Kerala High Court
Dalit Samudhaya Munnani vs State Of Kerala on 2 November, 2021
WP(C) No.21298/2021 1 / 17
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
Tuesday, the 2nd day of November 2021 / 11th Karthika, 1943
WP(C) NO. 21298 OF 2021(S)
PETITIONERS:
1. DALIT SAMUDHAYA MUNNANI,
REPRESENTED BY ITS GENERAL SECRETARY, ADVOCATE P.A.PRASAD,
AGED 51 YEARS, S/O. P.S.AYYAPPAN, ROOM NO.46, GROUND FLOOR,
REVENUE TOWER, THIRUVALLA, PATHANAMTHITTA DISTRICT-689 101.
2. ALL INDIA BACKWARD CLASSES FEDERATION,
REPRESENTED BY ITS STATE PRESIDENT, V.R. JOSHY,
S/O. K.RAMANKUTTY (LATE), AGED 63 YEARS, VALAMMANAL HOUSE,
KURIANAD P.O., MONIPPALLY VILLAGE, KOTTAYAM DISTRICT-686 636.
RESPONDENTS:
1. STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA-695 001.
2. THE PRINCIPAL SECRETARY TO GOVERNMENT,
PERSONNEL AND ADMINISTRATIVE REFORMS (RULES) DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA-695 001.
3. THE PRINCIPAL SECRETARY TO GOVERNMENT,
GENERAL ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, KERALA-695 001.
Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be pleased
to stay the operation and implementation of Exhibit P9 G.O., pending decision
in the writ petition.
This petition again coming on for admission upon perusing the petition
and the affidavit filed in support of WP(C) and this Court's order dated
06/10/2021 and upon hearing the arguments of SRI.RAVI VARMA KUMAR (SENIOR
ADVOCATE) along with M/S. T.R.RAJESH, AUGUSTUS BINU & ABHIJITH K.ANIRUDHAN,
Advocates for the petitioners and of ADVOCATE GENERAL & SRI.V. MANU, SENIOR
GOVERNMENT PLEADER for the respondents, the court passed the following:
P.T.O.
WP(C) No.21298/2021 2 / 17
S. MANIKUMAR, CJ
&
SHAJI . P. CHALY, J
*********************************
W.P.(C) No.21298 of 2021
*********************************
Dated this the 2nd day of November, 2021
ORDER
S. Manikumar, CJ
Instant Public Interest Litigation is filed for the following reliefs:
"(i) issue a writ of certiorari or other appropriate writ, order or
direction, to quash Exhibit-P7 Government order dated
3.1.2020 issued by the Principal Secretary to the Government,
Personal and Administrative Reforms (Rules) Department,
Thiruvananthapuram, 2nd respondent, and Exhibit-P9
Government order dated 3.6.2021, since the same were issued
in violation of the provisions contained in the Constitution
under Articles 14, 15 and 16;
(ii) Issue a writ of certiorari or other appropriate writ, order
or direction to quash Exhibit-P8 Government order dated
12.02.2020, except sub-para (10) of paragraph (4), since the
same was issued in violation of the provisions contained under
Articles 14, 15 and 16."
2. Heard Mr. Ravikumar Varma, learned Senior Counsel, assisted by
Mr. T.R.Rajesh, learned counsel for the petitioners, Mr. V. Manu, learned
Senior Government Pleader appeared for the State, and perused the
material available on record.
3. In fact, when this public interest writ petition came up for
admission before this Court, on 06.10.2021, learned Senior Government
Pleader appeared for the State pointed out that in the light of the orders
passed by the Hon'ble Supreme Court in similar writ petitions, instant writ
petition may not be proceeded with, especially because W.P.(C) No.23872
WP(C) No.21298/2021 3 / 17
of 2020 filed by one Mr. Nujaim P.K., before this Court having the same
characteristic features, was stayed by the Hon'ble Apex Court, as per its
order dated 24.09.2021 in Transfer Petition(s) (Civil) No.1123 of 2021, filed
by the Union of India. Accordingly, we directed the learned Senior
Government Pleader to file a statement/objection, in regard to the
maintainability/consideration of the present writ petition, pending
adjudication of similar writ petitions before the Hon'ble Supreme Court.
4. Pursuant to the abovesaid direction, State of Kerala and its
officials-respondents 1 to 3, have filed a detailed statement dated
11.10.2021, in which, operative portion of the orders of the Hon'ble Apex
Court in W.P.(C) No.55 of 2019 and other connected matters dated
5.8.2020, and Transfer Petition (C) No.1123 of 2021 filed by Union of India
and others in the case of Nujaim P.K. (supra) are extracted.
5. In the statement filed on behalf of respondents 1 to 3, three
objections are raised by the State Government, in regard to the
adjudication of instant writ petition, in view of the subject matter being
considered by the Hon'ble Apex Court and orders passed in the connected
matters, which would be extracted at a later point of time.
(i) One of the reliefs sought for in the instant writ petition is to
quash Exhibits-P7 and P8 orders of the State Government dated
03.01.2020 and 12.02.2020 bearing Nos. G.O(P) No.1/2020/
WP(C) No.21298/2021 4 / 17
P&ARD and G.O.(Ms.) No.2/2020/P&ARD respectively, which are
also subject matter of challenge as Exhibits-P4 and P5 in W.P.
(C) No.23872/2020 filed by Nujaim P.K. against Union of India
and others, which is presently stayed by the Hon'ble Apex
Court, consequent to pendency of the other connected matters
before it.
(ii) In effect, it challenges the validity of the 103 rd Constitutional
Amendment, which is an issue pending in several writ petitions
filed before the Hon'ble Supreme Court, and the Hon'ble Apex
Court has transferred to itself a number of cases from various
High Courts, raising the very same question of law; and
(iii) That the failure to make the Union of India a party amounts to
non-joinder of necessary parties.
6. To the preliminary objections raised by respondents 1 to 3 in the
statement filed on their behalf, a reply is filed by the petitioners, basically
contending as under:
(i) It is not a bar against the maintainability of a writ petition
before this Court, merely because, the Government orders viz.,
Exhibits-P7 and P8 are under challenge in Nujaim P.K., specified
supra, which alone is stayed by the Hon'ble Supreme Court.
(ii) In deciding the maintainability of the captioned writ petition,
this Court does not have the power directly or indirectly,
expressly or implicitly to decide as to whether the writ petition
should be heard by the Hon'ble Apex Court along with other
cases involving challenge to the reservation made to
Economically Weaker Section of the society;
WP(C) No.21298/2021 5 / 17
(iii) The issue of validity of Exhibits-P7 and P8 Government orders
raised in the instant writ petition is not a subject matter of
consideration before the Hon'ble Apex Court and, therefore,
the contention so raised in the statement by the State and its
officials is premature and illegal;
(iv) In the instant writ petition, the reliefs sought for by the
petitioners are different from the reliefs sought for in Nujaim
P.K. v. Union of India and others (cited supra); and
(v) The reliefs sought for in Nujaim P.K.(supra), are based entirely
on different grounds and questions of law.
7. Therefore, according to the writ petitioners, merely because a
writ petition is pending before the Hon'ble Supreme Court, raising the
same point of law, would not disable this Court to consider the instant
writ petition, in accordance with law.
8. Inviting the attention of this Court to the decision of the Hon'ble
Supreme Court in P. N. Kumar and Others v. Municipal Corporation of
Delhi [1987 (2) SCALE 901], writ petitioners have submitted that each High
Court has its own high traditions and they had Judges of eminence who
have initiative, necessary skills and enthusiasm, and their capacity should
be harnessed to deal with every type of case arising from their respective
areas which they are competent to dispose of. In order to support the said
contention, learned Senior Counsel for the petitioners has referred to
paragraphs (5) to (10) in P.N.Kumar (supra), which read thus:
WP(C) No.21298/2021 6 / 17
"5. Our High Courts are High Courts. Each High Court has its
own high traditions. They have judges of eminence who
have initiative, necessary skills and enthusiasm. Their
capacity should be harnessed to deal with every type of case
arising from their respective areas, which they are
competent to dispose of.
6. Every High Court Bar has also its high traditions. There
are eminent lawyers practising in the High Courts with wide
experience in handling different kinds of cases, both original
and appellate. They are fully aware of the history of every
legislation in their States. Their services should be made
available to the litigants in the respective States.
7. This Court has no time today even to dispose of cases
which have to be decided by it alone and by no other
authority. Large number of cases are pending from 10 to 15
years. Even if no new case is filed in this Court hereafter,
with the present strength of Judges it may take more than 15
years to dispose of all the pending [cases].
8. If the cases which can be filed in the High Courts are filed
in the High Court and not in this Court this Court's task of
acting as a original court which is a time consuming process
can be avoided and this Court will also have the benefit of
the decision of the High Court when it deals with an appeal
filed against such decision.
9. If cases which may be filed in the High Courts are filed in
this Court it would affect the initiative of the High Courts.
We should preserve the dignity, majesty and efficiency of
the High Courts. The taking-over by this Court of the work
which the High Courts can handle may undermine the
capacity and efficiency of the High Courts and that should
therefore be avoided.
10. Lastly, the time saved by this Court by not entertaining
the cases which may be filed before the High Courts can be
utilised to dispose of old matters in which parties are crying
for relief."
9. Sum and substance of the contention advanced by the writ
petitioners is that the Hon'ble Supreme Court has clearly laid down the
WP(C) No.21298/2021 7 / 17
law that there is no legal bar against a case being filed in a High Court
even if the very same point of law is pending in the Hon'ble Apex Court. It
is further submitted that there is a clear public interest involved in the
instant writ petition, in regard to the correct interpretation of a
Constitutional provision and if, this writ petition is rejected, by this Court,
as not maintainable, for the reason that a similar matter is pending before
Hon'ble Apex Court, it would cause serious prejudice, and irreparable loss
and injury to the writ petitioners.
10. That apart, relying upon Article 139-A of the Constitution of
India, dealing with withdrawal of cases, learned Senior Counsel for the
petitioners submitted that if the Hon'ble Supreme Court is satisfied that
such questions are substantial questions of general importance, on its own
motion or on application, by the Attorney General of India or by a party to
such a case, may transfer the writ petition, and since there is no steps
taken either suo motu by the Hon'ble Apex Court or the parties in the writ
petition for transfer of the instant writ petition, this Court is expected to
proceed with the writ petition, without being kept pending or dismissing
the same on the ground of maintainability.
11. Apart from the above, various other contentions are raised by
the petitioners comparing the reliefs sought for and the grounds raised in
WP(C) No.21298/2021 8 / 17
W.P.(C) No.23872 of 2020 filed by Nujaim P.K. (supra) and the writ petition
on hand.
12. Learned Senior Counsel appearing for the petitioners further
submitted that petitioners have not challenged the Constitutional validity
of 103rd Constitutional Amendment, granting 10% reservation for
Economically Weaker Sections (EWS), but on the other hand, they are
seeking for directions to implement the amendment made, as per the
parameters provided thereunder and in accordance with law. Such a
contention is raised on the basis that the Government orders dated
03.01.2020 & 12.02.2020 (Exhibits-P7 and P8 herein), whereby Government
of Kerala have accepted Exhibit-P6 report of the Commission dated
29.11.2019, have declared the list of classes, which did not have the benefit
of reservation contemplated under Articles 15(4), (5), and 16(4) of the
Constitution of India, in absolute violation of the requirements for
providing reservation, as per the 103 rd amendment, whereas what is
under challenge in W.P.(C) No.23872 of 2020 filed by Mr. Nujaim P.K., is the
Constitutional validity of the amendment in question.
13. Exhibit-P7 is a Government order issued by the Principal
Secretary to the Government/2nd respondent dated 03.01.2020, whereby
Government of Kerala have accepted the recommendations in Exhibit-P6
WP(C) No.21298/2021 9 / 17
report dated 29.11.2019 of K. Sasidharan Nair Commission, and Exhibit-P8
State Government order dated 12.02.2020 prescribes the standards and
conditions with regard to EWS reservation. Therefore, taking into account
the contentions put forth by the respective learned counsel, our
endeavour is to find out as to whether the instant writ petition can be
adjudicated, irrespective of the pendency of the connected matters before
the Hon'ble Apex Court, and the stay order granted in Tr.P.(C) No.1123 of
2021 dated 24.09.2021, in the matter of Nujaim P.K. (supra), pending
before this Court.
14. Operative portion of the common order passed in W.P.(C) No.55
of 2019 dated 5.8.2020, by the Hon'ble Apex Court reads thus:
"13. Learned senior counsel for the petitioners at first
instance argued by seeking reference to a larger Bench of
five Judges by placing reliance on Article 145(3) of the
Constitution and Order XXXVIII of the Supreme Court Rules,
2013, which is opposed by learned Attorney General
appearing for the Union of India on the ground that in view
of the decisions relied on by him no reference need be made.
14. Although we have heard learned senior counsels
for the petitioners and learned Attorney General appearing
for the Union of India, on the issue of reference, as well as on
merits of the matter, as we are in agreement with the
submissions made by the learned counsels appearing for the
petitioners that these matters involve substantial questions
WP(C) No.21298/2021 10 / 17
of law, as such, they are required to be heard by a Bench of
five Judges in view of the provision under Article 145(3) of
the Constitution of India and Order XXXVIII of the Supreme
Court Rules, 2013, we are not entering into the merits of the
matter on the validity of impugned Amendment Act.
15. To refer the matter to a Bench of five Judges,
we deem it appropriate to refer to the provision under
Article 145(3) as well as Order XXXVIII Rule 1(1) of the
Supreme Court Rules, 2013. The said relevant provisions
read as under:
"145. Rules of Court, etc.-(1) ... ... ...
(2) ... ... ...
(3) The minimum number of Judges who are to sit
for the purpose of deciding any case involving a substantial
question of law as to the interpretation of this Constitution
or for the purpose of hearing any reference under article
143 shall be five:
Provided that, where the Court hearing an appeal
under any of the provisions of this Chapter other than
article 132 consists of less than five Judges and in the course
of the hearing of the appeal the Court is satisfied that the
appeal involves a substantial question of law as to the
interpretation of this Constitution the determination of
which is necessary for the disposal of the appeal, such Court
shall refer the question for opinion to a Court constituted as
required by this clause for the purpose of deciding any case
involving such a question and shall on receipt of the opinion
dispose of the appeal in conformity with such opinion."
Similarly, Order XXXVIII Rule 1(1) of the Supreme
Court Rules, 2013 reads as under :
"1(1). Every petition under article 32 of the
Constitution shall be in writing and shall be heard by a
Division Court of not less than five Judges provided that a
petition which does not raise a substantial question of law
as to the interpretation of the Constitution may be heard
WP(C) No.21298/2021 11 / 17
and decided by a Division Court of less than five Judges, and,
during vacation, by a Vacation Judge sitting singly."
16. In view of the aforesaid provisions, it is clear that
for the purpose of deciding any case involving a substantial
question of law as to interpretation of the Constitution it is to
be heard by a Bench of five Judges. Thus it is to be examined
whether the question raised in the writ petitions will involve
a substantial question of law or not. It is the case of the
petitioners that the impugned amendments violate the basic
structure of the Constitution mainly on the ground that the
existing provisions of the Constitution empower to provide
affirmative action only in favour of socially backward classes.
It is for the first time that by the impugned amendments in
the Constitution itself the new clauses are incorporated
enabling the State to provide affirmative action by way of
reservation to the extent of 10% in educational institutions
and for appointment in services to economically weaker
sections of society. The main plank of the argument from the
side of the petitioners is that the economic criteria alone
cannot be the basis to determine backwardness. In support of
the same, learned counsels for the petitioners strongly rely
on nine-Judge Bench judgment of this Court in the case of
Indra Sawhney & Ors. v. Union of India & Ors. [1992 Supp.
(3) SCC 217]. Thus, it is pleaded that the impugned
amendments run contrary to the above said judgment. It is
also the case of the petitioners that exceeding the ceiling cap
of 50% is also in violation of the very same judgment of this
Court. Though learned Attorney General appearing for the
Union of India has strongly relied on the judgment of this
WP(C) No.21298/2021 12 / 17
Court in the case of Society for Unaided Private Schools of
Rajasthan v. Union of India [(2012) 6 SCC 1] where the
provisions of Right of Children to Free and Compulsory
Education Act, 2009 are upheld. By virtue of the impugned
amendments, very Constitution is amended by inserting new
clauses in Articles 15 and 16 thereof, which empower the
State to make reservations by way of affirmative action to the
extent of 10% to economically weaker sections. It is the case
of the petitioners, that the very amendments run contrary to
the constitutional scheme, and no segment of available
seats/posts can be reserved, only on the basis of economic
criterion. As such, we are of the view that such questions do
constitute substantial questions of law to be considered by a
Bench of five Judges. It is clear from the language of Article
145(3) of the Constitution and Order XXXVIII Rule 1(1) of the
Supreme Court Rules, 2013, the matters which involve
substantial questions of law as to interpretation of
constitutional provisions they are required to be heard by a
Bench of five Judges. Whether the impugned Amendment Act
violates basic structure of the Constitution, by applying the
tests of 'width' and 'identity' with reference to equality
provisions of the Constitution, is a matter which constitutes
substantial question of law within the meaning of the
provisions as referred above. Further, on the plea of ceiling of
50% for affirmative action, it is the case of the respondent-
Union of India that though ordinarily 50% is the rule but
same will not prevent to amend the Constitution itself in view
of the existing special circumstances to uplift the members of
the society belonging to economically weaker sections. Even
WP(C) No.21298/2021 13 / 17
such questions also constitute as substantial questions of law
to be examined by a Bench of five Judges as per Article 145(3)
of the Constitution read with Order XXXVIII Rule 1(1) of the
Supreme Court of Rules, 2013."
15. The order passed by the Hon'ble Apex Court in Tr.P.(C) No.1123
of 2021 dated 24.09.2021, in the matter of Union of India and Others v.
Nujaim P.K., reads thus:
"O R D E R
The Court is convened through Video Conferencing.
Heard Mr. Tushar Mehta, learned Solicitor General
appearing for the petitioners.
Issue notice.
In the meantime, there shall be stay of further
proceedings in Civil Writ Petition No.23872 of 2020 titled as
"Nujaim P.K. vs. Union of India and Others" pending before the
High Court of Kerala Ernakulam.
(VISHAL ANAND) (R.S. NARAYANAN)
ASTT. REGISTRAR-cum-PS COURT MASTER (NSH)"
16. Analysing the rival submissions, one thing is clear that, what is
under challenge in the writ petitions pending before the Hon'ble Supreme
Court is the 103rd Constitutional Amendment, and therefore, the validity of
the consequential orders issued by the State Government, under challenge
in the instant writ petition, is largely dependent on the outcome of the
decision of the Hon'ble Apex Court. No doubt, petitioners have a case that
WP(C) No.21298/2021 14 / 17
the State Government, in the instant writ petition, have issued orders
against the spirit of the 103 rd Constitutional Amendment, but the fact
remains, the orders passed by the State Government in regard to EWS
reservation are on the basis of the very Constitutional Amendment itself.
Therefore, when the Constitutional validity of the 103 rd Amendment of the
Constitution is under challenge, in the pending writ petitions before the
Hon'ble Apex Court, the decision rendered thereunder, would have a clear
impact on the orders passed by the State Government, apparently in order
to translate the intention of the said Amendment. Moreover, in Nujaim
P.K. (supra), Exhibits-P7 and P8 State Government orders dated 03.01.2020
& 12.02.2020 are under challenge and, in fact, apart from the same, in the
instant writ petition, Exhibit P9 Government order declaring the list of
classes entitled to the benefit of the EWS reservation is also under
challenge. Therefore, it can be seen that the Government orders under
challenge in the instant writ petition are all issued based on the 103 rd
Constitutional Amendment.
17. We have no quarrel with respect to the contention advanced by
learned Senior Counsel appearing for the writ petitioners that mere
pendency of a similar writ petition before the Hon'ble Apex Court would
not create a bar for this Court to proceed with the matter. But fact
WP(C) No.21298/2021 15 / 17
remains, as per the order in W.P.(C) No.55 of 2021 dated 5.8.2020, the
Hon'ble Apex Court has directed its Registry to transfer the writ petitions
in which, transfers are sought for, to the file of the Hon'ble Apex Court. It
is also clear that the Hon'ble Apex Court has directed its Registry to
request the respective High Courts, to transfer those cases, in order to
avoid conflicting findings by different High Courts, and it was also found
that since the Hon'ble Apex Court has already issued notice in a writ
petition, wherein the validity of very same Amendment Act is questioned,
it is only appropriate to allow the transfer petitions.
18. Added to the above aspect, the writ petition filed by Nujaim P.K.
(supra) [W.P.(C) No.23872 of 2020] before this Court is stayed, wherein two
of the Government orders dated 03.01.2020 and 12.02.2020 issued by the
Principal Secretary to the Government, viz., Exhibits-P7 and P8 herein, are
challenged, wherein they are produced as Exhibits-P4 and P5.
19. Therefore, it can only be legally presumed that in the transfer
application filed by the Union of India, i.e., Tr.P.(C) No.1123 of 2021, in the
matter of Nujaim P.K. (supra), the Hon'ble Apex Court had an occasion to
evaluate the aforesaid Government orders, and on prima facie realising
that the subject matter appears to be one and the same, stay of further
proceedings in the writ petition filed by Nujaim P.K. (supra) was granted.
WP(C) No.21298/2021 16 / 17
20. Merely because, grounds and reliefs are differently coined or
worded or more number of legal grounds are raised, that would not, in
any manner, change the nature and character of the writ petition, which
is basically the challenge made to the Government orders issued on the
basis of the 103rd Constitutional Amendment in both the writ petitions.
Considering the aforesaid aspects, we are undoubtedly of the
opinion that in order to avoid any conflicting judgments/orders, the
instant writ petition is to be put on hold, pending adjudication of the writ
petitions by the Hon'ble Apex Court in the matters pending before it or to
take such steps depending on the orders to be passed by the Hon'ble Apex
Court in regard to the manner in which, such pending matters are to be
dealt with by this Court. Accordingly, the hearing of the instant writ
petition is deferred until further orders.
Sd/-
S. Manikumar
Chief Justice
Sd/-
Shaji P. Chaly
Judge
krj
//TRUE COPY//
P.A. TO C.J.
02-11-2021 /True Copy/ Assistant Registrar
WP(C) No.21298/2021 17 / 17
APPENDIX OF WP(C) 21298/2021
Exhibit P6 TRUE COPY OF THE RELEVANT PAGES OF THE K.SASIDHARAN
NAIR COMMISSION REPORT DATED 29.11.2019.
Exhibit P7 TRUE COPY OF THE G.O(P) NO.1/2020/P & ARD DATED
03.01.2020 ISSUED BY THE 2ND RESPONDENT.
Exhibit P8 TRUE COPY OF THE G.O(MS) NO.2/2020/P & ARD DATED
12.02.2020.
Exhibit P9 TRUE COPY OF THE G.O(MS) NO.114/2021/GAD DATED
03.06.2021.
