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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO & THE HONOURABLE MR. JUSTICE S. TAMILVANAN
Dr. E. Sayed Ali
Versus
Union of India, rep. by the Chief Secretary & Others
Writ Petition No.25785 of 2005
Decided On : 24-10-2008
(B)Constitution of India-Art.15, 16, 342-Reservation-Scheduled Tribe-Population-When a particular community is not present in a particular State, reservation cannot be given to that community in that State.
As could be seen from the counter affidavit filed by the third respondent and adopted by the first respondent, there is no ST population in the Union Territory of Pondicherry. It is also not in dispute that there is no Presidential Notification under Article 342 of the Constitution of India regarding ST candidates. Therefore, the question of any reservation for ST candidates in the Union Territory of Pondicherry does not at all arise. Para 14
(C)Constitution of India-Art.15, 16, 342-Reservation-Scheduled Tribe-Union territory-Notification-Population-In the absence of Presidential notification regarding ST candidates under Art.342 of the Constitution for any State, reservation cannot be given to such community in that State- Grant of reservation to any particular community in any State in the absence of such community in that State would be a fraud on the Constitution.
When, admittedly, in the Union Territory of Pondicherry, there is no population of ST and hence there is no Presidential Notification under Article 342 of the Constitution of India regarding ST candidates in the Union Territory of Pondicherry, there cannot be any reservation for ST candidates. When there is no population of ST and no Presidential Notification under Article 342 of the Constitution was issued, the question of making reservation and notifying the vacancies for ST in the Union Territory of Pondicherry is a farce and nothing but playing fraud on the Constitution, which cannot be appreciated. Since, admittedly, there is no population of ST in the Union Territory of Pondicherry, the authorities should not have reserved a post for ST category. Para 24
(D)Constitution of India-Art.15, 16, 342-Reservation-Revision-Census-Caste census-Government should conduct castewise census periodically in a time bound manner to ensure reservation to any community in proportion to their share in the population.
When it is the position that after 1931, there had never been any castewise enumeration or tabulation and when there cannot be any dispute that there is increase in the population of SC/ST/OBC manifold after 1931, the percentage of reservation fixed on the basis of population in the year 1931 has to be proportionately increased, by conducting castewise census by the Government. In the interest of the weaker sections of the society, we direct the Census Department of the Government of India to take all such measures towards conducting the castewise census in the country at the earliest and in a time bound manner, so as to achieve the goal of social justice in its true sense, which is the need of the hour.
Para 30
Elipe Dharma Rao, J.
The petitioner was a native of Lakshwadeep and belong to the Scheduled Tribe community. He applied for Veterinary Assistant Surgeon post in Pondicherry and according to him, his selection was against the ST vacancy through UPSC on All India basis in the year 1990. The next avenue for promotion is to the post of Joint Director. According to the petitioner, he was eligible for next promotion as Joint Director in any roster since 2. 1996 and when vacancies arose to the post of Joint Director, as per 40 point roster, there was a point for ST category and he had represented to the first respondent to consider his case against that point, but the same was denied. In O.A.No.364 of 1999, dated 14. 2001, the Tribunal had repelled the contention that migrant SC/ST cannot be granted promotion to the post of Joint Director and despite passage of more than 14 years of service, the petitioner continue to remain in the same cadre, having not promoted even once. The next promotional post of Joint Director was created in the year 1993 by enmass upgradation of the post of Deputy Director and there are 11 sanctioned posts in the said cadre and if reservation rule was applicable, point No.7 and 14 of the Communal Roster should have been filled by SC/ST candidates respectively.
2. The further case of the petitioner is that though he was eligible and there were vacancies, during the DPCs conducted on 22. 1999, 12. 2000 and on 12. 2001, his claim was not considered and by the fourth DPC held on 18. 2002, the names of four officials including that of Dr.P.Padmanabhan/the fourth respondent herein were recommended. Admittedly, the fourth respondent belongs to SC community and by converting the post available for ST community, he was promoted. Hence, the petitioner has challenged the said promotion of the fourth respondent before the Tribunal.
3. The Tribunal, having observed that the promotion of the fourth respondent as Joint Director is illegal, arbitrary and unjust has quashed the same. It has also been observed that the petitioner being a migrated ST has no legal right to be treated as ST in the Union Territory of Pondicherry and as such he is not entitled to the benefit of reservation in the Union Territory of Pondicherry. Aggrieved, this writ petition is filed by the petitioner.
4. The learned counsel for the fourth respondent would justify the finding of the Tribunal, insofar as it rejecting the claim of the petitioner on the ground that he being a migrant ST, is not entitled for reservation in the Union Territory of Pondicherry. He has further contended that the reservation policy of the Central Government will not apply to the Union Territories and therefore, the reservation policy of the Central Government is not binding on the Union Territories. In support of his contentions, he has relied on the following judgments:
1. SATYA DEV BUSHAHRI vs. PADAM DEV AND OTHERS [1955 SCR 549],
2. MARRI CHANDRASHEKHAR RAO vs. DEAN, SETH G.S. MEDICAL COLLEGE AND OTHERS [(1990) 3 SCC 130],
3. ACTION COMMITTEE ON ISSUE OF CASTE CERTIFICATE TO SCHEDULED CASTES AND SCHEDULED TRIBES IN THE STATE OF MAHARASHTRA AND ANOTHER vs. UNION OF INDIA AND ANOTHER [(1994) 5 SCC 244],
4. S. NAGARAJAN vs. THE DISTRICT COLLECTOR, SALEM AND OTHERS [1997 (1) S.C. SERVICES LAW JUDGMENTS 236],
5. SUPERINTENDING ENGINEER, PUBLIC HEALTH, U.T. CHANDIGARH AND OTHERS vs. KULDEEP SINGH AND OTHERS [(1997) 9 SCC 199],
6. STATE OF MAHARASHTRA vs. MILIND AND OTHERS [AIR 2001 SC 393]
7. E.V. CHINNAIAH vs. STATE OF A.P. AND OTHERS [(2005) 1 SCC 394] and
8. SONIA vs. ORIENTAL INSURANCE CO.LTD. & OTHERS [2007 (5) SUPREME 796].
5. In the first judgment cited above viz. SATYA DEV BUSHAHRI vs. PADAM DEV AND OTHERS [1955 SCR 549], a Three Judge Bench of the Honourable Apex Court by its judgment dated 25. 1954, has held:
"... The President who is executive head of the Part C States is not functioning as the executive head of the Central Government, but as t
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