J. Venkatesan IN THE HINDU
This important question of law referred to larger Bench of Supreme Court
NEW DELHI: Is a person belonging to a Scheduled Caste/Scheduled Tribe in a State entitled or not to benefits or concessions allowed to SC/ST candidates in employment in another State? The Supreme Court on Thursday referred this question to a larger Bench.A Bench of Justices B. Sudershan Reddy and S.S. Nijjar, in its order, said: “A very important question of law as to the interpretation of Articles 16(4), 341 and 342 arises for consideration in this appeal: whether the Presidential Order issued under Article 341(1) or 342(1) of the Constitution has any bearing on the State’s action in making provision for reservation of appointments or posts in favour of any backward class of citizens, which, in the opinion of the State, is not adequately represented in the services under the State? The extent and nature of interplay and interaction among Articles 16(4), 341(1) and 342(1) is required to be resolved.”
By referring the matter for determination by a larger Bench, the judges have virtually reopened the issue which was settled by earlier decisions of two Constitution Benches.
In the instant appeal, Uttarakhand was aggrieved at the judgment of the Uttarakhand High Court holding that SC candidates of other States were entitled to the benefits available to the SC in employment in certain posts in the G.B. Pant University of Agriculture and Technology.Though the university appointed outsiders, the State terminated their services on the ground that they were not entitled to the benefits of SC in the State. However, the High Court quashed the termination orders without taking into consideration the ruling by the two Constitution Benches of the Supreme Court.
Initially, a five-judge Constitution Bench in the Marri Chandra Shekar Rao case held that when an SC/ST “migrates from one State to another, there is no inhibition to migrating, but when he migrates, he does not and cannot carry any special rights or privileges attributed to him or granted to him in the original State.”
A subsequent Constitution Bench — in the case of the Action Committee on the Issue of Caste Certificate to SC and ST in Maharashtra — reiterated the earlier decision and said the SC/ST must be specified in relation to a given State. Merely because a caste was considered an SC in one State, it was not necessary that it be considered so in another State also, the Bench said.
Later, a three-judge Bench in the S. Pushpa vs. Sivachanmugavelu case broadly agreed with the two earlier decisions. However, another two-judge Bench did not agree with the three judges’ decision, stating it was made per incuriam (a decision which a subsequent court finds to be a mistake, and therefore not a binding precedent).
Now Justices Reddy and Nijjar said: “In our view, a two-judge Bench of this court could not have held the decision rendered by a three-judge Bench to be obiter and per incuriam. A Bench of lesser coram cannot disagree or dissent from the view of the law taken by a Bench of larger coram. “In case of doubt, all that the Bench of lesser coram can do is to invite the attention of the Chief Justice of India and request that the matter be placed for hearing before a Bench of larger coram than the Bench whose decision has come up for consideration.” However, since important questions of law were raised in this appeal, Justices Reddy and Nijjar referred it to the CJI for constituting a Bench of appropriate strength.