DEEPAK KUMAR Vs. DISTRICT AND SESSIONS JUDGE

JUDGEMENT

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

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

(3.) During the hearing before the Division Bench (which initially heard the present cases), it was submitted that the above decision, as it was premised on the judgment in Subhash Chandra v. Delhi Subordinate Services Selection Board, 2009 15 SCC 458 is not a binding precedent, because a larger, three judge decision in S.Pushpa & Ors. v. Sivachanmugavelu & Ors., 2005 3 SCC 1 (hereafter "Pushpa") had held that unlike in the case of States, Union Territories are within the administrative control of the Union Government, in view of the express provisions of the Constitution. Consequently, any Scheduled Caste or Scheduled Tribe notified as such by the President, can be classified as such caste or tribe, under Article 16 (4) of the Constitution, and once that is done, each member of such caste or tribe, who answers that description would be entitled to the benefit of reservation in all Union Territories. In the case of States, however, having regard to separate administrative arrangements under the Constitution, such a position would not apply and those castes or tribes, notified in relation to those state(s) as Scheduled Castes or Scheduled Tribes, alone would be entitled to the benefits, and those migrating from one state to another, cannot enjoy such benefits. The decision in Pushpa being rendered by a larger bench of three judges, could not be characterized as obiter dicta. Counsel for some of the petitioners (who relied on the benefits of the Pushpa decision) further argued that the Supreme Court itself has stated that the decision in Subhash Chandra could not have said that Pushpa was not binding, and the proper course should have been to refer the matter for decision by a larger Bench. In this context, it was submitted that such course has been adopted precisely in State of Uttaranchal vs . Sandeep Kumar Singh and Ors, 2010 12 SCC 794. In the latter decision, it was observed that: