Minority Indians Planning And ... vs State Of Kerala
2021 Latest Caselaw 4778 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

              THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                     &

                  THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

      WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942

                          WP(C).No.3389 OF 2021(S)


PETITIONER:

                MINORITY INDIANS PLANNING AND VIGILANCE COMMISSION
                TRUST, REP. BY CHAIRMAN, V.K.BEERAN, 11/147, HOLY GHOST
                CONVENT ROAD, ALUVA, KERALA 683 108.

                BY ADVS.
                SRI.HARIS BEERAN
                SMT.O.A.NURIYA

RESPONDENTS:

       1        STATE OF KERALA,
                REP.BY THE PRINCIPAL SECRETARY, DEPARTMENT OF BACKWARD
                CLASSES DEVELOPMENT, GOVERNMENT OF SECRETARIAT,
                THIRUVANANTHAPURAM KERALA 695 003.

       2        KERALA STATE COMMISSION FOR BACKWARD CLASSES
                KANAKA NAGAR ROAD, KANAKA NAGAR, NATHANCODE,
                THIRUVANANTHAPURAM KERALA 695 003.
                REP.BY ITS CHAIRMAN.

       3        KERALA PUBLIC SERVICE COMISSION,
                THULASI HILLS, PATTOM PALACE P.O., THIRUVANANTHAPURAM,
                KERALA 695 004, KERALA
                REP.BY ITS SECRETARY.



                R1 BY SRI K.V.SOHAN, STATE ATTORNEY
                R3 BY SRI.P.C.SASIDHARAN, SC

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
     10.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No. 3389/2021                 :2:




              Dated this the 10th day of February, 2021.

                             JUDGMENT

S. MANIKUMAR,CJ.

The petitioner has filed the instant writ petition for an omnibus

prayer seeking a direction to the respondents to stop the recruitment

for appointments to the Public Services of State, unless and until the

review and revision of the existing reservation list is done as per the

directions in Indra Sawhney and others v. Union of India and

others [1992 Supp. (3) SCC 217] as well as Ext. P3 judgment dated

8th September, 2020 of this Hon'ble Court and as per Section 11 of the

Kerala State Commission for Backward Classes Act, 1993 ('Act, 1993'

for short). The petitioner has also sought for a declaration that the

State Government is not entitled to make further recruitments in State

and Subordinate Services till the revision of the existing reservation list

is done within the period as directed by this Hon'ble Court in W.P.(C)

No. 19937 of 2019.

2. Earlier, the very same petitioner has filed W.P.(C) No. 19937

of 2019 seeking the following reliefs:

i. Issue a writ or order or direction in the nature of mandamus or any other appropriate writ/direction to the 1st respondent State to revise the list of reservation of backward classes in accordance with Section 11 of

the Kerala State Commission for Backward Classes Act, 1993. ii. Issue a writ or order or direction in the nature of mandamus or any other appropriate writ/direction to the 2nd respondent, Kerala State Commission for Backward Classes, Thiruvananthapuram to examine the complaint/representation of the petitioner and other backward class organisations in accordance with Section 9 of the Kerala State Commission for Backward Classes Act, 1993;

iii. Issue a writ or order or direction in the nature of mandamus or any other appropriate writ/direction to the respondents in view of Exhibits-P9 and P10 reply to make available a socio economic caste survey report forthwith;

iv. Issue a writ or order or direction in the nature of mandamus or any other appropriate writ/direction to the respondents to determine the degree of backwardness of Muslim Community and declare that the Muslim Community is entitled to get all benefits available to SC/ST; v. Issue a writ or order or direction in the nature of mandamus or any other appropriate writ/direction to the 1st respondent State to conduct special recruitment for Muslim Backward Classes under Rule 17A of the Kerala State and Subordinate Service Rules, 1958;

vi. Issue as writ or order or direction in the nature of mandamus or any other appropriate writ/direction to the respondents to determine the degree of backwardness of SC/ST and fix their position in Exhibit-P3 Rotation Chart accordingly;

vii. Issue as writ or order or direction in the nature of mandamus or any other appropriate writ/direction to the respondents to give the Muslim Community second chance after first open competition instead of 6th chance given in Exhibit P3 Rotation Chart and to raise the percentage of reservation of Muslim Community from 12% to 18%."

3. After considering the constitutional provisions, Articles

16(4), 338B, 340 and 342A and the statutory provisions, Sections 9

and 11 of the Act, 1993, the duties and responsibilities of the

National Commission for Backward Classes, we disposed of the said

writ petition giving directions to the Kerala State Commission for

Backward Classes and the Central Government to take all earnest

endeavour to finalise the evaluation and submit recommendations to

the State Government. Operative portion of the said judgment is

reproduced:

"42. Therefore, it is explicit and clear that by constituting the Commission under Act, 1993, it is duty bound to discharge the functions of identifying the backward classes, which is, by virtue of Article 340 of the Constitution of India, an obligation on the part of the Commission. However, the fact remains that without the report of socio economic study conducted by the respective statutory authorities of the Central and State Governments, and providing the report to the Commission after publication, the Commission may not be in a position to discharge its functions effectively and fruitfully. The correspondences exchanged by and between the parties, which are elaborately discussed above, would make it clear that the report of the socio economic study was being protracted by the authorities concerned, in spite of the earnest efforts made by the Commission. One thing is clear that after the decision of the Hon'ble Apex Court in Indira Sawhney's case (cited supra), State is duty bound to constitute the 3rd respondent Commission and undertake review of backward classes remaining in the State periodically, identify their backwardness and provide sufficient reservation in the public employment. The fact

discussion made above would also make it clear that the 3rd respondent Commission under Act, 1993 in its exercise has found that some of the backward communities are entitled for reservation which was pointed out to the State Government. Therefore, it can be seen that there is a clear compelling situation that is remaining with the Commission to conduct an evaluation and advice the Government accordingly. But, for reasons aforesaid, the Commission is unable to review and advice the Government. In our considered opinion, there is no justification for the State Government to sleep over the matter of considerable importance, representation in Government services, by providing reservation, and the obligation created on the State as per Articles 15 and 16 r/w. 340 of the Constitution of India.

43. It is very significant to note that Article 338 of the Constitution was amended and a new Article 338-B has been introduced by which, National Commission for Backward Classes was constituted. That apart, Article 342A after Article 342 have been brought into force, stipulating that the President may with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the socially and educationally backward classes which shall for the purposes of the Constitution be deemed to be socially and educationally backward classes in relation to that State or Union Territory, as the case may be. Other significant provisions have been incorporated in the Constitution to protect the interest of socially and educationally backward classes. The National Commission for Backward Classes has been assigned with duties under Article 338B of the Constitution, which read thus: "(5) It shall be the duty of the Commission--(a) to investigate and monitor all matters relating to the safeguards provided for the socially and educationally backward classes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards; (b) to inquire into specific

complaints with respect to the deprivation of rights and safeguards of the socially and educationally backward classes; (c) to advise on the socio- economic development of the socially and educationally backward classes and to evaluate the progress of their development under the Union and any State; (d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;

(e) to make in such reports the recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the socially and educationally backward classes; and (f) to discharge such other functions in relation to the protection, welfare and development and advancement of the socially and educationally backward classes as the President may, subject to the provisions of any law made by Parliament, by rule specify."

44. On a reading of the said provision, it is clear that the National Commission is to participate and advice on the socio economic development of the socially and educationally backward classes and to evaluate the progress of their development under the Union and the State. Reading together, the provisions of Act, 1993, and the Amendment Act, 2018 as discussed above, would make it clear that there is a clear obligation and duty cast upon the Commission to study the socio-economic report and make necessary recommendation. However, it is equally important to note that unless and until a report is furnished to the Commission in respect to the socio-economic study, the Commission may not be able to proceed with, for the identification of socially and educationally backward classes, enabling the Commission to make necessary advice to the Government under Act, 1993 for making reservation in public services.

45. In view of the above, we are of the considered opinion that the issue can be sorted out only by the efforts of the Commission and other stakeholders, as discussed above. Therefore, the Commission cannot be directed to proceed with the enquiry to be undertaken as per Act, 1993, without the receipt of a

socio-economic study report from the appropriate authority. Therefore, the reliefs sought for by the petitioners in that regard cannot be granted as of now. However, the Union and the State Governments are directed to take necessary steps for finalisation of the report of socioeconomic study taking into account all parameters required for identification of socially and educationally backward classes within the State of Kerala, at the earliest, and submit a report to the 3rd respondent Commission. After submission of the said report, by the authorities concerned, Kerala State Commission for Backward Classes and the Central Government shall take all earnest endeavour to finalise the evaluation and submit recommendations to the State Government. The above exercise, by all concerned, should be completed, within six months from today. Therefore, we hope that the State Government and all the stakeholders will do the necessary, in order to finalise the report of socio-economic study of socially and educationally backward classes, as observed and directed above.

46. Even though various statistics and figures are pointed out by the petitioners in the writ petitions, with respect to the percentage of backward classes and their shortfall in public services, those are all factual circumstances, which will have to be taken into consideration by the Commission, after receipt of the socio-economic study report. Moreover, such aspects are eclipsed by various facts and figures, which are unable to be deciphered by this Court, in exercise of its power under Article 226 of the Constitution of India, especially due to the fact that the adjudication done by this Court is only a summary nature of proceedings. Therefore, it is clear that without taking evidence and identifying the factual circumstances by a fact finding authority, the relief sought for, with respect to percentage wise appointment, in the public services, cannot be undertaken by this Court.

47. Before parting, we also remind that the State Government is duty bound, as per Section 11 of Act, 1993 for periodical revision of list, at the expiration of ten years of coming into force of the Act and every succeeding period of ten years with a view to exclude from such list those classes, who have ceased to be backward classes or for including in such list new backward

classes. As we have pointed out earlier, the State Government should bear in mind the said provision is a corollary of Articles 15 and 16 r/w. Article 340 of the Constitution of India and the Government is duty bound to discharge its obligations under the aforesaid provisions. 48. In view of the discussions made on the basis of the facts and figures available from W.P.(C) No.35220 of 2017, separate discussion in W.P. (C) No.19937 of 2019 is not required and, therefore, whatever observations and findings contained in W.P.(C) No.35220 of 2017 would mutatis mutandis would apply to W.P.(C) No.19937 of 2019."

4. Mr. Haris Beeran, learned counsel for the petitioner, made

submissions on the grounds raised in the instant writ appeal and also

referred to Ext. P8 reply to Ext.P7 application dated 28.01.2021,

furnished by the Kerala State Commission for Backward Classes and

prayed for a direction to respondents to stop the recruitment for

appointments to the Public Services of the State, unless and until the

review and revision of the existing reservation list is done.

5. He further submitted that even after the expiry of 6 months

from the date of judgment in W.P.(C) No. 19937 of 2019, the State

Government have not revised the percentage of reservation to the

communities, and that reservation was not revised from the year 1968

onwards, and it remains without there being any change after the

directions issued in the Indra Sawheny's case.

6. Earlier taking note of the similar submissions and grievances

expressed, we issued the directions extracted supra. We are of the

view that no post can be kept vacant as the same would affect the

very functioning of the Government and eventually, the entire public.

Writ petition is not in the interest of the general public, but to espouse

the cause of communities, which according to the petitioner are not

adequately represented in Government services, for which directions

have already been issued extracted supra.

7. In view of the above, we are not inclined to issue any writ of

mandamus as prayed for nor declare that the State Government is not

entitled to make further recruitments in the State and Subordinate

Services till the revision of the existing reservation list is done.

Accordingly, this writ petition is dismissed.

sd/-

S. MANIKUMAR, CHIEF JUSTICE.

sd/-

SHAJI P. CHALY, JUDGE.

Rv

APPENDIX

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF ORDER DATED 1.7.2019 IN WRIT PETITION (CIVIL) NO.623/2019 OF THE HON'BLE SUPREME COURT OF INDIA.

EXHIBIT P2 TRUE COPY OF INTERIM ORDER DATED 22.7.2019 IN W.P.

(C).NO.19937 OF 2019 OF THIS HON'BLE COURT.

EXHIBIT P3 TRUE COPY OF JUDGMENT DATED 8.9.2020 IN W.P.

(C).NO.19937 OF 2019 OF THIS HON'BLE COURT.

EXHIBIT P4 TRUE COPY OF THE RELEVANT PORTION OF THE JUDGMENT (PARA 847) IN INDRA SAWHNEY VS. UNION OF INDIA AND OTHERS.

EXHIBIT P5 TRUE COPY OF THE RULES 14 TO 17 OF KERALA STATE AND SUBORDINATE SERVICE RULES.

EXHIBIT P6 TRUE COPY OF THE KERALA STATE COMMISSION FOR BACKWARD CLASSES ACT, 1993.

EXHIBIT P7 TRUE COPY OF APPLICATION DATED 12.1.2021 FILED BEFORE THE STATE PUBLIC INFORMATION OFFICER, KERALA STATE COMMISSION FOR BACKWARD CLASSES.

EXHIBIT P8 TRUE COPY OF REPLY TO EXT P7 APPLICATION DATED 28.1.2021.

EXHIBIT P9 TRUE COPY OF APPLICATION DATED 19.1.2021 SUBMITTED BEFORE THE STATE PUBLIC INFORMATION OFFICER, KERALA STATE BACKWARD CLASSES DEVELOPMENT DEPARTMENT.

EXHIBIT P10 TRUE COPY OF REPLY TO EXT.P9 APPLICATION DATED 25.1.2021.

EXHIBIT P10 (a) A TRUE ENGLISH TRANSLATION OF EXT.P10

EXHIBIT P11 TRUE COPY OF APPLICATION DATED 12.1.2021 SUBMITTED BEFORE THE STATE INFORMATION OFFICER, KERALA STATE BACKWARD CLASSES COMMISSION.

EXHIBIT P12 TRUE COPY OF REPLY TO EXT.P11 DATED 28.1.2021.

EXHIBIT P13 TRUE COPY OF LETTER DATED 20.1.2021 RECEIVED FROM GOVERNMENT OF KERALA.

EXHIBIT P13 (a) A TRUE COPY OF THE ENGLISH TRANSLATION OF EXT.P13.

RESPONDENT'S EXHIBITS: NIL