Coming straight to the nub of the matter, in a landmark judgment with far reaching consequences, the Constitution Bench of the Supreme Court in Bir Singh v Delhi Jal Board & Ors in Civil Appeal No. 1085 of 2013 decided on August 30, 2018 has held that Pan India Reservation Rule in force in National Capital Territory of Delhi is in accord with the constitutional scheme relating to services under the Union and the States/Union Territories. As regards States, the Bench observed that, "If in the opinion of a State it is necessary to extend the benefit of reservation to a class/category of Scheduled Castes/Scheduled Tribes beyond those specified in the Lists for that particular State, constitutional discipline would require the State to make its views in the matter prevail with the central authority so as to enable an appropriate parliamentary exercise to be made by an amendment of the Lists of Scheduled Castes/Scheduled Tribes for that particular State. Unilateral action by States on the touchstone of Article 16(4) of the Constitution could be a possible trigger point of constitutional anarchy and therefore must be held to be impermissible under the Constitution." Justice Ranjan Gogoi who headed the five-Judge Bench, authored the judgment for the majority (also comprising of Justice NV Ramana, Justice Mohan M Shantanagoudar and Justice S Abdul Nazeer).

In other words, the Bench by a majority held that the Scheduled Castes or Tribes can avail benefit of reservation in government jobs only in their home states and they cannot access quotas in other states where they might have migrated. It was also held by a five-Judge Bench that a person from the SC or ST category should not claim benefits in another state or Union Territory. Upholding the "son of the soil" principle, the Bench said if a person's status migrates with him it will amount to depriving the rights of SCs or STs of the host state. The court noted that a particular community is notified as SC or ST in relation to a state and that concept would become "nugatory" (of no value) if migrants from other states are in its ambit. It also held that the beneficiary lists cannot be changed by states and alterations of the presidential orders can only be done by Parliament. "Unhesitatingly, therefore, it can be said that a person belonging to a scheduled caste in one state cannot be deemed to be a scheduled caste person in relation to any other state to which he migrates for the purpose of employment or education" the court said. The Bench said the expression 'in relation to that state or Union Territory' and 'for the purpose of this Constitution' used in Articles 341 and 342 means benefits of reservation would be within the geographical territories of a state or UT in respect of which lists of SCs and STs have been notified by presidential orders, Justice Gogoi said inhis judgment.

It would be pertinent to mention here that the Bench said: "If the special privileges or the rights granted to scheduled castes or scheduled tribes in a particular state are to be made available in all states and if such benefits are to be carried from state 'A' to state 'B' on migration, the mandate of Article 341/342 would get compromised. Such a compromise must be avoided..." The Apex Court also held that the state could not tinker with list of SCs or STs by including other castes or tribes, saying this can be done only by Parliament and states doing so will lead to constitutional anarchy. In other words, the Apex Court made it clear that, "The upshot of the aforesaid discussion would lead us to the conclusion that the Presidential Orders issued under Article 341 in regard to scheduled castes and under Article 342 in regard to scheduled tribes cannot be varied or altered by any authority including the court. It is Parliament alone which has been vested with the power to so act, that too, by laws made. SCs and STs thus specified in relation to a state or a UT do not carry the same status in another state or UT. Any expansion or deletion of the list by any authority except Parliament would be against the constitutional mandate."

Be it noted, only one Judge Justice R Banumathi, differed with the majority. However, Justice R Banumathi agreed with the majority that a person belonging to a Scheduled Caste in one State cannot be deemed to be a Scheduled Caste person in relation to any other State to which he migrates for the purpose of employment or education, disagreed with the exception given to National Capital Territory of Delhi. The four Judges were of the view that migrants be allowed benefit of reservation in Delhi subordinate services. Justice Banumathi said: "If the reservation to the SCs and STs are to be extended to all categories of SC/STs all over India or to migrants then there is every possibility of the SCs and STs of other developed states and UTs squandering reservations to SCs/STs who are disadvantaged in the respective states/UTs including UT of Delhi."

The Issue
Needless to say, in State of Uttaranchal v Sandeep Kumar Singh and others (2010) 12 SCC 794 (Civil Appeal No. 4494 of 2006), the following question arose for consideration of this Court:
"Whether a person belonging to a Scheduled Caste in relation to a particular State would be entitled or not, to the benefits or concessions allowed to Scheduled Caste candidate in the matter of employment, in any other State?"
Takes Note Of Constitution Bench Judgment in Marri Chandra Shekhar Rao
As it turned out, the Bench took note of two earlier Constitution Bench judgments in Marri Chandra Shekhar Rao vs Dean, Seth GS Medical College and others (1990) 3 SCC 130 and Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and another vs Union of India (1994) 5 SCC 244 that had held that a person belonging to a Scheduled Caste in one state cannot be deemed to be a Scheduled Caste person in relation to any other state to which he migrates for the purpose of employment or education.

Did Not Go Into Correctness Of View Expressed In S Pushpa
It cannot be lost on us that in S Pushpa and others vs Sivachanmugavelu and others (2005) 3 SCC 1 it was observed that the principle enunciated in Marri Chandra Shekhar Rao cannot have application here as UT of Pondicherry is not a state. It also held that UT of Pondicherry having adopted a policy of the Central Government whereunder all Scheduled Caste 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. The Constitution Bench, however, did not go into the correctness of the view expressed by the three-Judge Bench in S Pushpa.

Unilateral Action By States In Adopting Pan India Reservation Policy Could Trigger Anarchy
Simply put, the Bench eloquently and elegantly answered the reference as follows: "It is an unquestionable principle of interpretation that interrelated statutory as well as constitutional provisions have to be harmoniously construed and understood so as to avoid making any provision nugatory and redundant. If the list of Scheduled Castes/Scheduled Tribes in the Presidential Orders under Article 341/342 is subject to alteration only by laws made by Parliament, operation of the lists of Scheduled Castes and Scheduled Tribes beyond the classes or categories enumerated under the Presidential Order for a particular State/Union Territory by exercise of the enabling power vested by Article 16(4) would have the obvious effect of circumventing the specific constitutional provisions in Articles 341/342. In this regard, it must also be noted that the power under Article 16(4) is not only capable of being exercised by a legislative provision/enactment but also by an Executive Order issued 44 under Article 166 of the Constitution. It will, therefore, be in consonance with the constitutional scheme to understand the enabling provision under Article 16(4) to be available to provide reservation only to the classes or categories of Scheduled Castes/Scheduled Tribes enumerated in the Presidential orders for a particular State/Union Territory within the geographical area of that State and not beyond. If in the opinion of a State it is necessary to extend the benefit of reservation to a class/category of Scheduled Castes/Scheduled Tribes beyond those specified in the Lists for that particular State, constitutional discipline would require the State to make its views in the matter prevail with the central authority so as to enable an appropriate parliamentary exercise to be made by an amendment of the Lists of Scheduled Castes/Scheduled Tribes for that particular State. Unilateral action by States on the touchstone of Article 16(4) of the Constitution could be a possible trigger point of constitutional anarchy and therefore must be held to be impermissible under the Constitution."

Subordinate Services In 'Capital City' Are Clearly Central Civil Services
Interestingly enough, but as regards NCT of Delhi, the Bench of Apex Court observed that subordinate services in the National Capital Territory of Delhi are clearly Central Civil Services. Referring to Central Services Rules, the Bench observed: "In so far as the services in connection with the affairs of the Union is concerned (Central Services), wherever the establishment may be located i.e. in the National Capital Territory of Delhi or in a State or within the geographical areas of Union Territory, recruitment to all positions is on an All India basis and reservation provided for is again a pan-India reservation. This by itself, from one perspective, may appear to be in departure from the rule set out in Para XVI of the Constitution of India (Articles 341 and 342). However, the close look undertaken hereinbefore indicates such a position is fully in accord with the constitutional structure of a federal polity."

Going forward, the Bench further added that, "A combined reading of these provisions of the DASS Rules, 1967 and CCS Rules, 1965, therefore, more than adequately explains the nature of Subordinate Services in the NCT of Delhi. These clearly are General Central Services and perhaps, it is owing to this state of affairs that the Union of India in its affidavit has stated that, "Members of the Delhi Administrative Subordinate Service are the Feeder Cadre for Central Civil Services Group B (DANICS). It is for these reasons that the policy (of pan India eligibility) is consistently adopted"." The Bench also reproduced observations made in Dr Jagdish Saran and Others vs Union of India with regard to the special status that the capital city enjoys. In the said case, the Supreme Court had observed that Delhi is a 'miniaturised India'.

Justice Banumathi's Dissenting Opinion
Pan India Reservation Policy: "There can be no distinction between Union Territory of Delhi and other Union Territories/States", says Justice R Banumathi in her Dissent.
To be sure, Justice R Banumathi also noted that, "If the reservation to the Scheduled Castes and Scheduled Tribes are to be extended to all categories of Scheduled Castes and Scheduled Tribes all over India or to the migrants then there is every possibility of the Scheduled Castes and Scheduled Tribes of other developed States and Union Territories squandering reservations to the Scheduled Castes and Scheduled Tribes who are disadvantaged in the respective States/Union Territories including Union Territory of Delhi." Justice R Banumathi penned an elaborate order expressing her own reasons for differing with the conclusion of the Constitution Bench judgment authored by Justice Ranjan Gogoi that upheld Pan India Reservation Police in National Capital Territory of Delhi.

There can be no distinction between Union Territory of Delhi and other Union Territories
No wonder, Justice R Banumathi while dissenting with the majority view which carved an exception for National Capital, observed clearly and convincingly that extending PAN India reservation to the employment falling under the services of Union Territories including Union Territory of Delhi, will be against the Constitutional scheme. According to the Judge, the Constitution Bench decisions in Marrri Chandra Shekhar Rao and Action Committee are applicable with equal force to the Union Territories including Union Territory of Delhi. She minced no words in stating unambiguously that, "There cannot be any distinction between the States and the Union Territories. Likewise, there can be no distinction between Union Territory of Delhi and other Union Territories."

Services under Union Territories cannot be said to be Central Civil Services
As things stand, while elaborately referring to Service Rules, the Judge observed that, "Services under the Union Territories though they are Central Government services, they are services under the respective Union Territories and not under the direct control of Union of India/different Ministries. Procedure for recruitment to the various posts for the services of Union Territories are different as followed by respective Union Territories. The persons appointed for the services of Union Territories might be governed by CCS (CCA) Rules; but they are employees of respective Union Territories. The appointing authorities are the authorities under the administration of Union Territories and not under the Ministries of Union of India. Central Civil Services are the services directly under Union of India. Contrarily, various services under the Union Territories are the services under the respective Union Territories. Such services under Union Territories cannot be said to be Central Civil Services that is services under Union of India to extend the benefit of PAN India reservation for recruitment to the services under respective Union Territories including Union Territory of Delhi."

Observation in Pushpa judgment not correct
Truth be told, though the majority judgment is silent of correctness of three Judge Bench decision in Pushpa, Justice Banumathi observed that the said case is not a correct decision extending PAN India reservation for the reserved posts recruited by NCT of Delhi or any other Union Territories. She also said that, "When the Scheduled Castes or Scheduled Tribes are specified for each State in relation to one State or Union Territory, neither the State legislature, the administration of the Union Territories and nor the courts can include or exclude other Scheduled Castes or Scheduled Tribes so notified in the Presidential Order. Providing all India reservation to the services of Union Territories 159 including Union Territory of Delhi, would be against the mandate of Articles 341 and 342 and the Presidential Orders issued thereon. If that is permitted, it would amount to addition or alteration of the Presidential Order which is impermissible and violative of the Constitutional scheme."

It would defeat the very object of providing reservation to the disadvantaged Scheduled Castes and Scheduled Tribes in a particular State or Union Territory

More importantly, Justice Banumathi further added: "It is the responsibility of each State/Union Territory to provide for such reservation/affirmative action by positive discretion to bring backward classes/Scheduled Castes and Scheduled Tribes in the respective States/areas to provide socio-economic empowerment. If the reservation to the Scheduled Castes and Scheduled Tribes are to be extended to all categories of Scheduled Castes and Scheduled Tribes all over India or to the migrants then there is every possibility of the Scheduled Castes and Scheduled Tribes of other developed States and Union Territories squandering reservations to the Scheduled Castes and Scheduled Tribes who are disadvantaged in the respective States/Union Territories including Union Territory of Delhi. If this is permitted, it would defeat thee very object of providing reservation to the disadvantaged Scheduled Castes and Scheduled Tribes in a particular State or Union Territory. The enabling provision of Article 16(4) of the Constitution has to yield to the constitutional scheme of Article 341 and 342 of the Constitution." She too has a valid point!

All said and done, it is a landmark judgment in which Supreme Court has upheldPan India Reservation Rule in Delhi but also held that States can't unilaterally introduce it! It was clearly and categorically held that SC/ST status entitling a person to quotas in jobs and admissions in one state will not automatically continue in another when the person migrates, except when he goes to Delhi, as it is the national capital and a microcosm of India. Very rightly so!

Finally and most importantly, it was also held unequivocally that this would be detrimental to the interests of local communities and hence unconstitutional. The Bench was ruling here on several appeals and cross appeals. Also, the Bench refrained from addressing the issues in question as far as other Union Territories are concerned and confined their discussion and the consequential views only to the National Capital Territory of Delhi! Very rightly so! Who can deny it?

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh