Hon. Mrs. Sunita Agarwal, J.
We have heard Shri Shashi Nandan, Sr. Advocate assisted by Shri Shivam Yadav for New Okhla Industrial Development Authority (NOIDA) through its Chairman-appellant no.1 and the Chief Executive Officer, Noida, Distt. Gautam Budh Nagar-appellant no.2. Learned Standing Counsel appears for the proforma State respondents. Shri Sudhanshu Srivastava appears for the private respondent no.1.
All these intra court special appeals under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 are directed against the judgment of learned Single Judge dated 4.9.2013, dismissed by learned Single Judge by a judgment in leading Writ Petition No.27319 of 2013 dated 21.5.2013.
In all the special appeals the petitioners-respondent no.1 has challenged the orders passed by the Chief Executive Officer, Noida on different dates (in Special Appeal No.1995 of 2013 arising out of Writ Petition No.44468 of 2013, the order is dated 27.4.2010) terminating the petitioners' services on Class-III and Class-IV posts, under the powers vested in him in Section 22 (2) of the Service Rules applicable to the employees of Noida of the year 1981 with three months' pay in lieu of notice and after considering the reply on the ground that the petitioners on the date of their appointment between 3.5.2002 to 29.8.2003, in five difference phases, were permanent residents of the State of New Delhi and Haryana and were issued the caste certificates belonging to Scheduled Castes/ Scheduled Tribes in those States, for which they were not entitled to the benefit of reservation in appointments. The orders were passed after appointing an Enquiry Commission (Mathur Enquiry Commission), which had found the appointment to be violative of provisions of the U.P. Reservation for (Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, and the Government Orders dated 21.2.1964, 13/12/2001 and 16.4.2007 providing for reservation in the State of U.P. for only those persons, who belong to Scheduled Castes/ Scheduled Tribes and are permanent residents of the State of Uttar Pradesh and have been issued caste certificate from the competent authority in the State of Uttar Pradesh. In their replies they have not denied that they were not residents of the State of U.P. and that their caste certificates were issued to them from outside State of U.P. and thus in view of the Action Committee on issue of Caste Certificate to Scheduled Castes and Scheduled Tribes v. Union of India, (1994) 5 SCC 244, the benefit of reservation to the Scheduled Castes and Scheduled Tribes is not applicable to them in the State of U.P. as they had migrated for the purposes of employment from the State outside the State of U.P.
Learned Single Judge relying on the opinion expressed in Kavita Solunke v. State of Maharashtra & Ors., (2012) 8 SCC 430 (para 19) held that the petitioner's appointment could not be cancelled after such a long period of service on the ground that their castes are not notified as Scheduled Castes or that the caste certificates were not issued to them in the State of U.P. from within the State of U.P. He found that since the petitioners have not claimed salary for the period for which they were out of employment, directed their reinstatement without benefit of salary for the period after their appointments were cancelled and upto the period they were reinstated, and for that period they shall be deemed to be in continuous service for other purposes namely increments and for promotion/ retiral benefits.
We heard the Special Appeal No.1370 of 2013, New Okhla Industrial Development Authority v. Piare Lal & Anr; Special Appeal No.1371 of 2013, New Okhala Industrial Development Authority v. Dharmendra Kumar & Anr.; Special Appeal No.1372 of 2013, New Okhala Industrial development Authority v. Rajendra Kumar & Anr.; and Special Appeal No.1373 of 2013, New Okhala Industrial Development authority v. Kripa Lata Kujar & Anr. and allowed all the four special appeals on 14.3.2014 on the ground that the Division Bench of this Court decided the same issue in its judgment dated 12.2.2014 in Special Appeal Defective No.153 of 2014, Kuldeep Kumar and Roop Chand v. CEO, Noida and 3 others and in which after following the judgment in Action Committee on issue of Caste Certificates of Scheduled Castes and Scheduled Tribes in the State of Maharashtra v. Union of India, (1994) 5 SCC 244 and Viveka Nand Sethi v. Chairman, J & K Bank Ltd. & Ors., (2005) 5 SCC 337 this Court has held that where a person obtains a caste certificate of belonging to a particular caste in the State of his/her origin, that would not entitle the holder of the certificate to the benefit of reservation in another State to which the person migrates. The mere fact that the nomenclature of the caste is the same in two States namely, the State of origin and the State of migration, would not entitle a person to the benefit of reservation in the State to which he/she migrates; i.e. because the considerations which weigh in favour of the designation of a particular caste in relation to that State may not necessarily be the same as in another State.
In the judgment dated 14.3.2014 by which we had decided the four Special Appeals, the respondents were residents of State of Punjab, Delhi and Jharkhand. They belong to 'Ramdasiya', 'Raigar' and 'Oraon' castes to claim reservation in appointments in Noida. It was admitted in those cases that these castes are not notified as Scheduled Castes in the State of U.P. under the Presidential Order issued under Section 341 (1) or amendments made to the Presidential Order by Parliament under Art.341 (2) of the Constitution of India. We had also considered the judgments cited by learned counsel for the employees, whose services were terminated namely State of Maharashtra v. Milind, (2001) 1 SCC 4 and State of Maharashtra v. Sanjay K. Nimje, (2007) 14 SCC 481 and did not find substance in the contentions of the employees that reference made by two Hon'ble Judges of the Supreme Court in State of Uttaranchal v. Sandeep Kumar Singh & Ors. to Larger Bench will have any effect on the question, which stand concluded for now in the judgment of the Supreme Court in Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra v. Union of India, (1994) 5 SCC 244.
On the same day, when the aforesaid four matters were heard, it was pointed out that in the remaining cases, which are now being decided by us by this judgment, the castes to which the employees (respondents) belong is also notified as Scheduled Castes namely Dhobi, Jatav, Kori, Chamar. Jatav Chamar notified in the Presidential Order issued under Section 341 (1) of the Constitution of India for the State of U.P. We had thus separated these cases and heard them on 2.4.2014.
Shri Shashi Nandan submits that the facts and circumstances in New Okhla Industrial Development Authority v. Piare Lal & Anr., Special Appeal No.1370 of 2013, decided along with three other connected petitions on 14.3.2014 are common. In all these cases the respondents were not the permanent residents of the State of U.P. Even if the castes to which they belong is also notified as Scheduled Castes for the State of U.P., since all the respondents were permanently residing outside the State of U.P. and that their caste certificates were issued by the competent authority outside the State of U.P., they were not entitled to the benefit of reservation for their appointments in NOIDA. A commission of enquiry was appointed, which reported that in view of the Constitution Bench judgment in Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra v. Union of India (Supra) the respondents were not entitled to benefit of reservation in appointments. All of them were given show cause notices to submit their replies. In their replies they have denied that they were permanent residents of State of Uttar Pradesh at the time they were employed in NOIDA, or that their caste certificates were obtained verifying their castes to belong to Scheduled Castes, by the competent authority in the State of U.P. It is submitted that in view of the settled legal position learned Single Judge erred in law in allowing the writ petition. The judgment of learned Single Judge on same facts and circumstances has been set aside by this Court in NOIDA v. Piare Lal & Anr. (Supra). This Court may thus allow these connected special appeals.
Shri Sudhanshu Srivastava has made a valiant effort to justify the benefit of reservation given to the respondents in all these writ petitions on the ground that castes to which they belong and for which the caste certificates issued by the competent authorities have been issued from outside the State of U.P., are also notified as Scheduled Castes in the State of U.P. He submits that all the respondents were appointed given them benefit of reservation in employment in NOIDA on various advertised posts in the year 2003. Since their castes are notified scheduled castes in the State of U.P. also, they have been seriously discriminated in terminating their services. He submits that it will make no difference if caste certificates of the castes, which is also notified Scheduled Castes in the State of U.P. is issued from outside the State of U.P. A large number of people in this country migrate in search of employment to other states. If they belong to the notified castes in the State to which they have migrated, they cannot be denied the benefit of reservation. In the present case the caste certificate of each of the petitioners was scrutinised at the time of their appointment on which they were given benefit of reservation. The respondents were eligible, qualified and were selected for appointment on the substantive posts by selection procedure, in which there was no irregularity. There was no complaint with regard to their eligibility, and qualifications and there was no fault in the selection process. The enquiry instituted through Mathur Enquiry Commission was wholly illegal. No such enquiry could be made in respect of valid and legal appointments. Their appointments have not been terminated in accordance with the procedure prescribed in discipline and appeal rules after holding departmental enquiry. It is neither alleged nor stated that caste certificates were obtained by any misrepresentation or fraud. Since the same castes namely Dhobi, Jatav, Kori, Chamar and Jatav Chamar are notified Scheduled Castes in the State of U.P., they were entitled to benefit of reservation.
Shri Sudhanshu Srivastava further submits that in case of Rameshwar Dayal in Special Appeal No.772 of 2013, the caste certificate that he belongs to Scheduled Castes has also been issued in the State of U.P. In case of Shri Prabudh Bharat in Special Appeal No.785 of 2013 his brother has been issued caste certificate of the same caste of Jatav. In case of Shri Bhagat Raj Singh, Special Appeal No.1995 of 2013 the caste certificate has been issued by the competent authority in Gautam Budh Nagar verifying that he belongs to Scheduled Castes as well as his brother, who was issued caste certificate on 22.6.1977 from Bulandshahar (now a part of Distt. Gautam Budh Nagar). His father has also been allotted a lease of land by Gaon Sabha as a member of Scheduled Castes. Similarly in case of Rakesh Kumar in Special Appeal No.2784 of 2013 his caste certificate has also been issued from Aligarh, in case of Dharmendra Singh, Special Appeal No.3783 of 2013, the land was allotted to his family members by Gaon Sabha as family belongs to Scheduled Castes and that the caste certificate has been issued by the competent authority to him in the State of U.P. as well. In case of Ashok Kumar in Special Appeal No.4780 of 2013 the residence certificate and caste certificate have been issued by the competent authority verifying that he belongs to Jatav Chamar caste at Lucknow. In case of Mahendra Singh in Special Appeal No.5781 of 2013, the proof of residence and caste certificate that he belongs to Jatav Chamar caste has been issued by the competent authority at Aligarh. Similarly in case of Vikas in Special Appeal No.6777 of 2013, the proof of residence and caste certificate have been issued verifying that he belongs to Jatav Chamar caste from Aligarh in the State of U.P.
Shri Sudhanshu Srivastava submits that in Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College & Ors., (1990) 3 SCC 130, a Constitution Bench of the Supreme Court had in the matter of migration of student from one State to another by force or circumstances either in employment or by profession, held that some consideration is desirable to be made on that ground. The Supreme Court observed that it is necessary and perhaps desirable for legislatures of Parliament to consider appropriate legislation bearing this aspect in mind so that proper effect is given to the rights given to Scheduled Castes and Scheduled Tribes by virtue of the provisions under Art.341 and 342 of the Constitution of India. Same observations found approval of the Constitution Bench four years later in Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes v. Union of India, (1994) 5 SCC 244 in which the Supreme Court in view of the special facts and circumstances of the case, having regard of the fact that the petitioner-student's career was involved, directed the authorities to consider whether the petitioner was of 'Goudi' caste and if yes, the institution may consider if he could be allowed to complete his studies in the institution. However, on the interpretation of the relevant provisions of the Constitution the Court was clear that in its view legally speaking he was not entitled to admission in ST quota.
It is submitted by Shri Sudhanshu Srivastava that the petitioners were eligible and qualified for appointment. They faced stiff competitive selection process for appointment. Their castes to which they belong are notified Scheduled Castes in the State of U.P. as well. In the circumstances, the termination of their services will cause to them and their families extreme hardships. They are all living in same country. Their employment in the State outside the State of U.P. and the issuance of caste certificate in those States should not be ground to throw them out of employment after serving for about 7 to 10 years. He has pleaded justice for the respondents, who are not at fault and are not accused of any misrepresentation, concealment or fraud.
Lastly it is submitted by Shri Srivastava that the Constitution Bench of the Supreme Court in Marri Chandra Shekhar Rao's case (Supra) had recommended in paragraph 23 of the judgment suitable legislation by Parliament to protect the rights of such persons, who have involuntary migrated either for employment or for profession to other States, protecting their rights of reservation. The delay in bringing out an appropriate legislation for which recommendations have been made by the Constitution Bench should not be a ground to visit them serious civil consequence of depriving employment. They have spent the best part of their life serving in the State of U.P., they should not be compelled to be thrown on streets in search of alternate employment. The Constitution Bench in Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College & Ors. (Supra) in its judgment delivered on May 2nd, 1990 reported in (1990) 3 SCC 130 considered the question treating it to be of seminal importance for the country and the people. In paragraph 6 of the judgment it framed the question to be considered in the light of the provisions of Art.341 and 342 of the Constitution of India and its implications on the right of equality under Art.14, 15, and 16 of the Constitution of India with reference to reservation based on castes by way of affirmative action under Art.15 (4) of the Constitution of India. The Supreme Court held in paragraphs nos.6, 8, 9, 23, 24 and 25 as follows:-
"6. The question, therefore, that arises in this case, is whether the petitioner can claim the benefit of being a Scheduled Tribe in the State of Maharashtra though he had, as he states, a Scheduled Tribe certificate in the State of Andhra Pradesh? Inasmuch as we are not concerned in this application with the controversy as to whether the petition- er correctly or appropriately belongs to the Gouda community or not, or whether the petitioner had a proper certificate, it is desirable to confine the controversy to the basic question, namely, whether one who is recognised as a Sched- uled Tribe in the State of his origin and birth continues to have the benefits or privileges or rights in the state of migration or where he later goes.
8. Article 15 of the Constitution prohibits discrimination on grounds of religion, race, caste, sex or place of birth. Article 15(4), however, enjoins that nothing in that article or in clause (2) of Article 29 of the Constitution shall prevent the State 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. Therefore, reservation in favour of Sched- uled Tribes or Scheduled Castes for the purpose of advance- ment of socially or educationally backward citizens to make them equal with other segments of community in educational or job facilities is the mandate of the Constitution. Equal- ity is the dictate of our Constitution. Article 14 ensures equality in its fullness to all our citizens. State is enjoined not to deny to any person equality before law and equal protection of the law within the territory of India. Where, it is necessary, however, for the purpose of bringing about real equality of opportunity between those who are unequals, certain reservations are necessary and these should be ensured. Equality under the Constitution is a dynamic concept which must cover every process of equalisa- tion. Equality must become a living reality for the large masses of the people. Those who are unequal, in fact, cannot be treated by identical standards; that may be equality in law but it would certainly not be real equality. Existence of equality of opportunity depends not merely on the absence of disabilities but on presence of abilities. It is not simply a matter of legal equality. De jure equality must ultimately find its raison d'tre in de facto equality. The State must, therefore, resort to compensatory State action for the purpose of making people who are factually unequal in heir wealth, education or social environment, equal in specified areas. it is necessary to take into account de facto inequalities which exist in he society and to take affirmative action by way of giving preference and reservation to the socially and economically disadvan- taged persons or inflicting handicaps on those more advanta- geously placed, in order to bring about real equality. Such affirmative action though apparently discriminatory is calculated to produce equality on a broader basis by elimi- nating de facto inequalities and placing the weaker sections of the community on a footing of equality with the stronger and more powerful sections so that each member of the commu- nity, whatever is his birth, occupation or social position may enjoy equal opportunity of using to the full his natural endowments of physique, of character and of intelligence. In this connection. reference may be made to the observations of this Court in Pradeep Jain & Ors. v. Union of India & Ors., [1984] 3 SCC 654.
9. It appears that Scheduled Castes and Scheduled Tribes in some States had to suffer the social disadvantages and did not have the facilities for development and growth. It is, therefore, necessary in order to make them equal in those areas where they have so suffered and are in the state of under development to have reservations or protection in their favour so that they can compete on equal terms with the more advantageous or developed sections of the communi- ty. Extreme social and economic backwardness arising out of traditional practices of untouchability is normally consid- ered as criterion for including a community in the list of Scheduled Castes and Scheduled Tribes. The social conditions of a caste, however, varies from state to state and it will not be proper to generalise any caste or any tribe as a Scheduled Tribe or Scheduled Caste for the whole country. This, however, is a different problem whether a member of the Scheduled Caste in one part of the country who migrates to another State or any other Union Territory should contin- ue to be treated as a Scheduled Caste or Scheduled Tribe in which he has migrated. That question has to be judged taking into consideration the interest and well-being of the Sched- uled Castes and Scheduled Tribes in the country as a whole.
23. Having construed the provisions of Article 341 and 342 of the Constitution in the manner we have done, the next question that falls for consideration, is, the question of the fate of those scheduled caste and scheduled tribe stu- dents who get the protection of being classed as scheduled caste or scheduled tribes in 'the States of origin when, because of transfer or movement of their father or guard- ian's business or service, they move to other States as a matter of voluntary transfer, will they be entitled to some sort of protective treatment so that they may continue or pursue their education. Having considered the facts and circumstances of such situation, it appears to us that where the migration from one State to other is involuntary, by force of circumstances either of employment or of profession, in such cases if students or persons apply in the migrated State where without affecting prejudicially the rights of the scheduled castes or scheduled tribes in those States or areas, any facility or protection for continuance of study or admission can be given to one who has so migrated then some consideration is desirable to be made on that ground. It would, therefore, be necessary and perhaps desirable for the legislatures or the Parliament to consider appropriate legislations bearing this aspect in mind so that proper effect is given to the rights given to scheduled castes and scheduled tribes by virtue of the provisions under Articles 341 and 342 of the Constitution, This is a matter which the State legislatures or the Parliament may appropriately take into consideration.
24.Having so held, now the question is, as to what is to happen to the petitioner in this case. As we have held, the petitioner is not entitled to be admitted to the Medical College on the basis that he belongs to scheduled tribe in his original State. The petitioner has, however, been admit- ted. He has progressed in his studies. But he had given an undertaking that he will not insist on the basis of the admission. If we allow him to continue with his studies in Maharashtra's College where he has been admitted on the undertaking given after he has not succeeded in this appli- cation, it would be.a bad precedent. We must, however, do justice. The boy's educational prospects should not be jeopardised since he has progressed to a certain extent and disqualifying him at this stage or this year on the ground that he is not entitled to the protection of Scheduled Caste or Scheduled Tribe, would not confer any commensurate bene- fit to scheduled castes or scheduled tribes in Maharashtra or for that matter on anybody else. It is, therefore, de- sirable that the question whether he is genuinely belonging to Gouda community and whether this community is a scheduled caste or scheduled tribe, should be first properly and appropriately determined. As mentioned hereinbefore, we have not examined this question. After determining that whether after making provisions for the scheduled castes and scheduled tribes of Maharashtra, if any facility of admis- sion or continuance of study can be given in the Medical College in Maharashtra to the petitioner herein, the author- ities incharge of the Institution should consider the same and if on that considering they find it justified in allow- ing the petitioner to continue in his studies, they may do so. The authorities should consider the same and take action accordingly, as expeditiously as possible. In considering the question of the petitioner continuing his medical educa- tion, the appropriate authorities should bear in mind the justice of the situation.
25. We, therefore, leave it to the authorities to take appropriate action about the continuance or discontinuance of the petitioner in his studies on the basis of the aforesaid consideration. We order accordingly. We do so only in the background of the peculiar facts and circumstances of this case. and the aforesaid observations should not be treated as a precedent for other situations. We, therefore, direct that the petitioner is not enti-tled to be admitted to the Medical College on the basis that he belonged to the scheduled tribes in Andhra Pradesh but his continuance in the College will depend upon the consid-eration indicated hereinbefore. The writ petition is thus disposed of. There will be no order as to costs."
In Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes v. Union of India (Supra), a Constitution Bench of the Supreme Court in a public interest litigation relying upon Marri Chandra Shekhar Rao's case (Supra) reiterated the answer to the same question in paragraph 16, 17 and 18 as follows:-
"16. We may add that considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/Schedule Tribes or backward classes in a given State would depend on the nature and extent of disadvantages and social hardships suffered by that caste, tribe or class in that State which may be totally non est in another State to which persons belonging thereto may migrate. 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, 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 fights, privileges and benefits admissible to a member of the Scheduled Caste of the latter State "for the purposes of this Constitution". This is an aspect which has to be kept in mind and which was very much in the minds of the Constitution-makers as is evident from the choice of language of Articles 341 and 342 of the Constitution. That is why in answer to a question by Mr Jaipal Singh, Dr Ambedkar answered as under:
"He asked me another question and it was this. Supposing a member of a Scheduled Tribe living in a tribal area migrates to another part of the territory of India, which is outside both the scheduled area and the tribal area, will he be able to claim from the local Government, within whose jurisdiction he may be residing the same privileges which he would be entitled to when he is residing within the scheduled area or within the tribal area? It is a difficult question for me to answer. If that matter is agitated in quarters where a decision on a matter like this would lie, we would certainly be able to give some answer to the question in the form of some clause in this Constitution. But so far as the present Constitution stands, a member of a Scheduled Tribe going outside the scheduled area or tribal area would certainly not be entitled to carry with him the privileges that he is entitled to when he is residing in a scheduled area or a tribal area. So far as I can see, it will be practicably impossible to enforce the provisions that apply to tribal areas or scheduled areas, in areas other than those which are covered by them......."
Relying on this statement the Constitution Bench ruled that the petitioner was not entitled to admission to the medical college on the basis that he belonged to a Scheduled Tribe in the State of his origin.
17. Lastly the Constitution Bench referred to the cleavage in the views of different High Courts on the interpretation of Articles 341 and 342 of the Constitution and the consequential orders passed by the Government of India and the State Governments. It referred to the two decisions of the Gujarat High Court as well as the decision of the Karnataka High Court which place the interpretation canvassed before us by Mr Raju Ramachandran. The other side referred to the decisions of the Orissa High Court in K. Appa Rao v. Director of Posts & Telegraphs, Orissa10, the decision of the Full Bench of the Bombay High Court in M.S. Malathi v. Commissioner, Nagpur Division" and the decision of the Punjab & Haryana High Court in V.B. Singh v. State of Punjab12 which take the contrary view canvassed before us by the respondents. All these decisions were considered by the Constitution Bench which agreed with the latter view. It upheld the view expressed in the communication dated 22-2- 1985 and negatived the challenge of the petitioner that the said view was ultra vires Articles 14, 15, 16 or 21. It, however, observed that in the facts and circumstances of the case and having regard to the fact that the petitioner student's career was involved it directed the authorities to consider whether the petitioner was a 'Goudi' and if yes, the institution may consider if he can be allowed to complete his studies in the institution. However, on the interpretation of the relevant provisions of the Constitution this Court was clear in its view that legally speaking he was not entitled to admission in the Scheduled Tribe quota.
18. We are in respectful agreement with the above view expressed by the Constitution Bench in the aforesaid decision. All the points which were canvassed before us by Mr Raju Ramachandran were also canvassed by him in the said matter. They were negatived by the Constitution Bench. Nothing has been pointed out to persuade us to think that the view taken by the Constitution Bench requires reconsideration by a larger Bench. In fact we are in complete agreement with the interpretation placed on the various provisions of the Constitution, in particular Articles 341 and 342 thereof, in the said judgment. We, therefore,, see no merit in this writ petition and dismiss the same. However, we make no order as to costs."
In paragraph 16 quoted as above, the Supreme Court specifically answered the question, which has been posed before us in equity and thus following the ratio of the judgment, we hold that even if a cast or tribe bearing the same nomenclature is specified in two states, the considerations on the basis of which they may have been specified may be totally different. The degree of disadvantages of various elements which constitute the input for specification may also be totally different. We have not been called upon nor we are required and have authority to consider those considerations on the basis of which these castes have been specified in different States and have been given reservation in the same manner. So far as constitutional scheme as explained in the two Constitution Benches referred as above, the respondents cannot be allowed benefit of reservation on the basis of the notification of the same castes in both the States as they were permanent residents of the States outside the State of U.P. and that their castes certificates were issued by the competent authority in those States. The respondents have taken away the chances of the residence of the State, of the same castes notified as scheduled castes, who could be appointed in their place.
Before parting with the case we may observe that the Parliament has not yet responded to the recommendations made by the Constitution Bench of the Supreme Court in Marri Chandra Shekhar Rao's case (Supra) made almost 24 years ago. It would, therefore, be necessary and perhaps desirable for the legislatures or the Parliament to consider appropriate legislations bearing in mind in voluntary migration from one State to another in search of opportunities of education and employment to scheduled castes and scheduled tribes.
The Division Bench of this Court in Kuldeep Kumar and Roop Chand v. CEO, Noida and 3 others, Special Appeal Defective No.153 of 2014 has answered the same question as is again posed before us in following words:-
"Consequently, it is now a well settled principle of law that where a person obtains a caste certificate of belonging to a particular caste in the State of his/her origin, that would not entitle the holder of the certificate to the benefit of reservation in another State to which the person migrates. The mere fact that even the nomenclature of the caste is the same in two States namely, the State of origin and the State of migration, would not entitle a person to the benefit of reservation in the State to which he/she migrates. That is because the considerations which weigh in favour of the designation of a particular caste in relation to that State may not necessarily be the same as in another State. The learned Single Judge has followed the settled principle of law as set out in Action Committee Vs. Union of India (supra) and in the decision subsequently rendered in MCD v. Veena and Others.
It would also be relevant to notice that Section 9 of The Uttar Pradesh Public Services (Reservation For Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 deals with caste certificates and it provides that for the purposes of reservation provided under the Act, a caste certificate shall be issued by such authority or officer in such manner and form as the State Government may, by order, provide. The State Government has issued an order dated 29 March 1994 for this purpose. This Government Order provides that the caste certificates shall issued by the District Magistrate/Additional District Magistrate/City Magistrate/Sub-Divisional Magistrate/Tehsildar of the area where the concerned applicant resides or was born. The appellants, however, had obtained employment on the strength of caste certificates issued by the Tehsildar in the State of Punjab. These certificates, therefore, could not have been taken into consideration for providing any reservation under the Act. This apart, "Ad-dharmi" is not even a scheduled caste notified in relation to the State of Uttar Pradesh in the Presidential Order.
The appellants, therefore, were clearly not entitled to claim employment on the basis of the caste certificates issued by the Tehsildar in the State of Punjab. As a result of the employment which had been obtained by the appellants unlawfully, a genuine member of the Scheduled Caste in the State of Uttar Pradesh has been deprived of employment.
In view of the admitted facts, the only conclusion that can be drawn is that the appellants were not entitled to claim the benefit of the caste certificates. It will, therefore, not be appropriate to set aside the order of termination only on the ground that there was a breach of principles of natural justice. For this purpose we may refer to the decision of the Supreme Court in Viveka Nand Sethi Vs. Chairman, J&K Bank Ltd & Ors. where it has been observed:-
"The principle of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of estoppel will apply. [See Dr. Gurjeewan Garewal (Dr.) v. Dr. Sumitra Dash]. The principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. (See State of Punjab v. Jagir Singh and Karnataka SRTC v. S.G. Koturappa)"
In the circumstances, the dismissal of the petition by the learned Single Judge cannot be faulted. We find no merit in the special appeal, which is, accordingly, dismissed. There shall be no order as to costs.
Order Date :- 12.2.2014 RKK/GS ........(Dilip Gupta, J) (Dr. D.Y. Chandrachud, CJ)"
On the aforesaid discussion, we are of the view that the legal position as of now, is not in favour of the respondents, and thus even if they belong to same caste, which is notified as Scheduled Castes both in the State, where they had permanent residence prior to their seeking employment in NOIDA and in the State of U.P., since their caste certificates have been issued to them belonging to Scheduled Castes by the competent authority in the State outside the State of U.P., where they were residing, they were not entitled to benefit of reservation in NOIDA, a statutory authority and instrumentality of the State. The caste certificates obtained by the respondents subsequent to their employment and the caste certificate of their relatives and the allotment letter of land to their parents and grand parents in the State of U.P., would not give them any benefit to protect their employment.
All the special appeals are consequently allowed. The judgment of learned Single Judge is set aside. The appellants, however, will not withdraw or recover the benefits of service, which have been drawn by the respondent, till the date of this judgment.
Dt.28.05.2014 SP/