TMI Blog2005 (2) TMI 849X X X X Extracts X X X X X X X X Extracts X X X X ..... p 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 sufficient number of SC candidates were not available in Yanam and Mahe region of Union territory of Pondicherry. The employment exchange, Pondicherry sponsored 118 candidates. The employment exchange of Badagara (Kerala) sponsored 4 candidates for Mahe, the employment exchange Yanam sponsored 15 candidates and employment exchange Vishakhapattnam (AP) sponsored 139 candidates for Yanam. After holding interview a final Selection List was prepared and out of 55 finally selected SC candidates, 29 candidates had produced community certificates from the Governments of Tamil Nadu, Andhra Pradesh and Kerala, based on which the revenue authority of Pondicherry had issued communi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Constitution which is important for the purpose of decision of the present case reads as under : 341. Scheduled Castes. (1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be. (2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 the State, the same cannot be held to be illegal or contrary to any constitutional provisions. 7. Learned counsel for the contesting respondents (applicants in the original application before the Tribunal) have submitted that in view of clear language in Article 341(1) of the Constitution, only such castes which have been mentioned in the schedule appended to the Presidential Order of 1964, shall be deemed to be Scheduled Castes for the U.T. of Pondicherry and a migrant SC person is not eligible for any reserved posts. Learned counsel has also submitted that the fact that a Union territory is adminis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 affairs of the Union territory. The President has delegated to the Lt. Governor of Pondicherry power to frame rules for regulating the method of recruitment to the civil services and posts in Grade A , B , C and D under his administrative control in connection with the affairs of the Union territory and also the conditions of service of persons appointed to such services. While making rules for appointment in Grade A and B posts, the Lt. Governor has to act subject to prior consultation with the Union Public Service Commission. The services and posts for U.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inistrator 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 to be an amendment of this Constitution for the purposes of article 368 notwithstanding that it contains any provision which amends or has the effect of amending this Constitution. 11. Article 239B confers power upon the administrator of U.T. of Pondicherry to promulgate Ordinances during recess of Legislature in certain circumstances. But in view of the first proviso appended to clause (1) of Article 239B, no such Ordinance shall be promulgated by the administrator except after obtain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stration 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, shall, unless otherwise directed at any time by the Central Government or the Administrator in relation to any such court, tribunal, authority or officer, or until other provision is made by law, continue to exercise in connection with the administration of Pondicherry their respective duties and functions in the same manner and to the same extent as before the appointed day with such altered designation, if any, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artments, 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 Pondicherry is a Union Territory, all orders regarding reservation for Scheduled Caste/Scheduled Tribe issued by the Department of Personnel in respect of posts/services under the Central Government are applicable to posts/services under the Pondicherry Administration also. Hence, as such, a Scheduled Caste/Scheduled Tribe candidate from outside Pondicherry would also b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 occurring therein. This was clearly explained by a Constitution Bench in T.M. Kanniyan vs. Income Tax Officer 1968 (2) SCR 103 (AIR 1968 SC 367). In New Delhi Municipal Council vs. State of Punjab 1997 (7) SCC 339 the majority has approved the ratio of T.M. Kanniyan and has held that the Union territories are not States for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 territory. Similar provision for reservation of seats in favour of SC/ST in the Legislative Assembly of any State is contained in clause (3) of Article 332 of the Constitution. Therefore, in order to ascertain the number of seats which have to be reserved for Scheduled Castes or Scheduled Tribes in the House of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rritory 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 provision in making selection and appointment of migrant Scheduled Caste candidates against the quota reserved for Scheduled Castes on the post of Selection Grade Teachers. The view to the contrary taken by the Tribunal cannot, therefore, be sustained and has to be set aside. 23. The appeals a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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