CASE ANALYSIS
OF
S. PUSHPA AND ORS. VS SIVACHANMUGAVELU
AND ORS.
BY
SHAILESH G K
1ST YEAR,
SCHOOL OF LAW, CHRIST UNIVERSITY, BANGALORE
MOB- 8618409423
EMAIL- [Link]@[Link]
[Link]
APRIL 26, 2020
OVERVIEW
S. Pushpa and Ors. vs Sivachanmugavelu and Others. is a case of high importance, and of far
reaching consequences to Indian society. Upon first glance, the case may strike as one that is
solely confined to administrative law. However, the ratio in this case went above and beyond
just that facet of law, and marked its importance in the constitutional arena of law. This is
because it held a contrarian stance to well-established principles in previous relevant
precedents by allowing Scheduled Caste workers to avail benefits and reservations outside
their native state, in the Union Territory of Pondicherry.
Due to its importance, the decision has been subject to the scornful eye of the judiciary in
other decisions on multiple occasions, and stands overruled today. However, its relevance to
the judiciary’s contemporary stance on reservations cannot be overstated.
In order to efficiently and effectively analyse this case, this case study is structured in the
following manner:
a) Background of the case
b) Issues the case needed to address
c) Arguments: i) Appellant’s
ii) Respondent’s
d) Important Precedents:
i) Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College and Ors.1
ii) State of Maharashtra and Anr. v. Union of India and Anr. (Action Committee
case)2
e) Governance of Pondicherry and its legal standing
f) Previous government orders
g) Conclusion given by the judges of the case
h) Critique of the case
i) The Supreme Court’s contemporary stance on the issue
1
Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College and Ors.[1990] MANU/SC/0457/1990
2
State of Maharashtra and Anr. v. Union of India and Anr [1994] MANU/SC/0791/1994
INTRODUCTION
Before delving into the case analysis and the constitutional provisions which would be
necessary to be dealt with, it is crucial for one to reacquaint themselves with the historical
context behind the ‘positive discrimination’ or ‘affirmative action’ laws in India. Therefore,
the following is a brief look at the pre-constitutional position on the issue, which can throw
considerable light and provide a sound insight to the multi-faceted questions that the case
addresses.
The caste system in India, which is the bane of a just social order, has a long history which
can be traced to the earliest times. Ancient Hindu religious scriptures refer to the practice.
Division of Society based on birth and the calling/profession of a person has continued to
dominate Hindu thinking and way of life and is perhaps one of the thorny problems inherited
by the British Administration which had tried to resolve the same by giving legal recognition
to what came to be termed as the "depressed classes". Such recognition was in the form of a
protective regime which extended to representation in the Legislature and in the services
under the State. Exercises in finding out the numerical strength of the depressed class in the
early 20th Century (By Southborough Committee) revealed a grim picture indicating such
number to be as high as 20 per cent of the majority population (Hindu) in eight (08) Indian
Provinces of Madras, Bombay, Bengal, United Provinces, Punjab, Bihar and Orissa, Central
Provinces and Assam. The above figure did not include primitive or aboriginal tribes who
later came to be known as the Scheduled Tribes and included in the list of Scheduled Tribes
under the different Presidential Orders issued from time to time.3
Caste based reservation in India saw its roots in 1882 with the activism of Jyotirao Phule and
the Satyashodak Samaj. It then resulted in the Poona Pact which saw reservations for SCs and
STs which was later translated into the constitution as well. After the Mandal Commission
report in 1991, other backward classes were also added to the list of reservations.
The Constitution of India makes a reference to reservation primarily in Part 16 of the same
document, where the relevant articles are Article 15, and Article 16. Article 15(4)
specifically, speaks of reservation for the Scheduled Castes (SCs) and Scheduled Tribes
(STs) in government services, and similarly, Article 330 and Article 332 of the Constitution
3
Bir Singh v Delhi Jal Board & Ors [2018] MANU/SC/0924/2018
provide for representation in the Central and State parliaments. These are very important
provisions for encouraging diversity in a nation as vast as India. Additionally, there are
further sections and articles which speak of reservation in municipal bodies and panchayats.
These are found in Article 243D which deals with panchayat reservation, and Article 233T
which deals with the municipalities. Article 335 of the Constitution of India, states that in
administrative matters, the claims of the SC and ST communities will be taken into
consideration.
The case of Indira Sawhney VS Union of India (1992) is especially relevant in this regard,
especially in the context of Article 16(4). The case was responsible for the introduction of the
77th Amendment Act in Parliament, which introduced Article 16(4A), which brought in
reservation in promotion as well. This was later modified in the 85th Amendment Act, where
Article 16(4A) was modified to mean that consequential seniority would be provided for
those SC and ST candidates who got promoted.
The cases which dealt with this matter extensively were the case of M. Nagaraj VS Union of
India (2006), and later, the case of Jarnail Singh VS Lachhmi Narain Gupta (2018). In the
end, the 103 Constitutional Amendment Act, 2019, was responsible for introducing that
rd
reservations must be accorded to economically weaker sections of society, which would
include the non-creamy layered sections of the Other Backward Classes (OBCs). This was
apart from the SCs and the STs.
BACKROUND
The government of Pondicherry in 1995, appointed Selection Grade teachers. While this was
done in accordance to the Scheduled Castes quota, the benefit of reservation was also
extended to scheduled castes candidates of other States and Union Territories.
An appeal was filed before the Central Administrative Tribunal 4 challenging the selection of
aforesaid SC candidates on the grounds that a migrant SC candidate belonging to another
State is not eligible for appointment on a post which is reserved for a SC candidate for Union
Territory of Pondicherry. It also pled for the appointment of original inhabitants of Scheduled
Caste origin belonging to the Union Territory of Pondicherry.
The Central Administrative Tribunal held that the SC persons who migrated to UT of
Pondicherry cannot claim the benefit of reservation in the matter of employment in
4
O.A. No. 199 of 1996, Central Administrative Tribunal
Pondicherry Government service. Therefore, the selection of migrant Scheduled Caste
members was discarded and the Tribunal directed the government of Pondicherry to provide
reservations to native scheduled caste members as per the notification given by the
Presidential order of 1964 only.
Dissatisfied with the decision of the Tribunal, the Union of India and Director of Education,
Government of Pondicherry, preferred Special Leave Petitions, and are heard in this case
titled S. Pushpa and Ors. vs Sivachanmugavelu and Ors.5
ISSUES BEFORE THE BENCH
The issues in the case can be summarised as follows. The bench had to address if a person
belonging to a Scheduled Caste of a particular state can avail the benefits of reservation in the
Union Territory of Pondicherry
The bench therefore also had to address whether the Tribunal was right to quash the selection
and hold that migrant workers belonging to Scheduled Castes cannot avail the benefits of
reservation in the Union Territory of Pondicherry?
ARGUMENTS
Appellant’s arguments
The Marri Chandra Shekar Rao judgement, which was relied upon by the Central
Administrative Tribunal, is with respect to migrant workers moving from state to state and
does not apply to a case in which the worker migrates from a state to an adjoining Union
Territory.
The Government of U.T of Pondicherry shall follow the rules and policy set by the
Government of India, which allow migrant SC workers to seek reservations in the Union
Territory.
The Union Territory of Pondicherry is free to implement any policy as long as it upholds
Article 16(4) of the Constitution.
They state that objections claiming reservations should be extended to SC workers expressly
mentioned in the schedule appended to the Presidential Order do not stand.
5
S. Pushpa and Ors. v. Shivachanmugavelu and Ors.[2005] MANU/SC/0091/2005
Respondent’s arguments:
Only such castes which have been in the Presidential Order of 1964, shall be deemed to be
Scheduled Castes for the U.T. of Pondicherry: a migrant Scheduled caste worker is not
permitted to avail the benefits of reservation
The Union Territory is administered by the President via an administrator who is posted
under the Pondicherry government, and not the Central Government, and therefore the
Government of Pondicherry is not obliged to follow the rules set by the Central Government
with respect to appointment of migrant Scheduled Caste Workers
IMPORTANT PRECEDENTS
Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College and Ors:6
In this landmark case dated 1990, the Supreme Court considered the question as to whether a
member of the Gouda community which is recognised as "Scheduled Tribe" in the
Constitution (Scheduled Tribes) Order, 1950 for the State of Andhra Pradesh would be
entitled to admission in a medical institution situated in the State of Maharashtra.
The court denied admission of the student while stating that a person who migrates from one
State to another is entitled to the benefit of being Scheduled Castes/Scheduled Tribes in the
State of origin and not in the State to which he or she migrates. It was held so as to not
disadvantage native members from historically trodden communities, through possible denial
of opportunities to them.
The bench rejected the contention that a member of Scheduled Castes/Scheduled Tribes
should get the benefit of the status 'for the purpose of the Constitution throughout the territory
of India', it was observed that if such contention is to be accepted the expression "In relation
of that State" would become nugatory.
State of Maharashtra and Anr. v. Union of India and Anr 7
This case dealt with the issue of caste certificates to scheduled castes and scheduled tribes in
the state of Maharashtra. It was ruled that scheduled caste and tribe citizens moving from one
State to another cannot claim reservation benefits, whether or not their caste is notified in in
6
supra note 1
7
supra note 2
the state where they migrate to, since the exercise of notifying scheduled castes or tribes is
region (state) specific.
The bench referred to Articles 14, 15(1), 15(4), 16(4) and 19 and Part XVI of the Constitution
of India and the decisions governing the field and also Articles 341 and 342, and it was held
that
"Person cannot get benefit of cast for admission unless specified in particular Notification."
GOVERNANCE OF PONDICHERRY AND ITS LEGAL STANDING
An issue of high contention is the peculiar distribution of power and administration in
Pondicherry.
Before the Tribunal, it was pleaded on behalf of the appellants that the Legislative Assembly
of U.T. of Pondicherry has not been vested with powers to make laws in relation to public
services of the Union territory and consequently the President of India is the repository of all
powers with regard to public services of the Union territory and with regard to the persons
appointed in connection with the affairs of the Union territory.
The President of India appoints an administrator, in this case, the Lt. Governor of
Pondicherry, to rule on his behalf. The respondents argued that solely because the
administrator is appointed by the President, does not mean that he is posted under the Central
Government. This issue was studied with intricacy by the bench, which cited article 239 of
the Constitution
The bench also cited Articles 239 B, which confers power upon the administrator of U.T. of
Pondicherry to promulgate Ordinances during recess of Legislature in certain circumstances.
Article 240 of the Constitution is relevant as well.
Some statutory provisions that were taken into consideration are Section 3(8) of the General
Clauses Act, 1897, Section 3 of the Pondicherry (Administration) Act, 1962 which is in
relevance to powers of office in Pondicherry’s government and Section 50 of the Government
of Union Territories Act, 19633.
Upon the reading of the aforementioned constitutional articles and statutory provisions, the
court decided that the powers relayed to the President is wide-reaching, and hence the
respondents’ claim is invalid. The bench goes on to state that the Administrator and his
Council of Ministers act under the general control of and are under an obligation to comply
with any particular direction issued by the President.
GOVERNMENT ORDERS
The Central Government had issued several orders and circulars extending the benefit to SC
candidates of other States in the matter of employment in the U.T. of Pondicherry, to which
Pondicherry’s government had always complied with.
These orders mandated that because Pondicherry is a Union Territory, all matters decided by
the Department of Personnel in the Central administration, shall also be applicable to
vacancies in the government services of Pondicherry.
There were several orders that upheld those views from 1974 to 1995, after the Presidential
order was declared.
Similarly, all concurrent orders relevant reservation for SC/ST in respect of posts/services
under the Central Government were followed by the government of Pondicherry.
CONCLUSION OF THE BENCH
With respect to the landmark Marri Chandrashekar Rao case, the court held that the ratio of
that case cannot be applied here because the Marri case dealt with workers moving from one
state to another, and Pondicherry is a Union Territory, and not a state. In addition to this
distinction, the bench further held that because the Union Territory of Pondicherry
consistently followed the Central Government’s policy on reservations, and provided them to
all, they cannot be held to the principle established in the Marri case. For these two reasons,
the decision laid down in the Marri case was discarded.
The bench also cites the decision in the TM Kanniyan case 8 which ruled that Union territories
are not States for the purpose of Part XI of the Constitution. For the above reasons, the bench
held that the Tribunal was wrong in their decision to set aside the selections.
The bench concludes its decision by citing article 16 of the Constitution. It reinforces its
stance that due to the unusual position of being a territory ruled by the President, no violation
of constitutional law or other legal provisions can be ascribed to any policy that calls for
8
T.M. Kanniyan v. ITO (2001) 6 SCC 571
caste-based reservations for all members of Scheduled Castes and Scheduled Tribes in the
country. By doing so, it sets aside the decision made by the Tribunal.
CRITIQUE
The consequences of the judgement laid down in the S Pushpa case are as follows:
(i) The resident of a state, belonging to a scheduled caste, notified in that state, cannot claim
reservation benefit, if he takes up residence in another state, whether or not his caste is
included in the latter State's list of scheduled castes;
(ii) However, the resident of a state who moves to a Union Territory would be entitled to
carry his reservation benefit, and status as member of scheduled caste, even if his caste is not
included as a scheduled caste, for that Union Territory;
(iii) The resident of a Union Territory would however, be denied the benefit of reservation, if
he moves to a State, because he is not a resident scheduled caste of that State.
(iv) The resident of a Union Territory which later becomes a State, however, can insist that
after such event, residents of other states, whose castes may or may not be notified, as
scheduled castes, cannot be treated as such members in such newly formed states;
(v) Conversely, the scheduled caste resident of a state which is converted into a Union
Territory, cannot protest against the treatment of scheduled caste residents of other states as
members of scheduled caste of the Union Territory, even though their castes are not included
in the list of such castes, for the Union Territory.
The ruling in Pushpa is clear that if the resident of a state, whose caste is notified as
Scheduled caste or scheduled tribe, moves to a Union Territory, he carries with him the right
to claim that benefit, in relation to the Union Territory, even though if he moves to another
state, he is denied such benefit (as a result of the rulings in Marri and Action Committee).
The ruling in Pushpa, being specific about this aspect vis-à-vis Union Territories, is binding;
it was rendered by a Bench of three judges.
The later ruling in Subhash Chandra doubted the judgment in Pushpa, holding that it did not
appreciate the earlier larger Bench judgments in the correct perspective. Yet, Subhash
Chandra cannot be said to have overruled Pushpa, since it was rendered by a smaller Bench
of two judges.
By virtue of the specific ruling applicable in the case of Union Territories, whatever may be
the doubts entertained as to the soundness of its reasoning, the High Courts have to apply its
ratio, as it is by a formation of three judges; the said decision did notice the earlier judgments
in Marri and Action Committee. Article 141 and the discipline enjoined by the doctrine of
precedent compelled all lower level Courts to follow the Pushpa ruling.
THE SC’s CONTEMPORARY STANCE ON THE ISSUE
In 2018, the Supreme Court of India addressed this issue in its decision given in Bir Singh v
Delhi Jal Board & Ors, by a constitutional bench comprising of justices Ranjan Gogoi and
Banumati. The bench overlooked and addressed a plethora of contentions and issues
regarding reservations for migrant Scheduled Caste members, and while doing so, they stated
that the decision taken by the bench in the Pushpa case was wrong, and must be set aside.
The following was held in the judgement:
1) The judgment in Pushpa's case is contrary to the views taken in Marri Chandra
Shekhar Rao's case. Facts of Pushpa's case disclose that the Government of
Pondicherry had throughout proceeded on the basis that being a Union Territory all
orders regarding reservation for SC/ST in respect of post/services under the Central
Government were applicable to post/services as under the Pondicherry administration.
The decision in Pushpa's case therefore cannot be taken to be an authoritative
pronouncement. Clause (2) of Article 341 of the Constitution empowers Parliament
alone by law to include or exclude from the lists of Scheduled Castes specified in a
notification issued under Clause (1) of Article 341. No executive action or order or
modification or variance of the same is possible and any such variance would be
against the constitutional scheme.
2) In Pushpa's case, the posts advertised were of Selection Grade Teachers under the
Pondicherry Services and not for Central Government jobs. It may be that
Pondicherry is a Union Territory; but the posts/services exclusively coming under
Pondicherry administration is meant only for the Scheduled Casts/Scheduled Tribes as
notified under the Presidential Order for Pondicherry.
3) The socio-political aspect of the Union Territory cannot be mixed up with
administrative aspect. In Subhash Chandra's case, it was held that if the principle
applied in Pushpa's case is to be given a logical extension, it will lead to an absurdity,
that the Scheduled Castes Order in a State/Union Territory brought under the control
of the President Under Article 341 of the Constitution could be altered by virtue of a
notification issued in pursuance of Article 16(4) of the Constitution, which is not in
consonance with the Constitutional Scheme.
4) The Union Territories are centrally administered by the President acting through an
administrator, the President has the equivalent position of a governor of the state
5) Marri Chandra Shekhar Rao and Action Committee are applicable to the States and
they are applicable with equal force to the Union Territories including Union
Territory of Delhi
6) Therefore, a person classified as a Scheduled Caste member in a state, cannot avail
the benefits of reservations in another state or union territory
CONCLUSION
Although Justice Banumati critiqued the decision given by the 3 membered constitutional
bench in the Pushpa case, it remains to be a pertinent and a relevant case today as it has not
been overruled. It is imperative that the Apex Court constitutes a constitutional bench to
ponder over the correctness of the judgement expressed in the Pushpa case. It must also try to
reconcile the contradictory ratio laid down in the Marri Chandrashekar case and the one laid
down in the Pushpa case.
It is arguable that the court was possibly at fault in the Pushpa case to maintain a staunch
positivist approach to justice, and not draw a connect between a state and a union territory.
The aforementioned criticisms of the judgement are not to be taken lightly.
It is crucial that decisions taken by the Apex Court are in alignment to the spirit of the
constitution. Upliftment of just one section of the weak, at the expense of another is not
compatible with the ideals of justice envisioned by the constituent assembly.
The Pushpa case must be revisited by the Supreme Court in order to establish a uniform
direction for Central and State policy regarding reservations for the weak. This shall ensure
justice for the downtrodden, as well as coherency and uniformity in future legislations and
policy on both the central and state levels of governance.
REFERENCES
1) Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College and Ors.
MANU/SC/0457/1990
2) State of Maharashtra and Anr. v. Union of India and Anr MANU/SC/0791/1994
3) Bir Singh v Delhi Jal Board & Ors MANU/SC/0924/2018
4) O.A. No. 199 of 1996, Central Administrative Tribunal
5) S. Pushpa and Ors. v. Shivachanmugavelu and Ors. MANU/SC/0091/2005
6) T.M. Kanniyan v. ITO (2001) 6 SCC 571
BRIEF ABOUT THE AUTHOR
Shailesh G K is a first year BA LLB student at School of Law, Christ University. He is
interested in international law and the confluence of law and social justice. Careers in the
fields of academics and social service interests him. He is currently a student volunteer for
ICLU. Curiosity drives his every move, as reflected by his hobbies which include reading
about quarks, the greybeards of ancient Greece, and world history. He believes that the sole
role of governance is to protect the weak, and that Law, when wielded by the just, shall uplift
the downtrodden.
