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Andhra Pradesh High Court
Judges : A.GOPAL RAO, BASI REDDI
Desu Rayudu - Appellant
Versus
A.P. Public Service Commission, Hyderabad - Respondent
Decided On : 03-08-65
CONSTITUTIONAL LAW - ARTS. 15 (4) AND 16 (4) - BACKWARD CLASSES - CRITERIA FOR DETERMINING - CASTE ALONE CANNOT BE THE BASIS - ECONOMIC CONSIDERATION CAN BE THE BASIS FOR EXTENDING FACILITIES UNDER ART. 15 (4) - LISTS OF BACKWARD CLASSES PREPARED ON THE BASIS OF CASTE ARE BAD - STATE GOVERNMENT JUSTIFIED IN CANCELLING THEM - GOVERNOR COMPETENT TO ISSUE G. O. 913 - MEMORANDUM ON THE REPORT OF THE BACKWARD CLASSES COMMISSION NOT BINDING ON THE STATES - REVERSION OF APPELLANTS DOES NOT VIOLATE ART. 311 - MANDAMUS CANNOT BE ISSUED TO COMPEL THE STATE GOVERNMENT TO CONTINUE THE LISTS OR TO PREPARE ANY LIST.
Fact of the Case:
The petitioners challenged the validity of G. O. 301 dated 3-2-1964 under which the backward classes list is cancelled and the concessions granted to the members of backward classes in regard to the educational facilities are withdrawn. They also challenged the validity of G. O. 913 dated 11-8-1964 by which the rules were amended, which withdraws the facilities given to the backward classes under Art. 16 (4).
Finding of the Court:
1. Caste alone cannot be the basis for determining the backward classes. 2. Economic consideration can be the basis for extending facilities under Art. 15 (4). 3. Lists of backward classes prepared on the basis of caste are bad. 4. State Government justified in cancelling them. 5. Governor competent to issue G. O. 913. 6. Memorandum on the report of the Backward Classes Commission not binding on the States. 7. Reversion of appellants does not violate Art. 311. 8. Mandamus cannot be issued to compel the State Government to continue the lists or to prepare any list.
Issues: 1. Whether caste alone can be the basis for determining the backward classes? 2. Whether economic consideration can be the basis for extending facilities under Art. 15 (4)? 3. Whether lists of backward classes prepared on the basis of caste are bad? 4. Whether State Government justified in cancelling them? 5. Whether Governor competent to issue G. O. 913? 6. Whether Memorandum on the report of the Backward Classes Commission binding on the States? 7. Whether reversion of appellants violates Art. 311? 8. Whether Mandamus can be issued to compel the State Government to continue the lists or to prepare any list?
Ratio Decidendi: 1. Caste is not the sole or dominant basis for determining the backward classes. The term backward classes is not confined to Hindu backward classes, nor does it mean the castes amongst Hindus only. Determination of backward classes on the basis of castes would therefore bent only derogatory to Arts. 15 and 16 but would also go quite contrary to the avowed principles enunciated in the Constituted as discussed above. 2. Economic consideration can be the basis for determining any assistance to be given under Art. 15 (4 ). The economic basis therefore not only removes the above said defects, but puts the assistance on equitable and socially just basis, and extends a helping hand to all those who really deserve such assistance for their advancement in education. 3. The lists of backward classes prepared on the basis of castes are bad. The Supreme Court has found the lists of backward classes prepared on the basis of castes bad under Art. 15 (4), holds equally good for the purposes of Art. 16 (4 ). 4. The State Government was justified in cancelling the lists of backward classes even for the purposes of Art. 16 (4) and although for the time being assistance for other backward classes is not given, the Committee appointed by the State Government will be in a position to determine, keeping in view the purpose of Art. 16 (4) in the light of other provisions of the Constitution, the criteria of backwardness. 5. The Governor has the power to promulgate Ordinances under Art. 123, to suspend the provisions of Arts. 268 to 279 during an emergency, to declare failure of the Constitutional machinery in States under Art. 356, to declare a financial emergency under Art. 360, to make rules regulating the recruitment and conditions of services of persons appointed to posts and services in connection with the affairs of the Union under Article 309 - to enumerate a few out of the various powers - are not powers of the Union Government; these are powers vested in the President by the Constitution and are incapable of being delegated or entrusted to any other body or authority under Art. 258 (1 ). 6. The Memorandum on the report of the Backward Classes Commission is not binding on the States. The President can only appoint a Commission and to present the report together with the explanation as to the action taken there on before each House of Parliament. Nowhere does it provide that the President can issue any instructions to the States which will have a binding force. 7. The reversion of the appellants does not violate Art. 311 of the Constitution. The promotion was given on a temporary basis Admittedly they were not made permanent. It is now a firmly settled rule of law that reversion by way of punishment alone would be attracted by Art. 311 when their promotion itself was bad because it as based on a list which was void, their reversion to the original posts because of the cancellation of the list cannot be said to have effected by way of punishment. 8. Mandamus cannot be issued to compel the State Government to continue the lists or to prepare any list. Art. 15 (4) and Art. 16 are not mandatory, but are merely enabling provisions. The State Government, therefore, may or may not make any rule or issue any executive direction for the purposes of reserving some posts for or extending other concessions to backward classes.
Final Decision: Writ Appeal and Writ Petition dismissed.
( 1 ) THIS writ appeal and the writ petition involve a common question as to the interpretation of Art. 16 (4) and Art. 15 (4) of the Constitution of India. They can therefore be conveniently disposed of under one common judgment.
( 2 ) THE writ appeal is from the order of our learned brother, Gopalakrishnan Nair J. , given on 26-11-1964 by which he dismissed the writ petition in limine
( 3 ) THE writ petition 1475/64 is filed under Art. 226 of the Constitution for the issue of a writ of certiorari for bringing up the record relating to the Government of India communications Nos. 15/5/61-SCT-IV dated 14-8-1961 and F. 5-3-63-SCH-IV dated 5/4/1963 and to quash the same and to issue a direction to the respondent to continue the list of backward classes which was in vogue up to the year 1959-60.
( 4 ) THE material facts in regard to the writ appeal are that the two petitioner filed an application for the issue of a writ of Mandamus for declaring the notification issued by the Andhra Pradesh Public Service Commission dated 29-10-1964 inviting applications for competitive examinations for direct recruitment to posts in Group I service as ultra virus, and to issue a consequential direction directing the respondents to forbear from conducting the competitive examinations for recruitment,. It was alleged inter alia that both the petitioners belong to the members of the backward classes as their castes approved in the list of backward classes which was in vogue till 1-4-1964, that the 2nd respondent cancelled the backward classes list and amended the rules in order to withdraw the privileges till then extended to the various castes included in the backward classes list It was claimed that the petitioners could have appeared for the examinations if the lists and the concessions granted to the backward classes were in vogue but because of G. O. ms. 913 dated 11-8-1964 by which the rules were amended, the petitioners have been deprived of their rights. Their contention is that the said G. O. is ultra virus and the Public Service Commission therefore could not have issued the Notification without recognizing the rights of the petitioners to appear for the said examinations as their age is well within the concessions given prior to the said G. O.
( 5 ) IN the Writ Petition 1475/64 the validity of G. O. 301 dated 3-2-1964 under which the backward classes list is cancelled and the concessions granted to the members of backward classes in regard to the educational facilities are withdrawn is questioned.
( 6 ) MR. P. A. Chowdhary, the learned Counsel for the petitioners contended that both for the purposes of Art. 16 (4) and Art. 15 (4) of the Constitution the criteria for determining the backward classes can be only the caste as the term backward classes is confined to the Hindu castes which are backward socially and educationally. His contention is that the words socially and educationally as well as Scheduled-castes and Scheduled Tribes appearing in Art. 15 (4) are absent in Art. 16 (4 ). His submission therefore is that the meaning given to the term backward classes will differ in so far as these two articles are concerned. His further contention is that when Scheduled castes consist mainly of several castes compendiously called as Scheduled castes and they are given the benefits of Art. 15 (4), and Art. 16 (4) the list of backward classes can also be compiled on the exclusive basis of castes and those communities also can be extended the same benefits. He contended that the State Government in cancelling the list of backward classes even for the purposes of Art. 16 (4) committed an error as they did not understand the implications of the Supreme Court decision in regard to Art. 15 (4 ). In his submission, that decision does not apply to a case falling under Art. 16 (4 ). He also contended that the Governor was not competent to issue the impugned G. O. and questioned the action of the Government in withdrawing the concessions in vi
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