 16(4) and not
Scheduled Castes and Scheduled Tribes, they will come
within the purview of the reservation for backward
classes and not the one which is exclusively meant for
Scheduled Castes and Scheduled Tribes within the
H
SUBHASH CHANDRA v. DELHI SUBORDINATE 985
SERVICES SELECTION BOARD
purview of reservation policy of the States. Moreover A
~ enabling provision contained in clause (4) of Article 16 of
the Constitution of India can of course be enforced by
reason of an executive direction but the same must be
made in terms of Article 77 or Article 162 of the
Constitution of India. [Para 41) [1029-C-H; 1030-A-C] B
7.3. Furthermore, a circular letter does not have the
force of law Article 246 of the Constitution will, thus, have
no application where law making power is not resorted
to. Executive instructions contained in Article 77 and
Article 162 refer to the law making power alone. No
c
material has been placed before the High Court or before
this Court to show that the Scheduled Castes or
Scheduled Tribes candidates migrated from another
State having regard to their socio economic position in
Delhi were required to be treated as backward classes. D
'f~ It cannot be said that the members of scheduled castes
and scheduled tribes notified as such in other States
would come within the purview of the backward classes
within the meaning of clause (4) of Article 16 of the
Constitution of India. If a caste or tribe is notified in terms E
of the Scheduled Caste Order or Scheduled Tribe Order,
, the same must be done in terms of clause (1) of Article
341 as also that of Article 342 of the Constitution of India,
as the case may be. No deviation from the procedure laid
down therein is permissible in law. If any amendment/ F
alteration thereto is required to be made, recourse to the
procedure laid down under clause (2) thereof must be
resorted to. Reservations have been made in terms of the
.-
- policy decision of the Central Government, namely, 7.5%
for the members of scheduled tribes, 15% for the G
members of scheduled castes and 27% for the members
of backward classes. If the members of the scheduled
castes and scheduled tribes in other States are to be
treated as backward classes for Delhi; intensive studies
H
986 SUPREME COURT REPORTS [2009] 12 S.C.R.
A were required to be made in regard to the question
whether they would come within the purview of the }
definition of 'backward classes' so as to answer the
description of ·socially and educationally backward'.
[Para 41] (1030-C-H; 1031-A-B]
B
7.4. When reservation for scheduled castes or
scheduled tribes had been earmarked, persons
answering the description thereto only can be appointed.
No recruitment is permissible for a backward class
against a scheduled caste or scheduled tribe quota. That
C itself would be violative of clauses (1) and (4) of Article
16 of the Constitution of India. Furthermore, if a person
is to be treated as scheduled caste or scheduled tribe in
terms of Article 341 of the Constitution of India, the benefit
attached thereto in all other areas must be conferred on
D him. A person cannot be treated to be a member of
scheduled caste for one purpose and not for another
purpose. The law relating to affirmative action and
protective discrimination by way of reservation of posts
for the members of the Scheduled Castes invoking
E Clause (4) of Article 16 of the Constitution of India is
reflected by constitutionalism, i.e.; the provisions of the
Constitution of India read with the executive instructions
issued by the National Capital Territory of Delhi in this
behalf which has the force of law in terms whereof only
F the classes of persons who would be entitled thereto
were determined. By judicial process or otherwise, the
said executive instructions which are consistent with the
constitutional scheme could not have brought about an
altogether different situation as a result whereof those . '-
G who are residents of Delhi being belonging to the
members of the Scheduled Castes and, thus, entitled to
be regarded within the framework of the quota provided
for by the Government could not have been deprived
therefrom by way of bringing in another class of persons
H within the purview of the said category of Scheduled
SUBHASH CHANDRA v. DELHI SUBORDINATE 987
SERVICES SELECTION BOARD
Castes who are not entitled to the said benefit. By reason A
of such an Act, those who are entitled to the benefit of
the doctrine of protective discrimination contained in
Clause (4) of Article 16 of the Constitution of India had
been deprived of their constitutional right. Once it is
found that the constitutional violation of this nature has B
been committed, the Courts would be entitled to apply
the principle of strict scrutiny test or closer scrutiny test
or higher level of scrutiny. (Paras 42 and 43] (1031-F-H;
1032-A-F]
7.5. First responsibility of the court is to determine
c
whether the ends purported to be sought by the
executive are "compelling." This process is under the
intense gaze of the court because the government is
impinging upon somebody else's core constitutional
- rights and therefore only the most pressing D
circumstances can justify the government action. The
other important responsibility is to inquire and assess
that the law is a narrowly tailored means of furthering
those governmental interests. Objectivity, both in terms
of quantifiable data and the intended objective, and time E
bound prescriptions, (preferably with a sunset clause)"
are two measures which shall keep the State in good
stead while discharging the burden under the protective
discrimination mandate. The law must showcase
overinclusion or underinclusion or whatever other F
requirement there may be through statistics before
moving ahead with the execution of law. [Para 43] (1036-
F-H; 1037-A-E]
Ramdev Food Products Pvt. Ltd. v. Arvindbhai Rambhai G
Patel and Ors. (2006) 8 sec 726; Punjab Water Supply and
Sewerage Board, Hoshiarpur v. Ranjodh Singh and Ors.
(2007) 2 SCC 491 and Indra Sawhney & Ors. v. Union of India
& Ors. 1992 Supp. (3) sec 212, relied on.
Saurabh Chaudri & Ors. v. Union of India & Ors. (2003) H
988 SUPREME COURT REPORTS [2009] 12 S.C.R.
A 11 SCC 146; Mithu v. State of Punjab (1983) 2 SCC 277;
Anuj Garg & Ors. v. Hotel Association of India & Ors. (2008)
3 SCC 1; United India Insurance Company Ltd. v. Ajay Sinha
& Anr. (2008) 7 SCC 454 and M. Nagaraj & Others v. Union
of India & Others, (2006) 8 SCC 212, referred to.
B
Johnson v. California, 543 U.S. 499, 505 (2005), referred
to.
8. Protective discrimination may be used to curtail the
extremely hard won civil and political rights granted by
C the Constitution. Rights of the accused as part of the fair
trial rights, equality rights, right to liberty and personal
autonomy and other such rights are to be fiercely
protected against any blind policy onslaught of the times.
The government must have a overwhelming compelling
D interest to justify limitations on the freedom of
association, free exercise of religion, free speech, right
to vote, right to travel et al. Strict scrutiny thus paves the
way for a more searching judicial scrutiny to guard
against invidious discriminations which could have been
E made by the State against group of people in violation of
the constitutional guaranty of just and equal laws. The
court must adopt a weighted balancing approach or in
other words pursue an even-handed balancing of the
interests. [Para 43] [1038-C-E]
F 9.1. 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. [Para 44] [1038-G-H; 1039-A]
G
9.2. 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
H
SUBHASH CHANDRA v. DELHI SUBORDINATE 989
SERVICES SELECTION BOARD
decisions following the same only on the basis of an A
f 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 Oayanand, therefore, this Court is of the B
opinion that the dicta in Pushpa is an obiter and does not
lay down any binding ratio. [Para 46) [1047-8-D]
E. V. Chinnaiah vs. State of A.P. & ors. (2005) 1 sec
394, followed.
c
S. Pushpa & Ors. Vs. Sivachanmugavelu & Ors. (2005)
3 sec 1, dissented from.
State of Maharashtra VS. Mi/ind & ors. (2001) 1 sec 4;
Mis Sardar Associates v. Punjab & Sind Bank, CAs @ SLP o
"" (C) Nos. 5249-5250 of 2008 decided by Supreme Court on
31st July, 2009; Harminder Kaur & Ors. v. Union of India &
Ors. 2009 (7) SCALE 204; Oriental Insurance Company
Limited v. Mohd. Nasir and Another (2009) 6 SCC 280; India
Cement Ltd. and Others v. State of Tamil Nadu and Others E
(1990) 1 SCC 12; Synthetics and Chemicals Ltd. and Others
v. State of UP. and Others (1990) 1 SCC 109; Central Board
i of Oawoodi Bohra Community & Anr. v. State of Maharashtra
& Anr. (2005) 2 SCC 673; Nagar Palika Nigam v. Krishi Upaj
Mandi Samiti & Ors. (2008) AIR SCW 7914 and Official
Liquidator v. Dayanand & Ors. (2008) 10 SCC 1, relied on. F
I
de Freitas v. Benny [1976) AC 239; Reckley v. Minister
of Public Safety and Immigration (No. 2) [1996) A.C.527;
Lewis v. Aft. Gen. of Jamaica [2001) 2 AC 50 and Attorney
General v. Blake [(1997) Ch D; (1998) Ch 439 CA : (2001) G
'f 1 A.C.268 HL, referred to.
Black's Law Dictionary, 8th edition, 2004, referred to.
H
990 SUPREME COURT REPORTS [2009] 12 S.C.R.
A "Final Appellate Courts Overruling Their Own "Wrong" ~
Precedents: The Ongoing Search For Principle" by B. V. Harris '
(2002) 112 LQR 408-427; SIR Richard Buxob : How the
Common Law Gets Made: Hedley Byrne and Other
Cautionary Tales" (2009) 125 L.Q.R. 60 and "A Decision Per
B lncuriam?" -Prof.A. W. Brian Simpson, The Law Quarterly
Review, volume 125, July 2009, p.433, referred to.
Case Law Reference:
1990 (3) sec 130 relied on Para 13 r
c 1994 (5) sec 244 relied on Para 13
(2004) 1 sec 580 relied on Para 13
(2005) 3 sec 1 relied on Para 13
D (2000) 2 sec 20 relied on Para 13
(2004) 1 sec 530 relied on Para 16
(2001) 1 sec 4 relied on Para 18
(2005) 1 sec 394 relied on Para 18
E
(2001) 6 SCC.571 relied on Para 18
(2002) 8 sec 481 relied on Para 25
(2003) 1 sec 657 relied on Para 32
F
(2001) 5 sec 360 relied on Para 33
(2008) 6 sec 1 relied on Para 34
(1999) 2 sec 462 referred to Para 35 -~
G (2006) 8 sec 126 relied on Para 41
y
(2001) 2 sec 491 relied on Para 41
1992 Supp. (3) sec 212 relied on Para 41
H
SUBHASH CHANDRA v. DELHI SUBORDINATE 991
SERVICES SELECTION BOARD
(2003) 11 sec 146 referred to Para 43 A
(1983) 2 sec 211 referred to Para 43
(2008) 3 sec 1 referred to Para 43
(2008) 1 sec 454 referred to Para 43 B
(2006) 8 sec 212 referred to Para 43
543 U.S. 499, 505 (2005) referred to Para 43
2009 (7) SCALE 204 relied on Para 44
c
(2009) 6 sec 280 relied on Para 44
[1976) AC 239 referred to Para 44
[1996) A.C.527 referred to Para 44
[2001) 2 AC 50 referred to Para 44 D
>- (1997) Ch D; (1998) Ch 439 CA :
(2001) 1 A.C.268 HL referred to Para 44
(1990) 1 sec 12 relied on Para 45 E
(1990) 1 sec 109 relied on Para 45
'JI. (2005) 2 sec 673 relied on Para 45
(2008) AIR sew 7914 relied on Para 45
F
(2008) 1o sec 1 relied on Para 45
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5092 of 2009.
From the Judgment & Order dated 13.5.2005 of the High G
Court of Delhi at New Delhi in LP.A. No. 625 of 2002.
"!
WITH
W.P. (C) No. 507 of 2006.
H
992 SUPREME COURT REPORTS [2009] 12 S.C.R.
A U.U. Lalit, A. Mararputham, Rakesh Kumar Khanna, Tatini
Basu, Gaurav Gupta, Sudhir Nandrajog, Geeta Luthra, Parinay t
D Shah, Sanjeev, Sahay, D.N. Goburdhan, Dr. Krishan Singh
Chauhan, Gyan Mitra, K.C. Lamba, Chand Kiran, Ramesh
Kumar, Sanjiv Sen, Praveen Swarup, Shashi Kiran, A. Tarque,
B Anil Katiyar, Renu George, Dinesh Kumar Garg, Aruna Mathur,
S.N. Terdol, Sushma Suri D.S. Mahra, Rashmi Khanna, Surya
Kant, O.P. Bhadani, Pranav Vyas for the appearing parties.
The Judgment of the Court was delivered by
c 5.8. SINHA, J. 1. Leave granted in SLP (C) No.24327 of
2005.
2. Interpretation and/ or application of the notifications and/
or the circulars issued by the National Capital Territory of Delhi
D in terms of clause (1) of Article 341 of the Constitution of India
is involved herein.
3. It arises out of a judgment and order dated 13.05.2005
passed by a Division Bench of the High Court of Delhi
dismissing an appeal preferred from an order passed by a
E learned Single Judge of the said Court.
The writ petition was filed by the appellant society which
is registered under the Societies Registration Act, with its
objects amongst others 'upliftment of Backwards, Scheduled
F Castes and others of Delhi in education, social and cultural
fields and to apply for and get all kinds of facilitation and
relaxation and for safeguarding their interest in Government
jobs'.
4. The background facts involving filing of this appeal are
G as follows:
The members of Scheduled Casts and Scheduled Tribes
have an important place in our constitutional scheme. Article
341 of the Constitution empowers the President to specify the
H castes, races or tribes or part of or groups within castes, races
SUBHASH CHANDRA v. DELHI SUBORDINATE 993
SERVICES SELECTION BOARD [S.B. SINHA, J.]
or tribes with respect to any State or Union Territory for the A
• purposes of the Constitution deemed to be Scheduled Castes
in relation to that State or Union Territory as the case may be.
Similar provision is contained in Article 342 of the Constitution
of India with regard to the members of the Scheduled Tribes.
Clause (2) of Article 341 which is relevant for our purpose reads B
as under:
"(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 aforesaid a
c
notification issued under the said clause shall not be
varied by any subsequent notification."
5. Private respondents and/or their parents are migrants
to Delhi. In their native places, they were declared to be the D
!- members of the Scheduled Castes.
6. Indisputably, the Ministry of Home Affairs issued a
circular on or about 2.5.1975, in terms whereof the manner in
which the claim of a person as being belonging to Scheduled E
Castes or Scheduled Tribes is required to be verified was laid
down. Such verification was to be made having regard to the
--,/..
Presidential order specifying the Scheduled Castes and
Scheduled Tribes in relation to the concerned State.
In the matter of verification of the caste of migrants, it was F
laid down:
"1. . General (Applications in all cases):-
Where a person claims to belong to a Scheduled
G
Castes and Scheduled Tribes by birth it could be
"t verified:-
(i) That .the person and his parents actually belong to
the community claimed.
H
994 SUPREME COURT REPORTS [2009) 12 S.C.R.
A (ii) That this community includes in the Presidential
Orders specifying the Scheduled Caste and
Scheduled Tribes in relation to the concerned State.
(iii) That the person belongs to that State and to the
B area within that State in respect of which the
community has been scheduled.
(iv) If the person claims to be a Scheduled Caste, he
should profess either the Hindu or the Sikh religion.
C (v) If the person claims to be a Scheduled Tribe, he may
profess any religion.
2. Case of Migration:-
(i) Where a person migrates from the portion of the
D State in respect of which his community is
scheduled to another part of the same State in
respect of which his community is not scheduled he
will continue to be deemed to be a member of the
Scheduled Caste or the Scheduled Tribe as the
E case may be in relation to that State.
(ii) Where a person migrates from one State to
another, he can claim to belong to a Scheduled
Caste or Scheduled Tribe only in relation to the
State to which he originally belonged and not in
F
respect of the State to which he has migrated."
7. Yet again, by way of a clarification issued by the National
Capital Territory of Delhi dated 22.3.1977, it was, inter alia,
stated:
G
"2. As required under Article 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
H
SUBHASH CHANDRA v. DELHI SUBORDINATE 995
SERVICES SELECTION BOARD [S.B. SINHA, J.]
notifying various Castes and Tribes as Scheduled Castes A
and Scheduled Tribes in relation that State or Union
Territory from time tome. 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 Scheduled B
Castes or Scheduled Tribes status, only benefit from the
facility provided for them. Since the people belonging to
the same caste but living in different State/Union Territories
may not necessarily suffer from the such disabilities, it is
possible that two persons belonging to the same caste but c
living in different State/Union Territories may not both be
treated to belong Scheduled Caste/Tribes or vice versa.
Thus the residence of a particular person a particular
locality assumes a special significance. The residence has
not been understood in the literal or ordinary sense of the D
.L
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 O~der applicable in his case say for E
example to earn a living or seek education etc. can also
be regarded as Scheduled Caste or a Scheduled Tribe,
as the case may be, with regard to his relation to his State
U.T. but he cannot be treated as such in relation to the
place of his temporary residence notwithstanding the fact F
that the name of his caste/tribe has been scheduled in
respect of that area in any Presidential Order."
8. Despite the same, however, on or about 8.4.1994, yet
again a circular letter was issued; the relevant portions whereof G
read as under :
"Subject: Issuing of other Backward Class certificates
to migrants from other States/UT.
H
996 SUPREME COURT REPORTS [2009] 12 S.C.R.
A Sir,
l
1. In continuation of the DEPT's letter of 36012/22/93-
Estt.!SCT) dated 15th November, 1993, I am
directed to say that it has been represented to this
Department that persons belonging to OBCS who
B
have migrated from one State to another for the
purpose of employment, education etc. experience
great difficulty in obtaining caste certificates from
the States from which they have migrated, in order
to remove this difficulty it has been decided that the
c prescribed authority of a State/UT Administration in
terms of the DEPT letter aNo.16012/22/93-Estt.
(SCT) dated 15th November, 1993 may issue the
OBCS certificates to a person who has migrated
from another States on the production of a genuine
D certificate issued to his father by the prescribed
authority of the State his father's origin except
where the prescribed authority feels that a detailed
enquiry is necessary through the state of origin
before the issue of the certificate.
E
2. The certificates will be issued irrespectively of
whether the OBC candidate in question is included
in the list of OBC pertaining to the State/U.T. to
which the person has migrated. The facility does not
alter the OBC status of the person in relation to the
F
one at the other State/U.T. The OBC person on
migration from the State/U.T. of his origin in another
State/U.T. where his caste is not in the OBC list is
entitled to the concession/benefits admissible to the
OBCS from the state of his origin and Union
G Government but not from the State where he has y
migrated."
9. Keeping in view the aforementioned directions issued
by the Union Territory, an advertisement was issued by the State
H Subordinate Selection Board. General instructions issued
SUBHASH CHANDRA v. DELHI SUBORDINATE 997
SERVICES SELECTION BOARD [S.B. SINHA, J.]
therein, inter alia, read as under : A
"(2) SC and OBC candidates must furnish certificates
issued by the competent authority of Government of NCT
of Delhi issued on or before the closing date of receipt of
application forms. (Illegible)" B
10. Questioning the legality and/or validity of the said
circular, Shri Kunwar Pal and 22 others, claiming themselves
to be entitled to the benefits of the aforementioned Presidential
Notification declaring their caste to be Scheduled Castes but
keeping in view the nature of verification specified by reason C
of the aforementioned circulars, filed writ petition in the High
Court of Delhi at New Delhi which was registered as Civil Writ
Petition No.5061 of 2001 praying, inter alia, for the following
reliefs:
D
"(i) certiorari quashing the entire action of the
responde:nts in not considering the Scheduled
Castes certificates of the petitioners (Annexure P3)
collectively and stating them not to be valid
certificates: E
(ii) mandamus directing the respondents to consider
i
and appoint the petitioners to be posts of Assistant
Teachers (Primary)-Hindi under reserved
categories of Scheduled Castes as per petitioners'
Scheduled castes certificates (Annexure P3) F
Collectively.
11. The Government of National Capital Territory having
been served with a notice in the said writ application filed a
counter affidavit contending, inter alia, that the notification G
'-f. involved two sets of castes/categories certificate' one in relation
to the original inhabitants and the other relating to the migrants
and stating :
"In other words candidates belonging to SC/ST/OBC
Castes/communities whose state/UT of origin is other than H
998 SUPREME COURT REPORTS [2009] 12 S.C.R.
A the NCT of Delhi are not at all, eligible for benefit of
t
reservation in the services/posts under the Govt. Of Delhi
and the Local/Autonomous Bodies sub-ordinate to the
said Government. The benefit of reservation in the services/
posts in Government of Delhi and Local/Autonomous
B bodies is legally available to only those candidates who
fall in the first category. The candidates falling in the
second category can claim the benefit of reservation in the
services/posts under the Central Government as well as
Govt. of the state/U.T. of their origin. Such candidates are
c not, at all, entitled for grant of benefit of reser\iation in the
services/posts under the Government of Delhi and Local/
Autonomous bodies subordinate to the said Govt."
12. A learned Single Judge of the said Court, however,
upon construction of clause (2) of the circular letter dated
D 2.5.1975, held as under:
~
"A reading of the aforesaid clause, however, shows that
the same relates to a person who migrates from one State
to another. In the present case the candidates are the
E progenies of person who had migrated. In my considered
view there is a difference between the first generation
migrant and the progenies of the said migrant. The benefit
may be denied to the first generation migrant on the basis
of the said circular but it cannot be denied to his progenies
F who are born and brought up in the migrated State."
13. Taking note of the fact that Delhi is an amalgam of
people from various parts of the country and, thus, the benefit
of the aforementioned Presidential notification, may not be
extended to those who had migrated from other States, inter
G alia, raised a question as to what should be the cut off date to
determine as to who is a Delhite.
Opining that the circular letters had been issued with the
object of protecting the rights of the persons who may be away
H from his State would fall in the category of that State and that
SUBHASH CHANDRA v. DELHI SUBORDINATE 999
SERVICES SELECTION BOARD [S.B. SINHA, J.]
only with a view to prevent injustice to such persons that the A
said circular had been issued. Referring to the decisions in
Marri Chandra Shekhar Rao v. Dean, Seth G. S. Medical
College & Ors. [(1990) 3 SCC 130] and Action Committee on
Issue of Caste Certificate to Scheduled Castes and
Scheduled Tribes in the State of Maharashtra & anr. [(1994) B
5 sec 244], it was held :
"In my considered view the aforesaid judgmeint would not
, come to the aid to the respondents since the present case
is not one of a similar nature. The benefit of reservation is
sought by such of the petitioners who are born and brought
c
up in Delhi but whose father or forefathers happened to
migrate to Delhi over the last number of years."
The writ petitioners before the High Court, however,
strongly relied upon the decision of this Court in K. D
>- Balakrishnan v. K. Kama/am & Ors. [(2004) 1 SCC 580] and
S.Pushpa & Ors. v. Sivachanmugavelu & Ors. [(2005) 3 SCC
1].
Noticing the dictionary meaning of the words 'domicile' and
E
'residents'. as noticed by this Court in Union of India & Ors. v. .
Dudh Nath Prasad [(2000) 2 SCC 20], the learned Judge was
1 held that widest amplitude for granting benefits of rese•rvations
should be given to the said circulars.
Holding that there is no rationale as to why the respondents F
suddenly sought to bring in the restriction now, it was opined :
"In view of the aforesaid a writ of mandamus is issued to
#·f
appoint such of the petitioners in the present writ pe\titions
who are born and brought up in Delhi, the caste is nC1tified G
as a reserved caste .in Delhi but the certificate issw3d to
them is on the basis of the certificate issued to their fathers
who were the migrants from other States."
14. The Division Bench of the said court dismissed the
intra court appeal preferred thereagainst by the De:lhi H
1000 SUPREME COURT REPORTS [2009] 12 S.C.R.
A Subordinate Service Selection Board and another, holding :
t
"Therefore, it is clear that for States inter se, the matters
are considered differently. In the instant case, it is an
accepted position that the original petitioners were born
in the State of Delhi. Therefore, they are Scheduled Tribes
8
in Delhi and the Tribe/Caste is also recognised in Delhi
as a reserved category. There is no dispute that the same
caste to which their parents belonged in other State is also
recognized as a reserved category."
c 15. Mr. U.U. Lalit, learned senior counsel appearing on
behalf of the appellants, would contend :
(1) a person belonging to a caste notified as Scheduled
Castes in one State cannot automatically claim the
D benefit of any notification specifying a similar caste
in another State or Union Territory.
(2) Although a distinction lies between a State Civil
Service and a Central Civil Service, and inasmuch
as in the latter, people from all over the country are
E entitled to be considered for appointment keeping
in view the plain ianguage contained in clause (1)
of Article 341 of the Constitution of India, such a
benefit cannot be conferred on a person who had
migrated from one State to another State/Union
F Territory.
(3) In interpreting such a notification, the High Court
should have used the principle of contextual
interpretation and not a beneficent legislation. .....
G 16. Mr. Mariarputham, learned Senior Counsel appearing
on behalf of the Union of India, Mr. Rakesh Kumar Khanna,
learned Senior Counsel appearing on behalf of the New Delhi
Municipal Corporation and Dr. Krishan Singh Chauhan, learned
counsel appearing on behalf of the private respondents, on the
H other hand, urged :
SUBHASH CHANDRA v. DELHI SUBORDINATE 1001
SERVICES SELECTION BOARD [S.B. SINHA, J.]
(i) The Central Government being within the A
-t
administrative control of Union Territory in terms of
Article 239 of the Constitution of India is entitled to
lay down policies involving Union Territory Services
wherefor executive instructions can be issued.
B
(ii) Direction of this nature being in regard to the
classes of people who would be eligible to enter
into Union Territory Service which is akin to Central
-; Civil Services being for the purpose of achieving
the constitutional goal provided for under clause (4) C
of Article 16 of the Constitution of India is
permissible in law.
(iii) The State may take such policy decisions which
would advance the cause of the backward class as
envisaged under clause (4) of Article 16 of the D
Constitution of India and clause (4) of Article 15
thereof.
(iv) Doctrine of protective discrimination envisaged in
Article 16 would bring within its ambit all such E
people who are backward not only in a State or
Union Territory but also throughout the length and
breadth of the country as envisaged under clause
(1) of Article 16 thereof.
(v) For the purpose of considering the validity of the F
circular letters impugned in the writ petitions, the
preamble of the Constitution of India as also the
provisions relating to reservation should be allowed
to have its full play particularly in view of the binding
precedents of ·this Court in Chandigarh G
Administration & Anr. vs. Surinder Kumar & ors.
[(2004) 1 SCC 530] and S. Pushpa & ors. vs.
Sivachanmugavelu & ors. [(2005) 3 SCC 1].
(vi) Although at one point of time the stand of the Union H
1002 SUPREME COURT REPORTS [2009] 12 S.C.R.
A Territory of Delhi which was impugned in the writ
t
petition before the Delhi High Court by the private
respondents was in the light of the law laid down
by this Court in Marri Chandra Shekhar Rao
(supra) and Action Committee (supra) but in view
B of the later decisions of this Court in Chandigarh
Administration (supra) and S. Pushpa (supra), the
Union of India as also the N.C.T. of Delhi must be
held to be bound thereby, being law declared under
Article 141 of the Constitution of India. .,
c (vii) Migrants from other States who are members of
Scheduled Castes and Scheduled Tribes in their
State must be allowed to take the benefit of the said
status particularly those who had been residing in
Delhi for a period of more than five years and those
D who are born and brought up in Delhi.
17. Ms. Shashi Kiran, learned counsel appearing on behalf
of the N.C.T. of Delhi would submit that having regard to the
provisions contained in Article 239 of the Constitution of India,
E the N.C.T. of Delhi has no other option but to follow the directives
issued by the Central Government from time to time.
18. In view of the rival contentions of the parties, the
questions which arise for our consideration are :
F (1) Having regard to the decisions of this Court in Marri
Chandra Shekhar Rao (supra) and Action
Committee (supra), the specification of a particular
Caste or Tribe to be a Scheduled Caste and
Scheduled Tribe being in relation to that State or
G Union Territory, whether a person on his migration
to another State would carry the same status with
him?
(2) Whether in view of the decisions of this Court in
Action Committee (supra) even where the similar
H
SUBHASH CHANDRA v. DELHI SUBORDINATE 1003
SERVICES SELECTION BOARD [S.B. SINHA, J.]
Caste bearing the same name having been A
--r declared to be the Scheduled Caste both in the
State to which he originally belonged and the State
and/or Union Territory to which he has migrated
,_ would make ,any difference in view of the provisions
contained in Article 341 of the Constitution of India? B
(3) Whether in view of the decisions of the Constitution
Bench of this Court in State of Maharashtra vs.
--. Mi/ind & ors. [(2001) 1 sec 4] and E. V. Chinnaiah
vs. State of A.P. & ors. ((2005) 1 SCC 394]
extension of notification even to a migrant would
c
amount to modification and/or alteration of the
notification which is impermissible in law in view of
clause (2) of Article 341 and clause (2) of Article
342 of the Constitution of India?
D
}. (4) Whether having regard to the provisions contained
in Articles 239 and 239AA of the Constitution in
relation to Union Territory it is permissible for the
Central Government to direct recruitment to the
Union Territory Services treating it to be akin to E
Central Civil Services in view of·the decisions of
this Court in Chandigarh Administration (supra)
and S. Pushpa (supra)?
(5) Whether the ratio laid down by this Court in
Chandigarh Administration (supra) and S. Pushpa F
(supra) having not taken into consideration the
binding precedents in Constitution Bench in Mi/ind
·-- (supra), Chinnaiah (supra) and M.C.D. vs. Veena
& ors. [(2001) 6 sec 571] would constitute binding
precedents? G
___..,
19. The Constitution of India is suprema lex. The Preamble
of the Constitution of India envisages 'Sovereign Socialist
Secular Democratic Republic'. In terms of Article 1 of the
Constitution of India, that is, Bharat, shall be a Union of States H
1004 SUPREME COURT REPORTS [2009) 12 S.C.R.
A as specified in the First Schedule.
The First Schedule contains two lists; (1) the list of States,
and (2) the list of Union Territories. They together constitute
geographical and political territory of India.
B The equality clause contained in Articles 14, 15 and 16
constitutes a set of fundamental rights of all persons whether
they are citizens of India or not. Whereas in terms of Article 14
of the Constitution of India all persons similarly situated are
entitled to enforcement of their fundamental right of equality
C before the law and equal protection of the laws. Articles 15 and
16 although aim at equality but also provide for certain
exceptions.
20. In terms of the aforementioned provisions, enabling
0 provisions have been made so as to enable the State to make
any special provision for the advancement of any socially and
educationally backward classes of citizens or for Scheduled
Castes and Scheduled Tribes as provided for in clause (4) of
Article 15 of the Constitution of India and for making any
E provision for the reservation of appointments or posts in favour
of any bacl<ward class of citizens which, in the opinion of the
State, is not adequately represented in the services of the State
as provided for in clause (4) of Article 16 thereof. y
21. We may at the outset notice the distinction between
F clause (4) of Article 15 and clause (4) of Article 16 of the
Constitution. The words 'backward classes' and 'Scheduled
Castes and Scheduled Tribes' find place in clause (4) of Article
15 but only the words 'backward class of citizens' find place in
clause (4) of Article 16.
G
It is, however, beyond any doubt or dispute that the term
'backward class of citizens' contained in clause (4) of Article
16 includes Scheduled Castes and Scheduled Tribes for all
intent and purport. Therefore, the protection sought to be
H accorded to a section of the citizenry must not only be to ·
SUBHASH CHANDRA v. DELHI SUBORDINATE 1005
SERVICES SELECTION BOARD [S.B. SINHA, J.]
backward class but may also be to Scheduled Castes and A
r Scheduled Tribes for whom a special provision can be made.
Article 341 of the Constitution of India, which finds place
in Part XVI thereof provides for special provisions relating to
certain classes of citizens. It reads as under: B
"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
.., public notification, specify the castes, races or tribes or
parts of or groups within castes, races or tribes which shall c
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.
(2) Parliament may by law include in or exclude from D
}
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
aforesaid a notification issued under the said clause shall
not be varied by any subsequent notification." E
The terms 'Scheduled Castes' and 'Scheduled Tribes'
have been defined in clauses (24) and (25) of Article 266 of
the Constitution, which read as under:
"(24) "Scheduled Castes" means such castes, races or F
tribes or parts of or groups within such castes, races
or tribes as are deemed under article 341 to be
Scheduled Castes for the purposes of this
Constitution;
G
(25) "Scheduled Tribes" means such tribes or tribal
--i.- communities or parts of or groups within such tribes
or tribal communities as are deemed under article
342 to be Scheduled Tribes for the purposes of this
Constitution."
H
1006 SUPREME COURT REPORTS [2009] 12 S.C.R.
A Article 342 in identical terms deals with the cases of
members of Scheduled Tribes.
22. Part VIII of the Constitution of India provides for the
Union Territories stating that every Union Territory shall be
B administered by the President acting, to such extent as he
thinks fit, through an administrator to be appointed by him with
such designation as he may specify. Special provisions with
respect to Delhi has been made by inserting Article 239AA to
the Constitution; Clause ( 1) whereof provides that despite
y
coming into force of the Constitution (Sixty-ninth Amendment)
c Act, 1991, the Union Territory of Delhi shall be called the
National Capital Territory of Delhi and shall be administered. by
an Administrator appointed under Article 239 who shall be
designated as the Lieutenant Governor.
D 23. The President of India promulgated the Constitution
(Scheduled Tribes) Order in the year 1950 specifying the Tribes
which would be deemed to be the Scheduled Tribes. Similarly,
in the year 1951, Constitution (Scheduled Castes) Order was
promulgated. The names of several Tribes and Castes were
E added, deleted and altered subsequently by notifications issued
by· the President of India from time to time.
24. It may be advantageous to notice the relevant y
provisions of the Constitution (Scheduled Castes) Order, 1950
and the Constitution (Scheduled Tribes) Order, 1950 made by
F the President of India in exercise of powers conferred by Article
341 (1) and Article 342(1) respectively of the Constitution. In the
order first mentioned Clause (2) provides as under:
"2. Subject to the provisions of this Order, the castes, races
G or tribes or parts of, or groups within, castes or tribes
specified in Parts I to XXIV of the Schedule to this order
shall, in relation to the States to which those parts
respectively relate, be deemed to be Scheduled Castes
so far as regards member thereof resident in the localities
H specified in relation to them in those Parts of the
SUBHASH CHANDRA v. DELHI SUBORDINATE 1007
SERVICES SELECTION BOARD [S.B. SINHA, J.]
Schedule." A
~
Clause (2) of the second mentioned Order reads as under:
"2. The Tribes or tribal communities, or part of, or groups
within, tribes or tribal communities, specified in Parts I to
XXll of the Schedule to this Orders shall, in relation to the B
State to which those parts respectively relate, be deemed
to be Scheduled Tribes so far as regards members
thereof residents in the localities specified in relation to
them respectively in those Parts of that Scheduled."
c
25. Indisputably, having regard to clause (2) of Article 341
as also of Article 342 of the Constitution tinkering with the said
list is impermissible, save and except by a law made by the
Parliament.
D
} Concededly, in respect of education or service, th,ere
exists a distinction between State Service and State run
institutions including Union Territory Services and Union
Territory run institutions on the one hand, and the Central Civil
Services and the institutions run by the Central Government on
the other. Whereas in the case of the former, the reservation E
whether for admission or appointment in an institution and
-1 employment or appointment in the services or posts in a State
·' or Union Territory must confine to the members of the Scheduled
Castes and Scheduled Tribes as notified in the Presidential
Orders but in respect of All India Services, Central Civil Services F
or admission to an institution run and founded by the Central
Government, the members of Scheduled Castes and
Scheduled Tribes and other reserved category candidates
irrespective of their State for which they have been notified are
entitled to the benefits thereof. G
-f
It is not denied or disputed that services in the Union
• Territory is essentially different from All India Services. It is also·
beyond any controversy that machinery for recruitment is also
different. Indisputably again, not only the conditions of
H
1008 SUPREME COURT REPORTS [2009] 12 S.C.R.
A recruitment but also conditions of service differ.
..
~
Before us, it has furthermore been conceded that for the
purpose of Union Territory of Delhi no separate notification in
respect of Scheduled Tribe has been issued. ;
B The Constitution (Scheduled Castes) (Union Territories)
Order, 1951, is a Presidential Notification, issued under Article
341 of the Constitution of India specifying Scheduled Castes r-
in relation to, the Union Territory of Delhi. However, no such
notification exists under Article 342 of the Constitution of India,
.,
c listing scheduled tribes for the Union Territory of Delhi.
The question therefore is, whether in the absence of a
Presidential Notification, listing any group of persons as a
Scheduled Tribe in Delhi, can by policy, the benefit of
D reservation in services be accorded to migrant Scheduled
Tribes in the Union Territory of Delhi?
We may, however, notice that a learned Single Judge of
the Delhi High Court had rejected extension of such benefit of
reservation to migrant Scheduled Tribes but a Division Bench
E of High Court applied the ratio of this Court in S. Pushpa
(supra) to extend such benefits to members belonging to
Scheduled Tribes. The correctness of the said view is also in ~
question before us.
F It is in the aforementioned context, the constitutional
provisions as noticed by us heretobefore call for interpretation.
When a Caste or a Tribe is designated as a Scheduled
Caste or Scheduled Tribe, the members belonging thereto
derive a bunch of benefits. Such benefits may not only be
G confined to admission in educational institutions, appointment
in State or Central Civil Services, but also for contesting r
elections to the seats reserved for them in the Panchayats and
Municipalities in lieu of the provisions of 73rd and 74th
Amendments to the Constitution. Benefits to the members of
H the Scheduled Castes and Scheduled Tribes and other
SUBHASH CHANDRA v. DELHI SUBORDINATE 1009
SERVICES SELECTION BOARD [S.B. SINHA, J.]
backward classes may also be conferred by means of schemes A
formulated by the Central Government or the State Government.
Article 341 of the Constitution of India does not make any
disfinction between a State and Unior:i Territory except for the
purpose of consultation with the Governor or the Administrator, B
as the case may be. Such consultation is necessary in view of
the fact that it is for the State machinery to identify such Caste
or Tribe who had suffered the centuries old ignominy and/ or
suffered other disadvantages. It is possible for a State to point
out that although a group of people may be belonging to a caste
or Tribe which is otherwise backward but having regard to the
c
social and economic advan.cement made by that group, they
should be excluded.
Persons belonging to a particular Caste or Tribe may
suffer some disadvantages in one State but may not suffer the D
f same disadvantages in the other. Our constitutional scheme,
therefore, seeks to identify the social and economic
backwardness of people having regard to the State or Union
Territory as a unit. The same principle applies even to the
minorities as has been laid down by an Eleven Judge Bench E
of this Court in T.M.A. Pai Foundation and Ors. v. State of
-I Kamataka and Ors [(2002) 8 SCC 481]
26. It is also a trite law that a study has to be undertaken
before a section of the people can be identified as being
belonging to backward class people. In our constitutional
F
scheme backward class people are divided into three
categories, namely, Scheduled Castes, Scheduled Tribes and
other backward classes. Scheduled Caste and Scheduled Tribe
would be backward but the same would not mean that the
converse is true, i.e., all backwards would be members of the G
-~
Scheduled Castes or Scheduled Tribes.
Why we say so is that the reservation in terms of clause
(4) of Article 16 of the Constitution of India is fixed on a
percentage basis. The advertisement issued by the Delhi H
1010 SUPREME COURT REPORTS [2009] 12 S.C.R.
A Subordinate Services Selection Board clearly shows that the
percentage of reservation having regard to the Central
Government Rules which are applicable to the National Capital
Territory of Delhi would be 7.5% for Scheduled Tribes, 15% for
Scheduled Castes and 27.5% for other backward classes.
B
No Scheduled Tribe has been identified in the Union
Territory. The Presidential Order in regard to the Scheduled
Castes speaks of the residents of Delhi alone.
Some of the Castes identified as Scheduled Castes in
c some other States also find place in the Presidential Order
issued for Delhi.
What would be the effect is the question.
27. With the aforementioned backdrop in mind, we may
D notice a few decisions of this Court.
A Constitution Bench of this Court in Marri Chandra
Shekhar Rao (supra) had the occasion to consider the
question as to whether a member of Gouda community which
E is recognized as 'Scheduled Tribe' in the Constitution
(Scheduled Tribes) Order, 1950 would be entitled to admission
in a medical institution situated in the State of Maharashtra.
This Court noticed the fact that the father of the petitioner
therein was an employee in Fertilizer Corporation of India, a
F public sector undertaking, in the Scheduled Tribes quota and
thereafter in the Rashtriya Chemicals and Fertilizers Limited,
a Government of India undertaking under the quota reserved
for Scheduled Tribes whereafter he was stationed at Bombay.
The petitioner therein came to Bombay at the age of nine years.
G He completed his studies in Bombay; he submitted an
.application for his admission in the medical institutions run by
Bombay Municipal Corporation which was denied in view of
'.
Circular dated 22.2.1985 issued by the Government of India.
The Circular dated 22.2.1985 issued by the Government
H of India, inter alia, read as under :
SUBHASH CHANDRA v. DELHI SUBORDINATE 1011
SERVICES SELECTION BOARD [S.B. SINHA, J.]
"It is also clarified that a Scheduled Caste/Tribe person A
who has migrated from the State of origin to some other
State for the purpose of seeking education, employment
etc. will be deemed to be a Scheduled Caste/Tribe of the
(
, State of his origin and will be entitled to derive benefits
from the State of origin and not from the State to which he B
has migrated."
The question which was posed was the effect of
specification by the President of the Scheduled Castes or
Scheduled Tribes, as the case may be, for the State or Union
territory or part of the State. Noticing that the specification was
c
"for the purposes of this Constitution", it was found to be
necessary to determine what the expression 'in relation to that
State' seeks to convey.
_,
28. This Court noticed not only the various provisions of D
> the Constitution but also the earlier decisions governing the
field as well as the views of Dr. B.R. Ambedkar in the
Constituent Assembly, to hold:
"22. In that view' of the matter, we are of the opinion that
E
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."
F
Marri Chandra Shekhar Rao (supra) was followed by
another Constitution Bench of this Court in Action Committee
(supra).
The question posed therein was:
G
"Where a person belonging to a caste or tribe specified
for the purposes of the Constitution to be a Scheduled
Caste or a Scheduled Tribe in relation to State A migrates
to State B where a caste or tribe with the same
nomenclature is specified for the purposes of the H
1012 SUPREME COURT REPORTS [2009] 12 S.C.R.
A Constitution to be a Scheduled Caste or a Scheduled
Tribe in relation to that State 8, will that person be entitled
to claim the privileges and benefits admissible to persons
belonging to the Scheduled Castes and/or Scheduled
Tribes in State 8?"
'
lo-
8
While interpreting clause (1) of Articles 341 and 342, this
Court held:
"What is important to notice is that the castes or tribes have
to be specified in relation to a given State or Union
c Territory. That means a given caste or tribe can be a
Scheduled Caste or a Scheduled Tribe in relation to the
State or Union Territory for which it is specified. These ·are
the relevant provisions with which we shall be concerned
while dealing with the grievance made in this petition." .._
D
Noticing that the persons belonging to Scheduled Castes/
Scheduled Tribes who migrate from their State of origin to
another State in search of employment or for educati.onal
purposes had experienced great difficulty in obtaining Caste
or Tribe Certificates wherefor the Circular letters were issued,
E
this Court held:
"14. It is a matter of common knowledge that before and
during the British Rule also the social order in India was
of graded inequality. During the freedom struggle some of
F our leaders strived to bring about social integration to give
a fillip to the independence movement. The need to bring
about equality was strongly felt. After independence when
the Constitution was being framed for free India,
considerable emphasis was laid on the need to secure
G equality. The debates of the constituent Assembly bear
testimony to this felt need."
29. This Court also noticing Articles 14, 15(1), 15(4), 16(1),
16(4), 19, Part XVI of the Constitution of India and the decisions
governing the field as also Articles 341 and 342 thereof opined
H
SUBHASH CHANDRA v. DELHI SUBORDINATE 1013
SERVICES SELECTION BOARD [S.B. SINHA, J.]
that Marri Chandra Shekhar Rao lays down the correct law, A
fl holding:
"15. We may add that considerations for specifying a
particular caste or tribe or class for inclusion in the list of
Scheduled Castes/Scheduled Tribes or backward classes B
in a given State would depend on the nature and extent of
disadvantages and social hardships suffered by that caste,
tribe or class in that State which may be totally non-est in
another State to which persons belonging thereto may
migrate. Coincidentally it may be that a caste or tribe
bearing the same nomenclature is specified in two States
c
but the considerations on the basis of which they have
been specified may be totally different. So also the degree
-
' ~
of disadvantages of various elements which constitute the
input for specification may also be totally different.
Therefore, merely because a given caste is specified in D
State A as a Scheduled Caste does not necessarily mean
that if there be another caste bearing the same
nomenclature in another State the person belonging to the
former would be entitled to the rights, privileges and
benefits admissible to a member of the Scheduled Caste E
of the latter State 'for the purposes of this Constitution'. This
'---1 is an aspect which has to be kept in mind and which was
very much in the minds of the Constitution makers as is
evident from the choice of language of Articles 341 and
342 of the Constitution." F
~
30. Whereas Marri Chandra Shekhar Rao (supra) was a
case where no notification had been issued for the State of
Maharashtra specifying the Caste to which the petitioner
therein belonged to; in the case of Action Committee (supra),
G
_, the question re.lated to a situation where coincidently some
Castes were notified in both the States, i.e., a fortuitous
circumstance arose therein that some classes had been notified
in both the States.
31. In Veena (supra), a Division Bench of this Court in a H
1014. SUPREME COURT REPORTS [2009] 12 S.C.R.
A case arising out of the National Capital Territory of Delhi,
noticing Marri Chandra Shekhar Rao (supra) held as under: -..
"6. Castes or groups are specified in relation to a given
State or Union Territory, which obviously means that such
caste would include caste belonging to an OBC group in
B
relation to that State or Union Territory for which it is
specified. The matters that are to be taken into
consideration for specifying a particular caste in a
particular group belonging to OBCs would depend on the
nature and extent of disadvantages and social hardships
c suffered by that caste or group in that State. However, it
may not be so in another State to which a person belongs
thereto goes by migration. It may also be that a caste
D
belonging to the same nomenclature is specified in two
States but the consideration on the basis of which they
been specified may be totally different. So the degree of
disadvantages of various elements which constitute the .
-- ~
date for specification may also be entirely different. Thus,
merely because a given caste is specified in one State
as belonging to OBCs does not necessarily mean that if
-
E there be another group belonging to the same
nomenclature ih other State and a person belonging to that
group is entitled to the rights, privileges and benefits
admissible to the members of that caste. These aspects
have to be borne in mind in interpreting the provisions of
F the Constitution with reference to application of reservation
to OBCs."
Upon noticing the Circular letter dated 15.11.1993
specifying two model forms of the certificate to be furnished by
the OBC candidates seeking benefit of reservations and the
G
form appended thereto, it was held:
r
"A careful reading of this notification would indicate that
the OBCs would be recognised as such in the Government
of National Capital Territory of Delhi as notified in the
H Notification dated 20.01.1995 and further for the purpose
SUBHASH CHANDRA v. DELHI SUBORDINATE 1015
SERVICES. SELECTION BOARD [S.B. SINHA, J.]
of verification of claims for belonging to castes/ A
communities in Delhi as per the list notified by the National
Capital Territory of D.elhi the certificates will have to be
issued only by the specified authorities and certificates
issues by any other authority could not be accepted."
B
This Court opined:
"The only additional aspects stated by them in their
respective applications or in the Certificates supported
thereto is that they belong to OBC categories. Hence, their
cases ought to have been considered in the general c
category as if they do not belong to OBC categories in the
circumstances arising in this case."
There the candidature of those candidates were directed
to be considered as a general category candidate. D
• 32. The said principle was reiterated in U.P. Public
Service Commission, Allahabad vs. Sanjay Kumar Singh
reported in (2003) 7 sec 657, wherein a boy belonging to
·scheduled Tribe 'Naga' and hailing from Nagaland sought
admission in a medical college at Kanpur. This Court upon E
considering Marri Chandra Shekhar Rao (supra), Action
Committee (supra) as also Veena (supra) opined that the
appellant therein could not be treated as Scheduled Tribe
candidate so as to qualify himself to claim reservation against
the vacancy reserved for Scheduled Tribes in public services F
in the State of U.P.
33. At this juncture, we may also notice two other
Constitution Bench decisions of this Court, namely, Mi/ind
(supra), Chinnaiah (supra) as also a judgment of this Court in G
Shree Surat Va/sad Jil/a K.M.G. Parishad vs. Union of India
-~
s
& Ors. [(2007) sec 360].
Mi/ind (supra) dealt with a question as to whether the
notified Scheduled Tribe being Halba or Halbi as contained in
Item No. 19 of the Presidential Order would include "Halba- H
1016 SUPREME COURT REPORTS (2009] 12 S.C.R.
A Koshti" or not. Indisputably, beginning from the decision of the
Nagpur High Court rendered in 1956 in Sonabai vs. Lakhmibai
reported in 1956 Nagpur LJ 725, several other judgments as
also circular letters issued by the State of Maharashtra from
time to time, acknowledging that "Halba-Koshti" come within
B the definition of Halba and/or Halbi; the Constitution Bench
opined that the rule of stare decisis will have no application in
a case of this nature. It was opined that addition of "Halba-
Kosthi" in the Presidential Order would amount to amendment
thereto which is impermissible in law, stating:
c "The jurisdiction of the High Court would be much more
restricted while dealing with the question whether a
particular caste or tribe would come within the purview of
the notified Presidential Order, considering the language
of Articles 341 and 342 of the Constitution. These being
D the parameters and in the case in hand, the Committee
conducting the inquiry as well as the Appellate Authority,
having examined all relevant materials and having
recorded a finding that respondent No. 1 belong to 'Koshti'
caste and has no identity with the 'Halba/Halbi', which is
E the Scheduled Tribe under Entry 19 of the Presidential
Order", relating to State of Maharashtra, the High Court
exceeded its supervisory jurisdiction by making a roving
and in-depth examination of the materials afresh and in
coming to the conclusion that 'Koshtis' could be treated as
F 'Halbas'. In this view the High Court could not upset the
finding of fact in exercise of its writ jurisdiction. Hence, we
have to essentially answer the question no. 2 also in the
negative. Hence it is answered accordingly."
Mi/ind (supra), therefore, is an authority for the proposition
G that neither practice prevailing in a State nor the decisions of
the High Court which are otherwise binding on the State would
create a right in a person to obtain the benefit of reservation in
the teeth of provisions of Articles 341 and 342 of the
Constitution. It was furthermore stated:
H
SUBHASH CHANDRA v. DELHI SUBORDINATE 1017
SERVICES SELECTION BOARD [S.B. SINHA, J.]
"35. The arguments advanced before the High Court on A
behalf of an intervener relying on Articles 162, 256 to 258
and 339(2) of the Constitution of India that instructions
issued by the Central Government in the matter have
overriding effect over thei instructions issued by the State
Government, was lightly !brushed aside on the ground that B
this aspect assured little importance in the view taken by
the High Court that the State Government was bound by
the circulars issued by it. We have already expressed
above the view in the liuht of Articles 341 and 342 of the
Constitution that a Scheduled Tribes Order can be c
amended only by the Parliament. Hence it is not possible
to accept that ordern/circulars issued by the State
Government, which have the effect of amending Scheduled
Tribes Order, were binding on the Government or other
affected parties." D
34. Another Constitution Bench of this Court in Chinnaiah
(supra) while considering the question as to whether any sub-
classification within a class is permiss.\ible having regard to the
constitutional provision, answered it, thus:
E
"26. Thus from the scheme of the Constitution, Article 341
and above opinions of this Court in the case of N.M.
Thomas (supra), it is clear that the castes once included
in the Presidential List, form a class by themselves. If they
are one class under the Constitution, any division of these F
classes of persons based on any consideration would
amount to tinkering with the Presidential List."
xxx xxx xxx
37. We have already held tl·at the members of Scheduled G
~'i Castes form a class by thE1mselves and any further sub-
classification would be impermissible while applying the
principle of reservation.
xxx xxx xxx H
1018 SUPREME COURT REPORTS [2009] 12 S.C.R.
A 111. The Constitution provides for declaration of certain
castes and tribes as Scheduled Castes and Scheduled
Tribes in terms of Articles 341 and 342 of the Constitution
of India. The object of the said provisions is to provide for
grant of protection to the backward class of citizens who
B are specified in the Scheduled Castes Order and
Scheduled Tribes Order having regard to the economic
and educationally backwardness wherefrom they suffer.
The President of India alone in terms of Article 341(1) of
the Constitution of India is authorized to issue an
c appropriate notification therefor. The Constitution
(Scheduled Castes) Order, 1950 made in terms of Article
341(1) is exhaustive."
As regards the question as to whether such a sub-
classification is permissible having regard to clause (4) of
D Article 16 of the Constitution of India, it was held:
•
"43. The very fact that the members of the Scheduled
Castes are most backward amongst the backward
classes and the impugned legislation having already
E proceeded on the basis that they are not adequately
represented both in terms of Clause (4) of Article 15 and
Clause (4) of Article 16 of the Constitution of India, a further
classification by way of micro classification is not
..
permissible. Such classification of the members of
F different classes of people based on their respective
castes would also be violative of the doctrine of
reasonableness. Article 341 provides that exclusion even
of a part or a group of castes from the Presidential List
can be done only by the Parliament. The logical corollary
thereof would be that the State Legislatures are forbidden
G
from doing .that. A uniform yardstick must be adopted for
r
giving benefits to the members of the Scheduled Castes
for the purpose of Constitution. The impugned legislation
being contrary to the above constitutional scheme cannot,
therefore, be sustained."
H
SUBHASH CHANDRA v. DELHI SUBORDINATE 1019
SERVICES SELECTION BOARD [S.B. SINHA, J.]
In a separate but concurring judgment, one of us (S.8. A
/(
Sinha, J.) opined as under:
"62. It is true that by reason of Article 341 of the
Constitution of India no benefit other than expressly
provided for in the Constitution, as, for example, Article 320
B
or Article 322, had been conferred on a member of
Scheduled Caste. It is also not in doubt or dispute that the
State has the legislative competence to provide for
·+-- reservations both in the field of public services as also
education. Article 15(4) and Article 335 expressly refer to
the Scheduled Castes and Scheduled Tribes. Clause (4) c
of Article 16 although does not refer to Scheduled Castes
or Scheduled Tribes, having regard to the expressions
"backward class of citizens" contained therein, it is judicially
interpreted that Scheduled Castes and Scheduled Tribes
D
.,, would come within the purview thereof. Scheduled Caste
indisputably is treated to be more backward than the
backward class people."
The said principle had been applied by a Division Bench
of this Court in Shree Surat Va/sad Ji/la K.M.G. Parishad E
(supra).
''(
, Recently, a Constitution Bench of this Court in Ashok
Kumar Thakur v. Union of India & Ors. [(2008) 6 SCC 1],
noticed E. V. Chinnaiah (supra) in the following terms :
I
F
"65. The learned Senior Counsel further contended that
the exclusion of creamy layer has no application to SCs
and STs in regard to employment and education. Articles
341, 342, 366(24) and 366(25) of the Constitution would
militate against such course of action. G
-~
66. It was held in E. V. Chinnaiah v. State of AP. that the
SCs and STs form a single class. The observations in
Nagaraj case cannot be construed as requiring exclusion
of creamy layer in SCs and STs. Creamy layer principle
H.
1020 SUPREME COURT REPORTS [2009) 12 S.C.R.
A was applied for the identification of backward classes of
"\
citizens. And it was specifically held in Indra Sawhney case
that the above discussion was confined to Other Backward
Classes and has no relevance in the case of Scheduled
Tribes and Scheduled Castes. The observations of the
B Supreme Court in Nagaraj case should not be read as
conflicting with the decision in Indra Sawhney case. The
observations in Nagaraj case as regards SCs and STs are
obiter. In regard to SCs and STs, there can be no concept
of creamy layer.
c xxx xxx xxx
184. So far, this Court has not applied the "cn3amy layer"
principle to the general principle of equality for the purpose
of reservation. The "creamy layer" so far has been applied
D only to identify the backward class, as it required certain
parameters to determine the backward classes. "Creamy 't'
layer" principle is one of the parameters to identify
backward classes. Therefore, principally, the "creamy layer"
principle cannot be applied to STs and SCs, as SCs and
STs are separate classes by themselves. Ray, C.J., in an
E
earlier decision, stated that "Scheduled Castes and
Scheduled Tribes are not a caste within the ordinary
meaning of caste". And they are so identified by virtue of
the notification issued by the President of India under
Articles 341 and 342 of the Constitution. The President
F
may, after consultation with the Governor, by public
notification, specify the castes, races or tribes or parts of
or groups within castes, races or tribes which for the
purpose of the Constitution shall be deemed to be
Scheduled Castes or Scheduled Tribes. Once the
G notification is issued, they are deemed to be the members
r
of Scheduled Castes or Scheduled Tribes, whichever is
applicable. In E. V. Chinnaiah concurring with the majority
judgment, S.B. Sinha, J. said:
H "The Scheduled Castes and Scheduled Tribes
SUBHASH CHANDRA v. DELHI SUBORDINATE 1021
SERVICES SELECTION BOARD [S.B. SINHA, J.]
occupy a special place in our Constitution. The A
;<
President of India is the sole repository of the power
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. The Constitution (Scheduled B
Castes) Order, 1950 made in terms of Article
,\
341(1) is exhaustive. The object of Articles 341 and
-{
342 is to provide for grant of protection to the
. .... backward class of citizens who are specified in the
Scheduled Castes Order and Scheduled Tribes c
'
Order having regard to the economic and
education ba_ckwardness wherefrom they suffer.
Any legislation which would bring them out of the
purview thereof or tinker with the order issued by
the President of India would be unconstitutional. D
-of
(emphasis supplied)
185. A plea was raised by the respondent State that
categorisation of Scheduled Castes could be justified by
applying the "creamy layer'' test as used in Indra Sawhney E
case which was specifically rejected in para 96 of E. V.
.._, Chinnaiah case. It is observed:
"96. But we must state that whenever such a
situation arises in respect of Scheduled Caste, it
will be Parliament alone to take the necessary F
l~gislative steps in terms of Clause (2) of Article
341 of the Constitution. The States concededly do
not have the legislative competence therefor."
186. Moreover, right from the beginning, the Scheduled G
~'I Castes and Scheduled Tribes were treated as a separate
category and nobody ever disputed identification of such
classes. So long as "creamy layer'' is not applied as one
of the principles of equality, it cannot be applied to the
Scheduled Castes and Scheduled Tribes. So far, it is H
1022 SUPREME COURT REPORTS [2009) 12 S.C.R.
A applied only to identify the socially and educationally
'>;,
backward classes. We make it clear that for the purpose
of reservation, the principles of "creamy layer" are not
applicable for Scheduled Castes and Scheduled Tribes."
B The authoritative pronouncement of the Constitution Bench, '
thus, clearly shows that the proclamation made by the President •
of India by Scheduled Caste Order is exhaustive. Only the ~·
Parliament having regard to the Constitutional Scheme can
tinker therewith. ..
c 35. We may now notice the decisions of this Court which
have taken a somewhat different view.
In Chandigarh Administration (supra), one of the issues
related to the effect of the State Reorganisation Act. This Court
D noticed Marri Chandra Shekhar Rao (supra) as also Action
Committee (supra) but proceeded on the premise that 'I"
Government of India was entitled to issue instructions qua
service in the Union Territories and the same were binding on
the Union Territory, holding :
E "The judgments relied upon by the learned counsel for the
appellant only decide the constitutional aspect of the
Government policy on the subject at a given time while y
leaving the policy decision as to what benefits are to be
conferred on persons belonging to reserved categories
F with the Government of India. In the present case the
Government of India has conveyed its decision on the point
vide its circular letter dated 26.8.1986 which has not been
modified. Therefore, the instructions contained in the said
letter which were admittedly being followed till 7.9.1999,
G in our view, continue to be in force. There is no reasonable
basis to discontinue the said decision with effect from f-
7.9.1999. No reason or basis has been disclosed for
discontinuing the same with effect from the said date."
Indisputably, the Division Bench noticed a decision of this
H t
SUBHASH CHANDRA v. DELHI SUBORDINATE 1023
SERVICES SELECTION BOARD [S.B. SINHA, J.]
.'
Court in State of Maharashtra vs. Kumari Tanuja [(1999) 2 A
~
sec 462], to opine:
"12. In the present case we have noticed that the
Government of India instructions contained in circular
dated 26.8.1986 specifically permit that a recognised
Scheduled Caste/Schedule Tribe of any other State or B
Union Territory would be entitled to the benefits and
facilities provided for SC/ST in the services in the Union
Territory of Chandigarh. This letter is specifically
addressed by the Government of India to the Home
Secretary, Chandigarh Administration and deals with c
employment
. in the Union .Territory of Chandigarh.
. Therefore,
there is no reason to ignore the instructions contained in
the said letter. It is to be noticed in this behalf that in the
rejoinder affidavit filed by the appellant before this Court
it is specifically pleaded in para 12 that D
-.f-
'at the relevant time, the reservation benefit was
being extended to all the candidates belonging to
respective communities on the production of valid
certificates of castes issued by the State of origin, E
but on receipt of clarification on 7.9.1999 the
reservation benefits are only to be allowed to ....
who are bonafide residents of Chandigarh and in
whose favour valid certificates have been issued by
" the competent of Chandigarh Administration. After
F
7.9.1999 no appointment against reserved posts
have been made to the candidates who are not
residents of Chandigarh and are not having valid
certificates of caste issue by the DM/SDM
Chandigarh'".
G
·--. This Court although noticed Marri Chandra Shekhar Rao
(supra), Action Committee (supra) and Veena (supra) but did
not distinguish the same.
36. We may now notice S. Pushpa (supra). It is a judgment H
1024 SUPREME COURT REPORTS [2009] 12 S.C.R.
A rendered by a three judge Bench of this Court. The fact involved
therein was noticed in paragraph 2 of the judgment, from a
perusal whereof, it appears that 26 candidates produced
community certificates from the Revenue Authority of
Pondicherry. This Court proceeded on the basis that as the
8 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
C 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. It was held that the Marri Chandra Shekhar
Rao (supra) would have no application as Union Territory of
Pondicherry is not a State, stating :
D
"Since all SC/ST candidates which have been recognized
as such under the orders issued by the President from time
to time irrespective of the State/Union territory, in relation
to which particular castes or tribes have been recognized
E as SCs/STs are eligible for reserved posts/services under
the Central Government, they are also eligible for reserved
posts/services under the Pondicherry administration.
Consequently, all SC/ST candidates from outside the U.T.
of Pondicherry would also be eligible for posts reserved
I•
F for SC/ST candidates in Pondicherry administration.
Therefore, right from the inception, this policy is being
consistently followed by the Pondicherry administration
whereunder migrant SC/ST candidates are held to be
eligible for reserved posts in Pondicherry administration.
G 37. It was furthermore held that in a case of that nature
even clause (4) of Article 16 would be attracted, stating:
"21. Clauses (1) and (2) of Article 16 guarantee equality
of opportunity to all citizens in the matter of appointment
H to any office or of any other employment under the State.
SUBHASH CHANDRA v. DELHI SUBORDINATE 1025
SERVICES SELECTION BOARD [S.B. SINHA, J.]
Clauses (3) to (5), however, lay down several exceptions A
1' 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 B
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
t controlled by a Presidential Order issued under Article
341 ( 1) or Article 342( 1) of the Constitution in the sense c
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
D
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
E
the benefit of reservation is extended only .to such
Scheduled Castes or Scheduled Tribes which are
"'-i 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 F
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 G
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 H
1026 SUPREME COURT REPORTS [2009) 12 S.C.R.
A provision of law."
Chandigarh Administration (supra) and S. Pushpa (supra)
read together, therefore, proceed on the basis that Marri
Chandra Shekhar Rao (supra) would have no application in
relation to Union Territory. •
8
The contention of the respondents in this case is squarely
based on these two decisions.
Can it be said that Marri Chandra Shekhar Rao does not
c 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 .
Although Union Territories are administered by the Central
Government, yet it is difficult to conceive that socio political
0 aspect can be mixed up with the administrative aspect. Article
341 leads to grant of constitutional rights upon a person whose
affinity to a caste!Tribe would attract the Constitution (Scheduled
Caste) Order or Constitution (Scheduled Tribe) Order. Once a
person comes within the purview of Presidential promulgation,
E he would be entitled to constitutional and other statutory or
administrative benefits attached thereto. In our opinion, such
socio political rights created in our Constitution cannot be
segregated keeping in view the administrative exigencies.
F 38. 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
G Constitution. Clause (4) of Article 16 of the Constitution, as
noticed hereinbefore, cannot be made applicable for the ;-·
purpose of grant of benefit of reservation for Scheduled Castes
or Scheduled Tribes in a State or Union Territory, who have
migrated to another State or Union Territory and they are not
H members of the Scheduled Castes and Scheduled Tribes.
SUBHASH CHANDRA v. DELHI SUBORDINATE 1027
SERVICES SELECTION BOARD [S.S. SINHA, J.]
By virtue of Article 341, the Presidential orders made A
under clause (1) thereof acquire an overriding status. But for
Articles 341 and 342 of the Constitution, it would have been
possible for both the Union and the States, to legislate upon,
or frame policies, concerning the subject of reservation, vis-a-
vis inclusion of Castes/Tribes. The presence of Articles 338, B
338A, 341, 342 in the Constitution clearly preclude that.
39. We may notice the Scheme and the legal position of
the Constitution (Schec;tule Castes) Orders which is as under:
Originally a common Presidential Order was made in C
respect of States in 1950.
Another common Presidential Order was issued in
respect of Union territories in 1951. The Union Territories Order
continues to be in force. It comprehends three Union Territories D
including Delhi and Chandigarh.
Separate orders have been made in respect of the Union
Territories of Pondicherry and Dadra and Nagar Haveli. There
is no order in respect of Andaman Nicobar Island.
E
Amendments were made to the Schedule Caste/ Tribe
-1 Orders of the States and Union Territories Order of 1951, by
an Act of Parliament first in 1956 and later in 1976. besides
the above, in the event of States reorganization, Parliament has
exercised its power under Article 341 (2) to enact specific F
Castes/ Tribes that had to be Scheduled Castes and
Scheduled Tribes in relation to the reorganized States/Union
Territories.
The Union Territories Scheduled Castes Order of 1951, G
amended by an Act of 1956 and later of 1976, and still later! in
1987, reads as follows:
APPENDIX "XI THE CONSTIT'..JTION (SCHEDULED
CASTES) (UNION TERRITORIES) ORDER, 1951 C.O. 32,
dated the 20th September, 1951. "In exercise of the power H
1028 SUPREME COURT REPORTS [2009] 12 S.C.R.
A conferred by Clause (1) of Article 341 of the Constitution of
India, as amended by the Constitution (First Amendment) Act,
1951, the President is pleased to make the following order
namely:
This order may be called the Constitution (Scheduled
8
Cates) (Union Territories) Order, 1951.
Subject to the provision of this order, the castes, races or
tribes or parts of, or groups within, castes or tribes,
specified in parts I to Ill of the Schedule to this Order shall,
c in relation to the Union Territories to which those parts
respectively relate, be deemed to be Scheduled Castes
so far as regard members thereof resident in the localities
specified in relation to them respectively in those parts of
that schedule.
D
Notwithstanding anything contained in paragraph 2, no .t-
person who professes a religion different from the Hindu
(or Sikh or the Buddhist) Religion shall be deemed to be
a member of a Scheduled Castes.
E Any reference in this order to a Union Territories in part 1
of the· Schedule shall be construed as a reference to the
territory constituted as a Union Territory as from the first
day of November, 1956, any reference to a Union Territory
in part II of the Schedule shall be construed as a reference
F to the territory constituted as a Union Territory as from the
first day of the November, 1966 and any reference to a
Union Territory in part Ill of the Schedule shall be construed
as a reference to the territory constituted as a Union
Territory as from the day appointed under clause (b) of the
G Section 2 of the Goa, Daman and Diu Reorganization Act,
1987."
40. Both the Central Government and the State
Government indisputably may lay down a policy decision in
H regard to reservation having regard to Articles 15 and 16 of
SUBHASH CHANDRA v. DELHI SUBORDINATE 1029
SERVICES SELECTION BOARD [S.B. SINHA, J.]
the Constitution of India but such a policy cannot violate other A
constitutional provisions. A policy cannot have primacy over the
constitutional scheme.
If for the purposes of Articles 341 and 342 of the
Constitution of India, State and the Union Territory are at par B
on the ground of administrative exigibility or in exercise of the
administrative power, the constitutional interdict contained in
clause (2) of Article 341 or clause (2) of Article 342 of the
Constitution of India cannot be got rid of.
41. It is well known that what cannot be done directly cannot c
be done indirectly. (See Ramdev Food Products Pvt. Ltd. v.
Arvindbhai Rambhai Patel and Ors. [(2006) 8 SCC 726, Para
73]. When an amendment or alteration is to be brought about
by a Parliamentary Legislation, the same purpose cannot be
achieved by taking recourse to circular letters. D
·- If the Central Civil Services and the Union Territory Services
are different, keeping in view the constitutional schemes
particularly having regard to the proviso appended to Article
309 of the Constitution of India, the same cannot be done away E
with only because a Union Territory administratively is
administered by the Central Government. Any direction or policy
-'1 decision, thus, must satisfy the constitutional requirements laid
down under Articles 341 and 342 of the Constitution of India. If
any other construction is made, a policy decision having regard
F
to the decisions of this Court will have to be treated as a
proviso appended to clause (2) of Article 341 of the Constitution
of India and would amount to deriding of the Constitution which
is impermissible in law.
For identification of backward classes, it is necessary to G
""i undertake a study in a particular State as to whether the
migrants are required to be treated as backward classes.
Indisputably, the classes contemplated by Article 16(4) may
be wider than those contemplated by Article 15(4). If they are H
1030 SUPREME COURT REPORTS [2009] 12 S.C.R.
A backward classes for the purpose of Article 16(1) and 16(4)
and not Scheduled Castes and Scheduled Tribes, they will
come within the purview of the reservation for backward classes
and not the one which is exclusively meant for Scheduled
Castes and Scheduled Tribes within the purview of reservation
B policy of the States.
Moreover enabling provision contained in clause (4) of
Article 16 of the Constitution of India can of course be enforced
by reason of an executive direction but the same must be made
in terms of Article 77 or Article 162 of the Constitution of India.
c
Furthermore, a circular letter does not have the force of law
[See Punjab Water Supply and Sewerage Board, Hoshiarpur
v! Ranjodh Singh and Ors. (2007) 2 SCC 491, Para 1O].
0 Article 246 of the Constitution will, thus, have no application
where law making power is not resorted to. Executive
instructions contained in Article 77 and Article 162 refer to the
law making power alone. No material has been placed before
the High Court or before us to .show that the Scheduled Castes
E or Scheduled Tribes candidates migrated from another State
having regard to their socio economic position in Delhi were
required to be treated as backward classes
\ .
We are unable to accept the contention that the members
of scheduled castes and scheduled tribes notified as such in
F other States would come within the purview of the backward
classes within the meaning of clause (4) of Article 16 of the
Constitution of India. If a caste or tribe is notified in terms of
the Scheduled Caste Order or Scheduled Tribe Order, the same
must be done in terms of clause (1) of Article 341 as also that
G of 342 of the Constitution of India, as the case may be. No
deviation from tile procedure laid down therein is permissible
in law. If any amendment/alteration thereto is required to be
made, recourse to the procedure laid down under clause (2)
thereof must be resorted to. Reservations have been made in
H terms of the policy decision of the Central Government, namely,
SUBHASH CHANDRA v. DELHI SUBORDINATE 1031
SERVICES SELECTION BOARD [S.B. SINHA, J.]
7.5% for the members of scheduled tribes, 15% for the A
members of scheduled castes and 27% for the members of/
backward classes. If the members of the scheduled castes and
scheduled tribes in other States are to be treated as backward
classes for Delhi; intensive studies were required to be made
in regard to the question whether they would come within the B
purview of the definition of 'backward classes' so as to answer
the description of 'socially and educationally backward'. It was
so held in Indra Sawhney & ors. v. Union of India & ors. [1992
Supp. (3) SCC 212] thus:
" ... The language of clause (4) makes it clear that the C
question whether a backward class. of citizens is not
adequately represented in the services under the State is
a matter within the subjective satisfaction of the State. Tllis
is evident from the fact that the said requirement is
preceded by the words "in the opinion of the State". This D
-
opinion can be formed by the State on its own, i.e., on the
basis of the material it has in· its possession already or it
may gather such material through a Commission/
Committee, person or authority. All that is required is, there
must be some material upon which the opinion is formed. E
Indeed, in this matter the court should show due deference
to the opinion of the State, which is in the present context
means the executive .... "
42. There is another aspect of the matter. When F
reservation for scheduled castes or scheduled tribes had been
earmarked, persons answering the description thereto only can
be appointed. No recruitment is permissible for a backward
class against a scheduled caste or scheduled tribe quota. That
itself would be violative of clauses (1) and (4) of Article 16 of G
the Constitution of India. Furthermore, if a person is to be
treated as scheduled caste or scheduled tribe in terms of
Article 341 of the Constitution of India, the benefit attached
thereto in all other areas must be conferred on him. A person
cannot be treated to be a member of scheduled caste for one
H
1032 SUPREME COURT REPORTS [2009] 12 S.C.R.
A purpose and not for another purpose.
43. The law relating to affirmative action and protective
discrimination by way of reservation of posts for the members
of the Scheduled Castes invoking Clause (4) of Article 16 of
B the Constitution of India is reflected by constitutionalism, i.e.,
the provisions of the Constitution of India read with the executive
instructions issued by the National Capital Territory of Delhi in
this behalf which has the force of law in terms whereof only the
classes of persons who would be entitled thereto were
determined. By judicial process or otherwise, the said executive
C instructions which are consistent with the constitutional scheme
could not have brought about an altogether different situation
as a result whereof those who are residents of Delhi being
belonging to the members of the Scheduled Castes and, thus,
entitled to be regarded within the framework of the quota
D provided for by the Government could not have been deprived
therefrom by way of bringing in another class of persons within
the purview of the said category of Scheduled Castes who are
not entitled to the said benefit. By reason of such an Act, those
who are entitled to the benefit of the doctrine of protective
..
E discrimination contained in Clause (4) of Article 16 of the
Constitution of India had been deprived of their constitutional
right. Once it is found that the constitutional violation of this ".
nature has been committed, in our opinion, the Courts would
be entitled to apply the principle of strict scrutiny test or closer
F scrutiny test or higher level of scrutiny. It is commonly believed
amongst a section of Academicians that strict scrutiny test in
view of the Constitution Bench decision of this Court in Ashok
Kumar Thakur (supra) is not applicable in India at all.
Therein reliance has been placed in Saurabh Chaudri &
G Ors. v. Union of India & Ors. [(2003) 11 SCC 146] wherein this y•
Court stated :
"36. The strict scrutiny test or the intermediate scrutiny test
applicable in the United States of America as argued by
H Shri Salve cannot be applied in this case. Such a test is
SUBHASH CHANDRA v. DELHI SUBORDINATE 1033
SERVICES SELECTION BOARD [S.B. SINHA, J.)
not applied in Indian courts. In any event, such a test may A
be applied in a case where a legislation ex facie is found
to be unreasonable. Such a test may also be applied in
a case where by reason of a statute the life and liberty of
a citizen is put in jeopardy. This Court since its inception
apart from a few cases where the legislation was found to B
be ex facie wholly unreasonable proceeded on the doctrine
that constitutionality of a statute is to be presumed and the
burden to prove contra is on him who asserts the same."
In a concurrent opinion, one of us, S.B. Sinha, J., stated,
thus:
c
"92. Mr Nariman contended that provision for reservation
being a suspect legislation, the strict scrutiny test should
be applied. Even applying such a test, we do not think that
the institutional reservation should be done away with D
~ having regard to the present-day scenario ... "
Saurabh Chaudri (supra) read as a whole therefor
refused to apply the strict scrutiny test in the case of reservation
evidently having regard to the Clauses (1) and (4) of Articles
E
15 and 16 of the .Constitution of India. It is noteworthy to point
out that the facts of this case did not bear out an ex facie
-"y
' unreasonableness and therefore the court did not employ the
strict scrutiny test. The Constitution Bench in Ashok Kumar
Thakur (supra), itself, held:
F
"252. It has been rightly contended by Mr Vahanvati and
Mr Gopal Subramanium that there is a conceptual
difference between the cases decided by the American
Supreme Court and the cases at hand. In Saurabh
Chaudri v. Union of lndia626 it was held that the logic of G
._, strict classification and strict scrutiny does not have much
relevance in the cases of the nature at hand ... "
[Emphasis supplied]
Saurabh Chaudri (supra) itself, therefore, points out some H
1034 SUPREME COURT REPORTS [2009] 12 S.C.R.
A category of cases where strict scrutiny test would be applicable.
Ashok Kumar Thakur (supra) solely relies upon Saurabh
Chaudri to clarify the applicability of strict scrutiny and does not
make an independent sweeping observation in that regard.
We are of the opinion that in respect of the following
8
categories of cases, the said test may be applied:
1. Where a statute or an action is patently
unreasonable or arbitrary. [See Mithu v. State of
Punjab [(1983) 2 SCC 277].
c
2. Where a statute is contrary to the constitutional
scheme. [See E. V. Chinniah (supra)].
3. Where the general presumption as regards the
constitutionality of the statute or action cannot be
D invoked.
~
4. Where a statute or execution action causes reverse
discrimination.
E 5. Where a statute has been enacted restricting the
rights of a citizen under. Article 14 or Article 19 as
for example clauses (1) to (6) of Article 19 of the ,,...
Constitution of India as in those cases, it would be
for the State to justify the reasonableness thereof.
F 6. Where a statute seeks to take away a person's life
and liberty which is protected under Article 21 of the
Constitution of India or otherwise infringes the core
human right.
G 7. Where a statute is 'Expropriatory' or 'Confiscatory'
in nature. .,. .
8. Where a statute prima facie seeks to interfere with
sovereignty and integrity of India.
H However, by no means, the list is exhaustive or may be
SUBHASH CHANDRA v. DELHI SUBORDINATE 1035
SERVICES SELECTION BOARD [S.B. SINHA, J.]
_rl..
held to be applicable in all situations. A
In Anuj Garg & Ors. v. Hotel Association of India & Ors.
[(2008) 3 SCC 1), this Court, stated :
"46. It is to be borne in mind that legislations with
pronounced "protective discrimination" aims, such as this B
one, potentially serve as double-edged swords. Strict
scrutiny test should be employed while assessing the
.., implications of this variety of legislations. Legislation
should not be only assessed on its proposed aims but
rather on the implications and the effects. The impugned c
legislation suffers from incurable fixations of stereotype
morality and conception of sexual role. The perspective
thus arrived at is outmoded in content and stifling in
means."
D
In United India Insurance Company Ltd. v. Ajay Sinha &
Anr. [(2008) 7 SCC 454], it is stated :
"26. An option is given to any party to a dispute. It may be
a public utility service provider or a public utility service
recipient. The service must have some relation with public E
utility: Ordinarily, insurance service would not come within
the public utility service. But having regard to the statutory
scheme, it must be held to be included thereunder. It is one
thing to say that an authority is created under a statute to
bring about a settlement through alternate dispute F
resolution mechanism but it is another thing to say that an
adjudicatory power is conferred on it. Chapter VI-A,
therefore, in our opinion, deserves a closer scrutiny. In a
case of this nature, the level of scrutiny must also be high.
(See Anuj Garg v. Hotel Assn. of India.)" G
.
·~
As we have already stated, in the event the state issues
any instruction through circular in the National Capital Territory
of Delhi to this effect, the same will deserve strict scrutiny. After
following the precedent with respect to strict scrutiny it is
H
1036 SUPREME COURT REPORTS [2009] 12 S.C.R.
A pertinent to explore some foundational principles in this regard.
At the heart of the applicability of this doctrine in protective
discrimination cases, including affirmative action matters, is the
challenge before the court to facilitate the translation of the
constitutional vision of substantive equality into a practical
B
feature of the polity. The enabling environment must have
objectively laid down policy attributes so much so that the
targeted benefits are accrued to parts of polity for which they
are meant. As the final arbiter on constitutional interpretation,
the court is duty bound to delineate the four corners of the
c legislative policy which is amenable to the constitutional epithets
of equality as also to Article 21. The state has to play within
the rules set by the court in this regard.
It must be borne in mind at this juncture that in reality,
D various kinds of rights do not operate independently of each
other. And importantly, when State puts its weight behind any
particular set of rights by showing compelling interest, the
courts have to ensure that the transfer or accrual of benefits as
a result of the State action does not end up abrogating the ·
E competing rights of others to an unnecessary extent. The
constitutional grant of power to state in this respect is channeled
by the mandate of this court on the front of implementation. ¥'·
First responsibility of the court is to determine whether the
ends purported to be sought by the executive are "compelling."
F This process is under the intense gaze of the court because
the government is impinging upon somebody else's core
constitutional rights and therefore only the most pressing
circumstances can justify the government action.
G The other important responsibility is to inquire and assess
that the law is a narrowly tailored means of furthering those .,. .
governmental interests. Narrow tailoring should satisfy the court
that the law capture within its reach just the adequate activity,
neither more or less, than is necessary to advance those
H compelling ends. In the ultimate analysis, the State action must
SUBHASH CHANDRA v. DELHI SUBORDINATE 1037
SERVICES SELECTION BOARD [S.B. SINHA, J.]
be narrowly drawn in a manner that it can qualify to be the least A
/'.
restrictive alternative available to pursue those ends. Without
this inquiry into "fit" between the ends and the means enables
it will not only be difficult for the courts to test the sincerity of
the government's claimed objective but also the law may be
suffer from the vice of arbitrariness. Article 14 guarantee against B
uncanalized and arbitrary laws has to be rigorously pursued by
the court in this regard. The State in such cases may act not
only through a law but also through an executive instrument like
_,. circular or even simple practice or convention and the intense
gaze of the Court in this behalf is all pervasive. In fact, more c
inarticulate the State action would be, greater would be the
intensity of the scrutiny by the courts.
Objectivity, both in terms of quantifiable data and the
intended objective, and time bound prescriptions, (preferably
..it-
with a sunset clause) are two measures which shall keep the D
State in good stead while discharging the burden under the
protective discrimination mandate. The law must showcase
overinclusion or underinclusion or whatever other requirement
there may be through statistics before moving ahead with the
execution of law. In M. Nagaraj & Others v. Union of India & E
Others, (2006) 8 SCC 212 this court employed the doctrine of
guided power to suggest that the power of the state to enact
such a law or give effect to protective discrimination under
Article 16 (4-A) is to be exercised under the guidance of the
Court. The doctrine of guided power in that sense has been F
used as a corollary of strict scrutiny rule. It is a distant relative
of continuing mandamus.
Courts must guard against that protective discrimination
clauses are not used as pretexts for an invidious purpose. The
G
' '\
political compulsions and extraneous vote considerations in the
functioning of the legislature are mentioned by a prominent
political science scholar, John Hart Ely in his landmark book,
Democracy and Distrust. He says that "special scrutiny, in
particular its demand for an essentially perfect fit, turns out to
H
1038 SUPREME COURT REPORTS [2009] 12 S.C.R.
A be a way of 'flushing out' unconstitutional motivation." Justice
Sandra Day O'Conno~s in Johnson v. California, 543 U.S. 499,
505 (2005) observed that "racial classifications raise special
fears that they are motivated by an invidious purpose" and that
strict scrutiny is designed "to 'smoke out' illegitimate uses of
B race by assuring that the executive is pursuing a goal important
enough to warrant use of a highly suspect tool."
Protective discrimination may be used to curtail the
extremely hard won civil and political rights granted by the
Constitution. We have the backdrop of freedom struggle to
C engage with in this regard. Rights of the accused as part of the
fair trial rights, equality rights, right to liberty and personal
autonomy and other such rights are to be fiercely protected
against any blind policy onslaught of the times. The government
must have a overwhelming compelling interest to justify
D limitations on the freedom of association, free exercise of
religion, free speech, right to vote, right to travel et al.
Strict scrutiny thus paves the way for a more searching
judicial scrutiny to guard against invidious discriminations which
E could have been made by the State against group of people
in violation of the constitutional guaranty of just and equal laws.
The court must adopt a weighted balancing approach or in other
words pursue an even-handed balancing of the interests
44. The only question which survives is as to whether S.
F Pushpa (supra) constitutes a binding precedent. 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
G Benches of this Court in Mi/ind (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
H decision of a larger Bench and in particular Constitution Bench,
SUBHASH CHANDRA v. DELHI SUBORDINATE 1039
SERVICES SELECTION BOARD [S.B. SINHA, J.]
A
,.. would be bound by the latter. [See Mis Sardar Associates v.
Punjab & Sind Bank, CAs @ SLP (C) Nos. 5249-5250 of 2008
decided on 31st July, 2009]
This Court in Marri Chandra Shekhar Rao (supra)
categorically held that when a person is held to be a member B
of scheduled caste for one State, he cannot be treated as such
in another. In Mi/ind (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
c
be held to be belonging to another caste or tribe which had
been notified as scheduled caste or scheduled tribe. 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 . D
.;it-
In Harminder Kaur & Ors. v. Union of India & Ors. [2009
(7) SCALE 204], this Court held:
"16. A judgment of a Constitution Bench of this Court laying
E
down the law within the meaning of Article 141 of the.
Constitution of India must be read in its entirely for the
·-¥ purpose of finding out the ratio laid down therein. The
Constitution Bench, in no uncertain terms, based its
decision on the touchstone of the 'equality clause'
F
contained in Articles 14 and 16 of the Constitution of India.
Emphasis has been laid at more than one place for
making appointments only upon giving an opportunity to
all concerned. Appointment through side-door has been
held to be constitutionally impermissible."
G
> ·--, [See also Oriental Insurance Company Limited v. Mohd.
Nasir and Another (2009) 6 SCC 280]
In Black's Law Dictionary, 8th edition, 2004, it is stated:
"There is at least one exception to the rule of stare decisis. H
1040 SUPREME COURT REPORTS [2009] 12 S.C.R.
A I refer to judgments rendered per incuriam. A judgment per
incuriam is one which has been rendered inadvertently.
Two examples come to mind: first, where the judge has
forgotten to take account of a previous decision to which
the doctrine of stare decisis applies. For all the care with
B which attorneys and judges may comb the case law, errare
humanum est, and sometimes a judgment which clarifies
a point to be settled is somehow not indexed, and is
forgotten. It is in cases such as these that a judgment
rendered in contradiction to a previous judgment that should
c have been considered binding, and in ignorance of that
judgment, with no mention of it, must be deemed rendered
per incuriam; thus, it has no authority .... The same applies
to judgments rendered in ignorance of legislation of which
they should have taken account. For a judgment to be
deemed per incuriam, that judgment must show that the
D
legislation was not invoked." Louis-Philippe Pigeon,
Drafting and Interpreting Legislation 60 (1988) "As a
general rule the only cases in which decisions should be
held to have been given per incuriam are those of
decisions given in ignorance or forgetfulness of some
E inconsistent statutory pr9vision or of some authority binding
on the court concerned, so that in such cases some
features of the decision or some step in the reasoning on ..,.
which it is based is found on that account to be
demonstrably wrong. This definition is not necessarily
F exhaustive, but cases not strictly within it which can properly
be held to have been decided per incuriam, must in our
judgment, consistently with the stare decisis rule which is
an essential part of our law, be of the rarest occurrence."
Rupert Cross & J. W. Harris, Precedent in English Law
G 149 (4th ed. 1991)"
In an article "Final Appellate Courts Overruling Their Own
"Wrong" Precedents: The Ongoing Search For Principle" by
B.V. Harris published in (2002) 112 LOR 408-427, it is stated:
H
SUBHASH CHANDRA v. DELHI SUBORDINATE 1041
SERVICES SELECTION BOARD [S.B. SINHA, J.]
"A decision may be held to be per incuriam where A
relevant statutory provisions, or binding case law
authority, have been overlooked or misinterpreted in
arriving at the holding in the precedent ....
Considerations Relevant To Deciding whether to Defer to B
or Overrule Precedent:
The first consideration for a final appellate court called
upon, in the exercise of its discretion, to overrule an
allegedly wrong precedent of its own, will be whether the
precedent can be distinguished on the facts, including c
changing social and other contexts, or distinguished on the
law. If the precedent can be distinguished,·overruling will
not be necessary. The subsequent appellate court will
rather be free to choose not to follow the precedent which
can be distinguished. D
·Second, the precedent should be considered closely to
determine whether the decision was reached per
incuriam. A per incuriam precedent may be overruled.
Third, the workability of the precedent should be assessed. E
Evidence of lack of workability may justify overruling.
The fourth consideration will be whether any reasons have
been advanced in the appeal which were not considered
in deciding the precedent. This category could arguably be F
included in many circumstances, either in the first category
as a form of distinguishing, or in the second category if
the omission is sufficiently serious to cause the precedent
to be per incuriam.
G
All of the first four considerations have traditionally been
·~
accepted as exempting subsequent appellate courts from
the obligation to follow precedent."
In the context of overruling the two leading precedents {de
Freitas v. Benny [1976] AC 239 and Reckley v. Minister of H
1042 SUPREME COURT REPORTS [2009] 12 S.C.R.
A Public Safety and Immigration (No. 2) [1996] A.C.527} which
had held the exercise of the prerogative of mercy to be non-
justiciable, Lord Slynn of Hadley in Lewis v. Att. Gen. Of
Jamaica [2001] 2 AC 50 at p. 75, stated:
B "The need for legal certainty demands that they should be
very reluctant to depart from recent fully reasoned
decisions unless there are strong grounds to do so. But
no less should they be prepared to do so when a man's
life is at stake, where the death penalty is involved, if they
are satisfied that the earlier cases adopted a wrong
c approach. In such a case rigid adherence to a rule of stare
decisis is not justified."
The case of Attorney General v. Blake [(1997) Ch D;
(1998) Ch 439 CA; and (2001) 1 A.C.268 HL] has been
D referred by SIR Richard Buxob in his article How the Common
Law Gets Made: Hedley Byrne and Other Cautionary Tales"
[(2009) 125 L.Q.R. 60). as decision given per incuriam.
Prof.AW.Brain has prepared a memorandum on the said note.
In the particular case in 1961 Blake pleaded guilty to five
E offences against Official Secrets Act 1911. He had
communicated information which he has come to possess as
a member of the Secret Intelligence Service (SIS). He was ¥-
sentenced term of 42 years imprisonment. The House of Lords
decision stated that Blake was a member of the security and
F intelligence. However it is stated by the author that there is no
practice of describing the SIS as a security service; it is not
concerned with security but with foreign intelliegence, including
the sponsorship of espionage and was "an offshoot of some
sort of the Foreign Office, possibly also being associated with
G the Cabinet Office or the Prime Minister's Personal Office. "
Thus there was no details explained as regards to the ~'
employment of Blake and it was not clear. The author states
that it was a well settled in 1940s that the relationship between
a member of the armed services and the crown was non-
contractual. However it is stressed that if the nature of
H
SUBHASH CHANDRA v. DELHI SUBORDINATE 1043
SERVICES SELECTION BOARD [S.B. SINHA, J.]
employment of Blake was in civil capacity then the application A
of above observation needs to be considered. But more
importantly, what needs to be addressed is that "to treat
incidental undertakings by members of the armed services
as actionable contracts would lead to absurdity". It is also
pointed out that "the relationship between the Crown and B
members of the armed services is and long has been
regulated by disciplinary proceedings, by failure to promote,
or by retirement, not by the private law of contract or tort. If
this position is to be changed by a judicial decision then the
-~
court surely needs to attend to the radical nature of such a c
change." Also it is noted that the "signing the Official Secrets
.Acts" created a binding contract relating just to one aspect of
Blake's duties, is something which is problematic. Thus author
states that "the supposed contract case was decided without
any careful investigation of the very existence of a binding
D
contract, or of its scope and character, assuming there to have
A·
been one. It does not seem to be a good idea to proceed in
this way, and at end of day there is therefore a strong case for
regarding the decision as having been given per incuriam in
their Lordships' attention had never been adequately directed
E
to ei~her the relevant facts or the relevant law." [See A De9ision
Per lncuriam? -Prof.AW.Brian Simpson, The Law Quarterly
~,.,,,- Review, volume 125, July 2009, p.433]
We have noticed hereinbefore that the premise on which
S. Pushpa (supra) was rendered, namely, Marri Chandra F
Shekhar Rao (supra), had no application to union territories
was not correct.
45. Would we be violating the norms of judicial discipline
in ignoring the decision of this Court in Pushpa is the question,
G
having regard to the provisions contained in Article 141 of the
' '+ Constitution of India?
The question is a difficult one. On the one hand, this Court
emphasizes the need for speaking in one voice and/or adhering
to the doctrine of certainty so as not on:1 to enable this Court H
1044 SUPREME COURT REPORTS [2009] 12 S.C.R.
A but also the High Court and the subordinate courts to know
exactly what the law is and, on the other hand, it is now trite
that having regard to the binding nature of the doctrine of stare
decisis, whether we would be bound by our own decision and
to what extent. [See Mi/ind (supra) where in view of
B constitutional scheme, even doctrine of stare decisis not
followed. See also India Cement Ltd. and Others v. State of
Tamil Nadu and Others (1990) 1 SCC 12 and Synthetics and
Chemicals Ltd. and Others v. State of U.P. and Others (1990)
1 sec 1091 i-
c In Central Board of Dawoodi Bohra Community & Anr. v.
State of Maharashtra & Anr. [(2005) 2 SCC 673], Lahoti, .CJI
(as he then was) speaking for a Constitution Bench following
its earlier decision in Union of India v. Raghubir Singh [(1989)
2 sec 754], stating :
D
"12. Having carefully considered the submissions made by
the learned senior counsel for the parties and having
examined the law laid down by the Constitution Benches
in the abovesaid decisions, we would like to sum up the
E legal position in the following terms :-
(1) The law laid down by this Court in a decision delivered
by a Bench of larger strength is binding on any subsequent ..- ·
Bench of lesser or co-equal strength.
F (2) A Bench of lesser quorum cannot doubt the correctness
of the view of the law taken by a Bench of larger quorum.
In case of doubt all that the Bench of lesser quorum can
do is to invite the attention of the Chief Justice and request
for the matter being placed for hearing before a Bench of
G larger quorum than the Bench whose decision has come
up for consideration. It will be open only for a Bench of • <
coequal strength to express an opinion doubting the
correctness of the view taken by the earlier Bench of
coequal strength, whereupon the matter may be placed for
H hearing before a Bench consisting of a quorum larger than
SUBHASH CHANDRA v. DELHI SUBORDINATE 1045
SERVICES SELECTION BOARD [S.B. SINHA, J.]
the one which pronounced the decision laying down the law A
the correctness of which is doubted.
(3) The above rules are subject to two exceptions :
(i) The abovesaid rules do not bind the discretion of the
Chief Justice in whom vests the power of framing the roster B
and who can direct any particular matter to be placed for
hearing before any particular Bench of any strength; and
-~
(ii) In spite of the rules laid down hereinabove, if the matter
has already come up for hearing before a Bench of larger c
quorum and that Bench itself feels that the view of the law
taken by a Bench of lesser quorum, which view is in doubt,
needs correction or reconsideration then by way of.
exception (and not as a rule) and for reasons given by it,
it may proceed to hear the case and examine the D
correctness of the previous decision in question
dispensing with the need of a specific reference or the
order of Chief Justice constituting the Bench and such
listing. Such was the situation in Raghubir Singh and Ors.
and Hansoli Devi and Ors. (supra)."
E
_.., Yet again, recently in Nagar Palika Nigam v. Krishi Upaj
Mandi Samiti & Ors. [(2008 AIR SCW 7914] having regard to
the provisions of Order VII Rule 2 of the Supreme Court Rules,
1966, this Court refused to allow the appellant therein to raise
the question of vires of a statute as such a contention had not F
been raised before the High Court.
The question came up for consideration before a Three
Judge Bench in Official Liquidator v. Dayanand & Ors. [(2008)
1Osec 1], wherein the necessity to maintain judiCial discipline G
> '<f was reiterated, stating :
"90. We are distressed to note that despite several
pronouncements on the subject. there is substantial
increase in the number of cases involving violation of the
basics of judicial. discipline. The learned Single Judges H
1046 SUPREME COURT REPORTS [2009] 12 S.C.R.
A and Benches of the High Courts refuse to follow and
accept the verdict and law laid down by coordinate and
even larger Benches by citing minor difference in the facts
as the ground for doing so. Therefore, it has become
necessary to reiterate that disrespect to constitutional
B ethos and breach of discipline have grave impact on the
credibility of judicial institution and encourages chance
litigation. It must be remembered that predictability and
certainty is an important hallmark of judicial jurisprudence
developed in this country in last six decades and increase t-
c in the frequency of conflicting judgments of the superior
judiciary will do incalculable harm to the system inasmuch
as the courts at the grass root will not be able to decide
as to which of the judgment lay down the correct law and
which one should be followed.
D 91. We may add that in our constitutional set up every
citizen is under a duty to abide by the Constitution and
respect its ideals and institutions. Those who have been
entrusted with the task of administering the system and
operating various constituents of the State and who take
E oath to act in accordance with the Constitution and uphold
the same, have to set an example by exhibiting total
commitment to the Constitutional ideals. This principle is >r •
required to be observed with greater rigour by the
members of judicial fraternity who have been bestowed
F with the power to adjudicate upon important constitutional
and legal issues and protect and preserve rights of the
individuals and society as a whole. Discipline is sine qua
non for effective and efficient functioning of the judicial
system. If the Courts command others to act in accordance
G with the provisions of the Constitution and rule of law, it is
not possible to countenance violation of the constitutional
principle by those who are required to lay down the law."
46. Should we consider Pushpa to be an obiter following
the said decision is the question which arises herein.
H
SUBHASH CHANDRA v. DELHI SUBORDINATE 1047
SERVICES SELECTION BOARD [S.B. SINHA, J.]
.A We think we should. The decisions referred to hereinbefore A
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 B
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 c
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. D
47. For the reasons aforementioned, the impugned
judgments cannot be sustained which are set aside accordingly.
The appeal and the writ petition are allowed. In the facts and
circumstances of the case, there shall be no orders as to costs. E
G.N. Appeal and writ petition allowed.
--f
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