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CASE NO.: Appeal (civil)  6-7 of 1998

PETITIONER: S. Pushpa and others                             

RESPONDENT: Sivachanmugavelu and others      

DATE OF JUDGMENT: 11/02/2005

BENCH: CJI,K.G. Balakrishnan & G. P. Mathur  

JUDGMENT: J U D G M E N T (with C.A. Nos.4-5/1998)

G. P. MATHUR, J.

1.      These appeals, by special leave, have been preferred against the  judgment and order dated 5.11.1996 of the Central Administrative  Tribunal (Madras Bench) by which O.A. No. 199/1996 and O.A No.  214/1996 were allowed and selection made of migrant Scheduled Caste  candidates against the quota reserved for Scheduled Castes  on the post of  Selection Grade Teachers in the selection held in the year 1995 in the  Union territory of Pondicherry was declared as illegal and invalid, and a  further direction was issued to review the selection process with regard to  the reserved quota by excluding the migrant Scheduled Caste candidates  who had migrated  after the relevant notification had been issued in the  year 1964.

2.      The Directorate of Education, Government of Pondicherry, issued  an advertisement for making recruitment of 350 General Central Service  Group "C" posts of Secondary Grade Teachers (for short ’SGT’) wherein  56 posts were reserved for Scheduled Caste candidates (for short SC  candidates). In response to the notification, the employment exchange  sponsored the names of candidates in respect of various categories  including SC candidates as requested by the Department.  Besides, as  envisaged and in conformity with the National Employment Service  Manual, the employment exchange also sponsored some names of SC  candidates from neighbouring employment exchanges as sufficient  number of SC candidates were not available in Yanam and Mahe region  of Union territory of Pondicherry.  The employment exchange,  Pondicherry sponsored 118 candidates.  The employment exchange of  Badagara (Kerala) sponsored 4 candidates for Mahe, the employment  exchange Yanam sponsored 15 candidates and employment exchange  Vishakhapattnam (AP) sponsored 139 candidates for  Yanam.  After  holding interview a final Selection List was prepared and out of 55  finally selected SC candidates, 29 candidates had produced community  certificates from the Governments of Tamil Nadu, Andhra Pradesh and  Kerala, based on which the revenue authority of Pondicherry had issued  community certificates to them.  The remaining 26 candidates produced  community certificates from the revenue authority of Pondicherry.  The  contesting respondents in these appeals filed O.A. No. 199 of 1996 and  O.A. No. 214 of 1996 before the Central Administrative Tribunal  (Madras Bench) challenging the selection of aforesaid SC candidates  basically on the ground that a migrant SC candidate belonging to another  State is not eligible for appointment on a post which is reserved for a SC  candidate for Union Territory (hereinafter for short ’UT’) of  Pondicherry  and also for a direction to appoint original inhabitants of Scheduled Caste  origin belonging to UT of Pondicherry.  The Central Administrative

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Tribunal (hereinafter for short ’Tribunal’), relying upon the decisions in  Marri Chandra Shekhar Rao vs. Dean, SGS 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 vs.  Union of India & Anr.1994 (5) SCC 244 held, that the SC persons who  migrated to UT of Pondicherry after the issuance of Presidential  notification, which has specified  Scheduled Castes in terms of Article  341  of the Constitution cannot claim the benefit of reservation in the  matter of employment in Pondicherry Government service.  Accordingly,  the selection and appointment of migrant SC candidates was set aside and  a direction was issued to review the selection process with regard to the  reserved quota after excluding the migrant SC candidates who had  migrated after the issuance of the notification in the year 1964.

3.      Feeling aggrieved by the decision of the Central Administrative  Tribunal (for short the ’Tribunal’), the Union of India and Director of  Education, Government of Pondicherry, preferred Special Leave  Petitions, which after grant of leave have been registered as Civil Appeal  Nos. 4 and 5 of 1998.  Some of the candidates whose selection has been  set aside also preferred Special Leave Petitions which, after grant of  leave have been registered as Civil Appeal Nos. 6 & 7 of 1998.   

4.       Before adverting to the contentions raised by learned counsel for  the parties, it is necessary to mention that the U.T. of Pondicherry  comprises of former four French settlements in India, viz. Pondicherry,  Karaikal, Mahe and Yanam.  Karaikal is situate within the territorial  boundary of State of Tamil Nadu, Mahe is situate within the territorial  boundary of State of Kerala and Yanam is situate within the territorial  boundary of State of Andhra Pradesh.  Though de-facto  transfer of these  four French settlements to Government of India took place in the year  1954, they legally merged with the Union of India with effect from  16.8.1962 by the Eighteenth Amendment to the Constitution.  These four  settlements were constituted as U.T. of Pondicherry under Government  of Union territories Act, 1963 (Act  No. 20 of 1963).

5.      Article 341 of the Constitution which is important for the purpose  of decision of the present case reads as under :     "341. Scheduled Castes. \026 (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."      

       The President of India exercising power under Article 341(1)  issued an order known as Constitution (Pondicherry) Scheduled Castes  Order, 1964.  Paragraph 2 of this Order read as under : "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 U.T. of Pondicherry so far  as regards members thereof resident in that Union  territory."      

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The schedule mentions 15 castes which are to be deemed to be  Scheduled Castes in relation to the U.T. of Pondicherry.

6.      Learned counsel for the appellants has submitted that the decisions  rendered in Marri Chandra Rao (supra)  which has been the sheet anchor  of the case of the contesting respondents (applicants before the Tribunal)  and which has been relied upon by the Tribunal related to a case where  the migrant was from one State to another State (from Adndhra Pradesh  to Maharashtra) and it can have no application  to a case where the  migration of a SC person is from a State to an adjoining or contiguous  Union territory, as is the case here.  The areas included in the U.T. of  Pondicherry being very small enclaves and being contiguous and  surrounded by large States, the principle which may be applicable in the  case of migration from one State to another State cannot be applied  having regard to the ground realities.  Learned counsel has further  submitted that the Government of India has, from time to time, issued  circulars and Government Orders clearly providing that migrant SC  persons are eligible for appointment on posts reserved for SC persons in  the U.T. of Pondicherry and in absence of any statutory enactment or  rules made in exercise of powers conferred under the proviso to Article  309 of the Constitution, these circulars or Government Orders are  binding upon the Government of Pondicherry.  It has also been contended  that in the matter of providing reservation in favour of any backward  class of citizens within the meaning of Article 16(4) of the Constitution,  it is open to the U.T. of Pondicherry  to apply  any policy, especially one  whereunder migrant SC persons are also given the benefit of reservation  and it is not open to the contesting respondents to object to such kind of a  reservation policy and claim that the benefit of reservation should be  extended only to such SC persons who are mentioned in the schedule  appended to the Presidential Order issued in the year 1964. Learned  counsel has also submitted that right from inception, the U.T. of  Pondicherry has been following a practice whereunder migrant SC  persons are held eligible for appointment on reserved posts and this being  the consistent and uniform policy of the State, the same cannot be held to  be illegal or contrary to any constitutional provisions.

7.      Learned counsel for the contesting respondents (applicants in the  original application before the Tribunal) have submitted that in view of  clear language in Article 341(1) of the Constitution, only such castes  which have been mentioned in the schedule appended to the Presidential  Order of 1964, shall be deemed to be Scheduled Castes for the U.T. of  Pondicherry and a migrant SC person  is not eligible for any reserved  posts.  Learned counsel has also submitted that the fact that a Union  territory is administered by the President through an administrator  appointed by him, can make no difference as the posts in question are  posts under the Pondicherry government and cannot be deemed to be   posts under the Central Government.  Learned counsel has also placed  strong reliance on the following observation made by the Constitution  Bench in the case of Marri Chandra (supra) in para 10 of the reports: "\005These must be so balanced in the mosaic of the  country’s integrity that no section or community  should cause detriment or discontentment to other  community or section. 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.  In other words, Scheduled Castes and  Scheduled Tribes say of Andhra Pradesh do  require necessary protection as balanced between  other communities.  But equally the Scheduled

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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\005\005\005"   

Reliance has also been placed on the following observation in  Action Committee case (supra): " The Constitution Bench has, after referring to the  debates in the Constituent Assembly relating to  these articles, observed that while it is true that a  person does not cease to belong to his caste/tribe  by migration he has a better and more socially free  and liberal atmosphere and if sufficiently long time  is spent in socially advanced areas, the inhibitions  and handicaps suffered by belonging to a socially  disadvantageous community do not truncate his  growth and the natural talents of an individual gets  full scope to blossom and flourish.  Realising that  these are problems of social adjustment it was  observed that they must be so balanced in the  mosaic of the country’s integrity that no section or  community should cause detriment or  discontentment to the other community.   Therefore, said the Constitution Bench, the  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 to in order to becoming equals with others  but those who go to other areas should ensure that  they make way for the disadvantaged and disabled  of that part of the community who suffer from  disabilities in those areas".    

8.      Before the Tribunal it was pleaded on behalf of the appellants that  the Legislative Assembly of U.T. of Pondicherry has not been vested  with powers to make laws in relation to public services of the Union  territory and consequently the President of India is the repository of all  powers with regard to public services of the Union territory and with  regard to the persons appointed in connection with the affairs of the  Union territory.  The President has delegated to the Lt. Governor of  Pondicherry power to frame rules for regulating the method of  recruitment to the civil services and posts in Grade ’A’, ’B’, ’C’ and ’D’  under his administrative control in connection with the affairs of the  Union territory and also the conditions of service of persons appointed to  such services.  While making rules for appointment in Grade ’A’ and ’B’  posts, the Lt. Governor has to act subject to prior consultation with the  Union Public Service Commission.  The services and posts for U.T. of  Pondicherry are treated like Central services and posts, and in the matter  of reservation in posts and services for Scheduled Castes, the  Government of U.T. of Pondicherry is bound by the policy prescription  and the rules and orders of Government of India.      

9.      The Policy of the Government of India, whereunder all SC/ST  candidates get benefit in the matter of  appointment and admission in  educational institutions controlled/administered by the Central  Government has been reproduced in para 18 of the judgment in Marri  Chandra Shekhar Rao (supra) and the relevant part thereof reads as  under: "Scheduled Castes and Scheduled Tribes are entitled to  derive benefits of the all-India Services or admissions in the  educational institutions controlled/administered by the  Central Government, irrespective of the State to which they  belong.  The reservation in force in favour of the Scheduled

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Castes and Scheduled Tribes in filling vacancies in posts and  services under the Government of India are as in the  enclosure (Chapter II of the Brochure on the Reservation for  Scheduled Castes and Scheduled Tribes in Services issued  by the Government of India).   The reservations for  Scheduled Castes and Scheduled Tribes in the all India  services are covered by these provisions and at present are  15 per cent and 7.5 per cent respectively.  The Central  Government/government services include the all-India  services i.e. the Indian Administrative Service, the Indian  Police Service, the Forest Service, etc."

10.     It will be useful here to take note of certain provisions of the  Constitution and other enactments which have a bearing on the  controversy in hand and also some of the orders issued in this regard by  the Government of India and also by Government of Pondicherry.        Part VIII of the Constitution (Articles 239 to 241) deals with the Union  territories.  Article 239 and Article 239A  which was inserted by the  Constitution (Fourteenth Amendment) Act, 1962  read as under :

239. Administration of Union territories.  (1)  Save as  otherwise provided by Parliament by law, every Union  territory shall be 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.  

(2)     Notwithstanding anything contained in Part  VI, the President may appoint the Governor of a State as  the administrator of an adjoining Union territory, and  where a Governor is so appointed, he shall exercise his  functions as such administrator independently of his  Council of Ministers.  

239A.  Creation of local Legislatures or Council of  Ministers or both for certain Union territories.  (1)  Parliament may by law create for the Union territory of  Pondicherry -

(a)     a body, whether elected or partly nominated  and partly elected, to function as a Legislature for the  Union territory, or      

       (b)     a Council of Ministers,

or both with such Constitution, powers and functions, in  each case, as may be specified in the law.  

(2)     Any such law as is referred to in clause (1)  shall not be deemed to be an amendment of this  Constitution for the purposes of article 368  notwithstanding that it contains any provision which  amends or has the effect of amending this Constitution."         

11.     Article 239B confers power upon the administrator of U.T. of  Pondicherry to promulgate Ordinances during recess of Legislature in  certain circumstances.  But in view of the first proviso appended to  clause (1) of Article 239B, no such Ordinance shall be promulgated by  the administrator except after obtaining instructions from the President in  that behalf.  Article 240 confers power on the President to make  regulations for certain Union territories, including Pondicherry, subject to  satisfaction of certain conditions laid down in the two provisos appended  to clause (1)  of this Article.  Clause (2) of Article 240 lays down that any

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regulation so made by the President may repeal or amend any Act made  by Parliament or any other law which is for the time being applicable to  the Union territory and when promulgated by the President, shall  have  the same force and effect as an Act of Parliament which applies to that  territory.  Articles 239 and 240 of the Constitution clearly show that U.T.  of Pondicherry is administered by the President through an administrator  (Lt. Governor) appointed by him and when the Legislature thereof is  dissolved or is not functioning, the President is empowered to make  regulations for peace, progress and governance of the said Union  territory.  The power to make regulations by the President is fairly large  as he can repeal or amend any Act made by Parliament or any other law  which is applicable to the said territory and shall have the same force and  effect as an Act of Parliament.

12.     Certain other provisions of the Constitution also deserve to be  noticed here. Under clause (1) of Article 230, Parliament may by law  extend or exclude the jurisdiction of a High Court from any Union  territory.  Clause (2)(b) of the said Article provides that where the High  Court of a State exercises jurisdiction in relation to a Union territory, the  reference in Article 227 to the Governor shall, in relation to any rules,  forms or tables for subordinate courts in that territory, be construed as a  reference to the President.  Similar provision is contained in Article  231(2)(b). These provisions again show that the position of a Union  territory is different from that of a State and the head of administration of  a Union territory is the President of India.

13.     Some other statutory provisions which have a bearing on the  controversy are being reproduced below:

Section 3(8) of the General Clauses Act, 1897:                           (8)     "Central Government" shall - (a)     \005.   \005.   \005.   \005.   \005..   (b)     in relation to anything done or to be done  after the commencement of the Constitution,  mean the President; and shall include,

       (i)     \005    \005    \005                 (ii)    \005    \005    \005 (iii)   In relation to the administration of a  Union territory, the Administrator  thereof acting within the scope of the  authority given to him under Article  239 of the Constitution.

Section 3 of the Pondicherry (Administration) Act, 1962 :

3.  Officers and functionaries in relation to  Pondicherry.  Without prejudice to the powers of  the Central Government to appoint from time to  time such officers and authorities as may be  necessary for the administration of Pondicherry, all  courts, tribunals, authorities and officers, whether  in India or in the former French Establishments,  who immediately before the appointed day, were  exercising lawful function in connection with the  administration of those Establishments or any part  thereof, including the Council of Government and  Representatives Assembly, shall, unless otherwise  directed at any time by the Central Government or  the Administrator in relation to any such court,  tribunal, authority or officer, or until other  provision is made by law, continue to exercise in  connection with the administration of Pondicherry  their respective duties and functions in the same

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manner and to the same extent as before the  appointed day with such altered designation, if  any, as that Government may determine.   

Section 50 of the Government of Union Territories  Act, 1963 :          50. Relation of Administrator and his Ministers  to President.  -  Notwithstanding anything in this  Act, the Administrator and his Council of  Ministers shall be under the general control of, and  comply with such particular directions, if any, as  may from time to time be given by, the President."       

14.     The effect of these provisions is also that the Administrator (Lt.  Governor of Pondicherry) and his Council of Ministers act under the  general control of and are under an obligation to comply with any  particular direction issued by the President.  Further, the administrator  (Lt. Governor of Pondicherry) while acting under the scope of the  authority given to him under Article 239 of the Constitution would be the  Central Government.

15.     The Central Government has issued several orders and circulars  extending  the benefit to SC candidates of other States in the matter of  employment in the U.T. of Pondicherry which need to be noticed.  A   D.O letter was sent by the Joint Secretary, Government of India, Ministry  of Home Affairs, to the Lt. Governor of Pondicherry on 4.2.1974 and the  same is being reproduced below :   

" So far as reservations for SCs/STs candidates in  posts/services under the Central Govt. are  concerned, the concession is admissible to all SCs  and STs which have been recognized as such under  the orders issued from time to time irrespective of  the State/Union Territory in relation to which  particular castes or tribes have been recognized as  SCs/Tribes.  Thus for a reserved vacancy in a  Central Govt. office located in a State, any SC  candidate throughout the country would be  eligible.  Since Pondicherry is a Union Territory  all orders regarding reservations for scheduled  castes/tribes issued by the Dept. of Personnel in  respect of posts/services under the Central Govt.  are applicable to posts/services under the  Pondicherry Admn. Also as such a SC/Tribe  candidate from outside Pondicherry should also be  eligible for a vacancy reserved for SCs/STs in the  Union Territory Admn".  

After receipt of the aforesaid letter from Government of India, the  General Administration Department of the Government of Pondicherry  issued a Government Order dated 16.2.1974 which reads as under:  

" In view of the clarifications of the Govt. of India  all Secretariat Departments, Heads of  Departments/Offices are informed that SCs/Tribes  candidates from outside the Union Territory of  Pondicherry should also be considered for  appointment to posts reserved for SCs/Tribes in  this Admn.  These instructions should be followed  strictly".

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       The Government of Pondicherry also issued a circular on 6.1.1993  issuing clarifications regarding two points and the second one was  regarding the Government Order dated 16.2.1974 (reproduced above).   Paras 2 & 3 of this circular read as under: "2.  The reference second cited is again brought to  notice for information and guidance.  It has been  stated therein that for a reserved vacancy in a  Central government Office located in a State any  Scheduled Caste candidate throughout the country  would be eligible.  It has therefore been clarified  that since Pondicherry is a Union Territory, all  orders regarding reservation for Scheduled  Caste/Scheduled Tribe issued by the Department  of Personnel in respect of posts/services under the  Central Government are applicable to  posts/services under the Pondicherry  Administration also.  Hence, as such, a Scheduled  Caste/Scheduled Tribe candidate from outside  Pondicherry would also be eligible for a vacancy  reserved for Scheduled Caste/Scheduled Tribe in  the Union Territory Administration.

3.   However, in the case of other benefits like  scholarships, admission to educational institutions  etc., the benefits should be confined to the  Scheduled Caste of this Union Territory."         

It appears that Government of Pondicherry sought some  clarifications from the Central Government regarding admissibility of  reservation benefit to migrant SC/ST candidates vide their letter dated  21.9.1995.  This was replied to by the Ministry of Welfare, Government  of India vide their letter dated 6.10.1995 and the relevant part thereof is  reproduced below: "I am directed to refer to your letter No.  A.27265/12/23/CS(EC)/95 dated 21.9.1995 on the  above subject and to say that according to para 9 of  MHA (Now DoPT) OM No. 42/21/49-NGS dt.  23.1.1952, the Central Government instructions  apply mutatis mutandis to all Part C States (now  UTs) as well. Such UTs have therefore to follow  all Central Government instructions.

    In view of the above position explained above,  Pondicherry being UT, services under the  Administration will be open to all the SC/ST  irrespective of their State of origin.  Further in  regard to posts filled on all-India basis through  UPSC or SSC on open competition basis, SC/ST  candidates irrespective of their state of origin can  apply.  In regard to the posts filled through SSC,  Madras all the SC/ST candidates from the southern  region will be eligible to apply.

The Government of Pondicherry circulated the aforesaid letter of  Government of India to Secretaries of all Departments and Heads of  Departments/Offices vide its G.O. Ms. No. 9 dated 20.10.1995.   

16.     These documents show that Government of Pondicherry  has  throughout been proceeding on the basis that being a Union territory, all  orders regarding reservation for SC/ST in respect of posts/services under  the Central Government are applicable to posts/services under the  Pondicherry administration as well.   Since all SC/ST candidates which  have been recognized as such under the orders issued by the President

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from time to time irrespective of the State/Union territory, in relation to  which particular castes or tribes have been recognized 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 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.

17.     We do not find anything inherently wrong or any infraction of any  constitutional provision in such a policy.  The principle enunciated in  Marri Chandra Shekhar Rao (supra) cannot have application here as U.T.  of Pondicherry is not a State.  As shown above, a Union territory is  administered by the President through an administrator appointed by him.   In the context of Article 246, Union territories are excluded from the  ambit of expression "State" occurring therein.  This was clearly  explained by a Constitution Bench in T.M. Kanniyan vs. Income Tax  Officer 1968 (2) SCR 103 (AIR 1968 SC 367).  In New Delhi Municipal  Council vs. State of Punjab 1997 (7) SCC 339 the majority has approved  the ratio of T.M. Kanniyan and has held that the Union territories are not  States for the purpose of Part XI of the Constitution (para 145).  The  Tribunal has, therefore, clearly erred in applying the ratio of Marri  Chandra Shekhar Rao in setting aside the selection and appointment of  migrant SC candidates.  

18.     The contesting respondents (applicants before the Tribunal, who  challenged the selection) can derive no benefit from the decision in Marri  Chandra Shekhar Rao (supra).  In this case the writ petitioner Marri  Chandra was born in Gouda community in the State of Andhra Pradesh,  which is recognized as a Scheduled Tribe in the Presidential Order issued  for the said State.   For getting admission in a medical college in the State  of Maharashtra, he claimed benefit of reservation being an ST.   Gouda  community was not recognized as Scheduled Tribe in the Presidential   Order issued for the State of Maharashtra and on this ground he was  denied the benefit of reservation.   He then filed the writ petition claiming  that he is entitled for benefit of reservation being a member of ST.   It  was in these circumstances that it was held that his community having  not been included as an ST in the Presidential Order issued for the State  of Maharashtra, he had no legal right to claim benefit of reservation in  the State of Maharashtra.   The U.T. of Pondicherry having consistently  followed the policy of the Central Government where all scheduled caste  candidates were given benefit of reservation, the selection made  following the said policy could not be held to be suffering from any legal  infirmity on the principle laid down in Marri Chandra Shekhar Rao  (supra).

19.     Much emphasis has been laid by learned counsel for contesting  respondents upon the expression "in relation to that State or Union  territory, as the case may be" occurring in clause (1) of Article 341 of the  Constitution, and it has been  urged that only such of the castes as are  mentioned in the schedule appended to the Constitution (Pondicherry)  Scheduled Castes Order 1964 issued by the President can be deemed to  be Scheduled Castes in relation to the U.T. of Pondicherry and none else  and, consequently, migrant SC candidates would not be eligible at all.

20.     Part XVI of the Constitution deals with special provisions relating  to certain classes and contains Articles 330 to 341.  Articles 330 and 332  make provision for reservation of seats in the House of People and  Legislative Assemblies of the States respectively, for Scheduled Castes  and Scheduled Tribes.  Similar provisions have been made for Anglo- Indian community in Articles 331 and 333.  Article 338 provides that  there will be a Commission for the Scheduled Castes to be known as  National Commission for the Scheduled Castes and it also provides for

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its composition, powers and duties.  Clause (2) of Article 330 provides  that the number of seats reserved in the States or Union territories  for  Scheduled Castes or Scheduled Tribes shall bear, as nearly as may be, the  same proportion to the number of seats allotted to that State or Union  territory in the House of the People as the population of the Scheduled  Castes in the State or Union territory or of the Scheduled Tribes in the  State or Union territory, as the case may be, in respect of which seats are  so reserved, bears to the total population of the State or Union territory.    Similar provision for reservation of seats in favour of SC/ST in the  Legislative Assembly of any State is contained in clause (3) of Article  332 of the Constitution.  Therefore, in order to ascertain the number of  seats which have to be reserved for Scheduled Castes or Scheduled  Tribes in the House of the People or in the Legislative Assembly, it is  absolutely essential to ascertain precisely the population of the Scheduled  Castes or Scheduled Tribes in the State or Union territory.  A fortiori, for  the purpose of identification, it becomes equally important to know who  would be deemed to be Scheduled Caste in relation to that State or Union  territory.  This exercise has to be done strictly in accordance with the  Presidential Order and a migrant Scheduled Caste of another State cannot  be taken into consideration otherwise it may affect the number of seats  which have to be reserved in the House of People or Legislative  Assembly.  Though, a migrant SC/ST person of another State may not be  deemed to be so within the meaning of Art. 341 and 342 after migration  to another State but it does not mean that he ceases to be an SC/ST  altogether and becomes a member of forward caste.

21.     Clauses (1) and (2) of Article 16 guarantee equality of opportunity  to all citizens in the matter of appointment to any office or of any other  employment under the State.  Clauses (3) to (5), however, lay down  several exceptions 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 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 controlled by a Presidential Order  issued under Article 341(1) or Article 342(1) of the Constitution in the  sense 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 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 the benefit of reservation is extended only to such Scheduled  Castes or Scheduled Tribes which are 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 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 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 provision  of law.

22.     For the reasons discussed above, we are of the opinion that there  has been no violation of any constitutional or any other legal provision in  making selection and appointment of migrant Scheduled Caste candidates  against the quota reserved for Scheduled Castes on the post of Selection  Grade Teachers.   The view to the contrary taken by the Tribunal cannot,

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therefore, be sustained and has to be set aside.

23.     The appeals are accordingly allowed and the judgment and order  dated 5.11.1996 of the Central Administrative Tribunal (Madras Bench)  is set aside.