SC Upholds Pan India Reservation Policy in Delhi, But States Can't Unilaterally Extend Reservation To SC/ST Members Of Other States [Read Judgment]

“If in the opinion of a State it is necessary to extend the benefit of reservation to a class/category of Scheduled Castes/Scheduled Tribes beyond those specified in the Lists for that particular State, constitutional discipline would require the State to make its views in the matter prevail with the central authority so as to enable an appropriate parliamentary exercise to be made by an amendment of the Lists of Scheduled Castes/Scheduled Tribes for that particular State. Unilateral action by States on the touchstone of Article 16(4) of the Constitution could be a possible trigger point of constitutional anarchy and therefore must be held to be impermissible under the Constitution.”

The constitution bench of the Supreme Court has held that Pan India Reservation Rule in force in National Capital Territory of Delhi is in accord with the constitutional scheme relating to services under the Union and the States/Union Territories.

As regard states, the bench in Bir Singh vs. Delhi Jal Board, observed that, to extend the benefit of reservation to a class/category of Scheduled Castes/Scheduled Tribes beyond those specified in the lists for that particular state, the state shall make its views in the matter prevail with the central authority so as to enable an appropriate parliamentary exercise to be made by an amendment of the Lists of Scheduled Castes/Scheduled Tribes for that particular state. Unilateral action by States on the touchstone of Article 16(4) of the Constitution could be a possible trigger point of constitutional anarchy and therefore must be held to be impermissible under the Constitution, the bench added.

Justice Ranjan Gogoi, who headed the five-judge bench, authored the judgment for the majority (also comprising of Justice NV Ramana, Justice Mohan M Shantanagoudar and Justice S Abdul Nazeer).

Justice R Banumathi, though agreed with the majority that a person belonging to a Scheduled Caste in one state cannot be deemed to be a Scheduled Caste person in relation to any other state to which he migrates for the purpose of employment or education, disagreed with the exception given to National Capital Territory of Delhi.

The Issue

“Whether a person belonging to a Scheduled Caste in relation to a particular State would be entitled or not, to the benefits or concessions allowed to Scheduled Caste candidate in the matter of employment, in any other State?”

Takes Note Of Constitution Bench Judgment in Marri Chandra Shekhar Rao

The bench took note of two earlier constitution bench judgments in Marri Chandra Shekhar Rao vs. Dean, Seth GS Medical College and others and Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and another vs. Union of India that had held that a person belonging to a Scheduled Caste in one state cannot be deemed to be a Scheduled Caste person in relation to any other state to which he migrates for the purpose of employment or education.

Did Not Go Into Correctness of View Expressed In S Pushpa

In S Pushpa and others vs. Sivachanmugavelu, it was observed that the principle enunciated in Marri Chandra Shekhar Rao cannot have application here as UT of Pondicherry is not a state. It also held that UT of Pondicherry having adopted a policy of the Central Government whereunder all Scheduled Castes or Scheduled Tribes, irrespective of their state are eligible for posts which are reserved for SC/ST candidates, no legal infirmity can be ascribed to such a policy and the same cannot be held to be contrary to any provision of law. The constitution bench, however, did not go into the correctness of the view expressed by the three-judge bench in S Pushpa.

Unilateral Action By States In Adopting Pan India Reservation Policy Could Trigger Constitutional Anarchy

The bench answered the reference as follows: “It is an unquestionable principle of interpretation that interrelated statutory as well as constitutional provisions have to be harmoniously construed and understood so as to avoid making any provision nugatory and redundant. If the list of Scheduled Castes/Scheduled Tribes in the Presidential Orders under Article 341/342 is subject to alteration only by laws made by Parliament, operation of the lists of Scheduled Castes and Scheduled Tribes beyond the classes or categories enumerated under the Presidential Order for a particular State/Union Territory by exercise of the enabling power vested by Article 16(4) would have the obvious effect of circumventing the specific constitutional provisions in Articles 341/342. In this regard, it must also be noted that the power under Article 16(4) is not only capable of being exercised by a legislative provision/enactment but also by an Executive Order issued 44 under Article 166 of the Constitution. It will, therefore, be in consonance with the constitutional scheme to understand the enabling provision under Article 16(4) to be available to provide reservation only to the classes or categories of Scheduled Castes/Scheduled Tribes enumerated in the Presidential orders for a particular State/Union Territory within the geographical area of that State and not beyond. If in the opinion of a State it is necessary to extend the benefit of reservation to a class/category of Scheduled Castes/Scheduled Tribes beyond those specified in the Lists for that particular State, constitutional discipline would require the State to make its views in the matter prevail with the central authority so as to enable an appropriate parliamentary exercise to be made by an amendment of the Lists of Scheduled Castes/Scheduled Tribes for that particular State. Unilateral action by States on the touchstone of Article 16(4) of the Constitution could be a possible trigger point of constitutional anarchy and therefore must be held to be impermissible under the Constitution.”

Subordinate Services In ‘Capital City’ Are Clearly Central Civil Services

But as regards NCT of Delhi, the bench observed that subordinate services in the National Capital Territory of Delhi are clearly Central Civil Services.

Referring to Central Services Rules, the bench observed: “Insofar as the services in connection with the affairs of the Union is concerned (Central Services), wherever the establishment may be located i.e. in the National Capital Territory of Delhi or in a State or within the geographical areas of Union Territory, recruitment to all positions is on an All India basis and reservation provided for is again a pan- India reservation. This by itself, from one perspective, may appear to be in departure from the rule set out in Part XVI of the Constitution of India (Articles 341 and 342). However, the close look undertaken hereinbefore indicates such a position is fully in accord with the constitutional structure of a federal polity.”

The bench further added: “A combined reading of these provisions of the DASS Rules, 1967 and CCS Rules, 1965, therefore, more than adequately explains the nature of Subordinate Services in the NCT of Delhi. These clearly are General Central Services and perhaps, it is owing to this state of affairs that the Union of India in its Affidavit has stated that, “Members of the Delhi Administrative Subordinate Services are the Feeder Cadre for Central Civil Services Group B (DANICS). It is for these reasons that the policy (of pan India eligibility) is consistently adopted.”

The bench also reproduced observations made in Dr. Jagdish Saran and Others vs. Union of India with regard to the special status that the capital city enjoys. In the said case, the Supreme Court had observed that Delhi is a ‘miniaturised India’.

Justice Banumathi's Dissenting Opinion

Pan India Reservation Policy: There can be no distinction between Union Territory of Delhi and other Union Territories/States, Says Justice R. Banumathi In Her Dissent

‘If the reservation to the Scheduled Castes and Scheduled Tribes are to be extended to all categories of Scheduled Castes and Scheduled Tribes all over India or to the migrants then there is every possibility of the Scheduled Castes and Scheduled Tribes of other developed States and Union Territories squandering reservations to the Scheduled Castes and Scheduled Tribes who are disadvantaged in the respective States/Union Territories including Union Territory of Delhi.’

Justice R. Banumathi penned an elaborate order expressing her own reasons for differing with the conclusion of the constitution bench judgment authored by Justice Ranjan Gogoi that upheld Pan India Reservation Police in National Capital Territory of Delhi.

There can be no distinction between Union Territory of Delhi and other Union Territories

Dissenting with the majority view which carved an exception for National Capital, Justice Banumathi observed that extending PAN India reservation to the employment falling under the services of Union Territories including Union Territory of Delhi, will be against the Constitutional scheme.

According to the judge, the constitution bench decisions in Marri Chandra Shekhar Rao and Action Committee are applicable with equal force to the Union Territories including Union Territory of Delhi.

There cannot be any distinction between the States and the Union Territories. Likewise, there can be no distinction between Union Territory of Delhi and other Union Territories, she said.

 Services under Union Territories cannot be said to be Central Civil Services

 Elaborately referring to Service Rules, the Judge observed: “Services under the Union Territories though they are Central Government services, they are services under the respective Union Territories and not under the direct control of Union of India/different Ministries. Procedure for recruitment to the various posts for the services of Union Territories are different as followed by respective Union Territories. The persons appointed for the services of Union Territories might be governed by CCS (CCA) Rules; but they are employees of respective Union Territories. The appointing authorities are the authorities under the administration of Union Territories and not under the Ministries of Union of India. Central Civil Services are the services directly under Union of India. Contrarily, various services under the Union Territories are the services under the respective Union Territories. Such services under Union Territories cannot be said to be Central Civil Services that is services under Union of India to extend the benefit of PAN India reservation for recruitment to the services under respective Union Territories including Union Territory of Delhi.“

 Observations in Pushpa judgment not correct

 Though the majority judgment is silent of correctness of three judge bench decision in Pushpa, Justice Banumathi observed that the said case is not a correct decision extending PAN India reservation for the reserved posts recruited by NCT of Delhi or any other Union Territories.

“When the Scheduled Castes or Scheduled Tribes are specified for each State in relation to one State or Union Territory, neither the State legislature, the administration of the Union Territories and nor the courts can include or exclude other Scheduled Castes or Scheduled Tribes so notified in the Presidential Order. Providing all India reservation to the services of Union Territories 159 including Union Territory of Delhi, would be against the mandate of Articles 341 and 342 and the Presidential Orders issued thereon. If that is permitted, it would amount to addition or alteration of the Presidential Order which is impermissible and violative of the Constitutional Scheme.”, the judge said.

It would defeat the very object of providing reservation to the disadvantaged Scheduled Castes and Scheduled Tribes in a particular State or Union territory.

She further added: “It is the responsibility of each State/Union Territory to provide for such reservation/affirmative action by positive discretion to bring backward classes/Scheduled Castes and Scheduled Tribes in the respective States/areas to provide socio-economic empowerment. If the reservation to the Scheduled Castes and Scheduled Tribes are to be extended to all categories of Scheduled Castes and Scheduled Tribes all over India or to the migrants then there is every possibility of the Scheduled Castes and Scheduled Tribes of other developed States and Union Territories squandering reservations to the Scheduled Castes and Scheduled Tribes who are disadvantaged in the respective States/Union Territories including Union Territory of Delhi. If this is permitted, it would defeat the very object of providing reservation to the disadvantaged Scheduled Castes and Scheduled Tribes in a particular State or Union territory. The enabling provision of Article 16(4) of the Constitution has to yield to the constitutional scheme of Article 341 and Article 342 of the Constitution.”

Read the Judgment Here