1

In the High Court of Judicature at Madras

Reserved on: 04.08.2015
Dated

: 13.08.2015
Coram

The Honourable Mr.JUSTICE M.M.SUNDRESH

Writ Petition Nos.17987, 19369 and 20675 of 2015
& M.P.Nos.1, 1, 2, 2 & 4 of 2015
W. P. Nos.17987 & 20675 of 2015
The Pondicherry Scheduled Caste People's
Welfare Association (Reg.No.456/02),
Rep. by its General Secretary,
No.5, II Street, Thirubuvanai Chinnapet,
Puducherry-605 107.

.... Petitioner in
W.P.No.17987 of 2015

Minor K.R.Shanmukeshwar,(Aged 17 years)

Represented by his father and
Natural Guardian K.Rajasekaran,
7, Engineer Garden, VII Cross,
MMG Nagar, Koilpathu, Karaikal.

.... Petitioner in
W.P.No.20675 of 2015
Vs.

1. Union of India,
Rep. By the Government of Puducherry,
Through its Chief Secretary,
Chief Secretariat, Puducherry-605 001.
2.The Secretary,

The Department of Education,

Government of Puducherry,
Chief Secretariat, Puducherry-605 001.
3.Centralised Admission Committee(CENTAC)
Rep. By the Convener, CENTAC,
Pondicherry Engineering College Campus,
Pillaichavadi, Puducherry-605 014.
4.The District Collector,
Office of the District Collectorate,
Revenue complex, Saram,
Puducherry-605 013.

.... Respondents 1 to 4 in
W.P.Nos.17987 & 20675 of 2015

5.Puducherry Poorveega Adhi Dravida Aasiriyargal

Urimai Paadhukappu Matrum Nalachangam,
represented by its President K.Deivanayagam,
No.16, Kanda Reddy Street, Reddiyar Palayam,
Puducherry.
6.A.Ajitha, D/o Anandan, Hindu, aged 17 years,
being minor represented by father and natural
guardian Anandan residing at No.45, 3rd Cross,
Ragavendira Nagar, Boomiyanpet, Puducherry.
7.R.Ramanan, S/o Ramesh, Hindu, aged 17 years,
being minor rep. by father and natural guardian
Ramesh, residing at No.28, Mariamman Koil
Street, Irulanchandai, Kuruvinatham Post, Puducherry.
8.G.Surgeetkumaran, S/o. Gajavarthan,
Hindu, aged 17 years,being minor rep. by

father and natural guardian Gajavarthan,

residing at No.216, 4th Cross, Bharathiar Street,
Jayamurthy Raja Nagar, Mudaliyarpet,
Puducherry.
9.S.Harshini, D/o Sivapouchane,
Hindu, aged 17 years, being minor rep. by
father and natural guardian Sivapouchane,
residing at No.28, Thulukkanathamman Koil
Street, Thiruvalluvar Nagar, Puducherry.
10.J.Vasudevaraj, S/o Jayakumar,
Hindu, aged 17 years, being minor rep. by
father and natural guardian Jayakumar,
residing at No.48, Anganwadi Street,
Sanniyasikuppam, Thirubhuvanai Post,
Puducherry.
11.G.Anandh, S/o Gunasekaran,
Hindu, aged 17 years, being minor rep. by
father and natural guardian Gunasekaran,
residing at No.59, Thirukanji Street, Mangalam
Post, Uruvaiyarpet, Puducherry.
12.B.Nivedha, D/o Balasubramanian,
Hindu, aged 17 years, being minor rep. By
father and natural guardian Balasubramanian,
residing at No.3, Muthumariamman Koil Street,
Velanthottam, Thilarspet, Thattanchavady,
Puducherry.

13.I.Sivanandam, S/o Iyyanar,

Hindu, aged 17 years, being minor rep. by
father and natural guardian Iyyanar, residing
at No.3, Kalyanamandapam Street,
Sooramangalampet, Kariamanickam Revenue,
Puducherry.
14.A.Arunkumar, S/o Adhikesavan,
Hindu, aged 17 years, being minor rep. by
father and natural guardian Adhikesavan,
residing at No.9, Type-II, JIPMER Campus,
Dhanvanthiry Nagar, Puducherry.
15.M.Janani, D/o Marimuthu, Hindu, aged 17
years, being minor rep. by father and natural
guardian Marimuthu, residing at No.30, New Street,
Kirumampakkampet, Bahour Commune,
Puducherry.
16.N.Rajarajan, S/o Narasingam, Hindu, aged 17
years, being minor rep. by father and natural
guardian Narasingam, residing at No.9, Bakkiyam
Nagar, Nainarmandapam, Puducherry.
17.V.Akshaya, D/o Velmurugan, Hindu, aged 17
years, being minor rep. by father and natural
guardian Velmurugan, residing at No.1,
3rd Main Street, Kaveri Nagar, Villianur,
Puducherry.
18.S.Roginth, S/o Sivasubramanian, Hindu, aged

17 years, being minor rep. by father and natural

guardian Sivasubramanian, residing at No.5,
Mariamman Koil Street, Abishegapakkam Post,
Puducherry.
19.A.Haripriya Darshini, D/o Ayyanar, Hindu, aged
17 years, being minor rep. by father and natural
guardian Ayyanar, residing at No.NH47-A, Main Road,
Near Old Colony, Madagadipet, Puducherry.
20.S.Vigneshwari, D/o Subramanian, Hindu, aged
17 years, being minor rep. by father and natural
guardian Subramanian, residing at No.22, Mariamman
Koil Back Side, Vennila Nagar, Saram Post, Puducherry.
21.A.Arun, S/o Arulappan, Hindu, aged 17 years,
being minor rep. by father and natural guardian
Arulappan, residing at No.8, Pillaiyar Koil Street,
Kirumampakkampet, Kurumampakkam Post,
Puducherry.
22.I.Ajithkumar, S/o Iyyanar, Hindu, aged 17 years,
being minor rep. by father and natural guardian
Iyyanar, residing at No.28, 3rd Cross Street,
Gnanathiyagu Nagar, Thattanchavady, Puducherry.
23.L.Bhavadharani, D/o Lakshmanan, Hindu, aged
18 years, residing at No.G-83, JIPMER Quarters,
D' Nagar & Post, Puducherry.
24.T.Janany, D/o Thulasingam, Hindu, aged 17 years,

being minor rep. by father and natural guardian

Thulasingam, residing at No.10, Gabriel Street,
Vinoba Nagar, Saram, Puducherry.
25.A.Abiramidhazene, D/o Arumugam, Hindu, aged
18 years, residing at No.30, Sri Sasan Niaas Complex,
Police Station Road, Thirubhuvanai & Post,
Puducherry.
(Respondents 5 to 25 are impleaded as per the orders
dated 23.07.2015 by M.S.N.J., in M.P.Nos.5 & 6 of 2015
in W.P.No.17987 of 2015)

W.P.No.19369 of 2015
S.Eco Promoth

.. Petitioner
Vs.

1.The Government of Pondicherry,

Rep. by Secretary to Government,
Education Department, Secretariat,
State of Pondicherry.
2.The Secretary, Department of Revenue
& Disaster Management, Government of Pondicherry,
Secretariat, State of Pondicherry.
3. The Chairman/Convenor,
Centralised Admission Committee,
Government of Pondicherry,
Pondicherry Engineering Campus,
Pondicherry.

.. Respondents

W.P.No.17987 of 2015 is filed under Article 226 of The Constitution

of India praying for the issuance of Writ of Certiorarified Mandamus to call
for the records pertaining to the Biology Based Merit List (2015-2016),
dated 19.06.2015 issued by the third respondent read with the order
No.CENTAC/47/2015, dated 17.06.2015 issued by the first respondent,
quash the same and direct the third respondent to issue a fresh Merit
Selection List after considering the 23 candidates, whose details are
enclosed herewith as Annexure-I, under Scheduled Caste category, in
admission to Professional and other Courses of higher education pursuant
to the issuance of the G.O.No.27 dated 01.04.2015 by the first respondent
as published in the Gazette of Puducherry dated 02.04.2015.
( Prayer amended as per order dated 26.06.2015 by M.S.N.J., in M.P.No.3
of 2015 in W.P.No.17987 of 2015)
W.P.No.19369 of 2015 is filed under Article 226 of The Constitution
of India praying for the issuance of Writ of Mandamus to direct the
respondents to treat the petitioner as Schedule Caste community
candidate as per the certificate granted by the Deputy Tahsildar-cumMagistrate in C.No.84/TOP/C104 dated 03.02.2004 and allot one seat in
M.B.B.S., course in the Institutions in the State of Pondicherry for the
academic year 2015-2016.
W.P.No.20675 of 2015 is filed under Article 226 of The Constitution
of India praying for the issuance of Writ of Certiorarified Mandamus to call
for the records pertaining to the Biology Based Merit List (2015-2016),
dated 19.06.2015 issued by the third respondent, quash the same and
direct the third respondent to issue a fresh Merit Selection List after
considering the petitioner herein under Scheduled Caste category, in

admission to Professional and other Courses of higher education pursuant

to the issuance of the G.O.No.27 dated 01.04.2015 by the first respondent
as published in the Gazette of Puducherry dated 02.04.2015.
For Petitioners

Ms.Vaigai and Ms. Annamathew for

Mrs.S.Meenakshi (W.P.No.17987/2015)
Mr.R.Saseetharan (W.P.No.19369/2015)
Mr.K.M.Ramesh (W.P.No.20675/2015)

For Respondents :

Mr.G.Rajagopal,
Additional Solicitor General, Assisted by
Mrs.N.Mala, Additional Govt. Pleader(P)
(R1 to R3 in W.P.Nos.19369/2015 and R1
to R4 in W.P.Nos.17987 & 20675/2015)
Mr.T.V.Ramanujam, Senior Counsel for
Mr.C.Jagadish for R5 (W.P.No.17987/2015)
Mr.V.Ajaykumar for R6 to R24 in
W.P.No.17987 of 2015
COMMON ORDER

The petitioner in W.P.No.17987 of 2015 is an Association consists

of Members, who migrated from other States

to Union

Territory of

Pondicherry and reside therein for more than five years and thus, seeking
admission for their wards under the Schedule Caste category. The other
two writ petitions viz., W.P.Nos.19369 and 20675 of 2015, have been filed

by individual petitioners seeking similar relief.

2.

As the issue involved in all these writ petitions is one and the

same, they have been taken up together and disposed of by way of a

common order.

3.
whether

The only issue requires to be answered by this Court is as to

a

migrant

to

the

Union

Territory

of

Pondicherry

has to be given the status of a resident after completion of five years

and their claim would be regarded as a Member of a Scheduled Caste
under the Constitution (Pondicherry) Scheduled Castes Order, 1964
dated 05.03.1964 for the purpose of availing the benefit under Article 15(4)
of the Constitution of India.

4.

Background Facts

4.1.

Over a total number of

available seats, 64

have been

earmarked for the MBBS., Courses and 97 seats for other Biology Based
Degree Courses under the Scheduled Caste category

in the Union

Territory of Pondicherry, for which 674 applications have been received.

Now the grievance of the petitioners is that though they are migrants, in
view of the five years stay in the Union Territory of Pondicherry, they
should be termed as a resident as mentioned in the Presidential order

10

dated 05.03.1964.

4.2.

The

Presidential order dated 05.03.1964 is

reproduced

hereunder:
In exercise of the powers conferred by clause (1) of Article 341 of the
Constitution of India, the president is pleased to make the following Order,
namely:1.This Order may be called the Constitution (Pondicherry)
Scheduled Castes Order, 1964.
2.The castes, races or tribes or parts of or groups within
castes, races or tribes specified in the Schedule to this Order
shall for the purposes of the, Constitution, be deemed to be
Scheduled Castes in relation to the Union territory of
Pondicherry so far as regards members thereof resident in
that Union territory.
Provided that no person, who professes a religion different from
the Hindu (the Sikh or the Buddist) religion, shall be deemed to
be a member of a Scheduled Caste.
THE SCHEDULE
1.Adi Andhra
2.Adi Dravida
3.Chakkiliyan
4.Jambuvulu
5.Kuravan
6.Madiga
7.Mala, Mala Masti
8.Paky
9.Pallan
10.Parayan, Sambavar

11
11.Samban
12.Thoti
13.Valluvan
14.Vetan
15.Vettiyan
16.Puthirai Vannan

Thus, the Presidential Order deals with 16 Scheduled Castes qua resident
of Union Territory of Pondicherry.

4.3.

A clarification was issued by the Under Secretary to

Government in and by the order dated 22.03.1977 regarding the issuance

of Scheduled Caste and Scheduled Tribe Certificates.

The following

recapitulation of para 2 would be apposite.

2. As required under Articles 341 and 342 of the
Constitution, the President has, with respect to every State and
Union Territory and where it is State after consultation with
the Governor of the concerned State, issued orders notifying
various Castes and Tribes as Scheduled Castes and Scheduled
Tribes in relation to that State or Union Territory from time to
time. The inter-state area restrictions have been deliberately
imposed so that the

people belonging to the specific

community residing in a specific area, which has been

assessed to qualify for the Scheduled Caste or Scheduled
Tribe status, only benefit from the facilities provided for
them. Since the people belonging to the same caste but living
in different State/Union Territories may not necessarily suffer
from the same disabilities, it is possible that two persons

12

belonging to the same caste but residing in different

States/U.Ts may not both be treated to belong to Scheduled
Caste/Tribe/or vice-versa. Thus the residence of a particular
person in a particular locality assumes a special significance.
This residence has not to be 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
a Scheduled Caste or a Scheduled Tribe, as the case may be, if
his caste/tribe has been specified in that Order in relation to
his State/UT. 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.

4.4.

A subsequent letter was also issued by the Government of

India dated 22.02.1985, in which, the following passage would be apposite.

2.It is also clarified that a scheduled caste/tribe person who has
migrated from the State of origin to come other State for the
purpose of seeking education, employment etc., will be deemed
to a Scheduled caste/tribe of the State of his origin and shall be
entitled to derive benefits from the State of origin and not from
the State to which he has migrated.

13

4.5.

Thus, the Government of India had in specific terms clarified

that for the purpose of Article 15(4) of the Constitution of India, a benefit
of reservation would be available to a person only to the State in which he
is permanently residing and not in the migrant State/Union Territory. In
other words, a mere status of a resident given for living for a period of five
years per se cannot be a ground to avail the benefit under Article 15(4) of
the Constitution of India.

4.6. The prospectus of the respondents also reiterate the said

position, which states as follows:
4.0 DETAILS OF RESERVATION AND SPECIAL ALLOCATION:
4.1. UT Puducherry Candidates in Colleges run by the Societies of Government of
Puducherry

Reservations in admission to various degree courses offered by colleges run by the

societies of Government of Puducherry for Puducherry UT candidates belonging to
different categories are given below. Further, SC/BT/EBC/MBC/BCM/OBC candidates
are also eligible for selection under Open competition/General category in addition to the
reservations made to them.

S.No

Categories

Percentage of Reservation

VERTICAL RESERVATION
1

General Category

50

Other Backward Classes (OBC)

11

Backward Classes Muslims(BCM)

Most Backward Classes (MBC)

Extreme Backward Classes(EBC)

Backward Tribes (BT)

2
18

14
S.No
7

Categories

Percentage of Reservation

Scheduled Caste(SC)

16

HORIZONTAL RESERVATION*
1

Children/Grand Children of Freedom(Fighter(FF)

Physically Challenged(PH)

Wards of Ex-Servicemen(EX)

1 and 3**

Candidate who are Meritorious in Sports (SP)

** MBBS 1% and for all other courses 3% of seats are reserved.

Horizontal Reservation: Seats reserved/allocated under these categories will

become operational, only if the minimum numbers of seats earmarked for each of
these categories are not filled up under normal process of selection in any category.
Such arrived number of seats against certical and horizontal reservation is given in
Annexure-IV.

4.1.2 Scheduled Caste Candidates (SC)

Candidates claiming admission under this category should
belong to a caste which is recognized as Scheduled Caste under
the Constitution (Pondicherry) Scheduled Castes Order 1964
dated 05.03.1964, read with The Constitution (Scheduled Caste)
Order (Second Amendment) Act 2002 (Central Act 61 of 2002)
and should enclose the required certificate issued by an Officer of
the Department of Revenue & Disaster

Management.,

Puducherry not below the rank of Deputy Tahsildar.

4.7.

Admittedly, the members of the petitioner in W.P.No.17987 of

2015 and the petitioners in other two writ petitions viz., W.P.Nos.19369 and
20675 of 2015, do not have any Certificate that they belong to a Schedule
Caste community in the Union Territory of Pondicherry as recognised
under the Presidential Order. On the contrary, they have been treated as
migrants. Now, the grievance of the petitioners is that as they belong to
Scheduled Caste community, the term used as

a resident in a

15

Presidential Order shall be made applicable to them as well.

4.8.

The representation made by the petitioner in W.P.No.17987 of

2014 has been rejected by the respondents by passing a speaking order

stating that only the castes mentioned in the Presidential order alone can
be treated as Scheduled Castes subject to the rider that they must be
residents. The petitioners seeking to quash the merit list and treat them
as Scheduled Castes, as such, under the Presidential Order, have filed the
present writ petitions. These are the background facts.

5.

Submissions of the Petitioners:The learned Counsels appearing for the petitioner submitted

that the fact that the members of the petitioner in W.P.No.17987 of 2015
and the parents of the petitioners in W.P.Nos.19369 and 20675 of 2015
are the residents after completion of five years at Union Territory of
Pondicherry is not in dispute. Treating them as such they have been
considered for the Government Posts under the reserved category. The
issues raised have already been dealt with and concluded by the Apex
Court in S.PUSHPA AND OTHERS V. SIVACHANMUGAVELU AND OTHERS ((2005)
3 Supreme Court Cases 1)

and PUDUCHERRY SCHEDULED CASTE PEOPLE

WELFARE ASSOCIATION V. CHIEF SECRETARY TO GOVERNMENT, UNION

TERRITORY OF PONDICHERRY AND OTHERS ((2014) 9 Supreme Court Cases

16
236). Therefore, the respondents cannot re-agitate the same in a different

form. Any such attempt per se would amount to contempt apart from the
principles governing estoppal being attracted.

The Apex Court has

considered the submissions and passed appropriate orders.

Being a

mandate of the Apex Court, Articles 141 and 142 of the Constitution of
India would come into play. Therefore, not only the respondents, but even
this Court is bound by the same. As the decisions rendered by the Apex
Court in MARRI CHANDRA SHEKHAR RAO V. DEAN, SETH G.S. MEDICAL
COLLEGE AND OTHERS ((1990) 3 Supreme Court Cases 130) has been

distinguished, the same cannot be relied upon.

Having taken a stand

earlier differently in S.PUSHPA AND OTHERS V. SIVACHANMUGAVELU AND

OTHERS ((2005) 3 Supreme Court Cases 1) referred supra it is not open to the

official respondents to contend to the contrary. In support of their

contention, the learned counsels had made reliance upon the following
judgments.
(1) MARRI CHANDRA SHEKHAR RAO V. DEAN, SETH
G.S. MEDICAL COLLEGE AND OTHERS ((1990) 3
Supreme Court Cases 130);
(2) ACTION
COMMITTEE
ON
ISSUE
OF
CASTE
CERTIFICATE
TO
SCHEDULED
CASTES
AND
SCHEDULED
TRIBES
IN
THE
STATE
OF
MAHARASHTRA AND ANOTHER V. UNION OF INDIA
AND ANOTHER ((1994) 5 Supreme Court Cases 244);
(3) S.PUSHPA AND OTHERS V. SIVACHANMUGAVELU
AND OTHERS ((2005) 3 Supreme Court Cases 1);
(4) PUDUCHERRY
SCHEDULED
CASTE
PEOPLE
WELFARE ASSOCIATION V. CHIEF
SECRETARY
TO
GOVERNMENT,
UNION
TERRITORY
OF

17
PONDICHERRY AND OTHERS
Court Cases 236).

((2014) 9 Supreme

(5) DEEPAK KUMAR AND OTHERS V. DISTRICT AND

ASSOCIATIONS JUDGE, DELHI AND OTHERS
W.P.No.5390 OF 2010 DATED 12.09.2012.
(6) AMBIKA PRASAD MISRA V. STATE OF U.P., ((1980)
3 SCC 719);
(7) B.M.LAKSHMI VS.MUNICIPAL COMMITTEE ((1970)
2 SCC 267;
(8) DIRECTOR OF SETTLEMENTS, ANDHRA
PRADESH AND OTHERS VS. M.R.APPARAO AND
ANOTHER ((2001) 4 SCC 638;
(9) J.KUMARAN V. UNION OF INDIA, REP. BY THE
CHIEF SECRETARY TO GOVERNMENT,
GOVERNMENT OF PUDUCHERRY, PUDUCHERRY
AND OTHERS ((2015) 2 MLJ 1; and
(10) S.NANDHIVARMAN Vs. J.KUMARAN AND OTHERS
-Rev. A.Nos.69 & 70 of 2015 dated 01.04.2015.

5.

Submissions of the Respondents:The counsels appearing for the respondents led by the learned

Additional Solicitor General submitted that the judgments cannot be read

like a statute.

The decisions rendered by the Apex Court in

MARRI

CHANDRA SHEKHAR RAO V. DEAN, SETH G.S. MEDICAL COLLEGE AND

OTHERS ((1990) 3 Supreme Court Cases 130) and ACTION COMMITTEE ON
ISSUE

OF

CASTE

CERTIFICATE

TO

SCHEDULED

CASTES

AND

SCHEDULED TRIBES IN THE STATE OF MAHARASHTRA AND ANOTHER V.

UNION OF INDIA AND ANOTHER ((1994) 5 Supreme Court Cases 244) hold

the field till now. A technical interpretation of the word resident cannot be
given.

It is not of mere physical resident or domicile. It only means a

resident on the date of the Presidential Order dated 05.03.1964.

Such a

clarification has also been accepted by the Apex Court. The entitlement of

18

a migrant has already been clarified by the Central Government as

approved by the Apex Court in the Action Committee case cited above. In
the decision relied upon by the learned counsel appearing for the
petitioners the issue was one of Article 16(4) as against Article 15(4) of
the Constitution of India in the present case.
SCHEDULED

CASTE

PEOPLE

WELFARE

In

PUDUCHERRY

ASSOCIATION

V.

CHIEF

SECRETARY TO GOVERNMENT, UNION TERRITORY OF PONDICHERRY

AND OTHERS ((2014) 9 Supreme Court Cases 236), the Apex Court was

merely concerned with the substitution of the word origin with resident
as shown in the Presidential Order. The petitioners having their status in
fact in their respective States with their permanent residents cannot seek
the said benefit before the migrant States/Union Territory having its own
peculiar characteristics. The two Division Bench decisions relied upon by
the learned counsel for the petitioners do not apply to the case on hand as
they also dealt with Article 16(4) of the Constitution of India.

Placing

reliance upon the very same judgment from which the learned counsel
appearing for the petitioners drew their support, it is submitted that the writ
petitions are liable to be dismissed.

6.

Heard the learned counsels appearing for the parties

perused the written submissions and other documents.

and

19

7.

ANALYSIS:-

7.1.

A Presidential Order has its own sanctity. Neither a State

Government/Union Territory nor a Court of Law is allowed to go beyond it.

The words Castes or Tribes in the expression Scheduled Casts and
Scheduled Tribes are not used in the ordinary terms, but in the light of the
definition under Articles 326 (24) and 326(25) of the Constitution of India.
Thus, a caste is a Schedule Caste or a Tribe would become as such only if
it is included in the Presidential Order issued under Articles 341 and 342 of
the Constitution of India. It is the parliament alone, which is competent to
include/exclude the castes from the list of Scheduled Castes.

Presidential Order once issued has to be varied only by a law made by the
Parliament. Considering this issue, the Apex Court in STATE OF KERALA
AND NAOTHER V. N.M.THOMAS AND OTHERS ((1976) 2 SCC 310) held as

follows:
Scheduled Castes and Scheduled Tribes are not a caste within
the ordinary meaning of caste. In Bhaiyalal v. Harikishan Singh
and Ors.(1) this Court held that an enquiry whether the appellant
there belonged to the Dohar caste which was not recognised as a
Scheduled Caste and his declaration that he belonged to the
Charmar caste which was a Scheduled Caste could not be
permitted because of the provisions contained in Article 341. No
Court can come to a finding that any caste or any tribe is a
Scheduled Caste or Scheduled Tribe. Scheduled Caste is a caste
as notified under Article 366(25). A notification is issued by the
President under Article 341 as a result of an elaborate enquiry.

20
The object of Article 341 is to provide protection to the members
of Scheduled Castes having regard to the economic and
educational backwardness from which they suffer.

7.2.

On the scope of Article 341 of the Constitution of India, it has

been held by the Apex Court in AKHIL BHARATIYA SOSHIT KARAMCHARI

SANGH

(RAILWAY)

REPRESENTED

BY

ITS

ASSISTANT

GENERAL

SECRETARY ON BEHALF OF THE ASSOCIATION ETC., V. UNION OF INDIA

AND OTHERS ((1981) 1 Supreme Court Cases 246).
40.

Article 341 makes it clear that a 'Scheduled Caste' need

not be a 'caste' in the conventional sense and, therefore, may not

be a caste within the meaning of Arts. 15(2) or 16(2). Scheduled
Castes become such only if the President specifies any castes,
races or tribes or parts or groups within castes, races or tribes
for the purpose of the Constitution. So, a group or a section of a
group, which need not be a caste and may even be a hotchpotch
of many castes or tribes or even races, may still be a Scheduled
Caste under Art. 341. Likewise, races or tribal communities or
parts thereof or part or parts of groups within them may still be
Scheduled Tribes (Art. 342) for the purpose of the Constitution.
Under this definition, one group in a caste may be a Scheduled
Caste and another from the same caste may not be. It is the
socioeconomic backwardness of a social bracket, not mere birth
in a caste, that is decisive. Conceptual errors creep in when
traditional obsessions obfuscate the vision.
41.

This aspect has been referred to in the State of Kerala v.

N. M. Thomas by me, and dealt with at more length by Ray,

C.J.:
Scheduled Castes and Scheduled Tribes are not a caste

21
within the ordinary meaning of caste. In Bhaiyalal v.
Hari kishan Singh and Ors.(2) this Court held that an
enquiry whether the appellant there belonged to the
Dohar caste which was not recognised as a Scheduled
Caste and his declaration that he belonged to the
Chamar caste which was a Scheduled Caste could not
be permitted because of the provisions contained in
Article 341. No Court can come to a finding that any
Caste or any tribe is a Scheduled Caste or Scheduled
Tribe. Scheduled Caste is a caste as notified under
Article 366(25). A notification is issued by the
President under Article 361 as a result of an elaborate
enquiry. The object of Article 341 is to provide
protection to the members of Scheduled Castes having
regard to the economic and educational backwardness
from which they suffer.

7.3.

The Apex Court in STATE OF MAHARASHTRA V. MILLIND AND

OTHERS ((2001) AIR Supreme Court Cases 393) while denying the word

Scheduled Caste and the scope of Articles 341 and 342 of the
Constitution of India as well as the jurisdiction of the authorities including
the Court, was pleased to observe as follows:
10.

By virtue of powers vested under Articles 341 and 342 of the

Constitution of India, the President is empowered to issue public

notification for the first time specifying the castes, races or tribes or
part of or groups within castes, races, or tribes which shall, for the
purposes of the Constitution be deemed to be Scheduled Casts or
Schedules Tribes in relation to a State or Union Territory, as the case

22
may be. The language and terms of Articles 341 and 342 are
identical. What is said in relation to Article 341 mutatis mutandis
applies to Article 342. The laudable object of the said Articles is to
provide additional protection to the members of the Scheduled
Castes and Scheduled Tribes having regard to social and educational
backwardness from which they have been suffering since a
considerable length of time. The words `castes' or `tribes' in the
expression `Scheduled Castes' and `Scheduled Tribes' are not used in
the ordinary sense of the terms but are used in the sense of the
definitions contained in Article 366(24) and 366(25). In this view, a
caste is a Scheduled Caste or a tribe is a Scheduled Tribe only if they
are included in the President's Orders issued under Articles 341 and
342 for the purpose of the Constitution. Exercising the powers
vested in him, the President has issued the Constitution (Scheduled
Castes) Order, 1950 and the Constitution (Scheduled Tribes) Order,
1950. Subsequently, some Orders were issued under the said Articles
in relation to Union Territories and other States and there have been
certain amendments in relation to Orders issued, by Amendment
Acts passed by the Parliament.
12.

Plain language and clear terms of these Articles show (1) the

President under Clause (1) of the said Articles may with respect to
any State or Union Territory and where it is a State, after
consultation with the Governor, by public notification specify the
castes, races or tribes or parts of or groups within the castes, races or
tribes which shall for the purposes of the Constitution be deemed to
be Scheduled Castes/Scheduled Tribes in relation to that State or
Union Territory as the case may be; (2) Under Clause (2) of the said
Articles, a notification issued under Clause (1) cannot be varied by
any subsequent notification except by law made by Parliament. In
other words, Parliament alone is competent by law to include in or
exclude a caste/tribe from the list of Scheduled Castes and

23
Scheduled Tribes specified in notifications issued under Clause (1)
of the said Articles. In including castes and tribes in Presidential
Orders, the President is authorized to limit the notification to parts or
groups within the caste or tribe depending on the educational and
social backwardness. It is permissible that only parts or groups
within them could be specified and further to specify castes or tribes
thereof in relation to parts of the State and not to the entire State on
being satisfied that it was necessary to do so having regard to social
and educational backwardness. States had opportunity to present
their views through Governors when consulted by the President in
relation to castes or tribes, parts or groups within them either in
relation to entire State or parts of State. It appears that the object of
Clause (1) of Articles 341 and 342 was to keep away disputes
touching whether a caste/ tribe is a Scheduled Caste/Scheduled Tribe
or not for the purpose of the Constitution. Whether a particular caste
or a tribe is Scheduled Caste or Scheduled Tribe as the case may be
within the meaning of the entries contained in the Presidential
Orders issued under clause (1) of Articles 341 and 342 is to be
determined looking to them as they are. Clause (2) of the said
Articles does not permit any one to seek modification of the said
orders by leading evidence that the caste / tribe (A) alone is
mentioned in the Order but caste / tribe (B) is also a part of caste /
tribe (A) and as such caste / tribe (B) should be deemed to be a
scheduled Caste / Scheduled Tribe as the case may be. It is only the
Parliament that is competent to amend the Orders issued under
Articles 341 and 342. As can be seen from the Entries in the
Schedules pertaining to each State whenever one caste / tribe has
another name it is so mentioned in the brackets after it in the
Schedules. In this view it serves no purpose to look at gazetteers or
glossaries for establishing that a particular caste/tribe is a Schedule
Caste/Scheduled Tribe for the purpose of Constitution, even though

24
it is not specifically mentioned as such in the Presidential Orders.
Orders once issued under clause (1) of the said Articles, cannot be
varied by subsequent order or notification even by the President
except by law made by Parliament. Hence it is not possible to say
that State Governments or any other authority or courts or tribunals
are vested with any power to modify or vary said Orders. If that be
so, no enquiry is permissible and no evidence can be let in for
establishing that a particular caste or part or group within tribes or
tribe is included in Presidential Order if they are not expressly
included in the Orders. Since any exercise or attempt to amend the
Presidential Order except as provided in clause (2) of Articles 341 &
342 would be futile, holding any enquiry or letting in any evidence
in that regard is neither permissible nor useful.
13.

In the debates of Constituent Assembly (Official Report, Vol.

9) while moving to add new Articles 300-A and 300-B after Article
300 (corresponding to Articles 341 and 342 of the Constitution), Dr.
B.R.Ambedker explained as follows :"The object of these two articles, as I stated, was to eliminate the
necessity of burdening the Constitution with long lists of Scheduled
Castes and Scheduled Tribes. It is now proposed that the President in
consultation with the Governor or Ruler of a State should have the
power to issue a general notification in the Gazette specifying all the
Castes and Tribes or groups thereof deemed to be Scheduled Castes
and Scheduled Tribes for the purpose of this privileges which have
been defined for them in the Constitution. The only limitation that
has been imposed is this: that once a notification has been issued by
the President, which, undoubtedly, he will be issuing in consultation
with and on the advice of the Government of each State, thereafter, if
any elimination was to be made from the List so notified or any
addition was to be made that must be made by Parliament and not by
the President. The object is to eliminate any kind of political factors

25
having a play in the matter of the disturbance in the Schedule so
published by the President."
(emphasis supplied)
14...............Allowing the State Governments or courts or other
authorities or tribunals to hold enquiry as to whether a particular
caste or tribe should be considered as one included in the Schedule
of the Presidential Order, when it is not so specifically included, may
lead to problems. In order to gain advantage of reservations for the
purpose of Articles 15(4) or 16(4) several persons have been coming
forward claiming to be covered by Presidential Orders issued under
Articles 341 and 342. This apart when no other authority other than
the Parliament, that too by law alone can amend the Presidential
Orders, neither the State Governments nor the courts nor tribunals
nor any authority can assume jurisdiction to hold enquiry and take
evidence to declare that a caste or a tribe or part of or a group within
a caste or tribe is included in Presidential Orders in one Entry or the
other although they are not expressly and specifically included. A
court cannot alter or amend the said Presidential Orders for the very
good reason that it has no power to do so within the meaning,
content and scope of Articles 341 and 342. It is not possible to hold
that either any enquiry is permissible or any evidence can be let in, in
relation to a particular caste or tribe to say whether it is included
within Presidential Orders when it is not so expressly included.

Thus, merely because a person belong to a Scheduled Caste community in

some other State, he would not carry the said status to other State
automatically.

7.4.

In

MARRI CHANDRA SHEKHAR RAO V. DEAN, SETH G.S.

MEDICAL COLLEGE AND OTHERS ((1990) 3 Supreme Court Cases 130), the

26

Apex Court has considered the expression in relation to the State. In

that case, the petitioner was born in the State of Andhra Pradesh and
thereafter, migrated to Bombay. It was held that a migrant does not carry
forward the caste or community with him, just because he was declared so
in his original State. A fruitful recapitulation of the relevant passage is
produced hereunder.
13.

It is trite knowledge that the statutory and constitutional

provisions should be interpreted broadly and harmoniously. It is

trite saying that where there is conflict between two provisions,
these should be so interpreted as to give effect to both. Nothing is
surplus in a Constitution and no part should be made nugatory.
This is well-settled. See the observations of this Court in Sri
Venkataramana Devaru & Ors. v. State of Mysore & Ors., [1958]
SCR 895 at 918, where Venkatarama Aiyar, J. reiterated that the
rule of construction is well-settled and where there are in an
enactment two provisions which cannot be reconciled with each
other, these should be so interpreted that, if possible, effect could
be given to both. It, however, appears to us that the expression
'for the purposes of this Constitution' in Articles 341 as well as in
Article 342 do imply that the Scheduled Castes and the Scheduled
Tribes so specified would be entitled to enjoy all the
constitutional rights that are enjoyable by all the citizens as such.
Constitutional right, e.g., it has been argued that right to
migration or right to move from one part to another is a right
given to all--to scheduled castes or tribes and to non-scheduled
castes or tribes. But when a Scheduled Caste or tribe migrates,
there is no inhibition in migrating but when he migrates, he does
not and cannot carry any special rights or privileges attributed to
him or granted to him in the original State specified for that State

27
or area or part thereof. If that right is not given in the migrated
state it does not interfere with his constitutional right of equality
or of migration or of carrying on his trade, business or profession.
Neither Article 14, 16, 19 nor Article 21 is denuded by migration
but he must enjoy those rights in accordance with the law if they
are otherwise followed in the place where he migrates. There
should be harmonious construction, harmonious in the sense that
both parts or all parts of a constitutional provision should be so
read that one part does not become nugatory to the other or
denuded to the other but all parts must be read in the context in
which these are used. It was contended that the only way in which
the fundamental rights of the petitioner under Article 14,
19(1)(d), 19(1)(e) and 19(1)(f) could be given effect to is by
construing Article 342 in a manner by which a member of a
Scheduled Tribe gets the benefit of that status for the purposes of
the Constitution throughout the territory of India. It was
submitted that the words "for the purposes of this Constitution"
must be given full effect. There is no dispute about that. The
words "for the purposes of this Constitution" must mean that a
Scheduled Caste so designated must have right under Articles 14,
19(1)(d), 19(1)(e) and 19(1)(f) inasmuch as these are applicable
to him in his area where he migrates or where he goes. The
expression "in relation to that State" would become nugatory if in
all States the special privileges or the rights granted to Scheduled
Castes or Scheduled Tribes are carried forward. It will also be
inconsistent with the whole purpose of the scheme of reservation.
In Andhra Pradesh, a Scheduled Caste or a Scheduled Tribe may
require protection because a boy or a child who grows in that area
is inhibited or is at disadvantage. In Maharashtra that caste or that
tribe may not be so inhibited but other castes or tribes might be. If
a boy or a child goes to that atmosphere of Maharashtra as a

28
young boy or a child and goes in a completely different
atmosphere or Maharashtra where this inhibition or this
disadvantage is not there, then he cannot be said to have that
reservation which will denude the children or the people of
Maharashtra belonging to any segment of that State who may still
require that protection. After all, it has to be borne in mind that
the protection is necessary for the disadvantaged castes or tribes
of Maharashtra as well as disadvantaged castes or tribes of
Andhra Pradesh. Thus, balancing must be done as between those
who need protection and those who need no protection, i.e., who
belong to advantaged castes or tribes and who do not. Treating
the determination under Articles 341 and 342 of the Constitution
to be valid for all over the country would be in negation to the
very purpose and scheme and language of Articles 341 read with
Article 15(4) of the Constitution.
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.
23.

Having construed the provisions of Article 341 and 342

of the Constitution in the manner we have done, the next

question that falls for consideration, is, the question of the fate
of those scheduled caste and scheduled tribe students who get
the protection of being classed as scheduled caste or scheduled
tribes in 'the States of origin when, because of transfer or
movement of their father or guardian's business or service, they
move to other States as a matter of voluntary transfer, will they
be entitled to some sort of protective treatment so that they may
continue or pursue their education. Having considered the facts
and circumstances of such situation, it appears to us that where

29
the migration from one State to other is involuntary, by force of
circumstances either of employment or of profession, in such
cases if students or persons apply in the migrated State where
without affecting prejudicially the rights of the scheduled castes
or scheduled tribes in those States or areas, any facility or
protection for continuance of study or admission can be given
to one who has so migrated then some consideration is
desirable to be made on that ground. It would, therefore, be
necessary and perhaps desirable for the legislatures or the
Parliament to consider appropriate legislations bearing this
aspect in mind so that proper effect is given to the rights given
to scheduled castes and scheduled tribes by virtue of the
provisions under Articles 341 and 342 of the Constitution, This
is a matter which the State legislatures or the Parliament may
appropriately take into consideration.

7.5.

In ACTION COMMITTEE ON ISSUE OF CASTE CERTIFICATE

TO SCHEDULED CASTES AND SCHEDULED TRIBES IN THE STATE OF

MAHARASHTRA AND ANOTHER V. UNION OF INDIA AND ANOTHER ((1994)
5 Supreme Court Cases 244), the very same principle has been reiterated.

The Apex Court has also dealt with the meaning of a resident and an
ordinary resident. While doing so, the various communications from the
Central Government, including the one dated 22.03.1977, letter dated
05.08.1975 and the communication dated 08.09.1985 have been taken into
consideration, as they speak about the procedure and entitlement of the
migrant to be considered in the migrated States of Union Territory as
against the State of his permanent residence, in which, he was given a

30

special status. The following paragraph would be apposite.

17. Lastly the Constitution Bench referred to the cleavage in
the views of different High Courts on the interpretation of
Articles 341 and 342 of the Constitution and the consequential
orders passed by the Government of India and the State
Governments. It referred to the two decisions of the Gujarat
High Court as well as the decision of the Karnataka High Court
which place the interpretation canvassed before us by Mr Raju
Ramachandran. The other side referred to the decisions of the
Orissa High Court in K. Appa Rao v. Director of Posts &
Telegraphs, Orissa10, the decision of the Full Bench of the
Bombay High Court in M.S. Malathi v. Commissioner, Nagpur
Division" and the decision of the Punjab & Haryana High Court
in V.B. Singh v. State of Punjab12 which take the contrary view
canvassed before us by the respondents. All these decisions
were considered by the Constitution Bench which agreed with
the latter view. It upheld the view expressed in the
communication dated 22-2- 1985 and negatived the challenge of
the petitioner that the said view was ultra vires Articles 14, 15,
16 or 21. It, however, observed that in the facts and
circumstances of the case and having regard to the fact that the
petitioner student's career was involved it directed the
authorities to consider whether the petitioner was a 'Goudi' and
if yes, the institution may consider if he can be allowed to
complete his studies in the institution. However, on the
interpretation of the relevant provisions of the Constitution this
Court was clear in its view that legally speaking he was not
entitled to admission in the Scheduled Tribe quota.

Thus, the Apex Court has reiterated the earlier decision apart from relying
upon the communications of the Central Government. From the above, it

31

is clear that the residents as indicated in the Presidential Order dated

05.03.1964 would only mean such residents who were available on that
date and not thereafter.

7.6.

The learned counsels appearing for the petitioners

made substantial reliance upon the decision in S.PUSHPA AND OTHERS V.

SIVACHANMUGAVELU AND OTHERS ((2005) 3 Supreme Court Cases 1).

The said decision is a precedent for Article 16(4) of the Constitution of

India. Similarly, in the said case, the Government of Pondicherry has
taken a stand in view of then prevailing situation qua appointments to the
migrants. The Apex Court has clearly held that it is well open to the
respondents to formulate a policy, even by extending the benefits of
reservation only to such Scheduled Caste and Scheduled Tribe, which is
recognised as such in relation to the State or Union Territory concerned.
Thus, the said judgment makes it clear that such an action, if taken, is not
contrary to the Presidential Order and rather it would be in consonance
with it. The following is the appropriate paragraph dealing with the said
proposition.
21. 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

32
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 classes
to claim reservation. Article 16(4) is not controlled by a
Presidential Order issued under Article 341(1) or Article 342(1) of
the Constitution in the sense that reservation in the matter 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 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.

33

7.7.

In SUBHASH CHANDRA AND ANOTHER

V. DELHI

SUBORDINATE SERVICES SELECTION BOARD AND OTHERS ((2009) 15

Supreme Court Cases 458), the Apex Court, after taking into consideration

of the earlier judgments, held that the decision in S.PUSHPA's case cited
supra was with respect to the direction given by the Central Government to
an Administrator acting under the authority of a President of India in terms
Article 239 of Constitution of India. Incidentally, the Apex Court was also of
the opinion that MARRI CHANDRA SHEKHAR RAO's case thus would
apply to the Union

Territory as well.

The following are the relevant

paragraphs.
59.

This Court in S.Pushpa case proceeded on the basis

that as the Administrator while acting under the authority given

to him by the President in terms of Article 239 of the
Constitution was bound by the directions issued by the Central
Government in terms whereof the vacancies occurring in the
Union Territory was to be treated as that of Central Civil
Services which practice had consistently been followed by the
Administration in terms whereof migrant SC/ST candidates were
held to be eligible for appointment in the reserved posts in the
Pondicherry Administration.
63.

Can it be said that Marri Chandra Shekhar Rao does

not apply to Union Territory? The answer thereto, in our

opinion, is a big emphatic `no'. Both Articles 341 and 342 not
only refer to the State but also to the Union Territory .
65.

If the principle applied in S. Pushpa (supra) is to be

given a logical extension, it will lead to an absurdity, that the

Scheduled Castes Order in a State brought under the control of

34
the President under Article 356 could be altered by virtue of a
notification issued in pursuance of Article 16(4) of the
Constitution.

7.8.

Considering the law of precedence, particularly, with

reference to the decision governing the State case, the Supreme Court
held in the following manner.
96.

A decision, as is well known, is an authority for what it

decides and not what can logically be deduced therefrom. 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. 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]
97.

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 Court, in
exercise of its supervisory jurisdiction, under Article 227 of the
Constitution of India, cannot make any roving inquiry for the
purpose of finding out as to whether a person belonging to one caste
would, for one reason or the other, can be held to be belonging to
another caste or tribe which had been notified as scheduled caste or
scheduled tribe.
98.

It is also well known that a decision rendered in

35
ignorance of a binding precedent and/or in ignorance of a
constitutional provision, would be held to have been rendered per
incuriam.
110.

Should we consider Pushpa to be an obiter following the

said decision is the question which arises herein. 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
and E.V. Chinnaiah. Marri Chandra Shekhar Rao had been followed
by this Court in a large number of decisions including Three Judge
Bench decisions. Pushpa, therefore, could not have ignored either
Marri Chandra Shekhar Rao or other decisions following the same
only on the basis of an administrative circular issued or otherwise
and more so when the Constitutional scheme as contained in clause
(1) of Articles 341 and 342 of the Constitution of India putting the
State and Union Territory in the same bracket. Following Dayanand
(supra), therefore, we are of the opinion that the dicta in Pushpa is an
obiter and does not lay down any binding ratio.

7.9.

In

PUDUCHERRY

SCHEDULED

CASTE

PEOPLE

WELFARE ASSOCIATION V. CHIEF SECRETARY TO GOVERNMENT UNION

TERRITORY OF PONDICHERRY AND OTHERS ((2014) 9 Supreme Court
Cases, 236), the issue before the Apex Court was as to whether the word

resident can be read as origin. It has been held in categorical term as

held by the Apex Court in the earlier decisions referred supra that no
executive power, amendment, modification, alteration or variance in the
Presidential Order is permissible. Here again, the Apex Court was dealing
with Article 16(4) of the Constitution of India. It would be appropriate to

36

reproduce the following passage of the said judgment.

13. It is important to bear in mind that it is by virtue of the
notification of President under Article 341(1) that the
Scheduled Castes come into being. The members of the
Scheduled Castes are drawn from castes, races or tribes, they
attain a new status by virtue of Presidential Order. Clause (2)
of Article 341 empowers Parliament alone by law to include
or exclude from the list of Scheduled Castes specified in a
notification issued under Clause (1) by the President. By no
executive power, the amendment, modification, alteration or
variance in the Presidential Order is permissible. It is not open
to the executive to do anything directly or indirectly which
may lead to any change in the Presidential Order. Once
Presidential Order has been issued under Article 341(1) or
Article 342(1), any amendment in the Presidential Order can
only be made by the Parliament by law as provided in Article
341(2) or Article 342(2), as the case may be, and in no other
manner. The interpretation of resident in the Presidential
Order as of origin amounts to altering the Presidential
Order.

8.

CONCLUSION:-

From the above decisions, it is clear that neither the Court nor
the respondents have any power to modify or alter the Presidential Order.
However, as held in the Action Committee case, it has taken note of
various communications of the Central Government. The word resident
will have to necessarily mean to apply to such of the Scheduled Caste

37

members residing at the relevant point of time i.e., 05.03.1964 at the Union
Territory of Pondicherry. In other words, merely because a person resides
for various reasons in the Union Territory of Pondicherry, he cannot be
given the status and he cannot be allowed to be brought under the
umbrella of Presidential Order. Such a person does not lose his right to be
considered for the purpose of availing the benefit under Article 15(4) of the
Constitution of India in the State in which he is a permanent resident. A
presidential Order enumerating the Scheduled Castes is made after

thorough research on empirical data. A certificate of resident given after

completion of five years

cannot be used to define a resident as

mentioned in the Presidential Order. In fact, such a certificate has been

given to every other person, who comes to the Union Territory of
Pondicherry and resides therein for five years. It is given merely based
upon the period of stay and therefore, nothing to do with the status. In
other words, a Scheduled Caste person not having five years of a resident
in Pondicherry is the same as that of the others living for five years in so
far as seeking a benefit under Article 15(4) of the Constitution of India is
concerned. A disadvantage would not arise merely after five years of
residence. The purpose of reservation is meant to overcome backwardness
and other disadvantages of a caste in a particular place and thus, it does
not have any relevancy to the period of subsequent stay. The reason why
the Presidential order refers to a resident as on that date was because of

38

the peculiar situation prevailed at the relevant point of time. There was no
difference between the origin and a resident as on 05.03.1964 as both
are suffering from the same disadvantages. A mere issuance of certificate
of resident issued to a migrant, would not give a vested right to be treated
under the reservation category for the purpose of education. As discussed
above, the decisions in S.Pushpa's case and Puducherry Scheduled Case
People Welfare Association's case do not apply to the case on hand. They
have been rendered on a different fact situation. Even in the S.Pushpa's
case, the benefit was not extended for the purpose of education. The
Government in Circular dated 06.01.1993 confines the said benefit to the
Scheduled Caste of Union Territory alone and the same has also been
taken note of. The said position has been in prevalence atleast from 1993
onwards. The said circular has never be put into challenge and in any
case, they are not the subject matter before any Court till now.

9.

The learned counsels appearing for the petitioners also made

reliance upon the two Division Bench judgments of this Court. This Court,
after going through the same, is of the considered view that they are also
not dealing with the issue on hand.

10.

Thus, in the light of the discussions made above and after

39

analysing the decisions cited supra, this Court does not find any merit in
these writ petitions.

Accordingly, the same are dismissed.

No costs.

Consequently, connected miscellaneous petitions are also dismissed.

13.08.2015
Note to Office:
Issue order copy today i.e., on 13.08.2015
Index:Yes/No
raa
To
1. The Chief Secretary,
Government of Puducherry,
Union of India, Chief Secretariat,
Puducherry-605 001.
2.The Secretary,
The Department of Education,
Government of Puducherry,
Chief Secretariat, Puducherry-605 001.
3.The Convener,
Centralised Admission Committee(CENTAC)
CENTAC, Pondicherry Engineering College Campus,
Pillaichavadi, Puducherry-605 014.
4.The District Collector,
Office of the District Collectorate,
Revenue complex, Saram,
Puducherry-605 013.

40

M.M.SUNDRESH,J.
raa

Pre-Delivery Common Order

41

in W.P.Nos.17987, 19369
and 20675 of 2015

13.08.2015