Puducherry Scheduled... v. Chief Secretary To G..., Supreme Court Of India, Judgment, Law, casemine.com

Citation Codes

Equivalent Citations

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Case Number

Civil Appeals Nos. 10829-30 of 2010, decided on August 7, 2014

Disposition

allowed

Advocates

Ms V. Mohana, Advocate, for the Appellant;
R. Venkataramani and Guru Krishna Kumar, Senior Advocates (V.G Pragasam, S.J Aristotle, Prabu Ramasubramanian, Ms Neelam Singh, Sameer Singh, Ms G. Indira, K.V Jagdishvaran, Vishnu Sharma, Gopal Singh, Amit Pawan, Sumit Kumar, Deepayan Mandal, Gaurav Agrawal, Ms Asha Gopalan Nair, Abhishek Kr. Pandey, B.V Balaram Das, P. Parameswaran, D.S Mahra, Praneet Ranjan, Pradeep Kumar, Bankey Bihari Sharma, Aruneshwar Gupta, Naresh Kaushik, Sanjeev K. Bhardwaj, Ms Lalita Kaushim, Suresh Chandra Tripathy, Jitender Kr. Bharia, A. Subba Rao, A. Venkatesh, Annam D.N Rao, Ms Neelam Jain, Ms Vaishali R., Ms Binu Tamta, Bijan Kr. Ghosh and S.K Poddar, Advocates) for the Respondents.

Judges

Justice Kurian Joseph
Justice Madan Bhimarao Lokur

Acts

Article 341(1)
Clause (1) of Article 341 of the Constitution of India
Constitution (Pondicherry) Scheduled Castes Order, 1964 read with the Constitution (Scheduled Castes) Order (Second Amendment) Act, 2002 (Central Act 61 of 2002)
Section (1) and (2) of Article 341 of the Constitution of India
Article 341(2)
Article 342(2)
Article 342(1)

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Smart Summary

Factual and Procedural Background

The appellant is an association representing Scheduled Caste residents of the Union Territory of Puducherry. It filed two writ petitions before the High Court challenging Government Orders G.O. Ms. No. 11/2005.Wel(SCW II) (“GOM 11/2005”) and G.O. Ms. No. 12/2005.Wel(SCW II) (“GOM 12/2005”), both dated 5 August 2005. GOM 11/2005 limited reservation in promotion and employment to Group C and D posts to “Scheduled Caste origins” of Puducherry; GOM 12/2005 imposed an identical restriction in relation to professional and educational courses.

By a common order dated 21 July 2008, the High Court dismissed the writ petitions. The association obtained special-leave and filed the present civil appeals. Leave was granted on 13 December 2010 and the matters were tagged with Civil Appeal No. 4494 of 2006. The reference questions raised in the larger-bench proceedings were ultimately found unnecessary to answer for the disposal of these appeals.

Legal Issues Presented

Whether GOM 11/2005 and GOM 12/2005, which confine reservation benefits to Scheduled Caste “origins” of Puducherry, are consistent with and permissible under the Constitution (Pondicherry) Scheduled Castes Order, 1964 issued under Article 341 of the Constitution.
If not, whether the High Court erred in upholding those Government Orders.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
S. Pushpa v. Sivachanmugavelu (2005) 3 SCC 1	Observation at para 21 concerning reservation benefits in Puducherry.	Not directly relied upon; noted as the basis referenced in the impugned Government Orders.
Subhash Chandra v. Delhi Subordinate Services Selection Board (2009) 15 SCC 458	Two-Judge Bench’s view on the binding nature of S. Pushpa.	Mentioned only to explain why another matter was referred to a larger Bench; no substantive application in deciding the present appeals.
State of Uttaranchal v. Sandeep Kumar Singh (2010) 12 SCC 794	Order of reference concerning Article 341 issues.	The Court held it unnecessary to answer the reference questions for disposing of these appeals.

Court's Reasoning and Analysis

1. The Court reproduced and examined the Constitution (Pondicherry) Scheduled Castes Order, 1964 (“Presidential Order”). Clause 2 of that Order deems the fifteen castes listed in its Schedule to be Scheduled Castes “in relation to the Union Territory of Pondicherry so far as regards members thereof resident in that Union Territory”.

2. The impugned Government Orders, in contrast, restrict reservation benefits to persons of Scheduled Caste “origins” of Puducherry. The Court highlighted that the Presidential Order speaks only of “resident” status and makes no reference to “origins”.

3. Referring to Article 341 of the Constitution, the Court emphasized that:

Scheduled Castes come into existence solely by virtue of a Presidential notification under Article 341(1).
Under Article 341(2), only Parliament may amend such a notification. Executive action cannot vary, modify, or add to the Presidential Order.

4. Interpreting “resident” in the Presidential Order as “of origin”, as the Government Orders effectively do, constitutes an impermissible alteration of the Presidential Order. Such alteration, whether direct or indirect, lies beyond executive competence.

5. On this short ground—non-conformity with the Presidential Order—the Court found it unnecessary to resolve the wider questions raised in the earlier reference.

Holding and Implications

Holding: The Supreme Court set aside GOM 11/2005 and GOM 12/2005 as ultra vires the Constitution (Pondicherry) Scheduled Castes Order, 1964, and allowed the civil appeals. No order as to costs.

Implications: Reservation benefits in Puducherry cannot be limited to Scheduled Caste “origins”; they must extend to all Scheduled Caste persons resident in the Union Territory as defined by the Presidential Order. The judgment reinforces that only Parliament may alter a Presidential notification under Article 341, but does not create any new principle beyond affirming existing constitutional constraints on executive action.

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Puducherry Scheduled Caste People Welfare Association v. Chief Secretary To Government, Union Territory Of Pondicherry And Others

R.M Lodha, C.J— The appellant is an association representing the Scheduled Caste residents who have permanent residence/place of abode in Puducherry. The Association filed two writ petitions before the High Court challenging the two government orders being GOMs No. 11/2005.Wel(SCW II) (for short “GOM 11/2005”) and GOMs No. 12/2005.Wel(SCW II) (for short “GOM 12/2005”) both dated 5-8-2005. GOM 11/2005 relates to reservation benefits in promotion and employment to Group C and D posts and the other GOM 12/2005 relates to reservation benefits in professional courses.

2. The High Court was not persuaded by the arguments of the writ petitioner and dismissed the two writ petitions by a common order dated 21-7-2008 WP No. 33305 of 2006. The present civil appeals, by special leave, arise from the above common judgment.

3. Both the government orders take note of the Constitution (Pondicherry) Scheduled Castes Order, 1964 and also the judgment of this Court in S. Pushpa v. Sivachanmugavelu (2005) 3 SCC 1 and then provide for extension of reservation only to the Scheduled Caste origins of the Union Territory.

4. Para 5 of GOM 11/2005 reads as follows:

“Having examined the demand made by various Welfare Associations and Scheduled Caste (origin) people of the Union Territory of Pondicherry and taking into account the observations made by the Hon'ble Supreme Court at para 21 of the said judgment dated 11-2-2005 (2005) 3 SCC 1, the Lieutenant Governor, Pondicherry is pleased to order that the reservation benefits in promotion, employment to Group C and D posts shall henceforth be extended only to the Scheduled Caste origins of the Union Territory as notified in the Constitution (Pondicherry) Scheduled Castes Order, 1964 read with the Constitution (Scheduled Castes) Order (Second Amendment) Act, 2002 (Central Act 61 of 2002).”

5. Similarly, Para 5 of GOM 12/2005 reads as follows:

“Having examined the demand made by various Welfare Associations and Scheduled Caste (origin) people of the Union Territory of Pondicherry and taking into account the observations made by the Hon'ble Supreme Court at para 21 of the said judgment dated 11-2-2005 (2005) 3 SCC 1, the Lieutenant Governor, Pondicherry is pleased to order that the reservation benefits in the field of education and welfare shall henceforth be extended only to the Scheduled Caste origins of this Union Territory as notified in the Constitution (Pondicherry) Scheduled Castes Order, 1964 read with the Constitution (Scheduled Castes) Order (Second Amendment) Act, 2002 (Central Act 61 of 2002).”

6. Leave was granted in these matters on 13-12-2010 (2014) 9 SCC 236 (F3) and it was ordered that these matters be tagged with Civil Appeal No. 4494 of 2006.

7. It so happened that subsequently by order dated 7-10-2010 (2010) 12 SCC 794, Civil Appeal No. 4494 of 2006, came to be referred to a three-Judge Bench as the two-Judge Bench, inter alia, observed that in Subhash Chandra v. Delhi Subordinate Services Selection Board (2009) 15 SCC 458, the two-Judge Bench could not have held that the decision rendered in S. Pushpa case (2005) 3 SCC 1 is obiter and not binding.

8. Civil Appeal No. 4494 of 2006 has been dismissed (2014) 9 SCC 236 (F6) by us yesterday (6-8-2014) without answering the reference as it was not necessary in view of para 4 of the impugned judgment therein.

9. In the present case also, it is not necessary to answer the question raised in the reference only in State of Uttaranchal v. Sandeep Kumar Singh (2010) 12 SCC 794 as we find that the impugned government orders cannot be sustained on the short ground viz. they being not in consonance with the Presidential Order, 1964.

10. The Presidential Order, 1964 reads as follows:

“THE CONSTITUTION (PONDICHERRY) SCHEDULED CASTES ORDER, 1964

(C.O 68)

In exercise of the powers conferred by clause (1) of Article 341 of the Constitution of India, the President is pleased to make the following Order, namely—

1. The Order may be called the Constitution (Pondicherry) Scheduled Castes Order, 1964.

2. The castes, races or tribes or parts of or groups within castes, races or tribes specified in the Schedule to this Order shall, for the purposes of the Constitution, be deemed to be Scheduled Castes in relation to the Union Territory of Pondicherry so far as regards members thereof resident in that Union Territory:

Provided that no person, who professes a religion different from the Hindu or the Sikh religion, shall be deemed to be a member of a Scheduled Caste.

the schedule

1. Adi Andhra 9. Pallan 2. Adi Dravida 10. Parayan, Sambavar 3. Chakkiliyan 11. Samban 4. Jambuvulu 12. Thoti 5. Kuravan 13. Valluvan 6. Madiga 14. Vetan 7. Mala, Mala Masti 15. Vettiyan” 8. Paky

11. It will be seen from Para 2 of the above Presidential Order that the castes, races or tribes or parts of or groups within castes, races or tribes (15 in all) specified in the Schedule appended thereto are deemed to be Scheduled Castes for the purposes of the Constitution in relation to the Union Territory of Pondicherry so far as regards members thereof are resident in the Union Territory. The government orders, however, have confined reservation benefits to the Scheduled Caste origins of the Union Territory of Pondicherry. It would be seen that the Presidential Order does not speak of “origins” of the Union Territory of Pondicherry, it only speaks of “resident”.

12. Article 341 of the Constitution of India provides as under:

“341. Scheduled Castes.—(1) The President may with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory, as the case may be.

(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 notification issued under the said clause shall not be varied by any subsequent notification.”

13. It is important to bear in mind that it is by virtue of the notification of President under Article 341(1) that the Scheduled Castes come into being. The members of the Scheduled Castes are drawn from castes, races or tribes, they attain a new status by virtue of Presidential Order. Clause (2) of Article 341 empowers Parliament alone by law to include or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) by the President. By no executive power, amendment, modification, alteration or variance in the Presidential Order is permissible. It is not open to the executive to do anything directly or indirectly which may lead to any change in the Presidential Order. Once Presidential Order has been issued under Article 341(1) or Article 342(1), any amendment in the Presidential Order can only be made by Parliament by law as provided in Article 341(2) or Article 342(2), as the case may be, and in no other manner. The interpretation of “resident” in the Presidential Order as “of origin” amounts to altering the Presidential Order.

14. Thus, we find that the impugned government orders—GOM 11/2005 and GOM 12/2005—not being in conformity and consonance with the Presidential Order, 1964 cannot be sustained in law and have to be set aside. We order accordingly.

15. The civil appeals are allowed as above with no order as to costs.

Puducherry Scheduled... v. Chief Secretary To G...