Union Of India vs The Central Administrative ...

on 29 September, 2008

Madras High Court Union Of India vs The Central Administrative ... on 29 September, 2008 DATED: 29-09-2008 CORAM THE HONOURABLE MR. JUSTICE P.K.MISRA AND THE HONOURABLE MR. JUSTICE K.CHANDRU Writ Petition Nos. 4219, 4443, 4444 and 4850 of 2008 and M.P.Nos.1+1+1+2 of 2008 W.P.No.4219 of 2008 1.Union of India, The Government of Puducherry rep. by its Chief Secretary Chief Secretariat (Welfare), Puducherry. 2.Secretary to Government, Local Administration and Public Works Department, (Public Works Wing), Government of Puducherry. ... Petitioners. Vs 1. The Central Administrative Tribunal, Chennai rep. by its Registrar. 2. A.Anbalagan 3. A.Thirunarayanan 4. A.Murugesan 5. K.Veeraselvam
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Union Of India vs The Central Administrative ... on 29 September, 2008

6. N.Balasubramanian 7. V.Lakshmanan 8. P.Velusamy 9. Dara Subramanian 10.S.Ramani 11.M.Balakrishnan 12.K.Elumalai 13.G.Packrisamy 14.N.Balasubramanian 15.K.Chandrasekaran 16.J.Jayaraman 17.S.Dhanabal ... Respondents. W.P.No.4443 of 2008 The Union of India rep. by the Development Commissioner-cumSecretary to Government (Education), Government of Puducherry, Chief Secretariat, Puducherry. ... Petitioner vs 1.S.Jothidasan 2.M.Venkatakrishnan 3.The Central Administrative Tribunal, Chennai rep. by its Registrar. ... Respondents W.P.No.4444 of 2008 1.Union of India, rep. by its Chief Secretary to Govt.,
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Union Of India vs The Central Administrative ... on 29 September, 2008

Government of Puducherry Chief Secretariat, Puducherry. 2.The Secretary to Government (Education), Chief Secretariat, Puducherry. 3.The Director of Education Department, Puducherry. 4. The Reporting Officer, Vice Principal, Calve College, Mission Street, Puducherry-1. ... Petitioners. Vs 1.G.Ammaji 2.K.Elumalai 3.M.Venkatakrishnan 4.Vetrivelu 5.The Central Administrative Tribunal, Chennai rep. by its Registrar. ... Respondents W.P.No.4850 of 2008 1.The Union of India, rep. by its Chief Secretary The Government of Puducherry Chief Secretariat, Puducherry. 2.The Development Commissioner-cumSecretary to Government (Education), Government of Puducherry. Chief Secretariat, Puducherry.
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Union Of India vs The Central Administrative ... on 29 September, 2008

3. The Deputy Director (Admn.) Directorate of School Education, Govt. of Puducherry, Puducherry. 4. The Chairman, Departmental Promotion Committee, Government of Puducherry, Chief Secretariat (Education), Puducherry. ... Petitioners. Vs 1.V.Ranganathan 2.The Central Administrative Tribunal, Chennai rep by its Registrar. ... Respondents Prayer:- Writ Petitions filed under Article 226 of the Constitution of India to issue a writ of certiorari calling for the records pertaining to the order passed in O.A.No.125 of 2007, 922 of 2005, 268 of 2006 and 973 of 2005 dated 17.09.2007 on the file of the Central Administrative Tribunal, Madras Bench and to quash the same. For Petitioners : Mr.T. Murugesan in all WPs Govt. Pleader (Puducherry) for Mr. Syed Mustafa For Respondents 1to8: Mrs. Nalini Chidambaram in WP.No.4219/2008 Senior Counsel for Mr. Arun Natarajan For Respondents 9to17:Mr.K.M. Vijayan, In WP.No.4219/2008 Senior Counsel for M/s. La Law For Respondents 1&2 : M/s.R. Vaigai in WP.No.4443/2008 Anna Mathew For Respondent-1 in : Mr. Arun Natarajan
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Union Of India vs The Central Administrative ... on 29 September, 2008

WP.No.4444/2008 & WP.No.4850/2008 For Respondents2to4 : Mr. Ajaykumar in WP.No.4444/2008 --COMMON JUDGMENT P.K.MISRA,J. All these writ petitions have been filed by the Government of Puducherry and its Subordinate Officials challenging the common order of the Central Administrative Tribunal, Madras Bench, dated 17th September, 2007, in various original applications filed by different applicants. 2. The question relates to promotion in different departments of the Puducherry Government. The applicants before the Tribunal are members of Schedule Caste not of Puducherry origin but of the neighbouring States. In other words, they are considered as "migrant scheduled caste" belonging to the members of the Schedule Caste/Scheduled Tribe. 3. The contention of the applicants before the Tribunal was to the effect that even though such applicants had migrated to Puducherry, they are entitled to the benefit of reservation in the promotional posts, in spite of the fact that they are migrants and not of Puducherry origin. It was further contended by them that the community, to which they belong, had been notified as Scheduled Caste or Scheduled Tribe as the case may be, both in the neighbouring State as well as in Puducherry and therefore, such persons are entitled to the benefit of reservation. 4. The contention of the Government of Puducherry was to the effect that in the Notification issued by the President of India under Article 341, indicates that the members of the Castes therein can be considered to be members of Scheduled Castes for the concerned Union Territory or the concerned State as the case may be and a person belonging to the reserved category in one State cannot ipso facto claim the same benefit on his migration to another State or Union Territory. It was further contended that the Government of Puducherry had issued a Government Order dated 05.08.2005 wherein it has been indicated that only the members of Schedules Caste/Scheduled Tribe of Pondicherry origin would be entitled to the benefit of reservation. In the absence of any specific law, the members of Scheduled Caste/Scheduled Tribe belonging to the neighbouring States cannot claim any such benefit. 5. The Tribunal had posed the following questions to be answered:i.Is Government of Pondicherry entitled to have its own reservation policy or they are governed by the provisions admissible for recruitment in Government of India, in all cases? ii.Is the action of the respondents in recruiting and promoting Migrant SCs until the issue of GO dated 5.8.2005 after the Presidential Notification dated 5.3.1964 illegal and unconstitutional? iii.Is the GO dated 5.8.2005 applicable to Group 'A' and 'B' employees? iv.What is the status of migrant SCs employed so far, over the years until the issue of GO dated 5.8.2005, after the G.O. has been issued?
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6. The Tribunal, after extracting paragraph Nos.16 to 22 from the decision of the Supreme Court in the case reported in S.Pushpa and Others -vs- Sivashanmughavelu {2000 (3) SCC 1}, held that the Government of Pondicherry can have its own reservation policy and it can also extend the benefit of reservation even to migrant Schedule Castes or Schedule Tribes, which are not mentioned in the Presidential Order issued for the Union Territory of Pondicherry. It was observed by the Tribunal as follows:- "38 ...........The UT of Pondicherry having adopted a policy of Central Government where under all SCs/STs irrespective of their state are eligible for posts which are reserved for SC/ST, no legal infirmity can be ascribed to such a policy and the same cannot be held to be contrary to any provisions of law and hence the action of the respondents in recruiting migrant SCs and giving SC status all along and until the GO dated 5.8.2005 is legal and not unconstitutional as tried to be made out by the respondents. Therefore, while we uphold the legality of the GO dated 5.8.2005 in respect of the recruitment and promotion to the Group 'C' and Group 'D' posts, and consider also as constitutional, all appointments and promotions made prior to the issue of the said GO for all grades from Migrant SCs as legal . . ." 7. Incidentally, it is to be pointed out that in the meantime, a Division Bench of this Court, by judgment dated 21.07.2008 in W.P.Nos.33305 and 33306 of 2006, has upheld the validity of the Government Order dated 05.08.2005. It is also to be noted that the correctness of the finding of the Tribunal relating to questions Nos.1 and 2 is not an issue before us in the present batch of cases. 8. While thus upholding the right of the Government of Pondicherry to frame its own reservation policy, the Tribunal proceeded to consider the 3rd question, viz., whether such Government Order dated 05.08.2005 is applicable to Group 'A' and 'B' employees and the 4th question, as to what was the status of migrant SCs employed so far, until the issue of GO dated 5.8.2005, after such G.O. had been issued. Ultimately, the Tribunal concluded as follows:" 38 . . . This G.O. does not have application for Group 'B' and Group 'A' employees. The GO is applicable only prospectively and it cannot have any retrospective effect. In this context, we agree with the applicants that the legal right vested in them at a point of time cannot be taken away by an executive order with retrospective application. . . ." 9. The Tribunal further proceeded to observe as follows:"39........ Thus, the G.O. Dated 05.08.2005 which explicitly states "henceforth" the order shall be applied to Group 'C' and Group 'D' for recruitment/promotion employment and it has not in any way taken away the rights of the migrant SCs who have been already appointed under SC status in accordance with the ratio of the Hon'ble Supreme Court in Pushpa's case and also based on ratio of Hon'ble Apex Court decision on the Doctrine of Legitimate Expectations, and therefore, the respondents cannot do away with the SC status of Migrant SCs appointed so far by retrospective application of the G.O. dated 5.8.2005 to them. They have to continue to remain as SC in Group 'C' and Group 'D' while the effect of the GO dated 5.8.2005 will be that they will not be getting any new benefit in terms of promotion as their being SC in Group 'C' and 'D'. Further the respondents are well within their right to restrict employment and promotion prospectively in Group 'C' and 'D' in the light of the GO dated 5.8.2005. 40. We do not also agree with the respondents that as the Group 'C' is the feeder cadre for Group 'B' also which in turn is the feeder cadre for Group 'A' the G.O. is applicable to Group B and Group A services too. In this Context the respondents replies are referred to: "The origin SC Association contended that, inasmuch as the Govt. of Pondicherry issued orders vide GO Ms.No.11/2005/Wel(SCW.II) dated 5.8.2005 to the effect that reservation benefits in employment in Group 'D' and 'C' categories will be extended only to origin SC candidates, the seniority assigned to the migrant SC candidates in the feeder grade of Group 'C' post, consequent on their accelerated promotion by virtue of reservation under SC category, have to be re-assigned from the date of initial appointment on par with general candidate appointed along with the
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applicants. The respondents submits that the matter was considered in detail by the Govt. of Pondicherry and a conscious decision was taken to take up the matter regarding appointment and promotion to Group 'B' and 'A' posts only to origin SC candidates with the Govt. of India. Pursuant to this, the Department of Personnel and Administrative Reforms (Personnel Wing) have addressed the Govt. of India in the matter and the reply is awaited." 10. On the basis of the aforesaid analysis, the Tribunal considered different original applications individually. So far as O.A.No.268 of 2006 is concerned, where the question was relating to promotion to the post of Vice Principal, by referring to the Circular dated 27.04.2005, the Tribunal observed as follows:- "42. . . . Therefore, the respondents are directed to consider the applicant who is a migrant SC for promotion to the post of Vice Principal, as they themselves claimed in the reply that they have inadvertently failed to consider the case of the applicant when the DPC met for the post of Vice Principal. In this context, they should also decide on the representation of the applicant against the adverse entries made, in accordance with law and also keeping in view the fact that the adverse entries were communicated to the applicant only after the DPC met, which is in clear violation of the directions issued by the nodal ministry of Govt. of India in this regard. After having decided on the adverse entries on the basis of the above directions within a period of four weeks from the date of receipt of a copy of this order, the respondents are directed to convene a review DPC and take appropriate decision regarding her promotion to the post of Vice Principal in accordance with extant orders and law within a period of 8 weeks from the date of receipt of a copy of this order and communicate the same to the applicant." 10.1 W.P.No.4444 of 2008 has been filed by the Government of Puducherry against such decision in respect of O.A.No.268 of 2006. The applicant before the Tribunal and Respondent No.1 in said writ petition have entered appearance through Mr.N.R..R.Arun Natarajan. 11. So far as O.A.No.973 of 2005 is concerned, which again was relating to the question of promotion to the post of Vice Principal, it was observed by the Tribunal as follows:"43. The respondents submitted clearly that they had considered the applicant in the DPC and found him fit and he was placed in position No.5 in the select list, he could not be actually promoted for want of SC vacancy. In the context of the decision conveyed in this order, the applicant will continue to remain eligible as migrant SC for promotion to Group B post and his case for promotion will not be affected by the GO dated 5.8.2005. The number of vacancies for SC will have to be reworked based on the provisions under Post Based Roster system in accordance with the total strength of the cadre and that the application of 16% reservation to that cadre strength and finally arrive at the actual number required to be promoted as Vice Principal, after taking into account the existing strength on rolls. This exercise shall be completed by the respondents expeditiously and if the respondents find additional vacancies to accommodate the applicant based on the computation of SC points in the Post Based Roster, necessary orders to that effect will be issued to the applicant within the period of 8 weeks from the date of receipt of this order." 11.1 W.P.No.4850 of 2008 has been filed by the Government of Puducherry against such direction in O.A.No.973 of 2005. The contesting respondents herein, the applicants before the Tribunal, have entered appearance through Mr.N.R.R.Arun Natarajan. 12. So far as O.A.No.922 of 2005 is concerned, which was again relating to the question of promotion to the post of Vice Principal, the Tribunal observed as follows:"44. The applicants in this O.A. who are migrant SCs have been considered based on the circular dated 27.04.2005 for promotion to the post of Vice Principal in respect of all the SC candidates including migrant SCs, the DPC had also found them fit for promotion resulting in issue of promotion order were issued to them vide order dated 12.09.2005 in position Nos.20 and 22 and they also actually worked in that position, until the issue of memo dated 18.10.2005 by which their promotion to Vice Principal was 'withdrawn and kept in
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abeyance" a decision which is arbitrary and illegal. Hence the order dated 18.10.2005 is set aside. The respondents are directed to promote the two applicants herein as Vice Principal and issue necessary orders to them within a period of two weeks from the date of receipt of a copy of this order." 12.1 The Government of Puducherry has filed W.P.No.4443 of 2008 against such direction of the Tribunal. The applicants therein, the contesting respondents 1 and 2 in the writ petition, have entered appearance through Ms.R.Vaigai. 13. So far as O.A.No.125 of 2007 is concerned, which involves the question of promotion from Junior Engineer Cadre to Assistant Engineer Cadre, the Tribunal has directed as follows:"45.The applicants who are migrant SCs in J.E. Cadre, which is Group 'C', are eligible for consideration for promotion to the Grade of A.E. in Group 'B' the grade of Group 'B' is not covered by the G.O. dated 5.8.2005 and therefore, the respondents are directed to consider the case of all the applicants in the O.A. for promotion to the post of Asst. Engineer in accordance with extant order and law and issue necessary order to that effect within a period of 8 weeks from the date of receipt of a copy of this order. Their pay will be notionally fixed as if there was no break after the impugned order dated 18.10.2005 which is now set aside, and they will get actual monetary benefit prospectively in the grade of Vice Principal." 13.1 W.P.No.4219 of 2008 is filed by the Puducherry Government against such direction. The contesting respondents have entered appearance through Mr.N.R.R.Arun Natarajan and they have been represented by Mrs. Nailini Chidambaram, Senior Counsel, in the said case and the other respondents in the said case have been represented through the Senior Advocate, Mr.K.M.Vijayan, on behalf of M/s.La Law. 14. The learned counsel for the petitioners has submitted that since the validity of the Government Order dated 05.08.2005 has been upheld, even by the Tribunal itself, the Tribunal should not have allowed the concerned original applications. It has been further submitted that since the promotion posts have been filled up after the issue of the Government Order dated 05.08.2005, it cannot be said that there was an illegality in not giving the benefit of reservation to the applicants who were Migrant Scheduled Caste/ Scheduled Tribe. 15. The learned counsel appearing for the contesting respondents have submitted that the vacancies for promotion having arisen before the issuance of the Government Order dated 05.08.2005 and the Vice Principals having been promoted on the basis of the Circular dated 27.04.2005, there was no occasion to recall such orders of promotion or to keep such observation in abeyance. It has been further submitted that the Government Order dated 05.08.2005 relates to recruitment and promotion in Group 'C' and Group 'D' posts and such Government Order cannot have any effect for promotion to Group 'B' post from Group 'C' post and at any rate, such a Government Order cannot have any retrospective effect. 16. Since the dispute revolves round the Government Order, G.O.Ms.No.11 of 2005 dated 5th August, 2005, it would be profitable to extract the relevant portion of such order. GOVERNMENT OF PONDICHERRY ABSTRACT Chief Secretariat (Welfare) Extension of reservation benefits to Group 'C' and 'D' posts in Government Service to the Scheduled Caste Origins of the Union Territory of Pondicherry Orders issued. --------------------------------------------------------------------------------CHIEF SECRETARIAT (WELFARE) G.O.Ms.No.11/2005/Wel(SCW II) Pondicherry, the 5th August 2005
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Read (i) Judgement Order dated 11.02.2005 of the Supreme Court (bench) issued in the Appeal (Civil) 6-7 of 1998 filed by the petitioner viz. S.Pushpa and Others vs Sivachounmugavelu and others.

(ii) Minutes of the meeting of the Council of Ministers held on 19.07.2005. (iii) Letter No.BC16014/1/82-SC & BCD-I, dt.22.2.85 of Ministry of Home Affairs, New Delhi. ORDER ... (2) Further, the Apex Court has in its final judgement dated 11.02.2005 in the case No.Appeal (Civil) 6-7 of 1998 filed by S.Pushpa and others (migrant SC) has observed in para 21 of its judgement that 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. . . . (4) In consultation with the Govt. Pleader in High Court/CAT and after considering all the requests/demands received by the Government from various quarters of Scheduled Caste origins and from several Associations functioning in this Union territory for the welfare of Scheduled Castes (origin) a resolution has been passed in the Legislative Assembly and also a decision has been taken by the Government to extend reservation benefits in Govt. services including promotion and employment in Group 'C' and 'D' posts to Scheduled Caste origins of the Union Territory of Pondicherry only. The cabinet decision is extracted below:"Resolution No.2005/M.37/183: Extension of reservation benefits in Govt. service including promotion and admission in all Educational Institution in this Administration only to the Scheduled Castes of UT of Pondicherry. In accordance with the judgment of Supreme Court in Pushpa and others -vs- Sivashanmugam and others, JT 2005 (2) SC 317 and considering the applicability of the Government of India order No.BC16014/1/82-SC&BCD-I dated 22.02.1985 of Ministry of Home Affairs, Government of India, New Delhi, it was resolved that the Government of Pondicherry will extend benefits of reservation in the field of employment for Group C and D posts to the scheduled Castes of Pondicherry origin. This would come into effect from the date of issue of GO. Further, it was resolved to continue extension of benefits as in the past in the field of education and welfare only to the members of Scheduled Castes of Pondicherry origin." (5) Having examined the demand made by various Welfare Associations and Scheduled Castes (origin) people of the Union Territory of Pondicherry and taking into account the observations made by the Hon'ble Supreme Court at para 21 of the said judgment dated 11.02.2005, the Lieutenant Governor, Pondicherry is pleased to order that the reservation benefits in promotion, employment to Group 'C' and 'D' posts shall henceforth be extended only to the Scheduled Caste origins of this Union Territory as notified in the Constitution (Pondicherry) Scheduled Caste Order, 1964 read with the Constitution (Scheduled Castes) Order (Second Amendment) Act, 2002 (Central Act 61 of 2002).
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(6) This order shall take immediate effect. (By Order of the Governor) sd/ Under Secretary to Govt. 17. The aforesaid Government Order dated 05.08.2005 is obviously inspired by the observations made in S.Pushpa's case (cited supra). At this stage, therefore, it would be appropriate to refer to the aforesaid decision. Such decision of the Supreme Court arose out of an appeal against the judgment of the Central Administrative Tribunal, Madras. There was a selection to the post of Selection Grade Teachers wherein the Migrant Scheduled Caste candidates had been selected against the quota meant for Scheduled Castes. Such selected candidates, even though belonging to Scheduled Caste of neighbouring State and not of Pondicherry origin, had migrated to Pondicherry, after the issuance of the Presidential Notification under Article 341 of the Constitution of India in the year 1964. The Central Administrative Tribunal, Madras Bench, had held that such selected candidates, who had migrated to Pondicherry after the Presidential Notification, were not eligible for appointment to a post, which was reserved for Scheduled Caste candidates of the Union Territory of Pondicherry. Such decision was taken by the Tribunal, by placing reliance upon the decisions of the Supreme Court in Marri Chandra Shekhar Rao -vs- Dean, Seth G.S.Medical College {(1990) 3 SCC 130} and Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra -vs- Union of India {(1990) 5 SCC 244}. The Government of Pondicherry as well as some of the selected candidates (Migrant Scheduled Caste), whose selection had been set aside, had filed appeals before the Supreme Court. The Supreme Court, while allowing the appeals and setting aside the order of the Tribunal, observed as follows:- "16. These documents show that the Government of Pondicherry has throughout been proceeding on the basis that being a Union Territory, all orders regarding reservation for SC/ST in respect of posts/services under the Central Government are applicable to posts/ services under the Pondicherry Administration as well. Since all SC/ST candidates which have been recognised 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 recognised 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 UT of Pondicherry would also be eligible for posts reserved for SC/ST candidates in the 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 the 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 cannot have application here as UT 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 the expression State occurring therein. This was clearly explained by a Constitution Bench in T.M. Kanniyan v. ITO (1968) 2 SCR 103. In New Delhi Municipal Council v. 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 purpose of Part XI of the Constitution (para 145). The Tribunal has, therefore, clearly erred in applying the ratio of Marri Chandra Shekhar Rao (1990) 3 SCC 130 in setting aside the selection and appointment of migrant SC candidates. 18. The contesting respondents (applicants before the Tribunal, who challenged the selection) can derive no benefit from the decision in Marri Chandra Shekhar Rao. In this case the writ petitioner Marri Chandra was born in Gouda community in the State of Andhra Pradesh, which is recognised as a Scheduled Tribe in the Presidential Order issued for the said State. For getting admission in a medical college in the State of Maharashtra, he claimed benefit of reservation being an ST. Gouda community was not recognised as
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Scheduled Tribe in the Presidential Order issued for the State of Maharashtra and on this ground he was denied the benefit of reservation. He then filed the writ petition claiming that he is entitled to benefit of reservation being a member of ST. It was in these circumstances that it was held that his community having not been included as an ST in the Presidential Order issued for the State of Maharashtra, he had no legal right to claim benefit of reservation in the State of Maharashtra. The UT of Pondicherry having consistently followed the policy of the Central Government where all Scheduled Caste candidates were given the benefit of reservation, the selection made following the said policy could not be held to be suffering from any legal infirmity on the principle laid down in Marri Chandra Shekhar Rao. . . . 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 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 recognised 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 recognised 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 UT of Pondicherry having adopted a policy of the 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. (Emphasis added) 19. It is obvious that the observation of the Supreme Court in paragraph No.21 to the effect, "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 recognised as such in relation to that State or Union Territory then such a provision would be perfectly valid" is the basis of rethinking on the part of the Pondicherry Government in issuing the Government Order dated 05.08.2005. As already indicated, the validity of such a Government Order has been upheld by the Tribunal itself and at any rate, such a question is no longer res integra, so far as we are concerned, in view of the subsequent decision of a Division Bench of this Court wherein such validity has been upheld. 19.1 However, the question, which remains to be decided, is the applicability of such a Government Order in respect of promotion to Group 'B' from Group 'C' and even assuming that such Government Order is applicable to promotion from Group 'C' to Group 'B', whether such Government Order can be applied in respect of promotional post, for which, process of selection has been initiated even prior to the issuance of the Government Order dated 05.08.2005. The other allied question is, whether after having promoted the persons concerned, there was any justification for reversion of such promotees.
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20. At present, in three of the writ petitions, we are concerned with the question of promotion to the post of Vice Principal and in the other writ petition, we are concerned with the question of promotion from the post of Junior Engineer to Assistant Engineer. It has not been disputed by the counsel for the Puducherry Government that all these posts are in Group 'B' service. In other words, the question of promotion is from Group 'C' to Group 'B' post and not from Group 'C' post to another higher post in Group 'C'. The Government Order dated 5.8.2005 has been extracted in extenso. It explicitly refers to the question of extension of reservation benefits "... in Govt. services including promotion and employment in Group 'C' and 'D' posts to Scheduled Caste origins of the Union Territory of Pondicherry only." The operative portion of the Government Order as contained in para 5 is also to the effect that " . . . the reservation benefits in promotion, employment to Group 'C' and 'D' posts shall henceforth be extended only to the Scheduled Caste origins of this Union Territory as notified in the Constitution (Pondicherry) Scheduled Caste Order, 1964". In other words, the effect of the G.O. is to give the benefit of reservation to the Scheduled Castes of Pondicherry origin in promotion, employment to Group 'C' and 'D' posts. It does not whisper anything regarding promotion from Group 'C' to Group 'B'. The benefit is confined to promotion to Group 'C' and employment to Group 'C' and promotion to Group 'D' (if that can at all be contemplated) and employment in Group 'D'. In view of the unambiguous language employed in the Government Order, there is no scope to accept the contention, which was advanced before the Tribunal and repelled by it and reiterated before us, that the G.O. also applies to the question of promotion from Group 'C' to Group 'B'. As a matter of fact, even from the stand of the Government before the Tribunal, it is apparent that the Government had written to the Central Government for obtaining certain further orders / clarification in the matter relating to promotion to Group 'B' and Group 'A' posts. In such view of the matter, in our considered opinion, the Tribunal was justified in its conclusion that the Government Order did not have the effect of changing the method of reservation so far as promotion to Group 'B' from Group 'C' was concerned. 21. Next question is, even assuming that the Government Order dated 5.8.2005 contemplates reservation in matters relating to promotion from Group 'C' to Group 'B' would be restricted only to the Scheduled Castes origin of the Union Territory, whether such G.O. can affect the promotions which had already been effected or the process of promotion which had already been commenced before the issuance of the G.O. The G.O. itself appears to be prospective as apparent from the expression "the reservation benefits in promotion, employment to Group 'C' and 'D' posts shall henceforth be extended only to the Scheduled Caste origins of this Union Territory". There is a catena of decisions of the Supreme Court to the effect that no Executive Instruction can be issued with retrospective effect adversely affecting the vested right of a Government employee. 22. While considering the question of giving retrospectivity to a law concerned with service jurisprudence, in (1983) 2 SCC 33 (STATE OF GUJARAT AND ANOTHER v. RAMAN LAL KESHAV LAL SONI & OTHERS), it was observed :- "52. The legislation is pure and simple, self-deceptive, if we may use such an expression with reference to a legislature-made law. The legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired under existing laws but since the laws are made under a written Constitution, and have to conform to the dos and don ts of the Constitution, neither prospective nor retrospective laws can be made so as to contravene fundamental rights. The law must satisfy the requirements of the Constitution today taking into account the accrued or acquired rights of the parties today. The law cannot say, 20 years ago the parties had no rights, therefore, the requirements of the Constitution will be satisfied if the law is dated back by 20 years. We are concerned with today s rights and not yesterday s. A legislature cannot legislate today with reference to a situation that obtained 20 years ago and ignore the march of events and the constitutional rights accrued in the course of the 20 years. That would be most arbitrary, unreasonable and a negation of history. . . . Today s equals cannot be made unequal by saying that they were unequal 20 years ago and we will restore that position by making a law today and making it retrospective. Constitutional rights, constitutional obligations and constitutional consequences cannot be tampered with that way. A law which if made today would be plainly invalid as offending constitutional provisions in the context of the existing situation cannot become valid by being made retrospective. Past virtue (constitutional) cannot be made to wipe out present vice (constitutional) by making
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retrospective laws. We are, therefore, firmly of the view that the Gujarat Panchayats (Third Amendment) Act, 1978 is unconstitutional, as it offends Articles 311 and 14 and is arbitrary and unreasonable. We have considered the question whether any provision of the Gujarat Panchayats (Third Amendment) Act, 1978 might be salvaged. We are afraid that the provisions are so intertwined with one another that it is well nigh impossible to consider any life-saving surgery. The whole of the Third Amendment Act must go. In the result Writ Petitions Nos. 4266-4270 of 1978 are allowed with costs quantified at Rs 15,000. The directions given by the High Court, which we have confirmed, should be complied with before June 30, 1983. In the meanwhile, the employees of the panchayats covered by the appeal and the writ petitions will receive a sum of Rs 200 per month over and above the emoluments they were receiving before February 1, 1978. This Order will be effective from February 1, 1983. The interim Order made on February 20, 1978 will be effective up to January 31, 1983. The amounts paid are to be adjusted later." 23. In a matter relating to promotion, in (1983) 3 SCC 284 (Y.V. RANGAIAH & OTHERS v. J. SREENIVASA RAO & OTHERS), it was observed :"9. Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Registrar Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than Respondents 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the State-wide basis and, therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules." (Emphasis added) 24. The aforesaid decision was subsequently followed by the Supreme Court in 1988 Supp. SCC 740 (P. GANESHWAR RAO v. STATE OF ANDHRA PRADESH), wherein it was held that the amendment made to the Rules did not apply to the vacancies which had arisen prior to the date of the amendment. 25. In 1989 Supp(1) SCC 244 (D.P. SHARMA & OTHERS v. UNION OF INDIA & ANOTHER), it was observed : "4. We have perused the judgment of the Division Bench and also considered the submissions of the parties. The view taken by the Division Bench appears to be erroneous. The Rules, no doubt provide that all persons substantially appointed to a grade shall rank senior to those holding officiating appointments in the grade. But the Rules have no retrospective effect. It could not impair the existing rights of officials who were appointed long prior to the Rules came into force. The office memorandums to which learned Single Judge has referred in detail and which we have extracted above clearly laid down that length of service should be the guiding principle of arranging the inter se seniority of officials. The appellants being governed by those memoranda had the right to have their seniority determined accordingly before the Rules came into force. That being their right, the Rules cannot take it away to their prejudice. The Division Bench was, therefore, clearly in error in directing that the seniority shall follow their respective confirmations." 26. In 1986 Supp. SCC 584 (T.R. KAPUR & OTHERS v. STATE OF HARYANA), it was observed :"16. It is well settled that the power to frame rules to regulate the conditions of service under the proviso to Article 309 of the Constitution carries with it the power to amend or alter the rules with a retrospective effect: B.S. Vadera v. Union of India, Raj Kumar v. Union of India, K. Nagaraj v. State of A.P. and State of J & K v. Triloki Nath Khosa. It is equally well-settled that any rule which affects the right of a person to be considered for promotion is a condition of service although mere chances of promotion may not be. It may
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further be stated that an authority competent to lay down qualifications for promotion, is also competent to change the qualifications. The rules defining qualifications and suitability for promotion are conditions of service and they can be changed retrospectively. This rule is however subject to a well-recognised principle that the benefits acquired under the existing rules cannot be taken away by an amendment with retrospective effect, that is to say, there is no power to make such a rule under the proviso to Article 309 which affects or impairs vested rights. 27. Following the aforesaid decision, it was observed in 1994 Supp (3) SCC 451 (UDAY PRATAP SINGH AND OTHERS v. STATE OF BIHAR AND OTHERS) :"6. By a catena of decisions of this Court, it is now well-settled that by an executive order the statutory rules cannot be whittled down nor can any retrospective effect be given to such executive order so as to destroy any right which became crystallised. In this connection, it is profitable to refer a decision of this Court in T.R. Kapur v. State of Haryana wherein it is held that rules framed under Article 309 of the Constitution cannot affect or impair vested rights, unless it is specifically so provided in the statutory rules concerned. It is obvious that an executive direction stands even on a much weaker footing. . . . " 28. In (1987) 3 SCC 622 (P.D. AGGARWAL v. STATE OF UTTAR PRADESH), it was observed in paras 16 and 18 as follows:"It has been urged that Government has the power to amend rules retrospectively and such rules are quite valid. Several decisions have been cited of this Court at the bar. Undoubtedly, the Government has got the power under proviso to Article 309 of the Constitution to make rules and amend the rules giving retrospective effect. Nevertheless, such retrospective amendments cannot take away the vested rights and the amendments must be reasonable, not arbitrary or discriminatory violating Articles 14 and 16 of the Constitution. . . . . These amendments are not only disadvantageous to the future recruits against temporary vacancies but they were made applicable retrospectively from 1-3-1962 even to existing officers recruited against temporary vacancies through Public Service Commission. As has been stated hereinbefore that the Government has power to make retrospective amendments to the Rules but if the Rules purport to take away the vested rights and are arbitrary and not reasonable then such retrospective amendments are subject to judicial scrutiny if they have infringed Articles 14 and 16 of the Constitution. 29. In (1994) 5 SCC 450 (UNION OF INDIA AND OTHERS v. TUSHAR RANJAN MOHANTY & OTHERS), it was observed that the Rules under Article 309 of the Constitution cannot be made retrospectively so as to nullify the right vested in a person under a statute or under the Constitution. In the said case, the Executive instructions had been issued by the Central Government on 27.11.1972 to provide reservation for the Scheduled Castes and Scheduled Tribes. However, the Rules contemplated that all the vacancies had to be filled up by promotion in the order of seniority, subject to rejection of the unfit by the controlling authority. Another rule contemplated that appointments made otherwise than the promotion would be subject to orders regarding special representation in the service for Scheduled Castes and Scheduled Tribes. The executive instructions dated 27.11.1972 had been issued providing for reservation in the matter of promotion. On the basis of such instructions, Respondents 2 to 9 had been promoted on 24.11.1987. Respondent No.1 had successfully challenged such promotion of Respondent Nos.2 to 9 before the Central Administrative Tribunal as per order dated 28.11.1988. The rules were amended on 20.2.1989 with retrospective effect from 27.11.1982 providing that appointment shall be made subject to the orders relating to reservation. It was contended by the Union of India, while challenging the order of the Tribunal before the Supreme Court, that in view of the retrospective amendment of the rules, the Tribunal's order was liable to be set aside. The Supreme Court observed inter alia :- "2. We have no hesitation in holding that the Tribunal correctly interpreted the Rules as they existed on 28-11-1988 when the Tribunal delivered its judgment. These Rules were, however, amended with effect from 27-11-1972 by the notification dated 20-2-1989 and the reservation for Scheduled Castes and Scheduled Tribes was provided even in the appointments made by way of promotion. It is contended on behalf of the Union of India that in view of the
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amendment of the Rules with retrospective effect, the judgment of the Tribunal is liable to be set aside and the promotions of Respondents 2 to 9 to Grade-III of the service are to be upheld. Mohanty and other members of the general category have, however, challenged before us the validity of the retrospective amendment of the Rules. We shall state the grounds of challenge in the later part of the judgment." It further observed :"9. We take up the first and the second contentions together for consideration. It is obvious from the plain language of Rule 8(1)(b)(i) that all Grade-IV officers who have completed four years of service on regular basis are entitled to be considered for promotion to Grade-III on the basis of their seniority provided they are not found unfit by the Controlling Authority. The rule gives a statutory right to Grade-IV officers to be considered for promotion in the order of their seniority. The said right is further strengthened by the proviso to Rule 8(1)(b)(i). The proviso makes it obligatory that when a junior officer in Grade-IV is eligible and is considered for promotion all officers senior to him in that grade shall also be considered for promotion. Even otherwise, to be considered for promotion is a guaranteed right under Article 16(1) of the Constitution of India. It is, therefore, clear that Mohanty and other senior general category Grade-IV officers had a vested right under the Rules as also under Article 16(1) of the Constitution to be considered for promotion when persons junior to them were being considered and in fact promoted. Respondents 2 to 9 were admittedly junior to Mohanty and as such they could not be promoted, without considering the case of Mohanty. Rule 13 of the Rules before its amendment did not permit any reservation in respect of appointments to be made by way of promotion. There can, therefore, be no dispute that on 24-11-1987 when Respondents 2 to 9 were promoted to Grade-III, Mohanty and other general category candidates senior to him had a vested right to be considered for promotion. Whether such a right can be rendered nugatory by retrospective legislation? The question is not res integra. There are several pronouncements of this Court on the subject." ... 14. The legislatures and the competent authority under Article 309 of the Constitution of India have the power to make laws with retrospective effect. This power, however, cannot be used to justify the arbitrary, illegal or unconstitutional acts of the Executive. When a person is deprived of an accrued right vested in him under a statute or under the Constitution and he successfully challenges the same in the court of law, the legislature cannot render the said right and the relief obtained nugatory by enacting retrospective legislation." 30. The aforesaid decisions make it clear that in service jurisprudence, even though rules under Article 309 of the Constitution can be made with retrospective effect, such rules cannot have the effect of adversely affecting any vested right. At any rate, law is well settled that the Executive Instructions cannot be issued retrospectively affecting any right. As observed by the Supreme Court in (1983) 3 SCC 284 (cited supra), which was subsequently followed in 1988.Supp. SCC 740 (cited supra), the vacancies, which had occurred prior to the amended rules, would be governed by the old rules and not by the new rules. 31. In the present case, either the promotions had already been effected or the process for promotion had already been commenced before the issuance of G.O.Ms.No.11 of 2005 dated 5.8.2005. Therefore, the conclusion of the Tribunal that such promotion should be considered in accordance with the extant rules / order appears to be justified. 32. For the aforesaid reasons, we do not find any merit in these writ petitions, which are accordingly dismissed. No costs. All the interim orders stand vacated. The petitioners are required to comply with the direction of the Tribunal as upheld by us within a period of 30 days from the date of receipt of a copy of the present order. bs/dpk
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To The Registrar, Central Administrative Tribunal, Madras Bench, High Court Buildings, Chennai 104

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