Case BriefsSupreme Court

Supreme Court: The bench of Indidra Banerjee and JK Maheshwari*, JJ the interchangeability of the vacant unfilled posts of SC category may be possible due to not having eligible candidates by the department concerned but not by appointing authority.

Factual Background

The Court was deciding the case where the appellants have applied for the post of (Elementary Trained Teachers) ETT in9 the category of  Backward Class. Pursuant to the advertisement, selection process was carried out and appointment letters were issued to the selected candidates. All the notified posts of Backward Classes have been filled up merit wise after the direction of the High Court. In the said process of selection, 595 posts of SC/ST   category remained unfilled on account of “non availability” of eligible candidates in the said category. The appellants claimed appointment against those vacant posts of SC/ST category on the anvil of policy instructions regarding “Reservations of vacancies in State Government Services of members of Backward Classes”, issued by State of Punjab. The aforesaid Policy letter provide for “de-reservation/interchangeability” of the post from SC/ST category to OBC category or vis-à-vis in a contingency of non-availability of eligible candidates belongs to SC/ST or OBC, as the case may be. The appellants submitted various representations to the concerned authorities on the basis of the said Policy letter for interchangeability of the posts of SC/ST into OBC category, which as per appellants was not considered in a right perspective. Now by order impugned as per the statement made by the State Government those posts are being readvertised, without redressing their grievance. It is the grievance of the appellants that the unfilled posts of SC/ST category may be filled from the eligible candidates of Backward Class category, directing interchangeability of the said vacant posts.

Analysis

The Court explained that de-reservation of any reserved vacancy which is to be filled up by direct recruitment or by promotion cannot be done by the appointing authority. In case due to non-availability of the eligible candidates of any of the category, the posts remain unfilled, the appointing authority may request to the Department of Welfare of Scheduled Castes and Backward Classes for de-reservation of the said unfilled vacancy. On such request after recording satisfaction, if necessary or expedient in the public interest, subject to the condition to carry forward the said vacancy against subsequent unreserved vacancy the order may be passed by the said department.

Thus, in the context of Punjab Schedule Castes and Backward Classes Reservation in Service) Act, 2006 also it was observed that the de-reservation or interchangeability may be possible with a rigour to exercise such power by the department, namely; Department of Scheduled Castes and Backward Classes and not by appointing authority.

Examining the impugned Policy letter, the Court observed that those instructions are not in contravention of the provisions of Section 7 of the 2006 Act; in fact, it is as per the spirit of the 2006 Act.

The Court also took note of the fact that the merit list was prepared in furtherance to the advertisement of the year 2015-2016 and to accommodate the candidates of the said merit list. Thereafter interchangeability for unfilled 595 vacancies of SC/ST category has been prayed for. Hence, issuance of such direction after 6 years of notifying the selection list for filling up the unfilled vacancies of SC/ST category by OBC would be wholly unjustified. In addition, the selection list prepared in the year 2016 would not survive after the lapse of a long time to fill up the vacancies after interchangeability.

Also, rejection of claims of appellants by the departmental authorities relying upon wrong instructions or mentioning incorrect fact of withdrawal of Policy letter would not confer any right to appellants to claim the reliefs.

“Such an act of the departmental authorities may be deprecated but it would not confer any right to the appellants to seek direction of interchangeability of the unfilled 595 posts of ETT of SC/ST category to OBC category.”

[Mandeep Kumar v. UT Chandigarh, CIVIL APPEAL NO. 1908 OF 2022, decided on 06.03.2022]


*Judgment by: Justice JK Maheshwari


For appellants: Senior Advocate P.S. Patwalia

For Respondents: Advocate Karan Bharihoke

Case BriefsHigh Courts

Kerala High Court: Raja Vijayaraghavan V, J., held that marrying a Christian man would not wipe off the benefit of a reservation granted to scheduled caste persons.

The petitioner was born in the Hindu-Kuravan community, which is included in the list of Scheduled Castes in the State of Kerala. After acquiring requisite qualifications, the petitioner applied for the post of Lower Primary School Teacher, pursuant to notification issued by the Kerala Public Service Commission. On being asked to upload the caste certificate, the petitioner approached the Village Officer and submitted an online application for obtaining the certificate.

The grievance of the petitioner was that the Tahsildar refused to issue the certificate on the ground that the petitioner had married a person belonging to the Christian community. The petitioner asserted that she was born as a Hindu – Kuravan and did not have an advantageous start in life being born in a forward caste. The petitioner submitted that marrying a Christian man would not wipe off the benefit of reservation granted to persons such as the petitioner as all through her life she had been suffering all handicaps and disadvantages for having been born as a member of the scheduled caste.

The Bench observed that since the petitioner was born as a Hindu Kuravan, there was no justification on the part of the respondents in rejecting the application on the ground that she had married a person belonging to the Christian community. Additionally, certain observations were made by the Bench:

  1. There is a clear circular of the Ministry of Home Affairs, Government of India stating in emphatic terms that a person who is a member of a Scheduled Caste or a Scheduled Tribe would continue to be a member of that of Scheduled Caste or Scheduled Tribe, as the case may be, even after his or her marriage with a person who does not belong to a Scheduled Caste or a Scheduled Tribe.
  2. The preamble of Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 states that the Act was enacted in order to curb effectively the evil practices of securing such certificates by persons other than those belonging to Scheduled Castes and the Scheduled Tribes for claiming the benefits of reservation and such other benefits meant for the Scheduled Castes and the Scheduled Tribes and to make provision for prescribing punishment therefor and to provide for matters connected therewith or incidental thereto.
  • The Presidential notification issued under Article 341 showed that members of the Hindu-Kuravan community are entitled to be treated as Scheduled Caste.
  1. The basis of reservation under Article 15(4) and 16(4) of the Constitution is to provide additional protection to the members of the Scheduled Castes and Tribes as a class of persons who have been suffering for a considerable length of time due to social and economic backwardness.
  2. The object of Article 341(1) of the Constitution is to provide additional protection to the members of the Scheduled Caste having regard to the economical and educational backwardness from which they suffer.

Similarly, in Sunita Singh v. State of U.P., (2018) 2 SCC 493, the Supreme Court had occasion to observe that the caste or community of a person is to be decided on the basis of her/his birth in the said community.

Hence, the Bench opined that the Village Officer proceeded on the wrong basis that by marrying a person belonging to the Christian community, the petitioner would lose her right as a member of a scheduled caste and she would thereby be disentitled to a certificate showing the community to which she was born. The Bench also noted that even the rejection order was not properly communicated. Consequently, the authority concerned was directed to re-consider the request made by the petitioner and issue the community certificate as prayed for, within a week. [Jyothsna A v. Kerala Public Service Commission, WP(C) No. 22994 of 2021, decided on 20-10-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: T.R.Jagadeesh, V.A.Vinod, Gyothish Chandran and B.Ratheesh, Advocates

For the Respondent: Nisha Bose, Senior Government Pleader

Case BriefsHigh Courts

Karnataka High Court: Sreenivas Harish Kumar J. allowed the appeal for bail and set aside the order passed by the LXX Additional City Civil l and Sessions Judge and Special Judge, Bengaluru (on the application of the appellant under Section 439 Cr.P.C.

The instant appeal was filed under Section 14-A of the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act 1989 (‘SC/ST Act’ for short). The accused has preferred this appeal challenging the order passed by the LXX Additional City Civil and Sessions Judge and Special Judge, Bengaluru rejecting his application for bail under Section 439 Cr.P.C.

Counsel for appellants Mr. Hasmath Pasha and Mr. Nasir Ali submitted that no doubt, the contents of the report and the charge sheet indicate that they spent intimate moments, but it also shows that the second respondent might have had consensual intercourse with the appellant. Even when they went to the hospital for the purpose of terminating the pregnancy, it was disclosed to the Doctors that the second respondent was the wife of the appellant, and she gave consent for termination of the pregnancy. The age of the second respondent is 27 years and in this view, the relationship between the appellant and the second respondent could be consensual. She knew the consequences of what she was doing. These being the facts and circumstances, at this stage, the appellant has been able to make out a prima facie case for grant of bail.

Cousnel for respondent Mr. K S Abhijith and Ms. Dhanlakshmi submitted that the second respondent has given statement under Section 164 Cr.P.C which discloses that she was subjected to forcible intercourse by the appellant. Her pregnancy was also terminated forcibly. There are ample materials indicating the involvement of the appellant. He refused to marry the second respondent the moment he came to know that she belonged to the scheduled caste. Therefore, there is no case for granting bail. it prima facie appears that the relationship between the appellant and the second respondent since the year 2018 is consensual.

The Court observed that the age of the second respondent is 27 years. She knew the consequences of having intercourse with the appellant. The appellant has produced a document which shows that both the appellant and the second respondent went to hospital for the purpose of terminating the pregnancy and at that time, they introduced themselves to be husband and wife. So, if all these aspects are taken into consideration, it is difficult to arrive at a conclusion at this stage that the appellant used to have sexual intercourse with the second respondent forcibly.

The Court thus held in the light of all these facts and circumstances, it is not diff icult to arrive at a conclusion that the appellant has been able to make out a case for grant of bail.

[Manoj Kumar M R v. State of Karnataka, Criminal Appeal No. 1933 of 2021, decided on 13-01-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of M. R. Shah* and A.S. Bopanna, JJ., held that a person belonging to Scheduled Caste of one State and being an ordinarily and permanent resident of that State, cannot claim benefit of a Scheduled Caste in another State for the purpose of purchase of land belonging to a Scheduled Caste person of the latter State, which was given to the original allottee as Scheduled Caste landless person.

The dispute in question was with respect to the land which was allotted to one Chunilal as Scheduled Caste landless person and father of the respondent–original plaintiff. As per the case of the respondent, in the year 1972, the said Chunilal borrowed a sum of Rs.5000 from one Puran Singh and under the guise of documentation, the said Puran Singh belonging to Jat High Caste fraudulently made Chunilal sign the sale deed in favour of the appellant-original defendant
(a person belonging to schedule cast), who was a resident of Punjab.

Background

The said Chunilal filed a suit for ejectment against Puran Singh and Bhadar Ram on the ground that he was the allottee of the land and the sale deed dated 21-06-1972 was void and ineffective as the same was in violation of Section 42 of the Rajasthan Tenancy Act, 1955 and Section 13 of the Rajasthan Colonization Act, 1954.

The Trial Court held that the land was in possession of Puran Singh who was not a Scheduled Caste person and that the sale deed was in violation of Section 13 of the Rajasthan Colonization Act, 1954 as well as in breach of Section 42 of the Rajasthan Tenancy Act, 1955 and therefore, the said Puran Singh was liable to be evicted. However, in appeal the Board of Revenue settled the matter in favour of the appellant by giving him benefit of compounding on payment of compounding fees to the respondent under Section 13 of the Rajasthan Colonization Act, 1954.

As the decision of Board was challenged before the High Court, the High Court, by the impugned judgment and order had held that the appellant, being the resident and Scheduled Caste belonging to the State of Punjab, he could not have taken the benefit of his being Scheduled Caste in the State of Rajasthan. Reliance, in this regard was placed by the High Court on the decision in Action Committee on Issue of Caste Certificate to S and ST in the State of Maharashtra v. Union of India(1994) 5 SCC 244.

Schedule Cast Status and Effects of Migration

Evidently, the appellant was belonging to Scheduled Caste in the State of Punjab and was the permanent resident of State of Punjab. However, it was the case of the appellant that he had migrated to Rajasthan and as his grandfather and father had purchased the agricultural lands in the State of Rajasthan, he could be said to be the permanent resident of Rajasthan.

Rejecting the contention of the appellant the Bench opined that merely because his grandfather and father had purchased the agricultural lands in the State of Rajasthan, the appellant could not be said to be an ordinarily resident of Rajasthan.

As per Section 42 of the Rajasthan Tenancy Act, 1955, there is a restriction on sale, gift or bequest by a member of Scheduled Caste in favour of a person, who is not a member of Scheduled Caste. Looking to the object and purpose of such a provision, the Bench opined, “the said provision is to protect a member of the Scheduled Caste belonging to the very State he belongs i.e., in the instant case the State of Rajasthan.”

In the case of Marri Chandra Shekar Rao v. Geth G.S. Medical College, (1990) 3 SCC 130, the Supreme Court had observed that the Scheduled Castes and Scheduled Tribes in some States had to suffer the social disadvantages and did not have the facilities for development and growth, and ordinarily resident cannot be deemed to be so in relation to any other State on his migration to that State for the purpose of employment, education etc…Coincidentally it may be that a caste or tribe bearing the same nomenclature is specified in two States but the considerations on the basis of which they have been specified may be totally different. So also the degree of disadvantages of various elements which constitute the input for specification may also be totally different. Therefore, the Bench had held that merely because a given caste is specified in State A as a Scheduled Caste does not necessarily mean that if there be another caste bearing the same nomenclature in another State, the person belonging to the former would be entitled to the rights, privileges and benefits admissible to a member of the Scheduled Caste of the latter State.

Rejecting the argument of the appellant that the ratio of Action Committee on Issue of Caste Certificate to SC and ST[i] could not be applicable on the instant case as in that case the Court was considering the issue with respect to employment, education while in the instant case dispute was with respect to sale/sale of property, the Bench stated that,

We see no reason to restrict the applicability of the decision of this Court in the case of Action Committee (supra) only with respect to employment, education or the like and not to make applicable the same with respect to purchase and sale of the property.”

Factual Analysis

Noticing that the appellant was a Scheduled Caste belonging to State of Punjab and was an ordinarily and permanent resident of the State of Punjab, the Bench held that he could not claim the benefit of a Scheduled Caste in the State of Rajasthan for the purpose of purchase of the land belonging to a Scheduled Caste person of State of Rajasthan, which was given to original allottee as Scheduled Caste landless person, and therefore, it was rightly held by the Division Bench of the High Court, the sale transaction in favour of the appellant was in clear breach of Section 42 of the Rajasthan Tenancy Act, 1955.

Even otherwise, the sale transaction in favour of the appellant original defendant was also in breach of Section 13 of the Rajasthan Colonization Act, 1954. Evidently, the Board of Revenue granted the benefit of provisions of Section 13A of the Rajasthan Colonization Act, 1954 in favour of the appellant permitting him to pay compounding fees and regularized the transaction when the order of ejection was already passed against the appellant and the possession was already handed over to the respondent. The Bench clarified,

“Section 13(A)(2) of the Rajasthan Colonization Act, 1954 would be applicable only in a case where an order of ejectment has been passed, but a person against whom an order of ejectment has been passed has not actually been ejected from the land transferred.”

Hence, the Bench concluded that no order of compounding in favour of the appellant or even Puran Singh could have been passed by the Board of Revenue in exercise of power under Section 13(A)(2) of the Rajasthan Colonization Act, 1954.  Hence, the sale was held to be in breach of Section 13 of the Rajasthan Colonization Act, 1954 and Section 42 of the Rajasthan Tenancy Act, 1955. Accordingly, the impugned order was affirmed and the instant appeal was dismissed.

[Bhadar Ram (D) v. Jassa Ram, 2022 SCC OnLine SC 13, decided on 05-01-2021]


*Judgment by: Justice M. R. Shah


[i] (1994) 5 SCC 244


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Tripura High Court: The Division Bench of Akil Kureshi, CJ and S.G. Chattopadyay, J., decided in a petition which was filed by the wife of deceased since the police failed to make arrests of the accused persons or to include the provisions of Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter to be referred to as “SC ST Act”), her husband had died due to injuries caused by a violent mob with deadly weapons in an incident which took place on 22nd October 2020 and belonged to a Scheduled Tribe(ST).

Petitioner, her husband and his brother were allotted lands under Forest Rights Act, 2006 under two separate allotment orders both dated 3rd May 2009. The non-tribal residents of the area wanted to grab these lands. Complaints of illegal land grabbing of the tribals by non-tribals were also made to the Minister of Tribal Welfare and Forest in November 2018 who had asked the SDM to look into the matter and do the needful. This couldn’t lead to a resolution thus finally petition was filed.

The prayers were as follows:

(i) For transferring the investigation to the Central Bureau of Investigation (CBI).

(ii) To invoke the penal provisions of SC ST Act against the perpetrators.

(iii) To declare Burshingpara village under Kanchanpur Police Station as an identified area in terms of Section 2(c) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (hereinafter to be referred to as “the said Rules of 1995”).

(iv) To deploy sufficient force in the area to protect the resident members of Scheduled Tribe.

(v) To provide compensation of Rs.8,25,000/- to the petitioner and the dependents of the deceased in terms of the Rules of 1995 and to provide other support such as family pension and Government job to one member.

(vi) To order inquiry against Officer-in-Charge of Kanchanpur Police Station and Sub-Divisional Magistrate (SDM) of Kanchanpur for willful neglect of duties which led to murder of the husband of the petitioner. The contention of the petitioner and her counsel is that the investigation carried out by the police authorities so far is just eyewash.

The Court found out that this case was not a fit case where the investigation should be handed over to the CBI. Undoubtedly, the High Court as a Constitutional Court and a Writ Court has the power to transfer such investigation to the CBI even without the consent of the State Government as is laid down by series of judgments of Supreme Court further holding that this case did not presents such rare or exceptional circumstances where the

CBI should be involved. However, looking to the slow progress in the investigation and the past incidents noted in the earlier portion of this judgment, the investigation must be taken away from the purview of the local police authorities and be handed over to a Special Investigation Team(SIT) that shall be constituted by this Court.

The Court further directed the following:

  • Offences punishable under Section 3(2)(v) and (v-a) of SC ST Act shall be added to the investigation.
  • Further investigation shall be carried out by a Special Investigation Team(SIT) which would be headed by the Superintendent of the District, assisted by the Dy.S.P who shall work under the guidance and supervision of the S.P.
  • Request for transferring the investigation to CBI is refused.
  • The State-administration shall proceed to determine the compensation payable to the family of the victim at appropriate stage in terms of the provisions contained in the SC ST Act and the Rules made thereunder in view of the addition of the offences punishable under the SC ST Act. In the meantime, an ad-hoc amount of Rs.5,00,000/- shall be paid over to the petitioner, widow of the deceased Pindulal Chakma which payment shall be adjusted towards the compensation that may be found payable under the provisions of the SC ST Act and the Rules made thereunder or under the scheme framed by the State Government for financial assistance from the Chief Minister Discretionary Fund, as the case may be. This amount shall be paid within 1(one) month from today.
  • The Home Department shall take a final decision without any further delay and in any case, within 1(one) month from today with respect to the proposal for declaring the village in question as a disturbed area in terms of Section 2(c) of the SC ST Act.
  • Further prayers of the petitioner for grant of family pension Government job to the member of the family of the deceasedmust rest on the outcome of the investigation particularly with respect to commission of offence under SC ST Act and the Government schemes in this regard which are not brought on record by either side. We, therefore, refrain from giving any such directions and leave it open to the petitioner to agitate these prayers in future if the circumstances so justify.
  • The original papers pertaining to the case which are placed before us may be returned to the respondents.

[Buddhapati Chakma v. State of Tripura, 2021 SCC OnLine Tri 539, decided on 11-10-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Punjab and Haryana High Court: Considering the misuse of SC and ST Act by so-called social activists, Arvind Singh Sangwan J. directed the Director General of Police to issue instructions to all the Senior Superintendents of Police that no FIR under SC&ST Act be registered at the instance of third party, unless an opinion is sought from the District Attorney (Legal) that the complainant falls within the definition of victim as per SC&ST Act.

The sexagenarian petitioners had approached the Court for grant of anticipatory bail in an FIR registered under Sections 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The petitioner couple, about 67 years and 58 years of age were alleged to have used some derogatory remarks against their daughter-in-law, Ramanpreet Kaur who belonged to SC/ST cast while having a private conversation with their son. Noticeably, prior to performance of the marriage, the petitioners had disowned their own son by issuing a notice in the newspaper on 14-09-2016 as he used to maltreat them.

The petitioners submitted that after performing marriage, the atrocities of their son had increased as he wanted them to be ousted from their own the house. The pressure on the petitioners to transfer the property in the name of their son went to the extent that the petitioners had to approach Commissioner of Police for seeking protection to their life and liberty. In the above backdrop, the petitioners contended that as a ploy to oust the petitioners from the house, their son had uploaded the audio recording of their private conversation on his social media profile and the complainants namely Navdeep, Sunil Bagha and Gurdeep Singh, claiming themselves to be a social activist in Jalandhar had got the aforesaid FIR registered.

The petitioners argued that none of the informant would fall under the definition of ‘Victim’ as per Section 2(1)(ec) of the SC&ST Act, which refer to a victim as “individual” who has suffered or experienced physical, mental, psychological, emotional or monetary harm to his property, which includes his relatives, legal guardian and legal heirs.

Noticing that Ramanpreet Kaur had not come forward to lodge any complaint with the police and the three complainants were not related to her in any manner, the Bench opined that the petitioners were senior citizens with no criminal antecedents and, admittedly, there was a property dispute between the petitioners, on one side and their son on the other side, on account of the fact that their son had married to a dalit woman has performed marriage with Ramanpreet Kaur, the FIR so registered by strangers to the suit was a clear misuse of process of law.

Therefore, with the view that no complaint was lodged by the victim (daughter-in-law), and none of the complainant had any locus standi, the Bench allowed the application for anticipatory bail. [Bhagwant Singh Randhawa v. State of Punjab, CRM-M No.42685 of 2021, decided on 12-10-2021]


Kamini Sharma, Editorial Assistant has put this report together 


Appearance by:

For the Petitioners: Amit Dhawan, Advocate

For the State of Punjab: Joginder Pal Ratra, DAG, Punjab

For the Complainants: Navraj Singh, Advocate

Case BriefsSupreme Court

Supreme Court: The bench of L. Nageswara Rao v. BR Gavai*, JJ has set aside the judgment of the Aurangabad bench of the Bombay High Court wherein it was held that the reservation of the Office of Mayor for the Dhule Municipal Corporation for Backward Class (OBC) for a second term, coupled with the fact that there has been no reservation for the Scheduled Caste category, amounted to violation of rotation policy.

Facts

  • The respondent No.1 though belongs to the Scheduled Caste category, was elected as a Councillor to the Dhule Municipal Corporation from the General category. By the Notification dated 27th November 2019, the Office of Mayor in the said Corporation was earmarked for Backward Class of Citizens for the next term of two and half years commencing from June, 2021.
  • Respondent number 1 challenged the aforementioned Notification on the ground that from the year 2003 onwards, the Office of Mayor in the said Corporation was reserved for Backward Class category on various occasions, but was not reserved for Scheduled Caste category.
  • Bombay High Court held that the reservation of the Office of Mayor for the Dhule Municipal Corporation for Backward Class (OBC) for a second term even without any reservation for Scheduled Caste category.
  • The said judgment was challenged on the ground that the import of Clauses (d) and (e) of sub­rule (2) of Rule 3 of the Maharashtra Municipal Corporations (Reservation of Offices of Mayors) Rules, 2006 was not considered by the High Court while deciding the matter.

Analysis

Interpreting a Statute

Explaining the rules for interpreting a Statute, the Court said,

“… the Court will have to prefer an interpretation which makes the Statute workable. The interpretation which gives effect to the intention of the legislature, will have to be preferred. The interpretation which brings about the effect of result, will have to be preferred than the one which defeats the purpose of the enactment.”

It is the duty of the Court to construe the Statute as a whole and that one provision of the Act has to be construed with reference to other provisions so as to make a consistent enactment of the whole Statute.

“It is the duty of the Court to avoid a head-on clash between two sections and construe the provisions which appear to be in conflict with each other in such a manner so as to harmonise them.”

Further, while interpreting a particular statutory provision, it should not result into making the other provision a “useless lumber” or a “dead letter”. While construing the provisions, the Court will have to ascertain the intention of the law¬making authority in the backdrop of dominant purpose and   the underlying intendment of the Statute

The Legislative Intent behind the Rules in question

The impugned Rules are mechanism for giving effect to the constitutional mandate under Article 243T of the Constitution of providing reservation for Scheduled Castes and Scheduled Tribes and the   enabling provision for providing reservation for Backward Class of Citizens in proportion to their population.

The intent and the dominant purpose of Rule 3 of the said Rules is to provide reservation to Scheduled Castes, Scheduled Tribes, Backward Class of Citizens and Women and further to ensure that there is no  repetition  of reservation  of  a particular category  in a particular Corporation.

The intent of the said Rules is to give effect to the reservation policy while ensuring that reservations are not repeated in particular Corporations and at the same time in all the Corporations, there shall be reservation, at some point of time, for all the eligible categories by rotation.

The legislative intent is to exclude the Corporations which were earlier reserved for a particular category until all the categories are provided reservation.  However, while doing so, the Court will have to interpret Rule 3 of the said Rules in such a manner that this scheme is made workable and not frustrated.

True import of the Rules in question

The Court took note of the dominant purpose and the legislative intent of the said Rules which is to provide reservation in proportion of the population of such categories in the Municipal areas and also to ensure that while all the eligible Corporations get reservation at some point of time for the different categories, at the same time there would be no repetition of reservation until the rotation   is complete. However, while doing so, the number of seats reserved for a particular category also cannot be ignored.

“… the total number of seats reserved for Scheduled Castes are 3 whereas for Backward Class of citizens, they are 7. Sub-rule (2) of Rule 3 of the said Rules prescribes the manner in which the seats are to be allotted to be reserved for various categories including women. Clause (a) thereof provides that it shall be done by notification in the Official Gazette by allotment of draw of lots. Clause (d) thereof provides that while drawing lots, the offices of Mayors reserved for such category in the earlier years shall be excluded from the draw of lots for those categories. Clause (e) thereof provides that the offices of Mayors to be reserved shall be rotated in   the subsequent terms of office of Mayor to such Corporation, in which no reservation has been made in the previous terms until such reservations are given by rotation to each category.”

Applying the rules of interpretation, the Court noticed that at the first blush, an isolated reading of clause (e) is capable of being interpreted in a manner that until reservation is provided for each category by rotation, the said office cannot be reserved for a category for which it was already reserved. However, if the Rules along with Article 243T of the Constitution and Section 19(1A)[1] of the Maharashtra Municipal Corporations Act, 1949 are read as a whole, then the dominant purpose behind the said Rules appears to be that the reservation as mandated in the Constitution, should be provided for offices of Mayors in the Corporations.

“While doing so, the reservation has to be provided by a draw of lots. It has to be ensured that at any given point of time, the number of offices of Mayors reserved for such categories should not be less than the number determined in accordance with the provisions of sub-rule (1) of Rule 3 of the said Rules.”

Clause (d) of sub-rule (2) of Rule 3 of the said Rules also provides that while drawing lots, the offices of Mayors reserved for such category in the earlier years, shall be excluded from the draw of lots for those categories. The purpose appears to ensure that the reservation is not thrust upon a particular Corporation again and again and all the Corporations, at some point of time, will have the office of Mayor reserved for particular category in accordance with the said Rules.

The Court explained,

“The office of Mayor can be reserved for Scheduled Tribes in only 9 Corporations whereas all the Corporations are eligible for reservation for Scheduled Castes and Backward Class of Citizens.  However, taking into consideration the fact that the number of seats reserved for Scheduled Castes are 3 whereas for Backward Class of Citizens, they are 7 i.e. more than twice,  it is quite probable that the post of Mayor could be reserved for two earlier terms for Backward Class of Citizens and whereas no reservation is provided for Scheduled Castes.”

The Court noticed that a harmonious construction of the said Rules would not lead to a conclusion that the procedure as followed by the State Government in allotting the reservation by draw of lots, would be said to be inconsistent with the scheme of the said Rules.

The Court then took note of the following facts,

  • After excluding 12 Corporations which are already reserved for Scheduled Castes in the earlier years and the one which was reserved for Scheduled Tribes in the first draw of lots, there were 14 Corporations available including the Dhule Municipal Corporation.
  • The said Corporation was also included in the draw of lots for Scheduled Castes. However, in the draw of lots, it could not be reserved for Scheduled Castes.
  • However, insofar as Backward Class is concerned, out of 27 Corporations, 26 Corporations excluding newly created Panvel Corporation were already reserved for Backward Class in the earlier years.
  • As such, the State excluded the 7 Corporations which were immediately reserved for the Backward Class and also excluded the 4 Corporations which were reserved for Scheduled Castes and Scheduled Tribes in the present draw of lots.
  • Coincidentally, in the draw of lots, Dhule Municipal Corporation was one of the 7 Corporations which got to be reserved for the Backward Class.

The Court, hence, held that such a situation is bound to occur in view of the difference in number of seats, reserved for Scheduled Castes and Backward Class of Citizens.

“If the interpretation as placed is to be accepted then unless the post of Mayor is reserved for Scheduled Tribes in all the Corporations to complete the rotation, it will not be possible to provide reservation for the categories which were already reserved earlier.  However, it could be seen that as per the Rules, only 9 Corporations could be reserved for Scheduled Tribes.”

[Sanjay Ramdas Patil v. Sanjay, 2021 SCC OnLine SC 650, decided on 01.09.2021]


[1] “19. Mayor and Deputy Mayor

(1) …

(1A) There shall be reservation for the office of the Mayor   in   the   Corporation,   by   rotation,   for   the Scheduled   Castes,   the   Scheduled   Tribes,   women and   the   Backward   Class   of   citizens,   in   the prescribed manner.”


Judgment by: Justice BR Gavai

Know Thy Judge| Justice B.R. Gavai

Appearances before the Court:

For appellants: Senior Advocate Meenakshi Arora and Advocate Braj Kishore Mishra

For the State of Maharashtra: Advocate Sachin Patil

For Respondent: Advocate Nishant Ramakantrao Katneshwarkar

Case BriefsSupreme Court

Supreme Court: The bench of UU Lalit and Ajay Rastogi, JJ has held that such persons whose place of origin/domicile on or before the appointed day i.e. 15th November, 2000 was of the State of Bihar now falling within the districts/regions which form a successor State, i.e., State of Jharkhand under Section 3 of the Bihar Reorganisation Act, 2000 can claim the benefit of reservation for participation in public employment in either of the successor State of Bihar or State of Jharkhand. Reservation can, however, not be claimed in both the States simultaneously.

What was the case about?

  • The Court was dealing with the case wherein the appellant’s father originally belonged to District Patna in the State of Bihar but as alleged, the appellant was born on 27th November, 1974 in Hazaribagh where his father was residing which earlier was part of the unified State of Bihar but after the Bihar Reorganisation Act, 2000 came into force from the appointed day, i.e. 15th November 2000, District Hazaribagh became part of the successor State of Jharkhand.
  • It was his case that he was born & brought up and took his education within the territory which is now in the State of Jharkhand.
  • He belongs to Scheduled Caste category and a certificate was issued by the competent authority in the State of Jharkhand.
  • He was appointed on the post of Assistant Teacher on 21st December, 1999 and posted in a school in Ranchi, the capital of Jharkhand against the post reserved for SC category and pursuant to the cadre revision on bifurcation of the States, he opted the State of Jharkhand.
  • He then appeared as a member of SC category in the third Combined Civil Services examination, 2008 and cleared the preliminary, as well as main examination followed with an interview and the final result was published in the year 2010 and his name appeared at Sl. No. 5 against 17 vacancies reserved for Scheduled Caste category.
  • However, his appointment order was withheld on the ground that he is permanent resident of District Patna in the State of Bihar and hence, is to be treated as migrant to the State of Jharkhand.
  • In consequence, he was not eligible for appointment in Scheduled Caste category pursuant to his participation in the selection process held in the Combined Civil Services Examination, 2008.

It was argued by the State of Jharkhand that the existing service conditions including benefit of reservation in the promotional cadre post shall not be varied to his disadvantage but he shall be considered to be a migrant to the State of Jharkhand while participating in public employment to compete in open/general category and asked to seek the benefit of reservation in the neighbouring State of Bihar, to hold different status in his parent State of Jharkhand after he became a member of service of the State of Jharkhand, serving for sufficient long time on and after the appointed day, i.e. 15th November, 2000 in the State.

The Court found this argument unsustainable in law and in contravention to the scheme of the Act 2000. The Court said,

“The collective readings of the provisions of the Act, 2000 makes it apparent that such of the persons whose place of origin/domicile on or before the appointed day was of the State of Bihar now falling within the districts/regions which form a successor State, i.e., State of Jharkhand under Section 3 of the Act, 2000 became ordinary resident of the State of Jharkhand, at the 43 same time, so far as the employees who were in public employment in the State of Bihar on or before the appointed day, i.e. 15th November, 2000 under the Act 2000, apart from those who are domicile of either of the district which became part of the State of Jharkhand, such of the emploees who have submitted their option or employees who are junior in the cadre of their seniority as per the policy of the Government of India of which a reference has been made, either voluntarily or involuntarily call upon to serve the State of Jharkhand, their existing service conditions shall not be varied to their disadvantage and stands protected by virtue of Section 73 of the Act, 2000.”

Holding that the appellant would be entitled to claim the benefit of reservation including the privileges and benefits admissible to the members of Scheduled Caste category in the State of Jharkhand for all practical purposes including participation in open competition seeking public employment, the Court said,

“It will be highly unfair and pernicious to their interest if the benefits of reservation with privileges and benefits flowing thereof are not being protected in the State of Jharkhand after he is absorbed by virtue to Section 73 of the Act 2000 that clearly postulates not only to protect the existing service conditions but the benefit of reservation and privileges which he was enjoying on or before the appointed day, i.e. 15th November, 2000 in the State of Bihar not to be varied to his disadvantage after he became a member of service in the State of Jharkhand.”

Key takeaways

  • Such of the employees who are members of the SC/ST/OBC whose caste/tribe has been notified by an amendment to the Constitution(Scheduled Castes)/(Scheduled Tribes) Order 1950 under Vth and VIth Schedule to Sections 23 and 24 of the Act 2000 or by the separate notification for members of other backward class category, benefit of reservation including privileges and benefits flowing thereof, shall remain protected by virtue of Section 73 of the Act 2000 for all practical purposes which can be claimed (including by their wards) for participation in public employment.
  • A person is entitled to claim benefit of reservation in either of the successor State of Bihar or State of Jharkhand, but will not be entitled to claim benefit of reservation simultaneously in both the successor States and those who are members of the reserved category and are resident of the successor State of Bihar, while participating in open selection in State of Jharkhand shall be treated to be migrants and it will be open to participate in general category without claiming the benefit of reservation and vice-versa.

[Pankaj Kumar v. State of Jharkhand, 2021 SCC OnLine SC 616, decided on 19.08.2021]


*Judgment by: Justice Ajay Rastogi

Know Thy Judge | Justice Ajay Rastogi

Case BriefsSupreme Court

Supreme Court: A 3-judge bench of Arun Mishra, Vineet Saran and S. Ravindra Bhat, JJ has upheld the constitutional validity of the SC/ST (Prevention of Atrocities) Amendment Act, 2018, and said that a court can grant anticipatory bail only in cases where a prima facie case is not made out. In the unanimous verdict, Justice Mishra penned the opinion for himself and Justice Saran whereas Justice Bhat wrote a separate but concurring opinion.

The verdict came in the petition challenging the provisions inserted by way of carving out section 18A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The said provision was inserted by Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018 in order to nullify the effect of the Supreme court’s 2018 ruling in Dr Subhash Kashinath Mahajan v. State of Maharashtra, 2018 SCC OnLine SC 243 which laid down the following guidelines:

 “(ii) there is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide.

(iii) arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention.

(iv) to avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.

(v) any violation of the direction of the Court will be actionable by way of disciplinary action as well as contempt.”

The said verdict was, however, was partially set aside by the 3-judge bench of Arun Mishra, MR Shah and BR Gavai, JJ in Union of India v. State of Maharashtra, 2019 SCC OnLine SC 1279, wherein it was held that some portions of the Dr Subhash Kashinath verdict were against the concept of protective discrimination in favour of down­trodden classes under Article 15(4) of the Constitution and also impermissible within the parameters laid down by this Court for exercise of powers under Article 142 of Constitution of India.

Taking into account the 2019 verdict that reviewed the 2018 verdict, Justice Mishra, in his judgment, held that the provisions which have been made in section 18A are rendered of academic use as they were enacted to take care of mandate issued in Dr. Subhash Kashinath verdict which no more prevails.

The Court, further, said that provisions of section 438 Cr.PC shall not apply to the cases under Act of 1989. However, if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by section 18 and 18A(i) shall not apply. The court can, in exceptional cases, exercise power under section 482 Cr.PC for quashing the cases to prevent misuse of provisions on settled parameters.

Justice Bhat, in his separate opinion, agreed with the views expressed by Justice Arun Mishra but added a caveat to it and said,

“while considering any application seeking pre-arrest bail, the High Court has to balance the two interests: i.e. that the power is not so used as to convert the jurisdiction into that under Section 438 of the Criminal Procedure Code, but that it is used sparingly and such orders made in very exceptional cases where no prima facie offence is made out as shown in the FIR, and further also that if such orders are not made in those classes of cases, the result would inevitably be a miscarriage of justice or abuse of process of law.”

He also said that it is important to keep oneself reminded that while sometimes (perhaps mostly in urban areas) false accusations are made, those are not necessarily reflective of the prevailing and wide spread social prejudices against members of these oppressed classes. He said that atrocities like forcing the eating of inedible matter, dumping of excreta near the homes or in the neighbourhood of members of such communities and several other forms of humiliation, which members of such scheduled caste communities are subjected to, far outweigh the petitioners’ concern that innocent individuals would be subjected to what are described as arbitrary processes of investigation and legal proceedings, without adequate safeguards. The right to a trial with all attendant safeguards are available to those accused of committing offences under the Act; they remain unchanged by the enactment of the amendment.

He concluded his judgment with a poignant question that

“can the prevailing situation of exclusion based on caste identity be allowed to persist in a democracy which is committed to equality and the rule of law? If so, till when? And, most importantly, what each one of us can do to foster this feeling of fraternity amongst all sections of the community without reducing the concept (of fraternity) to a ritualistic formality, a tacit acknowledgment, of the “otherness” of each one’s identity.”

[Prathvi Raj Chauhan v. Union of India, 2020 SCC OnLine SC 159, decided on 10.02.2020]


Also read: 

Hot Off The PressNews

Supreme Court: A bench headed by Justice Dr, AK Sikri refused to stay the proposed amendments to the SC & ST (Prevention of Atrocities) Act, 1989 which restored the no anticipatory bail provision for the accused.

It said that the pending review petition filed by the Centre against the apex court’s March 20, 2018 verdict and the pleas challenging the new amendments made in the SC & ST verdict will be taken up together and referred the matter to the Chief Justice for reconstitution of a bench which Justice UU Lalit was a part of.

On March 20, 2018, the bench of AK Goel and UU Lalit, JJ acknowledged the abuse of law of arrest in cases under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Atrocities Act) and said:

“the legislature never intended to use the Atrocities Act as an instrument to blackmail or to wreak personal vengeance nor was it intended to deter public servants from performing their bona fide duties.”

The bench had held that an accused is certainly entitled to show to the Court, if he apprehends arrest, that case of the complainant was motivated. If it can be so shown there is no reason that the Court is not able to protect liberty of such a person. There cannot be any mandate under the law for arrest of an innocent. 

(With inputs from PTI)

Case BriefsHigh Courts

Madras High Court: The Single Judge Bench of S.S.Sundar, J. quashed the criminal complaint against BSNL employees who had put smiling emoji with tears in response to a video footage posted by the second respondent on the official WhatsApp group.

The second respondent (the applicant) posted a video footage of three customers expressing their grievance about the BSNL coverage on the official WhatsApp group which was intended to be used by the members for sharing of any innovative works or ideas for improving the quality of service of BSNL. The conversation was taken as an act to degrade the indoor staff by the petitioners who then along with few others have posted an emoji, namely, a smiling face with tears. They requested the members of SNEA by sending similar emojis in the ‘WhatsApp’ group to be shared by other members of the group. Annoyed by this, the second respondent filed the complaint under various provisions.

The Court said that when it is accepted that an emoji is sent to express one’s feeling about something, it cannot be treated as an overt act on others. It is a comment that may be intended to ridicule or to show one’s disapproval in a given context. Such emojis would not hit Section 67 of IT Act as its object is concerned with publication revealing an overt sexual interest or desire or encouraging an excessive interest in sexual matters. Further, the Court found that the act under consideration may offend the second respondent but it does not attract Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 1998. As it was also not the case in the complaint that the smiley was intended to humiliate the second respondent for her being a member of SC/ST, the complaint under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 was not sustained. Court concluded that everyone has a right to express their feelings and share their idea. Every person has got indefeasible right to express what he feels. However, on Court’s insistence, the petitioners through an affidavit expressed their regret over posing of such smileys. After that Court decided that the matter should rest here and it will be neither in the interest of justice to permit such complaints to stay. [I. Linga Bhaskar v. The State through the Inspector of Police, CRL.O.P.(MD) No. 3110 of 2017 and Crl.M.P. (MD) Nos. 2366 and 6773 of 2017, order dated 05.06.2018]

Case BriefsSupreme Court

Supreme Court: The Vacation Bench comprising of Adarsh Kumar Goel and Ashok Bhushan JJ., allowed the Centre to go ahead with the reservation in promotion for employees belonging to the cadre of SC/ST in accordance to law.

Centre had stated various submissions for explaining their concern on the whole process of promotion being “standstill” due to the various orders passed by the High Courts and apex court.  The government also cited the cases on the issue of quota in promotion in government jobs by placing the apex court’s decision in M Nagaraj v. Union of India, (2006) 8 SCC 212  would be applicable, as in reference to the said case, creamy layer concept cannot be applied to the ST/SC for promotions as decided in the verdict of Indra Sawhney v. Union of India; 1992 Supp (3) SCC 210 and E.V Chinnaiah v. State of A.P; (2005) 1 SCC 394.

ASG Mahinder Singh also referred to an order passed on May 17th in which it was said that “pendency of petition before it shall not stand in the way of the Centre taking steps for the promotion”. He also mentioned Article 16 (4A) of the Constitution, which enabled the state to provide reservation in matters of promotion to SC/ST which in its view was not effectively represented for services.

By a decision of the Supreme Court in M Nagaraj v. Union of India (2006) 8 SCC 212, the constitutional validity of Article 16(4), (4A) and (4B) was upheld.
Subsequent to the pronouncement of law in M Nagaraj, there were decisions by the Supreme Court stating that the government could not blindly provide for reservation in promotions, in favour of SCs and STs unless, prior thereto, the requisite exercise, to acquire quantifiable data regarding lack of representation of SCs and STs in public services was undertaken.

On noting the Delhi High Court verdict of August 23, 2017, in which the government was restrained from granting any reservation, in promotion to SC/ST, in exercise of the power conferred by Article 16 (4A) of the Constitution, without, in the first instance, carrying out the necessary preliminary exercise of acquiring quantifiable data indicating inadequacy of representation, the instant petition was filed and till any further decision of the Constitution bench, as per law permission has been granted in regard to the promotions. [State of Maharashtra v. Vijay Ghogre, 2018 SCC OnLine SC 589, order dated 05-06-2018]