President,
Siuc Vs. State of Kerala
& Ors [2006] Insc 157 (28 March
2006)
S.B. Sinha
& P.P. Naolekar
[WITH
CIVIL APPEAL NO.3362/2002 &
WRIT PETITION (C) NO.322/2001] S.B. Sinha, J :
Identical
questions of fact and law being involved in these appeals and the writ
petition, they were taken up for hearing together and are being disposed of by
this common judgment. Hindu Nadars, represented by
the Hindu Nadar Corporation, a society registered
under the Societies Registration Act, 1860, are admittedly educationally and
socially backward.
The
question as regards the extent of reservation between Hindu Nadars
and those who were converted into Christianity (Christian Nadars
SIUC Nadars)
had been the subject matter of dispute for a long time. They have all along
been treated as belonging to separate and distinct class. According to the
Hindu Nadars they have all along been more socially
and educationally backward than the SIUC Nadars. Both
the said categories of Nadars, however, admittedly
come within the purview of Other Backward Classes. 40% reservation was allowed
to the Other Backward Classes by a Notification dated
17.12.1958, by the State of Kerala, the division whereof is as under:
14 to Ezhavas & Thiyyas 10 to
Muslims 5 to Latin Catholics, SIUC & Anglo Indians 1 to Backward Christians
(Other Christians) 10 to Other Backward Classes ("remaining OBCs") put together. Hindu Nadars
fell in the category of Other Backward Classes and thus they were entitled to
reservation from amongst the 10 seats reserved for the remaining "Other
Backward Classes" whereas the Christian Nadars
fell in the category of Southern India Undivided Church ('SIUC'). In the said
notification, backward communities in the State of Kerala were shown as under:
-
Agasa
-
Ambalakaran
-
Anglo
Indian ...........
-
Ezhava
-
Eshavath
.............
-
Hindu
Nadar
-
Other
Christians-Pulayas, Parayas,
and other SC or BC members converted to Christianity. .............
-
SIUC
(Emphasis supplied) However, in the year 1963, 5% reservation which was earlier
prescribed for the Latin Catholics SIUC and Anglo-Indians taken together was
broken up into:
-
4%
of Latin Catholics,
-
1%
for SIUC and Anglo Indians together, whereas Hindu Nadars
continued to be a part of the remaining Other Backward Classes ('OBC') group. Pursuant
to or in furtherance of a Government order issued on 13th
December, 1978, an amendment was made in the Kerala State
& Subordinate Services Rules, 1958, stating:
"Government,
however, consider that some changes to the existing percentage of reservations
are necessary in the light of the data collected by them subsequent to the
receipt of the Nettur Commission's Report, and are pelased to issue the following orders:
.........................................
Latin
Catholics and Anglo Indians will form one group and will have a reservation of
4 per cent.
Government
consider that the Nadar
Community (both Nadars presently included in SIUC and
Hindu Nadars) deserve to be treated separately in the
matter of reservation and hence they will be allowed a reservation of 1 per
cent.".......
"(ii)
For all direct recruitment other than to Class IV posts - The percentage of
reservation will be 14 per cent Ezhavas (existing),
12 percent to Muslims (an increase of 2 percent is fully justified in view of
their inadequate representation), 4 per cent of Latin Catholics and Anglo
Indians, 1 per cent of Nadars (Hindu Nadars and Nadars presently
included in SIUC), 1 per cent for Scheduled Caste converts to Chistianity (existing), 3 per cent to the group consisting
of Asari, Kammala Viswakarma, etc., listed in the Annexure to this G.O., 1
per cent of Dheevara and 4 per cent for Other
Backward Classes, Other than those specifically mentioned above." Yet
again on 6.9.1967, a revised list of OBC was published wherein Hindu Nadars were placed at Serial No.23 and SIUC, including
Christian Nadars, were placed at Serial No.64.
By a
Government order dated 13.12.1978, both the Nadar
communities were directed to form separate groups for the purpose of
reservation and were to be given 1% reservation together for all posts in the
following terms:
".....
Latin Catholics and Anglo Indians will from one group and will have a
reservation of 4 per cent. Government consider that
the Nadar Community (both Nadars
presently included in SIUC and Hindu Nadars) deserve
to be treated separately in the matter of reservation and hence they will be
allowed a reservation of 1 per cent. The 22 communities like Asari, Kammalas, Viswakarma, et., given in the
Annexure to this order will be grouped together and they will be treated as one
group, and given separate reservation. Their reservation will be 2 per cent.
The Dheevara Community will have a separate
reservation of 2 per cent. All other backward classes as notified
..........
For
all direct recruitment other than to Class IV posts - The percentage of
reservation will be 14 per cent Ezhavas (existing),
12 percent to Muslims (an increase of 2 percent is fully justified in view of
their inadequate representation), 4 per cent of Latin Catholics and Anglo
Indians, 1 per cent of Nadars (Hindu Nadars and Nadars presently
included in SIUC), 1 per cent for Scheduled Caste converts to Chistianity (existing), 3 per cent to the group consisting
of Asari, Kammala Viswakarma, etc., listed in the Annexure to this G.O., 1
per cent of Dheevara and 4 per cent for Other
Backward Classes, Other than those specifically mentioned above." Pursuant
to or in furtherance of the said Government order, Kerala
State & Subordinate Services Rules were also amended in the year 1979, in
terms whereof Rule 2, 3 & 17 stood amended and a Schedule was appended to
the Act, in the following terms :
-
"Amendment of Schedule to Part
I-- In the Kerala State Subordinate Services Rules,
1958, (hereinafter referred to as the said rules), on Part I, in List III of
the Schedule, under the sub- heading "1. Throughout the State"- ......................................... 3. after the item '48, Muslim', the following item shall be
inserted, namely:- "49. Nadars (Hindu Nadars and Nadars included in SIUC)" (4) for item 64, the
following item shall be substituted, namely:-
"64. SIUC. (excluding Nadars specified in item
49)"
-
Amendment of rule 17,-- In part II
of the said rule 17, the following rule shall be substituted, namely:-
"17(1) The grouping of Other Backward Classes for the above purpose shall
be as indicated below:-
-
Ezhavas, Thiyyas
and Billavas
-
Muslims
-
Latin Catholics and Anglo Indians
..................................................." Serial No.64 which
earlier read as only SIUC thereby including Christian Nadars
as well, were amended to read as SIUC (excluding the Nadars specified in Item No.49).
Thus,
by reason of the said notification the 'Nadars'
irrespective of their religion were given 1% reservation under the Rules. By
reason of a Notification dated 13.12.1982, however, the rules were further
amended modifying the extent of reservation given to Nadars
as a group from 1% for all posts to 3% for posts included in the Kerala Last Grade Service and 2% for other posts.
Aggrieved
by and dissatisfied with the said notifications, the Hindu Nadar
Corporation filed a writ petition before the Kerala
High Court. The High Court by reason of the impugned judgment dated 28.08.2000,
allowed the said writ petition stating:
"In
view of the above mentioned facts and circumstances we find it difficult to
sustain Government order, Ext. R4(m) as well as Exts. P.2 and P.3 notifications, diluting
the percentage of reservation for Hindu Nadars.
We
make it clear that Hindu Nadars should continue to be
treated as a separate class for the purpose of Article 16(4) of the
Constitution. So also, Nadars converted to SIUC
should form another category. Under such circumstances, Hindu Nadars would remain as a separate class by themselves in
item No.49 and Nadars converted to SIUC would come
within item No.64 of the Kerala State and Subordinate Services Rules,
1958.
We
make it clear that the above declaration would operate only prospectively. All
appointments hitherto made on the basis of impugned orders would not be disturbed.
However,
for the purpose of future appointments, Hindu Nadars
will have to be treated as a separate class. It is so declared. Order, Ext. R4(m), and Exts. P.2 and P.3
notifications to the extent indicated above would stand quashed. Original
petition is allowed as above." The President, SIUC as well as the State of
Kerala, aggrieved by and dissatisfied with
the said judgment and order of the High Court, are before us.
Writ
Petition (C) No.322 of 20011 has been filed by the President, SIUC praying inter
alia for the following reliefs:
-
"To
issue an appropriate writ or order u/Art.32 of the Constitution of India
declaring that the reservation provided to the petitioner community i.e. SIUC Nadars by Rule 17 r.w. Sec.1 of Keala State and Subordinate Rules, 1958, along with other clalsses mentioned in Rule 17(1) would govern the
recruitment rules & conditions of Service in Public Service governed by Kerala Public Service Act, 1968.
-
Notification S.R.O. No.497/74 dt. 4.6.1974-Annex-P6
-
Notification S.R.O. No.695/79 dt. 20.6.1979-Annex-P8
-
Notification S.R.O. No.1533/82 dt. 13.12.1982-Annex-P9 are in the
absence of legislative approval referred to in Sec.2(2)
of Kerala Public Service Act, 1968, not competent to
amend either Sch.1 or the provisions in the said Rules.
-
to quash the inclusion of Hindu Nadars who
belongs to Kshatriya Caste from the list of Backward
Classes in Sch.1 of the KSSS Rules, 1958.
-
to pass such other or further orders as it deemed fit and proper."
The civil appeals and the writ petition came up for hearing before a Bench
presided over by Y.K. Sabharwal, J (as the learned
Chief Justice then was) and this Court by an order dated 24.2.2005 directed:
"After
hearing the learned counsel for the parties, it seems that there has been some
confusion in the proper understanding of the directions issued by the High
Court as to the category in which the two groups, aforesaid would fall.
Tentatively, it is agreed subject to the learned counsel taking specific
instructions from their respective clients, that the
two groups shall remain as a separate class. The matter as to the extent of
reservation would be determined by the Kerala State
Commission for Backward Classes (for short, 'the Commission') under the
provisions of the Kerala State Commission for Backward
Classes Act, 1993 and orders passed on receipt of the Report from the
Commission by the Sate Government. In the interregnum, the SIUC Nadars, as before, would continue to have reservation of 1
per cent with Anglo- Indians and Hindu Nadars would
continue to be part of residuary category, afore-noted, and would be part of
Other Backward Classes entitled to ten per cent reservation along with other
castes. It is further agreed, tentatively, that if the parties finally agree on
the aforesaid issues, consequential directions may also be made protecting the
interest of those who may have been appointed after the pronouncement of the
impugned judgment and order but, may be, not on the complete understanding of
the directions given by the High Court. The question of the extent of
reservation would be examined by the Commission as also the question whether
the Hindu Nadars and SIUC Nadars
deserve to be clubbed with any other class or not. It is, however, agreed that
the Hindu Nadars and SIUC Nadars
would remain as separate class and both these groups would not be clubbed
together. This aspect would not be open to be examined by the Commission."
It is not in dispute that in the meantime, Kerala
Public Service Commission had made recommendations on 12.4.2005. Aggrieved by
and dissatisfied with those recommendations, an interlocutory application was
filed by the Hindu Nadar Corporation seeking stay
thereof. The State of Kerala also filed an application for
extension of time granted by this Court on 24.2.2005. On 2.5.2005, this Court
directed:
"We
have further heard the learned counsel for the parties and are of the view that
the Kerala State Commission for Backward Classes
shall decide the issue between the parties expeditiously and, in any case, not
later than the end of July, 2005. We direct accordingly. All the parties
including the State Government, shall render full
cooperation to ensure that the matter is not further delayed.
In the
meanwhile, the appointments made, if any, would be subject to the further orders
that may be passed by this Court." Indisputably pursuant to and in
furtherance of the interim order of this Court dated 24.2.2005, the Kerala Public Service Commission, not noticing the relevant
facts in that behalf, including the fact that the Government of Kerala had implemented the impugned judgment of the High
Court, directed:
"In
the light of the orders of the Supreme Court following instructions are issued
for working out rotation.
-
The candidates belonging to Hindu Nadar community will be included in OBC category and 1%
more reservation will be given to that category.
-
Nadars converted to SIUC and Anglo Indian
Community will be clubbed together with 1% reservation detaching Anglo Indian
from Latin Catholic Community.
The
turn of reservation to both communities will be follows:
-
For
posts included in the LGS
-
The turn 38 N will be allotted to
SIUC/AI.
-
The turn 60 N and 80 N will be
allotted to OBC.
-
For
posts other than those included in LGS
-
The turn 38 N will be allotted to
SIUC/A1.
-
The turn 60 N will be allotted to
OBC.
It has
been ordered that this allocation is purely provisional, subject to final
orders of the Supreme Court.
The
turn will be worked out as above, but the advice shall not be released in
respect of AI, SIUC and Hindu Nadar. Such advices
will be released only after the issuance of necessary Government order in this
regard. The procedure laid down will be subject to the final orders of the Hon'ble Supreme Court.
This
decision of the Commission shall take with effect from 06.04.2005. All
Sections/Officers are directed to follow the aforesaid procedure. Doubtful
cases will be brought to the notice of the Commission." The appellant
SIUC, however, filed a writ petition before the Kerala
High Court for implementation of the said directions issued by the Kerala Public Service Commission although it is now stated
before us that the same was wholly unnecessary. In the said writ petition the Kerala High Court on 13.10.2005 passed an interim order to
the following effect:
"Heard both sides. Ext.P7
order was issued by the Public Service Commission taking note of Ext. P.6(a) order passed by the Hon'ble
Supreme Court on 24.2.2005. The grievance of the petitioners is that Ext.P.4,
which stands modified pursuant to the orders issued by the Hon'ble
Supreme Court in Ext.P.6(a) and the subsequent order
passed by the Public Service Commission, in accordance with the directions
issued by the Hon'ble Supreme Court, is being
enforced by the respondents. It is submitted that Ext.P.7 shall remain in force
unless and until otherwise directed by the Apex Court in the Civil Appeals referred to in
Ext.P.6(b). I find, prima
facie, merit in the above submission. It is, therefore, made clear that in the
matter of advice of candidates from the ranked lists, KPSC shall follow the
orders passed in Ext.P7. To that extent, Ext.P4 shall stand stayed."
Aggrieved by and dissatisfied therewith, one Akhiledia
Nadar Association filed special leave petition before
this Court, which was numbered as SLP(C) No....CC 11611/2005, wherein the
operation of the said order was directed to be stayed. In the meantime,
however, the writ petition filed before the Kerala
High Court (being WP(C) No.28027/2005) was withdrawn by the writ petitioner
thereof on 10.3.2006.
It is
not in dispute that the Backward Classes Commission constituted by the State of
Kerala in the meantime have
since made its recommendations. In the said recommendations, indisputably it
was opined that the Hindu Nadar Community and the
Christian Nadar Community should be treated as
separate and distinct classes. We are not concerned herein with any
recommendation which might have been made as regards the percentage of
reservation for Hindu Nadar Community and Christian Nadar Community separately.
It is
stated at the Bar that objections to the said report have been filed and a writ
petition in this behalf is pending before the Kerala
High Court. It is furthermore not in dispute that the report of the Commission
is pending consideration before the Government of Kerala
for a long time and no decision thereon has been taken as yet.
We
have noticed hereinbefore that by an order dated 24.2.2005, the Kerala State Commission for Backward Classes was to decide
the issue between the parties. We have heard the learned counsel for the
parties at some length.
In
these appeals and the writ petition, we are required to determine the question
as to whether inter alia the notifications issued by
the State of Kerala treating the Hindu Nadars and Christian Nadars as
one group, were valid in law. The High Court by reason of the impugned judgment
held the said notifications to be illegal having regard to the history of the
said communities as also the legislations and the Government orders operating
in the field. The State of Kerala has already implemented the said
judgment, meaning thereby that the Nadars of both the
religions have been directed to be treated differently. Before this Court,
although tentatively, the parties have also agreed that they may be treated as
belonging to different classes, but as the State has already implemented the
judgment of the Kerala High Court, it may be presumed
by us that the State has no serious objection as regards thereto. The other
appellants as also the writ petitioner before us, represented by learned senior
counsel Mr. K.K. Venugopal, accept the said position
and also unequivocally accept that Hindu Nadars and
Christian Nadars be treated as forming different
classes. In this view of the matter, challenge to the impugned judgment of the
High Court has taken a back- seat.
It has
also not been disputed, as is stated hereinbefore, that the Kerala
Public Service Commission has also implemented the said interim orders passed
by this Court, subject to the final decision which may be taken in this behalf.
Such a final decision again indisputably is required to be taken by the State
on the recommendations made by the State Commission for Backward Classes
constituted by it. It will bear repetition to state that even the Commission,
in terms of its recommendations, now accepts that Hindu Nadars
and Christian Nadars ought to be treated as different
classes. In this view of the matter, we are of the opinion that there does not
exist any dispute amongst the parties as regards the correctness or otherwise
of the impugned judgment of the Kerala High Court.
Subsequent
events have taken place, namely, the Backward Classes Commission has made
recommendations. Pursuant to this Court's order dated 2.05.2005,
it has also gone into the issue as to whether the Nadars
belonging to the Hindu community and the Christian community should be treated
separately or as a group.
The
State may or may not accept the recommendations of the Commission. It may
accept the same in its entirety or in part. It may also accept the
recommendations of the Commission with certain modification.
This
Court at this juncture is not concerned therewith. Although permission has been
granted by this Court to the parties to raise objections to the said report, we
are of the opinion that having regard to the limited scope of the Civil Appeals
and the Writ Petition, it would not be proper to widen their scope. If any such
objection to the said report is to be considered independently, this Court
would be entering upon disputes which strictly do not form part of the subject
matter of these appeals or the writ petition.
We
are, therefore, of the opinion that these appeals and the writ petition have
become infructuous. Keeping in view the fact that the
writ petition filed before the Kerala High Court has
since been withdrawn, the interim order passed by this Court on 2,1,2006 (by a Bench of Arun Kumar
and G.P. Mathur, JJ) has lost its force.
The
Public Service Commission, therefore, may now implement its order dated
12.04.2005 albeit provisionally till a decision is taken by the State
Government on the recommendations made by the Backward Class Commission.
Appointments made in respect of both 'Hindu Nadars'
and 'SIUC Nadars' pursuant to the order of the Public
Service Commission dated 12.04.2005 may now be given effect to. It is, however,
made clear that if any party is aggrieved by any action which the State may
take pursuant to or in furtherance of the report of the Backward Class
Commission or otherwise, he may seek his remedies before an appropriate forum.
As we
have noticed hereinbefore that a writ petition in this behalf is pending in the
High Court, the parties therein also may agitate their grievance in the said
pending writ petition also.
In the
peculiar facts and circumstances of this case, however, we would request the
High Court to consider the desirability to dispose of the pending writ
petitions raising objections to the report of the Kerala
Backward Class Commission as expeditiously as possible and preferably within a
period of three months from the date of communication of this order.
These
appeals and the writ petition are disposed of with the aforementioned
directions.
In
view of the directions made above, no orders need be passed on the applications
for impleadment/ intervention.
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