2007 Supreme(SC) 247

2007(3) Supreme 598
SUPREME COURT OF INDIA
(Under Art. 32 of the Constitution of India)
S.B. Sinha and P.P. Naolekar, JJ.
Nair Service Society — Petitioner
versus
State of Kerala — Respondent
Writ Petition (Civil) No. 598 of 2002
With
Contempt Petition (Civil) No. 108 of 2000
And
Contempt Petition (Civil) No. 109 of 2000
With
Suo Motu Contempt Petition (Civil) No....../2006 in Writ Petition (Civil) No.930 of 1990
Decided on 23-2-2007
Counsel for the Parties :
For the Petitioner : K.K. Venugopal, Sr. Advocate, Krishnan Venugopal, Prasad Vijay Kumar, Ms. Haripriya, K.V. Balakrishnan, K.V. Mohan, and T. Raja, Advocate, and Ms. Indra Sawhney Petitioner-In-Person (NP).
For the Respondent : Beeran, Addl. Advocate General, T.L.V. Iyer, L. Nageswara Rao, Sr. Advocates, K.R. Sasiprabhu, M.K. Sreegesh, Roy Abraham, Mrs. Seema Jain, Himinder Lal, S. Uday Kumar Sagar, E.M.S. Anam, Ms. Lily Isabal Thomas, Arvind Kumar Sharma, Advocates.

IMPORTANT POINT
It is expected that the endeavour of the State should have been to evolve a criterion in tune with the underlying constitutional scheme that the protection is required to be given only to those who remain socially and educationally backward and not to those who have ceased to be.

Headnote:(i) Constitution of India — Articles 14 and 16 — Reservations — Identification of ‘creamy layer’ amongst the backward classes and their exclusion from the purview of reservation — Notification dated 27-5-2000 issued by State of Kerala laying down guidelines — Validity challenged — Supreme Court in its judgment in Indra Sawhney-I, 1992 Supp (3) 217, directed States to identify ‘creamy layer’ amongst the backward classes and exclude them from the purview of reservation — State of Kerala did not comply with the direction of the Supreme Court — Legislature of State of Kerala enacted the Kerala State Backward Classes (Reservation of Appointments or Posts in the Services Under the State) Act, 1995, in terms whereof it was declared that there was no socially advanced section in the State — Writ petition filed by Nair Society challenging validity of the State Act — Supreme Court requested Chief Justice of the High Court to appoint a Committee to determine criteria for identification of ‘creamy layer’ — Joseph Committee appointed pursuant to such directions submitted its report — Recommendations made, however, were not implemented — State appointed Narendran Committee — However, State issued fresh guidelines for identifying creamy layer in accordance with Joseph Committee report — What relief could be granted by the Supreme Court.

       Held : It is not disputed that in terms of Kerala State and Subordinate Services Rules, 1958, although, reservation for backward classes under the scheme is to be carried out in the following years, even if thereafter no backward candidates are available, such posts are left unfilled. Ultimately, the selection would be made on merit. Furthermore, the writ petition has been filed in public interest. As noticed hereinbefore, the petitioner-Society has raised this question again and again and had been taking part in the proceedings before the Narendran Commission. In any view of the matter, when the question of such grave importance has been brought to the notice of this Court, having regard to the principle underlying the purport and object for which the ‘creamy layer’ was sought to be excluded, this Court cannot shut its eyes and refuse to determine the question. (Para 22)

       It is not in dispute that the Central Government had issued an office memorandum on 9.3.2004. It is furthermore not in dispute that Joseph Committee in its report included the income from agricultural income and salary, whereas in Narendran Commission it excluded the same. It is furthermore not in dispute that before this Court the State of Kerala did not raise any objection thereto. (Para 23)

       The concept of identification of ‘creamy layer’ came up for consideration in Indra Sawhney-I and this Court has issued certain directions in this behalf. Criteria were adopted by the States so as to avoid implementation of this Court’s judgments and thus in Ashoka Kumar Thakur (supra), the criteria laid down by the State of Bihar and U.P. have been struck down by this Court being violative of Articles 14 and 16(4) of the Constitution of India. The State of Kerala did not follow the said direction as a result whereof it was found to be guilty of contempt of this Court. A stern action thereupon was proposed to be taken up against the State of Kerala in view of its contemptuous conduct, as is evident from the order of this Court in Indra Sawhney vs. Union of India & Ors., reported in (1995) 5 SCC 429. It was in the afore-mentioned backdrop, the legislation passed by the legislature of Kerala was not only struck down during the pendency of the proceedings by this Court, a Committee was also directed to be constituted. We have noticed hereinbefore that the recommendations of the Joseph Committee were accepted in toto. We have furthermore noticed that the State, without any demur, accepted the recommendations thereof with modification by addition of one caste or sub-caste. It is, therefore, difficult for us to appreciate as to on what basis Narendran Commission was appointed. (Para 24)

       It was expected that the endeavour of the State should have been to evolve a criterion in tune with the underlying constitutional scheme that the protection is required to be given only to those who remain socially and educationally backward and not to those who have ceased to be. Those who are no longer members of the socially and educationally backward class are not to be permitted to obtain the benefit of the reservation. Thus, while laying down the criteria, the State was required to give effect to the underlying principles envisaged in the constitutional scheme as interpreted in Indra Sawhney-I. (Para 29)

       While fixing the income limit, although a State is entitled to take into consideration the level of literacy, the village income, the rise of living index and other relevant factors into consideration, it should not have accepted a report of the Committee which did not proceed scientifically, particularly, having regard to the constitutional scheme as explained by the Court in the judgments referred to hereinbefore. (Para 42)

       We, therefore, do not find any justification for fixing the income limit at Rs.3 lakhs. We may furthermore place on record our displeasure as to the manner in which Joseph Committee report received severe criticism by the Narendran Committee, most of which were wholly unwarranted. The tests adopted by the Joseph Committee could not have been given a complete go-by the Narendran Commission. The findings of a Commission in respect of a matter of such grave significance and importance should have been based on scientific data as also evidence of experts. If Government tends to consider without adequate data and inquiry, a stage would come when the whole system of reservation will become farcical and negation of constitutional provisions. Hence, before arriving at the final conclusion, it should have noticed the rate of inflation and other relevant factors. Economic growth of a country, as a result of the village income of citizens of India, keep on changing, although while determining an issue as to whether persons who have attained economic sufficiency so as not to furthermore describe them as economically backward, is required to be taken into consideration. (Para 43)

       It is not for us, at this stage, to render our final opinion in this matter as to whether preference should be given to Joseph Committee or Narendran Commission, but there is no reason as to why a successor committee, without any just and cogent reason, ignored the recommendations of the former committee. (Para 44)

       The State did not accept even the Narendran Commission report in its entirety. Although, as noticed hereinbefore, Mr. Iyer submitted that the benefit would be granted only to those persons who are engaged in hereditary occupation and not to them who are not so engaged, the State, however, states that there would be no restriction as proposed by the Commission for exclusion from the ‘creamy layer’ of backward class with hereditary occupations, i.e, black smiths and gold smiths should be engaged in such occupations. If the State has not made any amendment, it is eminently fit and proper that an amendment or clarification should be issued in this behalf inasmuch as even if a person is otherwise excluded by reason of holding a constitutional post or otherwise, he may still claim the benefit being a descendent of a person whose predecessors, being a member of the backward class, had hereditary occupation like black smith or gold smith etc. Accordingly, notification dated 27th May, 2000 being merely for notification of general public and the guidelines issued for the concerned officers, it is necessary that the State should amend the guidelines also. (Para 56)

       In this view of the matter, although while setting aside the report of the Narendran Commission, we direct the State to appoint a fresh Commission who should go into all these aspects of the matter and submit its report. (Para 57)

       (ii) Constitution of India — Articles 14, 15 and 16 — Equality clauses — When a law is patently arbitrary, such infringement of the equality clause contained in Article 14 or Article 16 would be violative of the equality clause of the Constitution — Reservations — Concept of ‘creamy layer’ — Limit on State power imposed by the creamy layer rule.

       Held : A statute professing division amongst citizens, subject to Articles 15 and 16 of the Constitution of India may be considered to be a suspect legislation. A suspect legislation must pass the test of strict scrutiny. Articles 15(4) and Article 16(4) profess to bring the socially and educationally backward people to the forefront. Only for the purpose of invoking equality clause, the makers of the Constitution thought of protective discrimination and affirmative action. Such recourse to protective discrimination and affirmative action had been thought of to do away with social disparities. So long as social disparities among groups of people are patent and one class of citizens in spite of best efforts cannot effectively avail equality of opportunity due to social and economic handicaps, the policy of affirmative action must receive the approval of the constitutional courts. For the said purpose, however, the conditions precedent laid down therefor in the Constitution must be held to be sine qua non. Thus, affirmative action in essence and spirit involves classification of people as backward class of citizens and those who are not backward class of citizens. A group of persons although are not as such backward or have by passage of time ceased to backward would come within the purview of the creamy layer doctrine evolved by this court. The court by evolving said doctrine intended to lay a law that in terms of our constitutional scheme no group of persons should be held to be more equal than the other group. (Para 45)

       (iii) Constitution of India — Articles 14, 15 and 16 — Reservations — Limit on State power imposed by the creamy layer rule — Invalidity of any State action in violation of the same — Determination of creamy layer is a part of constitutional scheme. (Paras 47, 48 and 50)

       (iv) Constitution of India — Articles 141, 142 and 144 — Declaration of law made by the Supreme Court — Binding on all Courts — Such directions would also be binding on all authorities — Article 142 empowers Supreme Court to pass such order as is necessary to do complete justice to any cause or matter pending before it — Article 144 enjoins all authorities, civil and judicial, to act in aid of the Supreme Court. (Para 51)

       (v) Constitution of India — Articles 14 to 16 — Interpretation of — Application of constitutional law particularly, in regard to the equality clause have never been limited by the Supreme Court — However, if a measure tends to perpetuate inequality and makes the goal of equality a mirage, such measure should not receive the approval of the Court. (Para 52)