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TMI Blog2009 (8) TMI 1176X X X X Extracts X X X X X X X X Extracts X X X X ..... ution of India. If a caste or tribe is notified in terms of the Scheduled Caste Order or Scheduled Tribe Order, the same must be done in terms of clause (1) of Article 341 as also that of 342 of the Constitution of India, as the case may be. No deviation from the procedure laid down therein is permissible in law. If any amendment/alteration thereto is required to be made, recourse to the procedure laid down under clause (2) thereof must be resorted to. Reservations have been made in terms of the policy decision of the Central Government, namely, 7.5% for the members of scheduled tribes, 15% for the members of scheduled castes and 27% for the members of backward classes. If the members of the scheduled castes and scheduled tribes in other States are to be treated as backward classes for Delhi; intensive studies were required to be made in regard to the question whether they would come within the purview of the definition of backward classes so as to answer the description of socially and educationally backward . When reservation for scheduled castes or scheduled tribes had been earmarked, persons answering the description thereto only can be appointed. No recruitment is permissible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustify the reasonableness thereof. 6. Where a statute seeks to take away a person s life and liberty which is protected under Article 21 of the Constitution of India or otherwise infringes the core human right. 7. Where a statute is Expropriatory or Confiscatory in nature. 8. Where a statute prima facie seeks to interfere with sovereignty and integrity of India. However, by no means, the list is exhaustive or may be held to be applicable in all situations. As we have already stated, in the event the state issues any instruction through circular in the National Capital Territory of Delhi to this effect, the same will deserve strict scrutiny. After following the precedent with respect to strict scrutiny it is pertinent to explore some foundational principles in this regard. We think we should. The decisions referred to hereinbefore clearly suggest that we are bound by a Constitution Bench decision. We have referred to two Constitution Bench decisions, namely Marri Chandra Shekhar Rao [ 1990 (5) TMI 235 - SUPREME COURT] and E.V. Chinnaiah [ 2004 (11) TMI 522 - SUPREME COURT] . Marri Chandra Shekhar Rao had been followed by this Court in a large number of decisions including Three Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scheme. Article 341 of the Constitution empowers the President to specify the castes, races or tribes or part of or groups within castes, races or tribes with respect to any State or Union Territory for the purposes of the Constitution deemed to be Scheduled Castes in relation to that State or Union Territory as the case may be. Similar provision is contained in Article 342 of the Constitution of India with regard to the members of the Scheduled Tribes. Clause (2) of Article 341 which is relevant for our purpose reads as under : (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. 5. Private respondents and/or their parents are migrants to Delhi. In their native places, they were declared to be the members of the Scheduled Castes. 6. Indisputably, the Ministry of Home Affairs issued a circular on or about 2.5.1975, in terms whereof the manner in which the claim of a person as being belonging to Scheduled Caste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e caste but living in different State/Union Territories may not necessarily suffer from the such disabilities, it is possible that two persons belonging to the same caste but living in different State/Union Territories may not both be treated to belong Scheduled Caste/Tribes or vice versa. Thus the residence of a particular person a particular locality assumes a special significance. The residence has not been understood in the literal or ordinary sense of the word. On the other hand it connotes the permanent residence of a person on the date of the notification of the Presidential Order scheduling his caste/tribe in relation to that locality. Thus a person who is temporarily away from his permanent place of abode at the time of the notification of the Presidential Order applicable in his case say for example to earn a living or seek education etc. can also be regarded as Scheduled Caste or a Scheduled Tribe, as the case may be, with regard to his relation to his State U.T. but he cannot be treated as such in relation to the place of his temporary residence notwithstanding the fact that the name of his caste/tribe has been scheduled in respect of that area in any Presidential Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... keeping in view the nature of verification specified by reason of the aforementioned circulars, filed writ petition in the High Court of Delhi at New Delhi which was registered as Civil Writ Petition No.5061 of 2001 praying, inter alia, for the following reliefs : (i) certiorari quashing the entire action of the respondents in not considering the Scheduled Castes certificates of the petitioners (Annexure P3) collectively and stating them not to be valid certificates: (ii) mandamus directing the respondents to consider and appoint the petitioners to be posts of Assistant Teachers (Primary)-Hindi under reserved categories of Scheduled Castes as per petitioners Scheduled castes certificates (Annexure P3) Collectively. 11. The Government of National Capital Territory having been served with a notice in the said writ application filed a counter affidavit contending, inter alia, that the notification involved two sets of castes/categories certificate one in relation to the original inhabitants and the other relating to the migrants and stating : In other words candidates belonging to SC/ST/OBC Castes/communities whose state/UT of origin is other than the NCT of Delhi are not at all, eli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of reservation is sought by such of the petitioners who are born and brought up in Delhi but whose father or forefathers happened to migrate to Delhi over the last number of years. The writ petitioners before the High Court, however, strongly relied upon the decision of this Court in K. Balakrishnan v. K. Kamalam Ors. [(2004) 1 SCC 580] and S.Pushpa Ors. v. Sivachanmugavelu Ors. [(2005) 3 SCC 1]. Noticing the dictionary meaning of the words domicile and residents , as noticed by this Court in Union of India Ors. v. Dudh Nath Prasad [(2000) 2 SCC 20], the learned Judge was held that widest amplitude for granting benefits of reservations should be given to the said circulars. Holding that there is no rationale as to why the respondents suddenly sought to bring in the restriction now, it was opined: In view of the aforesaid a writ of mandamus is issued to appoint such of the petitioners in the present writ petitions who are born and brought up in Delhi, the caste is notified as a reserved caste in Delhi but the certificate issued to them is on the basis of the certificate issued to their fathers who were the migrants from other States. 14. The Division Bench of the said court dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cause of the backward class as envisaged under clause (4) of Article 16 of the Constitution of India and clause (4) of Article 15 thereof. (iv) Doctrine of protective discrimination envisaged in Article 16 would bring within its ambit all such people who are backward not only in a State or Union Territory but also throughout the length and breadth of the country as envisaged under clause (1) of Article 16 thereof. (v) For the purpose of considering the validity of the circular letters impugned in the writ petitions, the preamble of the Constitution of India as also the provisions relating to reservation should be allowed to have its full play particularly in view of the binding precedents of this Court in Chandigarh Administration Anr. vs. Surinder Kumar ors. [(2004) 1 SCC 530] and S. Pushpa ors. vs. Sivachanmugavelu ors. [(2005) 3 SCC 1]. (vi) Although at one point of time the stand of the Union Territory of Delhi which was impugned in the writ petition before the Delhi High Court by the private respondents was in the light of the law laid down by this Court in Marri Chandra Shekhar Rao (supra) and Action Committee (supra) but in view of the later decisions of this Court in Cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court in Chandigarh Administration (supra) and S. Pushpa (supra)? (5) Whether the ratio laid down by this Court in Chandigarh Administration (supra) and S. Pushpa (supra) having not taken into consideration the binding precedents in Constitution Bench in Milind (supra), Chinnaiah (supra) and M.C.D. vs. Veena ors. [(2001) 6 SCC 571] would constitute binding precedents? 19. The Constitution of India is suprema lex. The Preamble of the Constitution of India envisages Sovereign Socialist Secular Democratic Republic . In terms of Article 1 of the Constitution of India, that is, Bharat, shall be a Union of States as specified in the First Schedule. The First Schedule contains two lists; (1) the list of States, and (2) the list of Union Territories. They together constitute geographical and political territory of India. The equality clause contained in Articles 14, 15 and 16 constitutes a set of fundamental rights of all persons whether they are citizens of India or not. Whereas in terms of Article 14 of the Constitution of India all persons similarly situated are entitled to enforcement of their fundamental right of equality before the law and equal protection of the laws. Articles 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fined in clauses (24) and (25) of Article 266 of the Constitution, which read as under: (24) Scheduled Castes means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under article 341 to be Scheduled Castes for the purposes of this Constitution; (25) Scheduled Tribes means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under article 342 to be Scheduled Tribes for the purposes of this Constitution. Article 342 in identical terms deals with the cases of members of Scheduled Tribes. 22. Part VIII of the Constitution of India provides for the Union Territories stating that every Union Territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify. Special provisions with respect to Delhi has been made by inserting Article 239AA to the Constitution; Clause (1) whereof provides that despite coming into force of the Constitution (Sixty-ninth Amendment) Act, 1991, the Union Territory of Delhi shall be called the National Capital Territory of Delhi and shall be adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces or posts in a State or Union Territory must confine to the members of the Scheduled Castes and Scheduled Tribes as notified in the Presidential Orders but in respect of All India Services, Central Civil Services or admission to an institution run and founded by the Central Government, the members of Scheduled Castes and Scheduled Tribes and other reserved category candidates irrespective of their State for which they have been notified are entitled to the benefits thereof. It is not denied or disputed that services in the Union Territory is essentially different from All India Services. It is also beyond any controversy that machinery for recruitment is also different. Indisputably again, not only the conditions of recruitment but also conditions of service differ. Before us, it has furthermore been conceded that for the purpose of Union Territory of Delhi no separate notification in respect of Scheduled Tribe has been issued. The Constitution (Scheduled Castes) (Union Territories) Order, 1951, is a Presidential Notification, issued under Article 341 of the Constitution of India specifying Scheduled Castes in relation to the Union Territory of Delhi. However, no such notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... backwardness of people having regard to the State or Union Territory as a unit. The same principle applies even to the minorities as has been laid down by an Eleven Judge Bench of this Court in T.M.A. Pai Foundation and Ors. v. S tate of Karnataka and Ors [(2002) 8 SCC 481] 26. It is also a trite law that a study has to be undertaken before a section of the people can be identified as being belonging to backward class people. In our constitutional scheme backward class people are divided into three categories, namely, Scheduled Castes, Scheduled Tribes and other backward classes. Scheduled Caste and Scheduled Tribe would be backward but the same would not mean that the converse is true, i.e., all backwards would be members of the Scheduled Castes or Scheduled Tribes. Why we say so is that the reservation in terms of clause (4) of Article 16 of the Constitution of India is fixed on a percentage basis. The advertisement issued by the Delhi Subordinate Services Selection Board clearly shows that the percentage of reservation having regard to the Central Government Rules which are applicable to the National Capital Territory of Delhi would be 7.5% for Scheduled Tribes, 15% for Schedule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r decisions governing the field as well as the views of Dr. B.R. Ambedkar in the Constituent Assembly, to hold: 22. In that view of the matter, we are of the opinion that the petitioner is not entitled to be admitted to the medical college on the basis of Scheduled Tribe Certificate in Maharashtra. In the view we have taken, the question of petitioner's right to be admitted as being domicile does not fall for consideration. Marri Chandra Shekhar Rao (supra) was followed by another Constitution Bench of this Court in Action Committee (supra). The question posed therein was: Where a person belonging to a caste or tribe specified for the purposes of the Constitution to be a Scheduled Caste or a Scheduled Tribe in relation to State A migrates to State B where a caste or tribe with the same nomenclature is specified for the purposes of the Constitution to be a Scheduled Caste or a Scheduled Tribe in relation to that State B, will that person be entitled to claim the privileges and benefits admissible to persons belonging to the Scheduled Castes and/or Scheduled Tribes in State B? While interpreting clause (1) of Articles 341 and 342, this Court held: What is important to notice is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nother State the person belonging to the former would be entitled to the rights, privileges and benefits admissible to a member of the Scheduled Caste of the latter State 'for the purposes of this Constitution'. This is an aspect which has to be kept in mind and which was very much in the minds of the Constitution makers as is evident from the choice of language of Articles 341 and 342 of the Constitution. 30. Whereas Marri Chandra Shekhar Rao (supra) was a case where no notification had been issued for the State of Maharashtra specifying the Caste to which the petitioner therein belonged to; in the case of Action Committee (supra), the question related to a situation where coincidently some Castes were notified in both the States, i.e., a fortuitous circumstance arose therein that some classes had been notified in both the States. 31. In Veena (supra), a Division Bench of this Court in a case arising out of the National Capital Territory of Delhi, noticing Marri Chandra Shekhar Rao (supra) held as under: 6. Castes or groups are specified in relation to a given State or Union Territory, which obviously means that such caste would include caste belonging to an OBC group in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice Commission, Allahabad vs. Sanjay Kumar Singh reported in (2003) 7 SCC 657, wherein a boy belonging to Scheduled Tribe Naga and hailing from Nagaland sought admission in a medical college at Kanpur. This Court upon considering Marri Chandra Shekhar Rao (supra), Action Committee (supra) as also Veena (supra) opined that the appellant therein could not be treated as Scheduled Tribe candidate so as to qualify himself to claim reservation against the vacancy reserved for Scheduled Tribes in public services in the State of U.P. 33. At this juncture, we may also notice two other Constitution Bench decisions of this Court, namely, Milind (supra), Chinnaiah (supra) as also a judgment of this Court in Shree Surat Valsad Jilla K.M.G. Parishad vs. Union of India ors. [(2007) 5 SCC 360]. Milind (supra) dealt with a question as to whether the notified Scheduled Tribe being Halba or Halbi as contained in Item No. 19 of the Presidential Order would include Halba-Koshti or not. Indisputably, beginning from the decision of the Nagpur High Court rendered in 1956 in Sonabai vs. Lakhmibai reported in 1956 Nagpur LJ 725, several other judgments as also circular letters issued by the State of Maha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat a Scheduled Tribes Order can be amended only by the Parliament. Hence it is not possible to accept that orders/circulars issued by the State Government, which have the effect of amending Scheduled Tribes Order, were binding on the Government or other affected parties. 34. Another Constitution Bench of this Court in Chinnaiah (supra) while considering the question as to whether any sub-classification within a class is permissible having regard to the constitutional provision, answered it, thus: 26. Thus from the scheme of the Constitution, Article 341 and above opinions of this Court in the case of N.M. Thomas (supra), it is clear that the castes once included in the Presidential List, form a class by themselves. If they are one class under the Constitution, any division of these classes of persons based on any consideration would amount to tinkering with the Presidential List. xxx xxx xxx 37. We have already held that the members of Scheduled Castes form a class by themselves and any further sub- classification would be impermissible while applying the principle of reservation. xxx xxx xxx 111. The Constitution provides for declaration of certain castes and tribes as Scheduled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer to Scheduled Castes or Scheduled Tribes, having regard to the expressions backward class of citizens contained therein, it is judicially interpreted that Scheduled Castes and Scheduled Tribes would come within the purview thereof. Scheduled Caste indisputably is treated to be more backward than the backward class people. The said principle had been applied by a Division Bench of this Court in Shree Surat Valsad Jilla K.M.G. Parishad (supra). Recently, a Constitution Bench of this Court in Ashok Kumar Thakur v. Union of India Ors. [(2008) 6 SCC 1], noticed E.V. Chinnaiah (supra) in the following terms : 65. The learned Senior Counsel further contended that the exclusion of creamy layer has no application to SCs and STs in regard to employment and education. Articles 341, 342, 366(24) and 366(25) of the Constitution would militate against such course of action. 66. It was held in E.V. Chinnaiah v. State of A.P. that the SCs and STs form a single class. The observations in Nagaraj case cannot be construed as requiring exclusion of creamy layer in SCs and STs. Creamy layer principle was applied for the identification of backward classes of citizens. And it was specifically held in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing them out of the purview thereof or tinker with the order issued by the President of India would be unconstitutional. (emphasis supplied) 185. A plea was raised by the respondent State that categorisation of Scheduled Castes could be justified by applying the creamy layer test as used in Indra Sawhney case which was specifically rejected in para 96 of E.V. Chinnaiah case. It is observed: 96. But we must state that whenever such a situation arises in respect of Scheduled Caste, it will be Parliament alone to take the necessary legislative steps in terms of Clause (2) of Article 341 of the Constitution. The States concededly do not have the legislative competence therefor. 186. Moreover, right from the beginning, the Scheduled Castes and Scheduled Tribes were treated as a separate category and nobody ever disputed identification of such classes. So long as creamy layer is not applied as one of the principles of equality, it cannot be applied to the Scheduled Castes and Scheduled Tribes. So far, it is applied only to identify the socially and educationally backward classes. We make it clear that for the purpose of reservation, the principles of creamy layer are not applicable for S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant before this Court it is specifically pleaded in para 12 that at the relevant time, the reservation benefit was being extended to all the candidates belonging to respective communities on the production of valid certificates of castes issued by the State of origin, but on receipt of clarification on 7.9.1999 the reservation benefits are only to be allowed to .... who are bonafide residents of Chandigarh and in whose favour valid certificates have been issued by the competent of Chandigarh Administration. After 7.9.1999 no appointment against reserved posts have been made to the candidates who are not residents of Chandigarh and are not having valid certificates of caste issue by the DM/SDM Chandigarh . This Court although noticed Marri Chandra Shekhar Rao (supra), Action Committee (supra) and Veena (supra) but did not distinguish the same. 36. We may now notice S. Pushpa (supra). It is a judgment rendered by a three judge Bench of this Court. The fact involved therein was noticed in paragraph 2 of the judgment, from a perusal whereof, it appears that 26 candidates produced community certificates from the Revenue Authority of Pondicherry. This Court proceeded on the basis th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 recognized 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 recognized 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 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 U.T. of Pondicherry having adopted a policy of Central Government whereunder all Schedule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reservation, vis- -vis inclusion of Castes/Tribes. The presence of Articles 338, 338A, 341, 342 in the Constitution clearly preclude that. 39. We may notice the Scheme and the legal position of the Constitution (Schedule Castes) Orders which is as under: Originally a common Presidential Order was made in respect of States in 1950. Another common Presidential Order was issued in respect of Union territories in 1951. The Union Territories Order continues to be in force. It comprehends three Union Territories including Delhi and Chandigarh. Separate orders have been made in respect of the Union Territories of Pondicherry and Dadra and Nagar Haveli. There is no order in respect of Andaman Nicobar Island. Amendments were made to the Schedule Caste/ Tribe Orders of the States and Union Territories Order of 1951, by an Act of Parliament first in 1956 and later in 1976. besides the above, in the event of States reorganization, Parliament has exercised its power under Article 341 (2) to enact specific Castes/ Tribes that had to be Scheduled Castes and Scheduled Tribes in relation to the reorganized States/Union Territories. The Union Territories Scheduled Castes Order of 1951, amended by an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 342 of the Constitution of India cannot be got rid of. 41. It is well known that what cannot be done directly cannot be done indirectly. (See Ramdev Food Products Pvt. Ltd. v. Arvindbhai Rambhai Patel and Ors. [(2006) 8 SCC 726, Para 73]. When an amendment or alteration is to be brought about by a Parliamentary Legislation, the same purpose cannot be achieved by taking recourse to circular letters. If the Central Civil Services and the Union Territory Services are different, keeping in view the constitutional schemes particularly having regard to the proviso appended to Article 309 of the Constitution of India, the same cannot be done away with only because a Union Territory administratively is administered by the Central Government. Any direction or policy decision, thus, must satisfy the constitutional requirements laid down under Articles 341 and 342 of the Constitution of India. If any other construction is made, a policy decision having regard to the decisions of this Court will have to be treated as a proviso appended to clause (2) of Article 341 of the Constitution of India and would amount to deriding of the Constitution which is impermissible in law. For identificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kward classes. If the members of the scheduled castes and scheduled tribes in other States are to be treated as backward classes for Delhi; intensive studies were required to be made in regard to the question whether they would come within the purview of the definition of backward classes so as to answer the description of socially and educationally backward . It was so held in Indra Sawhney ors. v. Union of India ors. [1992 Supp. (3) SCC 212] thus: The language of clause (4) makes it clear that the question whether a backward class of citizens is not adequately represented in the services under the State is a matter within the subjective satisfaction of the State. This is evident from the fact that the said requirement is preceded by the words in the opinion of the State . This opinion can be formed by the State on its own, i.e., on the basis of the material it has in its possession already or it may gather such material through a Commission/Committee, person or authority. All that is required is, there must be some material upon which the opinion is formed. Indeed, in this matter the court should show due deference to the opinion of the State, which is in the present context mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in Ashok Kumar Thakur (supra) is not applicable in India at all. Therein reliance has been placed in Saurabh Chaudri Ors. v. Union of India Ors. [(2003) 11 SCC 146] wherein this Court stated : 36. The strict scrutiny test or the intermediate scrutiny test applicable in the United States of America as argued by Shri Salve cannot be applied in this case. Such a test is not applied in Indian courts. In any event, such a test may be applied in a case where a legislation ex facie is found to be unreasonable. Such a test may also be applied in a case where by reason of a statute the life and liberty of a citizen is put in jeopardy. This Court since its inception apart from a few cases where the legislation was found to be ex facie wholly unreasonable proceeded on the doctrine that constitutionality of a statute is to be presumed and the burden to prove contra is on him who asserts the same. In a concurrent opinion, one of us, S.B. Sinha, J., stated, thus: 92. Mr Nariman contended that provision for reservation being a suspect legislation, the strict scrutiny test should be applied. Even applying such a test, we do not think that the institutional reservation should be done away wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Hotel Association of India Ors. [(2008) 3 SCC 1], this Court, stated : 46. It is to be borne in mind that legislations with pronounced protective discrimination aims, such as this one, potentially serve as double-edged swords. Strict scrutiny test should be employed while assessing the implications of this variety of legislations. Legislation should not be only assessed on its proposed aims but rather on the implications and the effects. The impugned legislation suffers from incurable fixations of stereotype morality and conception of sexual role. The perspective thus arrived at is outmoded in content and stifling in means. In United India Insurance Company Ltd. v. Ajay Sinha Anr. [(2008) 7 SCC 454], it is stated : 26. An option is given to any party to a dispute. It may be a public utility service provider or a public utility service recipient. The service must have some relation with public utility. Ordinarily, insurance service would not come within the public utility service. But having regard to the statutory scheme, it must be held to be included thereunder. It is one thing to say that an authority is created under a statute to bring about a settlement through alternate d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tailoring should satisfy the court that the law capture within its reach just the adequate activity, neither more or less, than is necessary to advance those compelling ends. In the ultimate analysis, the State action must be narrowly drawn in a manner that it can qualify to be the least restrictive alternative available to pursue those ends. Without this inquiry into fit between the ends and the means enables it will not only be difficult for the courts to test the sincerity of the government's claimed objective but also the law may be suffer from the vice of arbitrariness. Article 14 guarantee against uncanalized and arbitrary laws has to be rigorously pursued by the court in this regard. The State in such cases may act not only through a law but also through an executive instrument like circular or even simple practice or convention and the intense gaze of the Court in this behalf is all pervasive. In fact, more inarticulate the State action would be, greater would be the intensity of the scrutiny by the courts. Objectivity, both in terms of quantifiable data and the intended objective, and time bound prescriptions, (preferably with a sunset clause) are two measures which sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal guaranty of just and equal laws. The court must adopt a weighted balancing approach or in other words pursue an even-handed balancing of the interests 44. The only question which survives is as to whether S. Pushpa (supra) constitutes a binding precedent. A decision, as is well known, is an authority for what it decides and not what can logically be deduced therefrom. 45. In S. Pushpa (supra), decisions of the Constitution Benches of this Court in Milind (supra) had not been taken into consideration. Although the case of Chinnaiah (supra) was decided later on, we are bound by the same. 46. It is now a well settled principle of law that a division bench, in case of conflict between a decision of a Division Bench of two Judges and a decision of a larger Bench and in particular Constitution Bench, would be bound by the latter. [See M/s Sardar Associates v. Punjab Sind Bank, CAs @ SLP (C) Nos. 5249-5250 of 2008 decided on 31st July, 2009] 47. This Court in Marri Chandra Shekhar Rao (supra) categorically held that when a person is held to be a member of scheduled caste for one State, he cannot be treated as such in another. In Milind (supra), it was categorically held that the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppe Pigeon, Drafting and Interpreting Legislation 60 (1988) As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some features of the decision or some step in the reasoning on which it is based is found on that account to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam, must in our judgment, consistently with the stare decisis rule which is an essential part of our law, be of the rarest occurrence. Rupert Cross J.W. Harris, Precedent in English Law 149 (4th ed. 1991) 49. In an article Final Appellate Courts Overruling Their Own Wrong Precedents: The Ongoing Search For Principle by B.V. Harris published in (2002) 112 LQR 408-427, it is stated: A decision may be held to be per incuriam where relevant statutory provisions, or binding case law authority, have been overlooked or misinterpreted in arriving at the holding in the precedent . Considerations Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s prepared a memorandum on the said note. In the particular case in 1961 Blake pleaded guilty to five offences against Official Secrets Act 1911. He had communicated information which he has come to pssess as a member of the Secret Intelligence Service (SIS). He was sentenced o term of 42 years imprisonment. The House of Lords decision stated that Blake wasa member of the security and intelligence. However it is stated by the author that there is no practice of describing the SIS as a security service; it is not concerned with security but with foreign intelliegence, including the sponsorship of espionage and was an offshoot of some sort of the Foreign Office, possibly also being associated with the Cabinet Office or the Prime Minister s Personal Office. Thus there was no details explained as regards to the employment of Blake and it was not clear. 52. The author states that it was a well settled in 1940s that the relationship between a member of the armed services and the crown was non-contractual. 53. However it is stressed that if the nature of employment of Blake was in civil capacity then the application of above observation needs to be considered. But more importantly, what n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... U.P. and Others (1990) 1 SCC 109] 57. In Central Board of Dawoodi Bohra Community Anr. v. State of Maharashtra Anr. [(2005) 2 SCC 673], Lahoti, CJI (as he then was) speaking for a Constitution Bench following its earlier decision in Union of India v. Raghubir Singh [(1989) 2 SCC 754], stating: 12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms :- (1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength. (2) A Bench of lesser quorum cannot doubt the correctness of the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nty is an important hallmark of judicial jurisprudence developed in this country in last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass root will not be able to decide as to which of the judgment lay down the correct law and which one should be followed. 91. We may add that in our constitutional set up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the Constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the Courts command o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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