S. RAVINDRA BHAT

1. The Constitution makers fervently hoped to usher a society committed to equality, where barriers of race, gender, domicile, descent and the unforgiving marginalization of a large section of the society as a result of the ills of the caste system and the practise of untouchability, would eventually be eliminated. The commitment has remained largely an unrealized promise. The strategy of the State to bridge the social gulf through affirmative action has thrown up constant challenges which Courts are called upon to resolve. This is one such challenge, where the Court has to grapple with the interpretation of Articles 341 and 342 read with Article 16, in the context of differing standards of what is the permissible reservation standard applicable on the one hand to residents of states who take up residence in one state, as opposed to residents of states who take up residence in Union territories. This judgment seeks to answer a reference made to the Full Bench, constituted for the purpose of deciding the appropriate course which this Court should adopt in regard to the interpretation of Articles 341 and 342 of the Constitution of India, in the light of conflicting decisions of the Supreme Court, and whether the field is covered by larger, Constitution Bench judgments of that Court.

2. The Court would discuss the facts of each case later, in the course of judgment, after considering the legal position, and seek to apply the principles deducible. At this stage, it would be necessary to state that the precise question involved is whether castes or tribes which do not find mention in the relevant Scheduled Castes or Scheduled Tribes orders issued by the President or the Amendment Acts (by Parliament) in relation to the Union Territory of Delhi, but are so described in relation to other states or Union Territories or such castes who are separately notified as scheduled castes in relation to other states, can claim the benefit of reservation for the purpose of employment in the service of the Union Territory of Delhi, or for the purpose of admission to its educational institutions. The reference arose in the context of the previous decision of a two judge Bench of this Court, in Delhi and State Subordinate Selection Board v Mukesh Kumar (decided on 25th July, 2011, in WP 610/2011). It was held there that:

“10. From the aforesaid pronouncement of law, it is vivid that Scheduled Castes or Scheduled Tribes in one State cannot get the benefit in another State. The parents of the respondents may belong to the castes of “Chamar”, “Jatva”, “Kali” and “Pasi” and those castes may have been notified in terms of Scheduled Caste Order or Scheduled Tribe Order issued in terms of Clause (1) of Article 341 or Article 342 of the Constitution of India in a particular State but the respondents who have obtained the certificates in Delhi on the basis of the certificates of their parents issued by other States and have migrated to Delhi, cannot avail the benefit. Thus, the view expressed by the tribunal that they belong to Scheduled Castes in the National Capital Territory of Delhi because of the said notification and, hence, what is only required is the authentication and verification of the same is not in consonance with the decisions of the Marri Chandra Shekhar Rao (supra), Action Committee (supra) and Subhash Chandra & Anr. (supra).”

3. During the hearing before the Division Bench (which initially heard the present cases), it was submitted that the above decision, as it was premised on the judgment in Subhash Chandra v. Delhi Subordinate Services Selection Board (2009) 15 SCC 458 is not a binding precedent, because a larger, three judge decision in S.Pushpa & Ors. v. Sivachanmugavelu & Ors. 2005 (3) SCC 1 (hereafter “Pushpa”) had held that unlike in the case of States, Union Territories are within the administrative control of the Union Government, in view of the express provisions of the Constitution. Consequently, any