Union of India (UOI) vs P. Jeya

Elipe Dharmarao, J.—The respondent herein has filed the writ petition No. 30841 of 2002, challenging the Memorandum No.

9565/C2/Rev/2000, dated 10.11.2000 issued by the first appellant herein and consequently to direct the second respondent herein to issue

community certificate to her son P. Sivakumar. Since the said writ petition was allowed by a learned single Judge of this Court, the Administration

of the Pondicherry Government is before us by way of this writ appeal.

The case of the writ petitioner is that she belong to Adi Dravida community, having born on 14.12.1960 at Nedungadusalaipet, Pondicherry and

her parents also hail from the Union Territory of Pondicherry; that she got married to her husband Mr. Paneerselvam, who also belongs to the

same Adi Dravida community, who is a migrant to Pondicherry. The writ petitioner further submitted that her husband is employed in Government

Service for more than 20 years and she gave birth to a male child P. Sivakumar on 2.6.1985 at Nedungadu and they are residing in Pondicherry;

that she applied to the Tahsildar, Pondicherry/the 2nd appellant herein for issuance of community certificate to her son and same was not

processed by the second appellant, in view of the memorandum dated 10.11.2000 issued by the first appellant, wherein it has been stated that the

community certificates should be issued based only on the residential status of the applicant''s father on the crucial date that is 5.3.1964 and not on

the residential status of the mother. Aggrieved by the same, she has filed the writ petition No. 30841 of 2002. This plea of the writ petitioner was

stiffly opposed by the Administration of the Pondicherry on the ground that ''parents'' mean both father and mother and not either father or mother

and hence only such persons whose mother and father were residing in Pondicherry prior to crucial date of the notification issued under Article 341

of the Constitution are eligible to get Scheduled Caste origin certificate and if it is not so, then, the residential status of the father alone will have to

be taken into consideration and there is no gender discrimination in the said process. On such averments, the Pondicherry Administration has

sought to dismiss the writ petition.

The learned single Judge of this Court, having heard both the parties, has allowed the claim of the writ petition, resulting in the Pondicherry

Administration coming forward to file this writ appeal.

Now, the point that arises for consideration is ''whether the Pondicherry Administration is justified in issuing the impugned notification, mandating

that the caste certificate should be issued based only on the residential status of the father''.

The Constitution of India, under Article 341, has mandated that there shall be proclamation in respect of obtaining various sects constituting

Scheduled Caste in the State or Union Territory by President of India. Accordingly, President of India, promulgated The Constitution

(Pondicherry) Scheduled Caste Order, 1964 which was notified in GSR 419 dated 5.3.1964 of Government of India, Ministry of Law (Legislative

Department) and published in Extraordinary Gazette No. 11, dated 26.3.1964 by General Administration Department, Government of Pondichery

A short background regarding the evolution of law on the point of origin and migrant persons and issuance of community certificates to SC/ST

candidates in respect of the Union Territory of Pondicherry is narrated hereunder.

In Marri Chandra Shekhar Rao Vs. Dean, Seth G.S. Medical College and Others, , a Constitutional Bench of the Honourable Apex Court, has

held that ''a person who is recognised as a member of ST/SC in his original State, will be entitled to all the benefits under the Constitution in that

State alone and not in all parts of the country wherever he migrates.''

In Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the Action Committee on Issue of Caste

Certificate to scheduled Castes and Scheduled Tribes in the State of Maharashtra and Another Vs. Union of India (UOI) and Another, , the

Constitutional Bench of the Honourable Apex Court has held that ''a person belonging to SC/ST in relation to his original State, of which he is

permanent or ordinary resident, cannot be deemed to be so in relation to any other State on his migration to that State for the purpose of

employment, education etc.''

In S. Nagarajan v. The District Collector, Salem and Ors. 1997 (1) SLJ 236 S.C., the Honourable Apex Court has held that ''by interpolation

of the documents, none can get a particular social status unless it is recognised as per the Presidential Notification/Order under Articles 341 or 342

of the Constitution.''

In State of Maharashtra v. Milind and Ors. AIR 2001 SC 393, the Honourable Apex Court has held that ''a caste is a Scheduled Caste or a

tribe is a Scheduled Tribe only if they are included in the President''s Orders issued under Articles 341 and 342.''

Further, a Three Judge Bench of the Honourable Apex Court in S. Pushpa and Others Vs. Sivachanmugavelu and Others, . Services Law

Judgments 258 : (2005) 3 SCC 1, referring Marri Chandra Shekhar Rao''s case and Action Committee case (cited supra) and while considering

the question as to ''whether selection and appointment made of migrant Scheduled Caste candidates of other States against quota reserved for

Scheduled Caste candidates on the post of Selection Grade teaches in the Union Territory of Pondicherry was legal and valid'', has held as follows:

...the 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 recognised 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 recognised 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 UT of Pondicherry would also be eligible for posts reserved for SC/ST candidates in the 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 the Pondicherry Administration.

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 cannot have application here as UT 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 the

expression ''State'' occurring therein. This was clearly explained by a Constitution Bench in T.M. Kanniyan Vs. Income Tax Officer, Pondicherry

and Another, . In New Delhi Municipal Committee Vs. State of Punjab, etc. etc., 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.

...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 the People

or Legislative Assembly. Though, a migrant SC/ST person of another State may not be deemed to be so within the meaning of Articles 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 a forward caste.

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 recognised 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 recognised 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(4) 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 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.

By virtue of the above judgment of the Honourable Apex Court, delivered subsequent to the order of the learned single Judge of this Court,

which is impugned in this writ appeal, the legal question regarding the status of the migrant SC/ST persons and that of the origin SC/ST persons

has very well been settled holding that though, a migrant SC/ST person of another State may not be deemed to be so within the meaning of

Articles 342(1) 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

a forward caste. Therefore, from the above judgments delivered by the Honourable Apex Court it is clear that to avail the benefit of reservation in

Union Territory of Pondicherry, a migrant is also eligible and entitled to, provided, he satisfies the condition that the caste of the migrant, which has

been recognised as either SC or ST community in his own State or Union Territory should also be recognised as either SC or ST community in

Pondicherry.

Keeping the above legal principle in mind, if we assess the case on hand, there is no dispute regarding the fact that the mother of the applicant

was born and brought up at Pondicherry and is a ''origin'' Scheduled Caste. She married a migrant person, also belonging to the same community.

Therefore, even on the part of the Government of Pondicherry, there is no dispute regarding the fact that the community of the parents of the

applicant is one and the same and it is recognised as a Schedule Caste in Pondicherry also. Therefore, except for the reason that the father of the

applicant is a migrant, on no other ground the claim of the applicant has been rejected by the appellants/Pondicherry Administration. In these

circumstances, we have to see as to whether such a stand taken on the part of the appellants/Pondicherry Administration is legally sustainable or

not.

The Government of Pondicherry has issued G.O.Ms.No.28, Revenue Department, dated 2.2.1977, issuing consolidated orders regarding

issuance of Scheduled Caste and Scheduled Tribe certificates. Thereafter, by the proceedings in No. 6175/C2/Rev/95, dated 3.8.1995, certain

instructions were issued regarding the issue of scheduled caste/scheduled tribe certificates by the authorities.

In Ground No. 7 of the writ appeal grounds and also during the course of arguments, it has been vehemently argued on the part of the

appellants that the method of determining the origin status was specified to be residence of both the parents and not either of the parents on the

crucial date of Presidential Proclamation namely 5.3.1964 and in the absence of any such proof being available, the residence of father on such

crucial date alone was to be taken into consideration for deciding entitlement to the issue of certificate as to the applicant being the member of

origin Scheduled Caste.

This argument advanced on the part of the appellants is totally incorrect, in the light of Memorandum No. 6175/C2/Rev/95, dated 3.8.1995

issued by the Joint Secretary (Revenue) of the Government of Pondicherry wherein it has been stated as follows:

Subsequent to the landmark judgment of the Supreme Court as to deciding the social status of Scheduled Caste/Scheduled Tribe persons of origin

and migrated, many representations have been received from different forum strongly criticising the present pattern of issue of certificates to

Scheduled Caste/Scheduled Tribe persons in the Union Territory of Pondicherry. Hence it is advised that discreet enquiry may be conducted in

identifying the Scheduled Caste origin and migrated and certificates may be issued accordingly.

While deciding the above it may also be verified whether

a) the applicant belongs to the community claimed;

b) the parents of the applicant belongs to the community claimed;

c) the applicant and the either of the applicants parents are residing in Pondicherry since birth;

d) the applicants community is included in the Presidential Order specifying the Scheduled Caste in relation to Pondicherry.

(emphasis supplied)

In this, the Pondicherry Administration has clearly emphasised that while deciding the social status of Scheduled Caste/Scheduled Tribe

persons of origin and migrated, it must be verified that the applicant and ''either of the applicant''s parents are residing in Pondicherry since birth''.

In the case on hand, the strong assertion of the writ petitioner that she is an origin Scheduled Caste person, married to a migrant Scheduled Caste

person and they are living in Pondicherry where they begot the applicant has not been denied by the Administration. Therefore, it follows that the

writ petitioner has satisfied the condition (c) prescribed above, regarding which much has been argued on the part of the appellants/Pondicherry

Administration. In view of the above factual truth, the contention raised contra by the Pondicherry Administration cannot be appreciated.

The other contention raised on the part of the appellants/Pondicherry Administration is that the Presidential Order specified that the reservation

has to be provided only to the ''residents'' and not to migrants. In support of such arguments, they have produced the copy of the Presidential

Order. From the materials placed on record, we are able to assess that since the Presidential Order emphasized the term ''resident'' and there was

no clarification on the issue, further leading to many confusions, it seems, the Pondicherry Administration, in its wisdom, has issued the above

referred proceeding in No. 6175/C2/Rev/95, dated 3.8.1995, which clarified the entire situation stating that the siblings would be entitled to the

community certificate if ''either of the applicant''s parents'' are the origin Scheduled Caste people. It has been contended on the part of the writ

petitioner that this proceeding was upheld by the Honourable Supreme Court since it carried the spirit of Articles 14 and 15 of the Constitution of

India.

When things stood thus, by the impugned proceeding, the Pondicherry Administration has issued further clarification to the G.O.Ms. No. 28,

dated 2.2.1977 stating that ''the origin/migrant status of applicants for Scheduled Caste certificates should be decided based on only the residential

status of applicants ""father"" on the crucial date i.e. 5.3.1964, and not on the residential status of the ""mother"".

By this impugned order, issued under the name of rendering clarification or instructions in the matter of issue of SC/ST certificates, an

indifferent classification has been made, stating that the father of the applicant must be an origin Scheduled Caste, which is not at all the intention of

the Presidential Order. Thus, the impugned order, in our considered view, has brought in an illegal classification, offending Articles 14 and 15 of

the Constitution of India besides running contrary to the spirit of the judgment of the Honourable Apex Court in S. Pushpa''s case (supra).

Any classification made by the Government must only be a reasonable classification to augment the real cause of justice and to uphold the

majesty of justice. But, in the case on hand, the impugned classification made by the Pondicherry Administration, introducing the condition that

father must be an origin, so as to facilitate his wards to get the SC/ST certificate, is undoubtedly amounts to gender discrimination, strictly

prohibited under Articles 15 and 16(4) of the Constitution of India.

In the case on hand, when there is no dispute regarding the fact that the parents of the applicant belong to Scheduled Caste community,

recognised by the Government of Puducherry and the communal status of the father of the applicant also does not change on his migration to

Puducherry, the denial of community certificate to the ward of the writ petitioner is illegal. The question posed by us to the learned Government

Pleader (Pondicherry) as to what community does such children will inherit if the Administration fail to accept and recognise their claim of inhering

the caste of the father, has not emanated any reply, much less a satisfactory one. As the father of the applicant is also a Scheduled Caste and has

not lost his such communal status in spite of his migration to Puducherry and as the impugned order has brought in an illegal discrimination,

offending Articles 14 and 15 of the Constitution, the same has to be declared as unconstitutional.

It would have been a different case, if the communities of the parents of the applicant are different, since by now it is a settled law that the

siblings of an inter-caste marriage will inherit the community of the father, ours being a patriarchy society. It is also not the case of the

appellants/Pondicherry Administration that the community of the father of the applicant is not recognised as Scheduled Caste in the Pondicherry, so

as to say that he being a migrant from a State wherein his community has been recognised as a Scheduled Caste, cannot claim the same benefit in

the state of Pondicherry, since the said community has not been recognised as a Scheduled Caste community in Pondicherry. But, in the case on

hand, as has already been held supra, there is no dispute regarding the fact that both the parents of the applicant belong to the same community,

which has been recognised as the Scheduled Caste in the Pondicherry. While, to erase the doubts in the matter of issuing the SC/ST certificates

pursuant to the Presidential Order, a clarification has been issued by the Pondicherry Administration in their proceedings No. 6175/C2/Rev/95,

dated 3.8.1995, requiring the authorities to satisfy that the applicant and either of the applicant''s parents are residing in Pondicherry since birth,

thus bringing in a reasonable classification, the same has been nullified and watered down by the impugned order, by introducing the clause that the

residential status of the applicant''s father alone must be taken into consideration. When a discrimination is sought to be made on the purported

ground of classification, such classification must be founded on a rational criteria. But, in the case on hand, instead of carrying on the spirit of

oneness and towards the goal of reaching a society with no discrimination of whatsoever and achieving the gender equality, an illegal classification,

amounting to gender discrimination, strictly prohibited under Articles 14 and 15 of the Constitution of India, has been brought in by the

Pondicherry Administration, which has been properly set aside by the learned single Judge.

The learned single Judge has assessed the entire materials placed on record in their proper perspective and has arrived at an unerroneous

conclusion of allowing the writ petition, wherein we find no reason to cause our interference.

For all the above discussions, this Writ Appeal filed by the appellants/Pondicherry Administration is dismissed. No costs. The appellants are

directed to issue community certificate of the applicant within four weeks from today.