Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 10829-10830 OF 2010
PUDUCHERRY S.C. PEOPLE WELFARE ...APPELLANT(S)
ASSOCIATION
VERSUS
CHIEF SECRETARY TO GOVT., ...RESPONDENT(S)
UNION TERRITORY OF PONDICHERRY
& ORS.
J U D G M E N T
R.M. LODHA, C.J.I.
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
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High Court challenging the two Government Orders
being G.O.Ms.No.11/2005/Wel(SCW II) [for short,
'G.O.M. 11/2005'] and G.O.Ms.No.12/2005/Wel(SCW II)
[for short, 'G.O.M. 12/2005'] both dated
05.08.2005. G.O.M. 11/2005 relates to reservation
benefits in promotion and employment to Group C &
D posts and the other G.O.M. 12/2005 relates to
reservation benefits in professional courses.
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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
21.07.2008.
3. The present Civil Appeals, by special leave,
arise from the above common judgment.
4. Both Government Orders take note of the
Constitution (Pondicherry) Scheduled Castes Order,
1964 and also the judgment of this Court in S.
1
Pushpa and others Vs. Sivachanmugavelu and others
and then provide for extension of reservation only
to the Scheduled Castes origins of the Union
Territory.
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5. Para 5 of G.O.M. 11/2005 reads as follows :-
“Having examined the demand made by various
Welfare Associations and Scheduled Castes
(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
11.02.2005, 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
1 (2005) 3 SCC 1
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with the Constitution (Scheduled Castes) Order
(Second Amendment) Act, 2002 (Central Act 61 of
2002).”
6. Similarly, para 5 of G.O.M. 12/2005 reads as
follows :-
“Having examined the demand made by various
Welfare Associations and Scheduled Castes
(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
11.02.2005, 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).”
7. Leave was granted in these matters on
13.12.2010 and it was ordered that these matters
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be tagged with Civil Appeal No. 4494 of 2006.
8. It so happened that subsequently by order
dated October 7, 2010, Civil Appeal No. 4494 of
2
2006 , came to be referred to a 3-Judge Bench as
the 2-Judge Bench, inter alia , observed that in
Subhash Chandra Vs. Delhi Subordinate Service
3
Selection Board , the 2-Judge Bench could not have
2 (2010) 12 SCC 794, State of Uttaranchal Vs. Sandeep Kumar Singh and
Others
3
(2009) 15 SCC 458
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1
held that the decision rendered in S. Puspha case
is obiter and not binding.
2
9. Civil Appeal No. 4494 of 2006 has been
dismissed by us yesterday (August 6, 2014) without
answering the reference as it was not necessary in
view of paragraph 4 of the impugned judgment
therein.
10. In the present case also, it is not necessary
to answer the question raised in the reference
2
only in Civil Appeal No. 4494 of 2006 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.
JUDGMENT
11. 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.
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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”
12. It will be seen from para 2 of the above
Presidential Order that the castes, races or
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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.
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13. The Government Orders, however, have confined
reservation benefits to Scheduled Castes 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”.
14. 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.”
JUDGMENT
15. 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
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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, the 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 the
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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.
16. Thus, we find that the impugned Government
Orders - G.O.M. 11/2005 and G.O.M. 12/2005 -
not being in conformity and consonance with the
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Presidential Order, 1964 cannot be sustained in
law and have to be set aside. We order
accordingly.
17. Civil Appeals are allowed as above with no
order as to costs.
............................CJI.
(R.M. LODHA)
..............................J.
(MADAN B. LOKUR)
NEW DELHI; ...............................J.
AUGUST 7, 2014 (KURIAN JOSEPH)
JUDGMENT
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