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CASE NO.: Appeal (civil)  4684 of 2001

PETITIONER: Chandigarh Administration and Anr.                               

RESPONDENT: Surinder Kumar and Ors.                                  

DATE OF JUDGMENT: 27/11/2003

BENCH: Brijesh Kumar & Arun Kumar

JUDGMENT: J U D G M E N T

ARUN KUMAR, J.

       With the promulgation  of the Punjab Re-organisation Act  1966 in place of erstwhile State of Punjab, three States viz. Punjab,  Haryana and Himachal Pradesh were carved out while Chandigarh  became a Union Territory.  Under Article 239 of the Constitution  of India the Union Territories are administered by the President of  India acting through an Administrator to be appointed by him.  But  this does not mean that the Union Territories become merged with  the Central Government.  They are centrally administered but they  retain their independent entity.  On formation of the Union  Territory of Chandigarh, its employees were governed by the  rules/instructions as applicable to the Central Government  employees in view of Service of Union territory Employees Rules  1966.   In the present case these facts have become relevant for the  reason that the Chandigarh Administration issued an advertisement  inviting applications for fourteen posts of Assistant Sub-Inspectors  in the Chandigarh Police.  Two posts were meant for Scheduled  Castes (for short "SC") and four posts for Other Backward Classes  (for short "OBC") candidates.  Respondents 1 to 5 were applicants  for the said posts in pursuance of the advertisement.  Respondents  1 and 2 were SC candidates while respondents 3 to 5 were OBC  candidates.  These respondents had caste certificates issued by  their respective States i.e. Punjab, Haryana and Himachal Pradesh.     On the basis of the caste certificates held by them the respondents  sought the benefit of reservation but the same was denied to them.  This led them to approach the Central Administrative Tribunal at  Chandigarh.  The Tribunal vide its order dated 23.2.2000 allowed  the OA filed by the respondents and directed the Chandigarh  Administration to give appointments to the applicants if they were  found to be otherwise eligible.  Chandigarh Administration i.e.  appellants herein challenged the said order of the Tribunal by way  of a Writ Petition filed in the Punjab and Haryana High Court.  The  High Court dismissed the Writ Petition upholding the view taken  by the Tribunal.  The present appeal is directed against the said  judgment and order of the High Court.

       It is not in dispute that the Government of India instructions  are applicable and are being followed by the Chandigarh  Administration being a Union Territory as aforesaid.  In fact, the  appellants have in a rejoinder affidavit filed in this court  specifically admitted that "for the purposes of recruitment  instructions issued by the Government of India are being followed  being not the ’Condition of Service’".  Further it has been stated in  this rejoinder affidavit "in case of Recruitment Rules, the

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Chandigarh Administration is following the Rules/Instructions  issued by the Central Government".  The Government of India  vide its Circular No.DC/16014/1/82-SC-BCD.1 dated 22.2.1985  issued instructions to the Chief Secretaries of all the States and  Union Territories to the effect that SC/ST persons who have  migrated from the States of  origin to other States for the purpose  of seeking education/employment etc. will be deemed to be  Scheduled Castes/Scheduled Tribes of the State of their origin and  will not be entitled to derive benefits from the State of their  migration on that basis.  The prescribed authority of a State  Government/Union Territory administration may issue the SC/STs  certificate to a person who has migrated from another State on the  production of genuine certificate issued to his father by the  prescribed authority of the State of the father’s origin.  The  certificates were to be issued irrespective of whether Caste/Tribe in  question is Scheduled or not in relation to the State/Union  Territory to which the person has migrated.  Para 2 of the said  circular is reproduced:

"It is also clarified that a Scheduled Caste/Schedule  Tribe person who has migrated from the State of origin  to some other State for  seeking education, employment  etc. will be deemed to be Scheduled Caste/Scheduled  Tribe of that State and will be entitled to derive benefit  from the State of origin and not from the State in which  he has migrated".

       In pursuance of the aforesaid circular of the Government of  India, the Home Secretary, Chandigarh Administration vide his  letter dated 28th July, 1986 sought clarification from the  Government of India, Ministry of Home Affairs  as to whether  these instructions are applicable in the Union Territory of  Chandigarh.  The Chandigarh Administration received the  following reply  to the said letter  from the Government of India,  Ministry of Welfare.

No.BC.12017/9/86-SC&BCD.I(Ch.Admn.) Government of india/Bharat Sarkar Ministry of Welfare/Kalyan Mantralaya

New Delhi, dated 26.8.86

To

       The Home Secretary,         Chandigarh Administration (Home-I),         Chandigarh.

Sub:    Issue of Scheduled Caste/Scheduled Tribe certificate to  migrants from other states/U.T.s \026 Grant of  benefits/concessions to the migrated persons \026 Clarification  of. \005\005..

Sir,

       I am directed to refer to your letter No.4731-IB(7)-86/14080

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dated 28.7.86 on the above subject and to say that in respect of  employment under the Central government there is no  discrimination between Scheduled Castes and the Scheduled Tribes  of one State or another.  In respect of employment under the Union  Territories also legally, the position would be the same.  Thus, in  the case under reference, a recognised Scheduled Caste/Scheduled  Tribe of any other State/Union Territory would be entitled to the  benefits and facilities provided for Scheduled Castes and Scheduled  Tribes in the services under the Union Territory of Chandigarh.  All  cases may be finalized in light of the position clarified above.  Past  case may not be re-opened as there may be complications in  deciding those cases.  Any how, for further clarification on service  issues, the matter may be taken up with Department of Personnel  and Training as they are dealing with the subject.

Yours faithfully,

                                                                               Sd/- ( B.N. Srivastava )                                                                             Director

       It will be seen from the above quoted letter of the  Government of India that a recognised Scheduled Caste/Scheduled  Tribe candidate of any other State or Union Territory was held   entitled to benefit of reservation for Scheduled Castes and  Scheduled Tribes in the  Union Territory of Chandigarh.  Further  the said circular leaves it to the Chandigarh administration to seek  further clarification, if any, on this issue from the Department of  Personnel & Training, Government of India.  It is the stand of the  appellant that it  made several efforts to seek further clarification  from the Department of Personnel & Training, Government of  India as suggested in  letter dated 26th July, 1986. However, they  had not received any response in this regard.

       The Central Administrative Tribunal as well as the High  Court relying on the clarification issued by the Government of  India vide its letter dated 26th July, 1986 rejected the stand of the  appellant while granting relief to the respondents.          According to the learned counsel for the appellants the letter  dated 22nd February, 1985 of the Government of India holds the  field and is binding on the Chandigarh Administration and,  therefore, the respondents not being SC/OBC candidates of the  Union Territory of Chandigarh are not entitled to the benefit of  reservation.  The learned counsel has also placed reliance on certain  decisions of this Court in support of her stand that the benefit of  belonging to SC/ST/OBC is available only in the State of origin  and not in the State to which the person concerned migrates.  In  other words the benefit of being a SC/ST/OBC can be enjoyed by a  person only in the State to which he belongs.  He cannot derive this  benefit in the State to which he or she migrates.          Marri Chandra Shekhar Rao vs.  Dean, Seth G.S.  Medical College and Others [(1990) 3 SCC 130] is a Constitution  Bench judgment of this Court on which reliance has been placed  by the learned counsel for the appellant.  The petitioner was born  in the State of Andhra Pradesh.  The petitioner was residing with  his father in Bombay.  His father held a ST certificate from the  State of Andhra Pradesh.  After passing the 12th standard  examination of the Maharashtra State Board the petitioner  submitted application for admission to the respondent Medical  College seeking the benefit of reservation in favour of STs.  He  was denied admission to the MBBS course though ST candidates

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who had secured lesser marks than him had been admitted.  This  denial of admission was based on the Government of India circular  dated 22nd February, 1985, referred to hereinbefore according to  which a person who migrates from one State to another is entitled  to benefit of being SC/ST caste certificate in the State of origin and  not in the State to which he or she migrates.   The petitioner was  held not entitled to be admitted to the Medical College on the basis  that he belongs to Scheduled Tribe in his original State.  The  following observation was made:

"Scheduled Castes and Scheduled Tribes belonging to  a particular area of the country must be given  protection so long as and to the extent they are entitled  in order to become equal with others.  But equally  those who go to other areas should also ensure that they  make way for the disadvantaged and disabled of that  part of the community who suffer from disabilities in  those areas.  Scheduled Castes and Scheduled Tribes  say of Andhra Pradesh do require necessary protection  as balanced between other communities.  But equally  the Scheduled Castes and Scheduled Tribes say of  Maharashtra in the instant case, do require protection in  the State of Maharashtra, which will have to be in  balance to other communities.  This must be the basic  approach to the problem."

It will be seen that the judgment proceeds on the basis of the  Government of India instructions contained in letter dated  22.2.1985. According to the learned counsel for the appellant the  respondents hold reserved category certificate from other States and  not from the Union Territory of Chandigarh where they are seeking  employment.  Therefore, in view of the aforesaid judgment they are  entitled to benefit in the State of their origin and not in the Union  Territory of Chandigarh where they are seeking employment.          In Action Committee on Issue of Caste Certificate to  Scheduled Castes and Scheduled Tribes in the State of  Maharashtra and Others vs. Union of India and Another  [(1994) 5 SCC 244] it was brought to the notice of this Court that  the Government of India had been taking a stand that if SC/ST  persons who migrate from the State of origin to another State in  search of employment or for educational purposes or the like,  cannot be treated as persons belonging to Scheduled Caste or  Scheduled Tribe of the State to which they migrate and hence they  cannot claim benefit as such in the latter State.  This stand of the  Government was challenged as being unconstitutional.  This Court  noticed that the castes or tribes have to be specified in relation to a  given State or Union Territory that means "a given caste or tribe  can be a Scheduled Caste or Scheduled Tribe in relation to the State  or Union Territory for which it is specified.  Consideration for  specifying a particular caste or tribe or class for inclusion in the list  of Schedule Castes/Scheduled Tribes or backward in a given State  would depend upon 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 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 State A as a Scheduled Caste  does not necessarily mean that if there be another caste bearing the

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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 of the latter State  ’for the purpose of this Constitution’.  The case of Marri chandra  Shekhar Rao (supra) was followed.           In the above cases the issue has been examined from the point  of view of constitutionality of the policy of the Government on the  question of extending benefit on the basis of SC/ST/OBC  reservation.  The circumstances and the conditions which attract the  benefit of being member of SC/ST/OBC vary from State to State.   That is why it was observed in State of Maharashtra and Others  vs.  Kumari Tanuja [(1999) 2 SCC 462] that the State has every  right to recognise a particular community in a particular manner but  the same should be done for good reasons and after application of  mind to all relevant facts.  Thus the ultimate decision with respect  to extending the benefit of reservation has been left to the State.

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 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 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 "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, but on  receipt of clarification on 7.9.1999 the reservation benefits are only  to be allowed to\005. who are bonafide residents of Chandigarh and  in whose favour valid certificates have been issued by the  competent authority of Chandigarh Administraation.  After  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".          Thus as per their own admission the appellant was following  the instructions contained in the Government of India letter dated  26.8.1986 till 7.9.1999.  Now we have to see the significance of the  date 7.9.1999.  It appears that the appellant is taking the date  7.9.1999 on the basis of a letter written by Home Secretary,  Chandigarh Administration to the Inspector General of Police,  Union Territory, Chandigarh which bears the said date.  The subject  of the letter is "clarification".  According to this letter the Personnel  Department of Chandigarh Administration had given a clarification  based on the Government of India letter dated 22.2.1985 (to which  reference has already been made).  The said letter of the  Government of India had confined the benefit of reservation to  persons in their State of origin and not in the State to which they  migrate.  This letter does not make any reference to the subsequent  circular dated 26.8.1986 of the Government of India.  The  Chandigarh Administration was admittedly following the  instructions contained in the Government of India circular dated  26.8.1986.  A volte face appears to have been taken and the  administration has fallen back on the earlier instructions of  Government of India contained in letter dated 22.2.1985.    Significance of the date 7.9.1999 appears to be based on this  clarification issued by the Home Secretary, Chandigarh  Administration to the Inspector General of Police, Union Territory

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of Chandigarh.

       Looking at the issue from another angle it is to be noted that  the Home Secretary, Chandigarh Administration cannot overlook  the instructions contained in the Government of India circular dated  26.8.1986 specially when those instructions were being admittedly  all along followed by the Chandigarh Administration.  The stand of  the appellant regarding discontinuing the benefit of reservation to  persons belonging to reserved categories in other States in the  Chandigarh Administration w.e.f. 7.9.1999 thus appears to be  wholly untenable.

       It is not in dispute that the Government of India  is entitled to  issue instructions qua service in the Union Territories.  Under  Article 239 of the Constitution of India the administration of the  Union Territories is left with the President of India.  Appellant does  not even suggest that the Government of India instructions are not  binding on it.  As a matter of fact the appellant has been following  the Government of India instructions issued from time to time.  The  latest instructions on the subject in issue in this appeal are  contained in the Government of India circular dated 26.8.1986.   Admittedly, thereafter inspite of requests from the Chandigarh  Administration the Government of India has not issued any  instructions to the contrary so far.  A letter dated 8.12.2000 from  the Government of India to the Home Secretary, Chandigarh  Administration, Chandigarh on the subject is only on the issue of  challenging the decision of the Central Administrative Tribunal and  the Punjab & Haryana High Court  in the present case by way of  special leave petition to this Court.  It is on the subject whether the  Chandigarh Administration should file a special leave petition in  the case in hand.  It does not contain a policy decision or circular or  instructions on the subject.  Therefore, for decision of the issue  raised in the present appeal the said letter is of no relevance.  The  judgments relied upon by the learned counsel for the appellant to  only decide the constitutional aspect of the Government policy on  the subject at a given time while leaving the policy decision as to  what benefits are to be conferred on persons belonging to reserved  categories  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, in our view, continue to be  in force.  There is no reasonable basis to discontinue the said   decision with effect from 7.9.1999. No reason or basis has been  disclosed for discontinuing the same with effect from the said date.           The result of the above discussion is that this appeal fails and  the same is dismissed with costs.  Counsel fee Rs. 5,000/-.