Kerala High Court
Muslim Employees Cultural ... vs State Of Kerala on 31 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
FRIDAY, THE 31ST DAY OF MARCH 2023 / 10TH CHAITHRA, 1945
WP(C) NO. 20515 OF 2020
PETITIONERS:
MUSLIM EMPLOYEES CULTURAL ASSOCIATION (MECA),
REPRESENTED BY ITS GENERAL SECRETARY,
N. K. ALI, AGED 61 YEARS, S/O. KUTTU (LATE),
MECA HEAD QUARTERS, PEEDIYAKKAL ROAD,
ERNAKULAM TOWN NORTH P. O., ERNAKULAM,
KOCHI - 682 018.
BY ADV T.R.RAJESH
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, KERALA - 695 001.
2 STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY TO
GOVERNMENT, PERSONNEL AND ADMINISTRATIVE
REFORMS (RULES) DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, KERALA - 695 001.
3 STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY TO
GOVERNMENT, KERALA STATE BACKWARD CLASSES
DEVELOPMENT DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM,
KERALA - 695 001.
4 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
GENERAL EDUCATION (U) DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, KERALA - 695 001.
W.P(C).20515/2020
2
5 THE DIRECTOR OF GENERAL EDUCATION
OFFICE OF DIRECTOR OF GENERAL EDUCATION,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, KERALA - 695 001.
BY SRI. V. TEKCHAND, SR. GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
31.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(C).20515/2020
3
JUDGMENT
Dated this the 31st day of March, 2023
S. Manikumar, CJ
Instant public interest litigation is filed by the
petitioner seeking for the following reliefs:
"a) Issue a writ of Certiorari or other appropriate
writ order or direction to quash Ext. P4 Govt. order
to the extent it prescribes 10% reservation to
economically Weaker sections to the entire seats
available in the government educational institutions
in the State;
(b) Issue a writ of certiorari or other appropriate
order or direction to set aside Ext.P5 Govt. order to
the extent it reserves 10% of seats to the
economically weaker sections among the forward
class from the total number of seats available for
various Higher Secondary Courses available in the
Govt. educational institutions in the State.
(c) Issue a writ of a mandamus or other appropriate
writ order or direction commanding the respondents
to rectify the mistake in allotment of seats for
various Courses in Higher Secondary wing in the
government schools in the State.
(d) Declare that the Economically Weaker Sections
can be allotted only 10% of seats from among the
Open Merit seats after exhausting the 48%
statutory reservation for the backward classes,
Scheduled castes and scheduled tribes candidates.
(e) Issue a writ of a mandamus or other appropriate
writ order or direction commanding the respondents
to re-allot the remaining seats earmarked for the
Economically Weaker Sections to the Socially and
Educationally Backward Classes candidates,
Scheduled Castes and Scheduled Tribes.
W.P(C).20515/2020
(f) Issue a writ of a mandamus or other appropriate
writ order or direction commanding the 1st
respondent to consider and pass orders on Ext.P9
representation and rectify the mistakes pointed out
therein in relation to the economic reservation
ordered by the Government vide Ext.P4 and P5"
2. Short facts leading to filing of the writ petition are
as under:
2.1. The petitioner in this Public Interest Litigation is
the General Secretary of Muslim Employees Cultural
Association (MECA). The grievance voiced by him relates
to the illegalities and anomalies crept in the allotment of
Higher Secondary seats for various courses under the
Higher Secondary Wing in the State of Kerala. He has
stated that pursuant to the 103 rd Constitutional
Amendment introduced by Exhibit P3 notification,
Government of Kerala appointed Justice K. Sasidharan
Nair, as a Commission for recommending the modalities
for implementation of 10% reservation for economically
weaker sections in General Category in the State. Mr.
Sasidharan Nair Commission submitted his
recommendation/report to the Government on
29.11.2019.
W.P(C).20515/2020
2.2. The State Government accepted the
recommendations of the Commission, by issuing Exhibit
P4 Government order. By Exhibit P4 Government Order,
the Government provided 10% reservation to
economically weaker sections in General Category, in all
educational institutions other than minority institutions,
where reservation is provided to other backward classes.
Thereafter, by Exhibit P5 Government order, the 4 th
respondent implemented 10% economic reservation for
the members of the forward caste communities in the
Higher Secondary Courses also. In implementation of
Exhibits P4 and P5, the 5th respondent allotted a total
number 16,711 seats for the economically weaker
sections from the forward caste candidates.
2.3. According to the petitioner, allotment of 16711
seats to the economically weaker sections is in total
violation of the principle of economic reservation, which
provides 10% reservation to the economically weaker
sections, from among the General seats available in
Government Higher Secondary Schools.
W.P(C).20515/2020
2.4. According to the petitioner, and going through
Exhibit P8, the total number of seats available in the
Government Higher Secondary Schools is 162815. Going
by Exhibit P1 details of reservation published by the 3 rd
respondent, 48% of the total seats in the Government
Higher Secondary schools has to be earmarked for the
Socially and Educationally Backward Classes, in general,
which includes the Scheduled Caste and Scheduled Tribes
also. Therefore, after deducting the 48% quota of seats
earmarked for the Socially and Educationally Backward
Classes and Scheduled Caste and Scheduled Tribe, 52%
seats available in the open quota shall be divided among
the Open Merit category candidates, as well as the
economically weaker sections. Thus, applying the above
principle, out of the 162815 seats available in Government
Higher Secondary schools, only 84653 seats will form the
52% of the total Government seats and the rest of the
seats, namely 78151, has to be earmarked for the Socially
and Educationally Backward Classes.
2.5. The specific case of the petitioner is that since
W.P(C).20515/2020
the 10% economic reservation can be applied only in
respect of 52% of the total seats, only 8466 seats alone
can be allotted to the economically weaker sections.
However, Ext.P7 allotment statistics would show that a
total number 16711 seats are earmarked for the
economically weaker sections. This is a great anomaly
that has happened in the allotment of seats in the Higher
Secondary Courses.
2.6. The EWS has eaten up even the seats earmarked
for Socially and Educationally Backward Classes
candidates and Scheduled castes and Scheduled tribes,
violating the constitutional mandate. Therefore, the
petitioner seeks a direction commanding the respondents
to rectify the mistake in allotment of seats to the
economically weaker sections and re-allot the same to the
candidates belonging to Socially and Educationally
Backward Classes, Scheduled Caste and Scheduled Tribe,
as well as General Category candidates.
3. Exhibit P4 Government Order dated 3.2.2020,
sought to be quashed in this writ petition, reads as under:
W.P(C).20515/2020
"GOVERNMENT OF KERALA
Abstract
P&ARD - Report submitted by Justice (Rtd)
K.Sasidharan Nair Commission, constituted in
connection with the implementation of 10%
reservation for Economically Weaker Sections in
General Category in the State -Recommendations -
Approved - Orders issued.
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PERSONNEL AND ADMINISTRATIVE REFORMS (RULES)
DEPARTMENT
G.O.(P) No.1/2020/P&ARD
Dated, Thiruvananthapuram, 03/01/2020
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Read:- 1. Office Memorandum No.12-4/2019-U1
dated 17th January, 2019 of the Ministry of
Human Resource Development and
Department of Higher Education,
Government of India.
2. Office Memorandum No.20013/01/2018-
BC-II dated 17th January, 2019 of the Ministry
of Social Justice and Empowerment and
Department of Social Justice and
Empowerment, Government of India.
3. Office Memorandum No.36039/1/2019-
Estt. (Res) dated 19th January, 2019 and 31
st January, 2019 of the Ministry of Personnel,
Public Grievances and Pensions and
Department of Personnel and Training,
Government of India.
4. G.O(Ms) No.5/2019/P&ARD dated 12 th
March, 2019.
ORDER
Government, as per Government Order read as
4th paper above, have constituted a Commission with
Justice (Rtd.) K.Sasidharan Nair (formerly Secretary,
Law Department) as Chairman and Adv.M.Rajagopalan
W.P(C).20515/2020
Nair (Chairman, Devaswom Recruitment Board) as
member, for examining and recommending the
criteria for deciding the Economically Weaker Sections
in the General Category and the mode of
implementation of such reservation in the State, in
pursuance to the Constitutional amendment and the
consequent Notifications issued by the Central
Government for implementation of 10% reservation to
the Economically Weaker Sections in General
Category.
2. After making an in-depth evaluation of
various aspects and the data collected in this regard,
the Commission submitted a detailed report in three
volumes to Govt. on 29.11.2019 along with
recommendations, Model of Rosters for maintaining
the turn of rotation in PSC appointment of
Economically Weaker Sections in General Category,
the model of Income and Asset Certificate to be
produced by the said categories for the benefit of
reservation, model of Anthyodaya Annayojana (AAY)
and Priority House Holds (PHH) Certificates to be
produced by the Economically Weaker Sections.
3. Government have examined the Report and
found that some modifications in some of the entries
in the Model Roster I & II recommended by the
Commission for fixing turn of rotation for Economically
Weaker Sections are required, as they are
inconsistent with the same entries in the Annexure I &
II to Rule 15 of Part II of the Kerala State and
Subordinate Services Rules, 1958 and hence the same
W.P(C).20515/2020
are to be modified at par with the said rules.
4. In the circumstances, Government are
pleased to approve the following recommendations of
the Commission along with Model Rosters (with some
modifications), formats of Income and Asset
Certificate, Anthyodaya Annayojana (AAY) and Priority
House Holds (PHH) Certificate to be produced by the
Economically Weaker Sections for availing the benefit
of reservation which are appended as Annexures I to
III to this Order.
Recommendations
1. Persons who are not covered under the scheme of
reservation for Scheduled Castes, Scheduled Tribes and
Other Backward Classes and whose family has gross
annual income up to Rs.4 lakhs (Rupees Four Lakhs only)
are to be identified as Economically Weaker Sections for
the benefit of reservation provided under Clause (6) of
Article 15 and Clause (6) of Article 16 of the Constitution of
India.
The identification of persons under Economically
Weaker Sections as above shall be subject to other
exceptions here in after enumerated.
2. The term "family" for the purpose of reservation to
admissions in educational institutions and public
employment covered under Clause (6) of Article 15 and
Clause (6) of Article 16 of the Constitution of India shall
include the person who seeks the benefit of reservation,
his/her parents, siblings below the age of 18 years as also
his/her spouse and their children below the age of 18
years.
3. Income from all sources, subject to the following
W.P(C).20515/2020
exemptions, are to be taken for computing the annual
income of the family.
Exemptions
1. Agricultural income from house plots in
Municipality or Municipal Corporation of which the
ceiling limit is specified.
2. Amounts received as social security pensions.
3. Family Pension.
4. Unemployment Wages.
5. Festival Allowance.
6. Terminal benefits.
7. Travelling Allowance.
4. Persons whose family owns or holds an extent of more
than 2.5 Acres of land in Grama Panchayat area or more
than 75 cents in Municipal area or 50 cents in Municipal
Corporation area are excluded from being identified as
Economically Weaker Sections in General Category.
The lands in all locations shall be clubbed together
to ascertain the extent.
If the applicants' family is having lands in Panchayat
area as well as in Municipality or Municipal Corporation
limits, such lands shall be clubbed together and if the
extent is more than 2.5 acres, he shall be excluded from
being identified as Economically Weaker Sections.
If the applicants' family is having lands both in Municipal
area and Municipal Corporation area, the above lands shall
be clubbed together and if the total extent is more than 75
cents, he shall be excluded from being identified as
Economically Weaker Sections in General Category.
"Land" shall include all types of lands.
5. Persons whose family owns or holds house plots having
an area of more than 20 cents in a Municipality or 15 cents
in Municipal Corporation area shall be excluded from being
identified as Economically Weaker Sections in General
Category.
If more than one house plot is owned or held by the family,
all such plots shall be clubbed together to ascertain the
extent of house plot.
W.P(C).20515/2020
If the family has house plots in Municipality and also in
Municipal Corporation limits, then all such plots shall be
taken together and if the area of such plots is more than
20 cents, the person belonging to such family shall be
excluded from being identified as Economically Weaker
Sections in General Category. House Plot is defined as a
plot where a house is situated or a house can be built.
6. Applicants whose names are entered in the Ration cards
issued to the families in the category of Anthyodaya
Annayojana (AAY) or Priority House Holds (PHH) shall be
identified as belonging to Economically Weaker Sections in
General Category irrespective of any other criteria.
Such applicants need to produce only a certificate
stating that his/her name is included in the Ration Card
issued under such category.
The Village Officer concerned shall be the officer
competent to issue such certificate. The format of
Certificate is appended as Annexure III.
7. 10% reservation shall be provided to posts and services
of the State, and also to the posts of Public Sector Units in
which majority shares are owned by the State of Kerala.
Model rosters for turn of reservation is appended as
Annexure I.
8. Commission recommends to provide 10% reservation to
Economically Weaker Sections in General Category in all
educational institutions other than minority institutions,
where reservation is provided to Other Backward Classes.
9. Since reservation is being given to Other Backward
Classes in Government Higher Secondary Schools, the
reservation up to 10% may be given to Economically
Weaker Sections in General Category in Government
Higher Secondary Schools.
The Commission also recommends to provide 10%
reservation to Economically Weaker Sections in General
Category to all Higher Educational Institutions other than
minority institutions, where reservation to Other Backward
Classes are provided.
10. The income of the family for the financial year prior to
W.P(C).20515/2020
the year of application need to be taken into consideration
for issuing the Income and Assets Certificate.
11. The details of the properties held by the family shall be
declared by the applicant by himself/herself. If the
verification reveals that the claim to belong to
Economically Weaker Sections is fake/false, his/her
service/admission will be terminated forthwith without
assigning any further reasons and this shall be without
prejudice to such further action as it deem fit by the
Government.
12. The Village Officer concerned shall be the competent
authority to issue the income and Asset certificate, the
form of which is shown as Annexure II.
13. The Tahsildar concerned shall be the appellate
authority.
14. The R.D.O. concerned shall be the revisional authority.
15. The appointing authority should, in the offer of
appointment to candidates claiming to belong to
Economically Weaker Sections, include the following
clause;
"The appointment is provisional and is subject to
the income and asset certificate being verified
through the proper channels and if the verification
reveals that the claim to belong EWS is fake/false
the services will be terminated forthwith without
assigning any further reasons and without
prejudice to such further action as may be taken
under the provisions of the Indian Penal Code for
production of fake/false Certificate"
16. Person belonging to Economically Weaker Sections in
General Category who are selected/admitted on the basis
of merit and not on account of reservation shall not be
counted towards the quota meant for reservation.
17. Where in any recruitment year, any vacancy
earmarked for Economically Weaker Sections in General
Category cannot be filled up due to non-availability of
suitable candidates belonging to Economically Weaker
Sections, such vacancies shall not be carried forward as
back log and such vacancy shall be allotted to open
W.P(C).20515/2020
competition.
18. There shall be no reservation to Economically Weaker
Sections for appointment to single post recruitment.
19. The Commission recommends that grievance redressal
cell/officer may be constituted in departments/directorates.
Periodical reports on redressal of grievance may be
forwarded to the Government in G.A.D.(Co-ordination).
20. All Government Departments/Directorates/Public Sector
Undertakings shall forward periodical reports of unfilled
vacancies of Economically Weaker Sections in General
Category to Government in G.A.D. (Co-ordination). Total
number of vacancies anticipated in six months shall also be
reported.
21. The Scheme for reservation of Economically Weaker
Sections in General Category in the State of Kerala can be
made effective from the date as fixed by the Government.
22. The criteria for identification of Economically Weaker
Sections in General Category may be reviewed and
modified periodically, preferably by following a time frame
of 3 years.
23. A monitoring cell in Government Secretariat may be
constituted to oversee the performance of the
implementation of the reservation scheme of Economically
Weaker Sections in General Category.
5. Government are also pleased to authorise the
following Administrative Departments in the
Government Secretariat to take further necessary
action on the above recommendations as noted
against each :-
Department Recommendations
Personnel and 7 & 1-6, 10-18, 22 (orders
Administrative Reforms will be issued in consultation
Department with Revenue Department)
Planning and Economic 7 (reservation in PSUs)
Affairs Department
W.P(C).20515/2020
General Education 8,9
Department
Higher Education
Department
General Administration 19, 20, 23
(Co-Ordination)
Department
(By order of the Governor)"
K.GOPALAKRISHNA BHAT
SECRETARY"
4. Having regard to the decision rendered by the
Hon'ble Supreme Court in Janhit Abhiyan v. Union of
India reported in 2022 SCC Online SC 1540 [W.P.(C)
No.55 of 2019 and connected cases dated 7.11.2022], we
are of the view that nothing survives for further
adjudication in this writ petition. Accordingly, writ petition
is dismissed.
Sd/-
S. Manikumar,
Chief Justice
Sd/-
Murali Purushothaman,
Judge
sou. xxxx
W.P(C).20515/2020
APPENDIX OF WP(C) 20515/2020
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF REGISTRATION ISSUED BY
THE DISTRICT REGISTRAR GENERAL, PATHANAMTHITTA
DATED 08.12.1989 BEARING NO.P-362/89
EXHIBIT P1(a) TRUE ENGLISH TRANSLATION OF THE EXT.P1 REGISTRATION
CERTIFICATE.
EXHIBIT P2 TRUE COPY OF THE DETAILS OF RESERVATION PUBLISHED BY
THE BACKWARD CLASSES DEVELOPMENT DEPARTMENT.
EXHIBIT P3 TRUE COPY OF THE CONSTITUTION ONE HUNDRED AND
THIRD AMENDMENT ACT, 2019 PASSED BY THE PARLIAMENT
AND NOTIFIED BY MINISTRY OF LAW AND JUSTICE BY THE
GAZETTE OF INDIA DATED 12.01.2019.
EXHIBIT P4 TRUE COPY OF THE GO(P) No.1/2020/P AND ARD DATED
3.01.2020.
EXHIBIT P5 TRUE COPY OF THE GO(MS) No.137/2020/G.EDN. DATED
11.08.2020.
EXHIBIT P5 (a) TRUE ENGLISH TRANSLATION OF GO(MS) No.137/2020/G.EDN.
DATED 11.08.2020.
EXHIBIT P6 TRUE COPY OF RELEVANT PAGES OF THE PROSPECTUS
ISSUED BY THE 5TH RESPONDENT DATED NIL.
EXHIBIT P6(a) TRUE ENGLISH TRANSLATION OF EXHIBIT P6 PROSPECTUS.
EXHIBIT P7 TRUE COPY OF FIRST ALLOTMENT STATISTICS (SINGLE
WINDOW ADMISSION 2020-21) PUBLISHED BY THE 5TH
RESPONDENT IN ITS WEBSITE DATED NIL.
EXHIBIT P8 TRUE COPY OF CHART SHOWING THE DETAILS OF SEATS
AVAILABLE UNDER VARIOUS CATEGORIES WHICH INCLUDED
GOVT. SEATS, AIDED SEATS AND UNAIDED SEATS.
EXHIBIT P9 TRUE COPY OF REPRESENTATION SUBMITTED BY THE
PETITIONER BEFORE THE 1ST RESPONDENT BEARING
NO.MECA/HSC/26/2020 DATED 21.09.2020.
W.P(C).20515/2020
EXHIBIT P10 TRUE COPY OF GO(MS)NO.5/2019/P&ARD DATED 12.03.2019
ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P10(a) TRUE ENGLISH TRANSLATION OF EXT.P10.
EXHIBIT P11 TRUE COPY OF THE CHART PREPARED BY THE PETITIONER.
EXHIBIT P12 TRUE COPY OF THE ALLOTMENT STATUS PUBLISHED BY THE
5TH RESPONDENT.
