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TMI Blog2005 (2) TMI 849X X X X Extracts X X X X X X X X Extracts X X X X ..... to that State or Union territory. This exercise has to be done strictly in accordance with the Presidential Order and a migrant Scheduled Caste of another State cannot be taken into consideration otherwise it may affect the number of seats which have to be reserved in the House of People or Legislative Assembly. Though, a migrant SC/ST person of another State may not be deemed to be so within the meaning of Art. 341 and 342 after migration to another State but it does not mean that he ceases to be an SC/ST altogether and becomes a member of forward caste. Clauses (1) and (2) of Article 16 guarantee equality of opportunity to all citizens in the matter of appointment to any office or of any other employment under the State. Clauses (3) to (5), however, lay down several exceptions to the above rule of equal opportunity. Article 16(4) is an enabling provision and confers a discretionary power on the State to make reservation in the matter of appointments in favour of backward classes of citizens which in its opinion are not adequately represented either numerically or qualitatively in services of the State. But it confers no constitutional right upon the members of the backward class ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 199/1996 and O.A No. 214/1996 were allowed and selection made of migrant Scheduled Caste candidates against the quota reserved for Scheduled Castes on the post of Selection Grade Teachers in the selection held in the year 1995 in the Union territory of Pondicherry was declared as illegal and invalid, and a further direction was issued to review the selection process with regard to the reserved quota by excluding the migrant Scheduled Caste candidates who had migrated after the relevant notification had been issued in the year 1964. 2. The Directorate of Education, Government of Pondicherry, issued an advertisement for making recruitment of 350 General Central Service Group C posts of Secondary Grade Teachers (for short SGT ) wherein 56 posts were reserved for Scheduled Caste candidates (for short SC candidates). In response to the notification, the employment exchange sponsored the names of candidates in respect of various categories including SC candidates as requested by the Department. Besides, as envisaged and in conformity with the National Employment Service Manual, the employment exchange also sponsored some names of SC candidates from neighbouring employment exchanges as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irector of Education, Government of Pondicherry, preferred Special Leave Petitions, which after grant of leave have been registered as Civil Appeal Nos. 4 and 5 of 1998. Some of the candidates whose selection has been set aside also preferred Special Leave Petitions which, after grant of leave have been registered as Civil Appeal Nos. 6 7 of 1998. 4. Before adverting to the contentions raised by learned counsel for the parties, it is necessary to mention that the U.T. of Pondicherry comprises of former four French settlements in India, viz. Pondicherry, Karaikal, Mahe and Yanam. Karaikal is situate within the territorial boundary of State of Tamil Nadu, Mahe is situate within the territorial boundary of State of Kerala and Yanam is situate within the territorial boundary of State of Andhra Pradesh. Though de-facto transfer of these four French settlements to Government of India took place in the year 1954, they legally merged with the Union of India with effect from 16.8.1962 by the Eighteenth Amendment to the Constitution. These four settlements were constituted as U.T. of Pondicherry under Government of Union territories Act, 1963 (Act No. 20 of 1963). 5. Article 341 of the Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly providing that migrant SC persons are eligible for appointment on posts reserved for SC persons in the U.T. of Pondicherry and in absence of any statutory enactment or rules made in exercise of powers conferred under the proviso to Article 309 of the Constitution, these circulars or Government Orders are binding upon the Government of Pondicherry. It has also been contended that in the matter of providing reservation in favour of any backward class of citizens within the meaning of Article 16(4) of the Constitution, it is open to the U.T. of Pondicherry to apply any policy, especially one whereunder migrant SC persons are also given the benefit of reservation and it is not open to the contesting respondents to object to such kind of a reservation policy and claim that the benefit of reservation should be extended only to such SC persons who are mentioned in the schedule appended to the Presidential Order issued in the year 1964. Learned counsel has also submitted that right from inception, the U.T. of Pondicherry has been following a practice whereunder migrant SC persons are held eligible for appointment on reserved posts and this being the consistent and uniform policy of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sadvantageous community do not truncate his growth and the natural talents of an individual gets full scope to blossom and flourish. Realising that these are problems of social adjustment it was observed that they must be so balanced in the mosaic of the country s integrity that no section or community should cause detriment or discontentment to the other community. Therefore, said the Constitution Bench, the Scheduled Castes and Scheduled Tribes belonging to a particular area of the country must be given protection so long as and to the extent they are entitled to in order to becoming equals with others but those who go to other areas should ensure that they make way for the disadvantaged and disabled of that part of the community who suffer from disabilities in those areas . 8. Before the Tribunal it was pleaded on behalf of the appellants that the Legislative Assembly of U.T. of Pondicherry has not been vested with powers to make laws in relation to public services of the Union territory and consequently the President of India is the repository of all powers with regard to public services of the Union territory and with regard to the persons appointed in connection with the affa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erritories. Article 239 and Article 239A which was inserted by the Constitution (Fourteenth Amendment) Act, 1962 read as under : 239. Administration of Union territories. (1) Save as otherwise provided by Parliament by law, 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. (2) Notwithstanding anything contained in Part VI, the President may appoint the Governor of a State as the administrator of an adjoining Union territory, and where a Governor is so appointed, he shall exercise his functions as such administrator independently of his Council of Ministers. 239A. Creation of local Legislatures or Council of Ministers or both for certain Union territories. (1) Parliament may by law create for the Union territory of Pondicherry - (a) a body, whether elected or partly nominated and partly elected, to function as a Legislature for the Union territory, or (b) a Council of Ministers, or both with such Constitution, powers and functions, in each case, as may be specified in the law. (2) Any such law as is referred to in clause (1) shall not be deemed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... head of administration of a Union territory is the President of India. 13. Some other statutory provisions which have a bearing on the controversy are being reproduced below: Section 3(8) of the General Clauses Act, 1897: (8) Central Government shall - (a) (b) in relation to anything done or to be done after the commencement of the Constitution, mean the President; and shall include, (i) (ii) (iii) In relation to the administration of a Union territory, the Administrator thereof acting within the scope of the authority given to him under Article 239 of the Constitution. Section 3 of the Pondicherry (Administration) Act, 1962: 3. Officers and functionaries in relation to Pondicherry. Without prejudice to the powers of the Central Government to appoint from time to time such officers and authorities as may be necessary for the administration of Pondicherry, all courts, tribunals, authorities and officers, whether in India or in the former French Establishments, who immediately before the appointed day, were exercising lawful function in connection with the administration of those Establishments or any part thereof, including the Council of Government and Representatives Assembly, sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outside Pondicherry should also be eligible for a vacancy reserved for SCs/STs in the Union Territory Admn . After receipt of the aforesaid letter from Government of India, the General Administration Department of the Government of Pondicherry issued a Government Order dated 16.2.1974 which reads as under: In view of the clarifications of the Govt. of India all Secretariat Departments, Heads of Departments/Offices are informed that SCs/Tribes candidates from outside the Union Territory of Pondicherry should also be considered for appointment to posts reserved for SCs/Tribes in this Admn. These instructions should be followed strictly . The Government of Pondicherry also issued a circular on 6.1.1993 issuing clarifications regarding two points and the second one was regarding the Government Order dated 16.2.1974 (reproduced above). Paras 2 3 of this circular read as under: 2. The reference second cited is again brought to notice for information and guidance. It has been stated therein that for a reserved vacancy in a Central government Office located in a State any Scheduled Caste candidate throughout the country would be eligible. It has therefore been clarified that since Pondiche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as such under the orders issued by the President from time to time irrespective of the State/Union territory, in relation to which particular castes or tribes have been recognized as SCs/STs are eligible for reserved posts/services under the Central Government, they are also eligible for reserved posts/services under the Pondicherry administration. Consequently, all SC/ST candidates from outside the U.T. of Pondicherry would also be eligible for posts reserved for SC/ST candidates in Pondicherry administration. Therefore, right from the inception, this policy is being consistently followed by the Pondicherry administration whereunder migrant SC/ST candidates are held to be eligible for reserved posts in Pondicherry administration. 17. We do not find anything inherently wrong or any infraction of any constitutional provision in such a policy. The principle enunciated in Marri Chandra Shekhar Rao (supra) cannot have application here as U.T. of Pondicherry is not a State. As shown above, a Union territory is administered by the President through an administrator appointed by him. In the context of Article 246, Union territories are excluded from the ambit of expression State occurr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quently, migrant SC candidates would not be eligible at all. 20. Part XVI of the Constitution deals with special provisions relating to certain classes and contains Articles 330 to 341. Articles 330 and 332 make provision for reservation of seats in the House of People and Legislative Assemblies of the States respectively, for Scheduled Castes and Scheduled Tribes. Similar provisions have been made for Anglo- Indian community in Articles 331 and 333. Article 338 provides that there will be a Commission for the Scheduled Castes to be known as National Commission for the Scheduled Castes and it also provides for its composition, powers and duties. Clause (2) of Article 330 provides that the number of seats reserved in the States or Union territories for Scheduled Castes or Scheduled Tribes shall bear, as nearly as may be, the same proportion to the number of seats allotted to that State or Union territory in the House of the People as the population of the Scheduled Castes in the State or Union territory or of the Scheduled Tribes in the State or Union territory, as the case may be, in respect of which seats are so reserved, bears to the total population of the State or Union territo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icular 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 Scheduled Castes 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. 22. For the reasons discussed above, we are of the opinion that there has been no violation of any constitutional or any other legal pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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