@JUDGMENTTAG-ORDER
D. Murugesan, J.@mdashThis writ petition raises an important question as to whether a scheduled caste candidate, who has the origin of Union Territory of Puducherry, would be disentitled to seek for admission to First Year M.B.B.S. Degree course in any one of the colleges run within the said Union Territory solely on the ground that her parents did not continuously reside in the Union Territory of Puducherry for not less than five years immediately preceding the date of application ?
2. The petitioner, by name D. Rajasree, (hereinafter will be referred to as ''the candidate'') is represented by her father. The candidate belongs to Adi Dravida community notified under the Presidential Order. Her father is a native of Kirumampakkampet, Puducherry. While he was working in the Public Works Department, Puducherry, he got selected as an Assistant Advisor (PHE) in the Ministry of Urban Development, Government of India. By virtue of such selection, he had moved to New Delhi with the family to take up the new assignment. Therefore, admittedly, he and his family members did not reside in the Union Territory of Puducherry for a period of five years immediately preceding the date of application. The candidate was born in the Union Territory of Puducherry and hence, her origin is Puducherry. She studied upto VII standard in Kendriya Vidyalaya, Puducherry and thereafter, she was taken to New Delhi and she completed her Plus 2 course from Kendriya Vidyalaya, New Delhi. She had secured 87.4% of marks in the aggregate. On the ground that she was eligible to apply for a seat in M.B.B.S. Degree course reserved for scheduled caste candidates in the UT of Puducherry, she applied for such admission for the academic year 2009-2010. Though, on the basis of her cut-off mark she was entitled to get a seat, the same was denied on the ground that Clause 2.6(d) of the Brochure for admission to professional courses in Puducherry for the year 2009-2010 stipulates a condition that children of natives of UT of Puducherry should have continuously resided for not less than five years immediately preceding the date of application. Hence, the petitioner represented by her father has approached this Court questioning the said Clause 2.6 (d) of the Brochure and for a consequential direction to give admission for her in the M.B.B.S. Degree course for the academic year 2009-2010.
3. We have heard Mr. V. Ajayakumar, learned Counsel for the petitioner and Mrs. N. Mala, learned Additional Government Pleader for Puducherry, for the respondents.
4. Mr. Ajayakumar, learned Counsel would submit that though the petitioner had approached this Court questioning the very Clause 2.6 (d) of the Brochure, the challenge is restricted only in respect of its applicability to the scheduled caste candidates in view of Clause 5.0 of the very same Brochure. According to the learned Counsel, a scheduled caste candidate cannot be equated to a caste once the Presidential Order is issued in terms of Article 341 of the Constitution conferring certain benefits which cannot be varied by executive orders. Though Clause 2.6 (d) of the Brochure imposes a restriction to a candidate who did not reside in the UT of Puducherry for not less than five years immediately preceding the date of application, the said clause is not applicable in view of the reservation and special allocation of seats for the scheduled caste candidates as specified under clauses 5.1 and 5.1.1 of the Brochure. He would also submit that in view of the various orders of the Government of India as well as the orders of UT of Puducherry, even when a scheduled caste candidate, whose origin is the UT of Puducherry, migrates from that State to another, such a candidate could claim to belong to a scheduled caste to the UT of Puducherry alone. In view of such specific directions, a candidate, who has the origin of UT of Puducherry, will not lose his or her status of a scheduled caste for the benefit conferred under Article 15(4) for the purpose of education, merely on the sole ground that the candidate had moved out from the UT of Puducherry and did not reside for the five preceding years. Such benefit should be ensured in view of the fact that a migrated schedule caste candidate is made specifically ineligible to claim the benefit of a schedule caste status in the migrated State. Hence, the learned Counsel would submit that the claim of the petitioner seeking admission for her to First Year M.B.B.S. Degree course in any one of the medical colleges within the UT of Puducherry should not have been denied by placing reliance on Clause 2.6 (d) of the Brochure.
5. In meeting the above submissions, Mrs. N. Mala, learned Additional Government Pleader (Puducherry), has firstly submitted that Clause 2.6 mandates that in order to apply for admission, the candidate must belong to UT of Puducherry only if he/she satisfies any one of the domicile criteria enumerated in the said clause. One such criteria is Sub-clause (d) which requires a nativity certificate in the prescribed format as per Annexure-V. By that sub-clause as well as Annexure-V, a candidate seeking admission under Puducherry residents quota seats must furnish a Permanent Integrated Certificate as per G.O.Ms. No. 13, dated 24.02.2008. As the candidate in question did not produce such a certificate, she is not eligible for admission. The learned Additional Government Pleader would also submit that Clause 5.1 of the Brochure relates to only reservation and special allocation of seats and it has nothing to do with the general instructions in Clause 2.6 of the Brochure, as the said clause is applicable to all candidates irrespective of their castes including the scheduled caste candidates. She would further submit that as the Government is empowered to regulate admissions, the restriction placed on the candidates of Puducherry cannot be considered to be an infringement of the Presidential Order. The Brochure issued in terms of G.O.Ms. No. 53, dated 27.05.2009 is binding on all the candidates and insofar as Clause 2.6(d) is concerned, it is only a regulatory measure to make some of the candidates eligible to apply for a seat and such a regulatory measure cannot be found fault with.
6. We have carefully bestowed our attention to the above rival contentions. The Government is entitled to issue orders on the basis of its policy for admissions to various courses including the medical course. Such Government Orders are issued for each year as the Government may vary its policies depending upon the circumstances that may require for that particular year. Such a Government Order is the basis for the Centralised Admission Committee to issue the Brochure for admission. The power of the Government to evolve a policy which is not inconsistent with the guidelines framed by the Medical Council of India is well recognised in respect of sources of admission, eligibility criteria, number of seats required for admission, etc. Therefore, we are fully in agreement with the learned Additional Government Pleader for Puducherry that the Government is entitled to regulate the admission process including laying down the eligibility norms. In this context, we may refer to the following judgments of the Supreme Court on this issue, viz.,
(i)
(ii)
(iii)
(iv)
(vi)
As the power of the Government is well recognised, the scope of the judicial review is also very limited only to the extent when such policy offends either the constitutional provisions or the provisions contained in the statutes. This law is also well settled by the decision of the Supreme Court in
7. The Government of Puducherry issued G.O.Ms. No. 52, Chief Secretariat (Education) dated 27.05.2009, in regard to constitution of Centralised Admission Committee for the year 2009-2010, norms for admission, reservation of seats, reservation benefits to scheduled caste candidates, etc. In that G.O., Clause 7 (B) (ii) relates to M.B.B.S./B.D.S./etc. degree courses. The said G.O. is issued invoking the powers under Article 162 of the Constitution of India and it reflects the policy decision of the Government. At the outset, we may have to say that the said G.O. does not speak about any restrictions of scheduled caste/scheduled tribe candidates to have resided continuously for five years preceding the date of application. What is put against the candidates in this case is an Information Bulletin containing the instructions to the candidates to apply for admission, which has been approved by the Government by G.O.Ms. No. 53, dated 27.05.2009 and they are procedural in nature. The said G.O.Ms. No. 53 cannot be termed to be one issued under Article 162 of the Constitution stipulating the policy of admission. Nevertheless, we are inclined to consider the submission as to Clause 2.6 (d) in the Brochure in respect of scheduled caste candidates.
8. The question is whether by Clause 2.6, the Government could deprive a seat for a scheduled caste candidate on the basis of Sub-clause (d) by contending that the said clause is only regulatory in nature? This question takes us to the larger issue as to whether at the guise of instructions, a fundamental right to seek for admission on the basis of merit supported by the Presidential Order made in favour of a particular candidate could be taken away by executive orders.
9. Before we delve upon to the discussion on the above question, we are inclined to extract the said clauses and the Annexure with reference to their binding nature.
10. Clause 2.6 (d) of the Brochure reads thus:
2.6 Domicile Criteria for UT of the Puducherry - Candidates belonging to the UT of Puducherry are eligible for admission to all the degree courses. A candidate is considered to belong to the UT of Puducherry, if he / she satisfies at least one of the following domicile criteria:
...
(d) Children of natives of the UT of Puducherry by virtue of continuous residence for not less than 5 years immediately preceding the date of application should enclose the nativity certificate in the prescribed format (Annexure-V).
...
Clauses 5.1, 5.1.1. and 5.1.2. of the Brochure read as follows:
5.1. For Puducherry UT Candidates in Government Sponsored Colleges. - Reservation in admission to various degree courses offered by Government Sponsored Colleges for Puducherry UT candidates belonging to different categories are given below:
Table 5.1 Course wise / Category wise Reservation
Categories
Percentage of Reservation
Scheduled Caste (SC) - Applicable to Origin SC Candidates only 16
...
5.1.1 Scheduled Caste Candidates (SC)
Candidates claiming admission under this category should be Origin-SC candidates and should enclose the required certificate issued by an Officer of the Department of Revenue and Disaster Managerment, not below the rank of Deputy Tahsildar.
5.1.2 Other Backward Classes (OBC) & Most Backward Classes (MBC) Candidates.
Candidates claiming admission under these categories should enclose the recent OBC/MBC certificate issued by an Officer of the Revenue and Disaster Management not below the rank of Deputy Tahsildar.
...
Annexure-V to the Brochure reads as hereunder:
ANNEXURE - V
FORMAT OF CERTIFICATES
FOR PUDUCHERRY RESIDENTS QUOTA
1. Candidates seeking admission under Puducherry residents quota seats must furnish Permanent Integrated Certificate as per G.O.Ms. No. 13, Dt.24.2.2008.
...
11. Clause 2.6 relates to domicile criteria. The Constitution of India recognises only one domicile, viz., Domicile in India. Clause 2.6 uses the word Domicile and for the purpose of such domicile criteria, the said clause requires a candidate to enclose a nativity certificate in the format prescribed in Annexure-V. That format prescribes that a candidate seeking admission under Puducherry residents quota seats should furnish a Permanent Integrated Certificate. In view of the said Annexure coupled with Clause 2.6(d), the children of natives of UT of Puducherry, by virtue of continuous residents of not less than five years immediately preceding the date of application alone could get such a nativity certificate. Apparently, the candidate in question, was unable to produce such a certificate as she did not reside continuously for a period of five years preceding the date of application. This clause, in our considered view, is general in nature requiring all candidates who apply for admission to a course to produce a nativity certificate. However, Clause 5.1, which relates to details of reservation and special allocation of seats for Puducherry UT candidates in Government sponsored colleges, has categorised scheduled caste candidates in Table 5.1. By that table, when the percentage of reservation is mentioned for scheduled caste candidates, it refers only to the origin SC candidates. While the percentage of reservation of candidates for MBC and OBC are referred, it does not refer the word ''origin''. Equally, under the special category of reservation for children/grand children of freedom fighters, physically handicapped, wards of ex-servicemen and candidates who are excellent in sports, the word ''origin'' is not mentioned. Similarly, Clause 5.1.1 states that the candidates claiming admission under this category should be Origin-SC candidates. As far as the scheduled caste candidates, the word ''Origin'' should assume importance and by the use of word ''Domicile'' in Clause 2.6, the right of a originated scheduled caste candidate cannot be interfered with.
12. The Government, while evolving the policy, had kept in mind to make a distinction of the candidates belonging to the OBC/MBC and the scheduled caste. In our opinion, Clause 2.6 (d), though is general in nature, in the wake of the specific clause relating to the scheduled caste candidates as provided under Clauses 5.1 and 5.1.1 by speaking only of origin SC candidates, the criteria for admission must be of the origin of a scheduled caste candidate and not otherwise. Therefore, the contention that Clause 2.6 (d) is in the nature of instruction and being regulatory, must be fulfilled by all the candidates and even a scheduled caste candidate must comply with the said clause and that the Clauses 5.1. and 5.1.1 would relate only to reservation, cannot be accepted. We have our following reasons as well for reaching the said conclusion.
13. Article 341 of the Constitution of India empowers the President of India, by notification, to specify the castes, races or tribes or parts of or groups within castes, races or tribes to be Scheduled Castes in relation to a particular State or the Union Territory, as the case may be. Sub-clause 24 of Article 366 states that ''Scheduled Castes'' means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purpose of the Constitution. The Central Government enacted the Government of Union Territories Act, 1963, making applicable to various Union Territories including the Union Territory of Puducherry, which came into force with effect from the notified date. Section 2(f) of the said Act defines a Scheduled Caste as follows:
(f) "scheduled castes" in relation to a Union territory mean such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be scheduled castes in relation to that Union territory.
In exercise of power conferred by Clause (1) of Article 341, ''The Constitution (Pondicherry) Scheduled Castes Order, 1964 was notified on 5.3.1964. Paragraph 2 of the said order reads as under:
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 Territoryu of Pondicherry so far as regards members thereof resident in that Union territory.
Serial No. 2 of the schedule to the aforesaid Order relates to Adi Dravida, the community which the candidate in question belongs.
14. The object of Article 341 is to provide protection to the members of scheduled caste having regard to the economic and education backwardness from which they suffer. The words ''castes and tribes'' used in Article 341 and Article 342 are not used in the ordinary sense of the terms, but they are used in the sense of definitions contained in Article 366(24) and (25) of the Constitution of India. In this context, we may also refer to the recent judgment of the Apex Court in
13. We will first consider the effect of Article 341 of the Constitution and examine whether the State could, in the guise of providing reservation for the weaker of the weakest, tinker with the Presidential List by subdividing the castes mentioned in the Presidential List into different groups. Article 341 which is found in Part XVI of the Constitution refers to special provisions relating to certain classes which includes the Scheduled Castes. This article provides that the President may with respect to any State or Union Territory 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. This indicates that there can be only one list of Scheduled Castes in regard to a State and that list should include all specified castes, races or tribes or part or groups notified in that Presidential List. Any inclusion or exclusion from the said list can only be done by Parliament under Article 341(2) of the Constitution. In the entire Constitution wherever reference has been made to "Scheduled Castes" it refers only to the list prepared by the President under Article 341 and there is no reference to any sub-classification or division in the said list except may be, for the limited purpose of Article 330, which refers to reservation of seats for Scheduled Castes in the House of the People, which is not applicable to the facts of this case. It is also clear from Article 341 that except for a limited power of making an exclusion or inclusion in the list by an Act of Parliament there is no provision either to subdivide, sub-classify or subgroup these castes which are found in the Presidential List of Scheduled Castes. Therefore, it is clear that the Constitution intended all the castes including the sub castes, races and tribes mentioned in the list to be members of one group for the purpose of the Constitution and this group could not be subdivided for any purpose.
A particular caste, be it a scheduled caste or a scheduled tribe, for the purpose of the benefits, must be included in the Presidential orders issued under Article 341 or Article 342 as the case may be. In view of the provisions of Articles, 341, 342, 366(24) and 366(25), the Presidential notification confers a special status on a candidate belonging to a particular caste. Apart from this, the definition contained in Section 2(f) of the Government of Union Territories Act, 1963, as well as Clause 2 of the Constitution (Pondicherry) Scheduled Castes Order, 1964, confer an invaluable right on the candidate notified to be a scheduled caste under the Presidential Order.
15. Article 15(1) of the Constitution which directs that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. However, the State is not prevented from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes under Clause (4) of Article 15. Article 15(4) is designed to provide opportunities in education to raise the educational facility for those who are lagging behind. As has been held in
16. The next question that falls for our consideration, particularly in the above backdrop of the constitutional status of scheduled caste candidates, is as to whether the State Government could deprive a candidate of such benefit on the ground of residential classification. The object of Presidential Orders is to give benefit to the scheduled caste and it has got a constitutional provisions backing. The question is as to whether such benefits could be taken away by executive orders? As we have observed, the brochures are issued on the strength of Government orders drawn in exercise of the power conferred under Article 162 of the Constitution of India. Article 162 confers on the Executive of the State to issue Government Orders in respect of which the legislature of the State has the power to make laws. Since the executive power of the State is co-extensive with that of the State legislature, the State Executive may also make rules regulating any matter within the legislative competence of the State Legislature. As the legislature cannot make any laws contravening any of the provisions of the Constitution, it is needless to mention that the State Executive also cannot make such executive orders, which may contravene the provisions of the Constitution. In fact, the very Article 162 confers such a power on the Executives to be exercised only subject to the provision of the Constitution. Invoking such powers under Article 162, G.O.Ms. No. 52, dated 27.5.2009 has been issued by the Government of Puducherry and as already stated earlier, the said G.O. does not speak about any restriction on the residential status of a scheduled caste candidate to have resided continuously for five years preceding the date of application. Merely because the brochure in question, which is an Information Bulletin approved by the Government of Puducherry by G.O.Ms. No. 53, dated 27.5.2009, contains such restriction, it cannot be held that such restriction is the policy of the Government as well. When the policy is not in respect of any disqualification on the basis of residence, merely because a candidate is unable to produce a certificate, viz., Permanent Integrated Certificate, which would be only a procedural in nature, as it has been insisted only by way of instructions, such restriction is beyond the scope of the policy decision of the Government or in any case overrides the constitutional rights guaranteed under the Presidential Order.
17. We have already held that Clause 2.6 (d) is general in nature, that will not take away the right of a scheduled caste candidate in the wake of Clause 5 of the brochure. In the event the contention of the learned Additional Government Pleader as to the application of Clause 2.6 (d) to a scheduled caste candidate is to be accepted, it would amount to vary the Presidential Order as such. Further, we may also point out that the present instruction in Clause 2.6 (d) is introduced only for the academic year 2009-2010 and such clause was not there earlier. The present policy contained in G.O.Ms. No. 52 as such is not communicated to the candidates except the instructions approved by the Government in G.O.Ms. No. 53. In the absence of any such notification, the candidates cannot be expected to know that they will be made ineligible for admission if they do not reside for five years preceding to the date of application. In this context, we may also refer the view expressed by the Apex Court, in E.V. Chinnaiah''s case, referred supra, viz., that any division of the classes of persons belonging to scheduled caste on any consideration would amount to tinkering with the Presidential List. That apart, Article 15(4) only empowers the State to make any special provision for the advancement of the scheduled castes and scheduled tribes and the said clause does not empower the State to deprive any benefit given to the scheduled caste under the Constitution. Hence, we are of the opinion that the right conferred on a scheduled caste candidate by the Presidential Order cannot be taken away by an executive order, namely, by Clause 2.6 (d) of the Brochure.
18. That apart, in Appendix-4 of the Order of the Government of India dated 2.5.1975, paragraph 2 (ii) imposes a restriction on a scheduled caste or a scheduled tribe candidate to retain the said status only in the State to which he or she originally belonged and not in respect of the State to which he/she had migrated. When such a restriction is imposed and if a candidate is also deprived of the benefit of the reservation in the State of Origin, the very purpose of reservation is frustrated and the candidate would be left without any right to seek admission to the course both in the State of Origin and in the State to which he or she had migrated. In fact, the Government of Puducherry in Revenue Department had also issued a circular dated 5.4.1983 on the very same lines. In paragraph 4 (iv) of the circular, it is stated that where a person has migrated from any State to another, he/she can claim to belong to scheduled caste only in relation to the State to which he or she originally belonged and not in respect of the State to which he or she had migrated. Subsequently, the Government of India, Ministry of Home Affairs, intimated the Chief Secretaries of all the State Governments and the Union Territory Administrations vide the communication dated 22.2.1985 clarifying the position as follows:
It is also clarified that a Sch. Caste/Tribe person who has migrated from the state of origin to some other State for the purpose of seeking education, employment, etc. will be deemed to be a Sch. 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.
19. For all the above reasons, we are of the considered view that the denial of a seat to a scheduled caste candidate solely on the ground that he/she did not produce the certificate as per Annexure-V is contrary to the Presidential Order and in fact, a violation of Article 15(4) of the Constitution of India and therefore, we declare that such scheduled caste candidate is entitled to a seat.
20. Though the Clause 2.6 (d) of the brochure is questioned in this writ petition, in view of the specific stand taken by Mr. Ajayakumar, learned Counsel for the petitioner, that the petitioner is not questioning that clause and only the applicability of that clause is put in issue, we are not expressing any opinion as to the validity of the said clause, except observing that the said clause is not applicable to the scheduled caste candidates.
21. In the facts of the case, the father of the petitioner and the petitioner himself are Origin-Scheduled Caste of UT of Puducherry. The candidate was born in Puducherry and studied there till VII standard. She had to move out from the UT of Puducherry in view of the assignment of her father at New Delhi. Hence, she could not produce Permanent Integrated Certificate, as required under Clause 2.6 (d). She has secured 15th rank in the merit list out of 46 seats reserved for scheduled caste candidates. As against 46 seats available for scheduled caste candidates in all professional colleges in Puducherry, the petitioner, having been placed in the fifteenth rank, would have been selected, but for her failure to produce the certificate as required under Clause 2.6 (d). It is seen that when the writ petition was entertained, the learned single Judge, viz., one of us (M. JAICHANDREN, J.), had directed one seat to be reserved for the scheduled caste category by order dated 27.7.2009 and by virtue of the said order, we are informed by the learned Additional Government Pleader that one seat is now kept vacant in Manakkulam Vinayagar Medical College, Puducherry. Accordingly, the respondents are directed to admit the petitioner by name D. Rajasree in that college. The writ petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
