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Andhra Pradesh High Court
Judges : B.P.JEEVAN REDDY, K.RAMASWAMY, Y.V.ANJANEYULU
V.Narayana Rao - Appellant
Versus
State OF A.P. - Respondent
W. P. 9457/86. etc.
Decided On : 09-05-86
Advocates Appeared :
M/s. P. Ramachandra Reddy, K. Sreenivasamurthy,K. Subrahmanya Reddy, K. Ramakrishna Reddy
Held: The Muralidhara Rao Commission did exceed its scope of enquiry in so far as it recommended the raising of the extent of reservation in favour of Backward Classes and in recommending the inclusion of 9 more communities. But this circumstance by itself does not affect the validity of the action taken by the Government on that basis. viz, the issuance of the
impugned G.Os.
2. The provision regarding the laying of the Commission , report before the Legislature within six months contained in sub-Section (4) of Section 3 of the Commissions of inquiry Act. 1952, is directory but not mandatory; hence the non compliance with the said provision does not make the M. R. Commission Report Inadmissible or invalid. In any event the Report can be used as relevant material by the Government for making a special provision under Article 15 (4) and Article 16 (4) of the Constitution. Appointment of a Commission, whether under Article 340 of the Constitution or under the provisions of the Commissions of Enquiry Act. 1952 is not a condition precedent for making a special provision under Art. 15 (4) and for Art.16(4). The executive power of the State extends to appointing such a Commission even otherwise than under the Commissions of Enquiry Act, 1952.
3. The appointment of Commission under Article 340 of the Constitution by the President of India is no bar for the appointment of a Commission by the State, whether under the provisions of the Commissions of Enquiry Act,
1 952 or otherwise .
4. The determination of the population of Backward Classes vis-a-vis the total population of the State at 52% by the M. R. Commission is arbitrary and is vitiated by the several errors pointed out hereinbefore. In as much as the raising of the extent of reservation by the Government in Clauses 13 to 15 of G.O.Ms. No. 166 dated 15-7-1986 is based exclusively upon the said recommendation, the said clauses in so far is they raise the extant of reservation in favour of Backward Classes from 25% to 44% are arbitrary and unreasonable, and must be held to be violative of Articles 15 and 16 of the Constitution.
5. While it Is not strictly within the province of this Court to determine the percentage of the population of Backward Classes in this State, we are inclined to say, on the basis of the material placed before us by the State and the parties appearing before us that the population figures of B.Cs. ranges between 33.5% and 37.61%. The mean figure is 35.5% which is also the population of B.Cs. estimated by us with reference to the 1981 census. It is open to the Government to undertake the determination of the population of B. Cs. and fix the extent of reservation in their favour being in mind the population figures and the basis indicated by us.
6. In view of the decisions of the Supreme Court referred to in our judgment. the total reservations under Art.15(4) of Art.16 (4), as the case may be cannot as a general rule, exceed 50% subject to marginal adjustments if the exigencies so require. Situation may, however, be different where the carry-forward rule is applied.
7. Though it appears that the proposed Tirupathi Conference of an he B.Cs. associations was the main factor which led the Government to issue the impugned G.Os., it cannot be said that on that account the impugned action is vitiated by mala fides. All that can be said is that in the anxiety to pre-empt Tirupathi Conference of B.Cs. the Government acted In seemingly undue haste to issue the impugned G.O.Ms.No.166 without taking note of various objections to the M.R. Commission report already on record and without devoting as full a consideration as, the matter deserved.
8. The application of means test and excluding persons/families above a prescribed limit is riot only permissible in law but is a desirable step.
9. However, the income limit prescribed in Clause 18 of G.O.Ms.No. 166 is unreasonably low and must, accordingly, be held to be arbitrary. Moreover the Clause 18 is integrally connected with Clauses 13 to 15 of the said G.O. and must fail along with the said clauses.
10. The provision contained in Clause 17 of G.O.Ms.No.166 is bad in so far as it prohibits totally the interchangeability among the several groups in B.Cs. The unfilled vacancies in respect of each group in the third year should ensure, for the benefit of other groups of B.Cs. and should be filled accordingly.
11. It is not necessary in these writ petitions, to go into the validity of the provision made in Cl. 19 of G.O.Ms.No.166 regarding reservation in respect of promotion in services.
12. The impugned G.Os cannot be held to be bad on account of non-inclusion of Muslims as such, or any of the groups among Muslims in B.Cs. Similarly, it is not possible for this Court to give any direction to include women, nor is it possible to direct that the Scheduled Caste converts to Christianity should be removed from Backward Classes and placed among the Scs.
13. Caste cannot be the only basis for ascertaining or identifying the back ward classes for purposes of Articles 15 (4) and 16 (4); such a course would be directly hit by Cl.(1) of Art.15 and clause (1) and (2) of Art.16. If the goal be a casteless society, delineation on the basis of castes as such is bound to prove counter-productive.
14. There are several castes or caste groups in India which as a whole are socially and educationally backward. In such a case, the caste as such can be treated as a backward class, not because it is a caste, but because it is only another name or a convenient designation for denoting a backward class.
15. The backwardness which is relevant for purposes of Art. 15 (4) Can also be treated as relevant under Art.16 (4), though the adequacy of representation in State services is the main factor to be kept in mind while making a provision under Art.16 (4).
16. The backwardness that is relevant under the said clauses is both social and educational backwardness of a group of persons. Poverty alone cannot be made the basis, though poverty and social and educational back-wardness are inter-linked and are mutually contributory.
17. For designating a group of persons as backward. It is not strictly necessary that it should be comparable in backwardness to SCs. and Scheduled Tribes. The test of comparability is only a guideline and is not meant to be adhered to the exclusion of all other tests.
18. The ultimate objective designating certain groups of backward classes is to give effect to the principle of equality of opportunity and status enshrined in the Preamble to and in Arts.15 to 16 of the Constitution. As and when a group becomes fairly advanced comparable with the other advanced, Sections of the society, it has to be removed from the category of back-ward classes, which is not only in the interests of general public but also in the interest of that particular group. Competition alone sharpens the Intellect, ability and enterprise.
W.Ps. Partly allowed.
( 1 ) EVER since 1963 when the Supreme Court rendered the decision in what has come to be popularly known as "balaji s Case" AIR 1963 SC 649 which is referred to as the locus Classicus of learning on Backward Classes, volumes have been written on the question of reservation in educational institutions and services in favour of Backward Classes. High learning has flown into the views expressed by the Supreme Court in a number of judgements rendered subsequently on the subject. Even so, the problems arising in this regard still defy solution. It is unfortunate that developments over a quarter of a century have not given a quietus to this problem. It is well to refer to the following observations of Venkataramiah J. , in K. C. Vasanthkumar v. State of Karnataka AIR 1985 SC 1495 at P. 1532 (Para 91 ). "the questions involved in these cases are delicate ones and have, therefore, to be tackled with great caution. The issues raised here and the decision rendered on them are bound to have a great impact on society. They are indeed highly sensitive issues. A superficial approach to the problem has, therefore, to be avoided. The question s have to be tackled with sympathy for persons who are really in need of the benign assistance at the hands of the State and with due regard to the interests of the general public. "the aforesaid observations are applicable wholly in respect of matters arising for consideration in this group of cases. The length of this judgement needs no apology, as we were caught by the myriad of detail and the length of arguments advanced by a battery of Lawyers, Politicians and Members of public, who appeared in person. We are indeed obliged to refer to the arguments of each one of them and make an honest endeavor, in our own way, to unravel, to the extent possible, the situation following the issue by the Government of Andhra Pradesh the three G. Os. bearing Nos. 166, 167 and 168 dated 15-7-86 which are the subject matter of attack in all these writ petitions. Part-I Factual Matrix : prior to the formation of Andhra Pradesh both in the Andhra and Telangana Areas, two lists of backward Classes were being maintained, in whose favour were reserved certain posts in Government services, besides the grant of scholarships and other concessions to students. The list in force in Andhra area contained 86 communities, while the list in Telangana area contained 60 communities.
( 2 ) IN January 1953 the President of India appointed a Backward Classes Commission under Art. 340 of the Constitution known as "kalelkar Commission", to determine the criteria to be adopted for treating any Section of people other than Scheduled Castes and Schedules-Tribes as socially and educationally backward-Classes. The report submitted by this Commission was, however, found to be defective and vague in several respects. One of the difficult questions upon which the Government of India could not make up its mind was whether, and when to treat a caste as a class for the purpose of Arts. 15 (4) and 16 (4) of the Constitution. In May 1961 the Central Cabinet decided that one national list of Backward Classes should be drawn up: The States were asked to prepare their own lists; at the same time the Central Government expressed its view that "in the view of the Government of India it was better to apply economic tests than to go by castes".
( 3 ) THE Government of Andhra Pradesh specified 139 castes as socially and educationally backward in G. O. No. 1886 dated 21-6-1963. This list was prepared for the purpose of selecting candidates to seats reserved for backward communities in Medical Colleges in the State; 25% of seats were reserved for them. The validity of this list was challenged in a writ Petition, and the same was quashed by a learned single Judge of this Court, in Sukhdev v. Govt. of Andhra Pradesh, 1966 1 AWR 294. The main basis of the decision was that the enumeration of Backward Classes has been made almost exclusively an th
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