Back
High Court Of Calcutta
K.J. Sengupta, Kanchan Chakraborty, JJ.
V. D. Sivabalan - Appellant
Versus
Union Of India - Respondent
W.P. No. 742 of 2010
Decided On : May 19,2011
CONSTITUTIONAL LAW - RESERVATION POLICY - OBC - ANDAMAN AND NICOBAR ISLANDS - VALIDITY OF REPORT AND RECOMMENDATION OF COMMISSION - CRITERIA FOR IDENTIFICATION OF BACKWARD CLASSES - PERCENTAGE OF RESERVATION - CONSTITUTIONALITY OF ACCEPTANCE OF REPORT BY GOVERNMENT.
Fact of the Case:
Petitioners challenged the report submitted by the Andaman and Nicobar Other Backward Classes Commission and the subsequent decision of the Commission whereby a further reservation of 11% was made in excess of 27% in violation of the Supreme Court's order in R.K. Sabharwal vs. State of Punjab. They sought a proper survey of the entire islanders and direction to conduct a proper survey of the entire islanders defined in Order No. 4247 dated 8th December, 2004.
Finding of the Court:
1. The Commission was constituted in accordance with the direction of the Supreme Court and under the provision of the Constitution. 2. The Commission did not adopt any pick and choose policy while identifying five groups of OBC categories. 3. The criteria adopted by the Commission for identification of backward classes were reasonable and proper. 4. The percentage of reservation fixed by the Commission at 38% was reasonable and not contrary to the Supreme Court's judgment in R.K. Sabharwal vs. State of Punjab. 5. The acceptance of the report by the Government was in accordance with the provision of the Constitution.
Issues: 1. Whether the Commission was constituted in accordance with the direction of the Supreme Court and under the provision of the Constitution? 2. Whether the Commission adopted any pick and choose policy while identifying five groups of OBC categories? 3. Whether the criteria adopted by the Commission for identification of backward classes were reasonable and proper? 4. Whether the percentage of reservation fixed by the Commission at 38% was reasonable and not contrary to the Supreme Court's judgment in R.K. Sabharwal vs. State of Punjab? 5. Whether the acceptance of the report by the Government was in accordance with the provision of the Constitution?
Ratio Decidendi: 1. The Supreme Court had occasion to examine all the aspects of the policy and the method of providing reservation policy for the various classes viz. Scheduled Castes and Scheduled Tribes and Other Backward Classes. We cannot decide subsequently the same issue which the Hon'ble Supreme Court has decided. 2. The Commission has recorded reasons for non-inclusion of these applicants. The Commission has identified the following groups being OBCs: (i) Pre-1942 Settlers. (ii) Post-1942 Settlers and the descendants of both the groups. (iii) Moplahs. (iv) Carens. (v) Bhatus. 3. The Commission has recorded the criteria and/or basis of identification of the backward classes/The Commission found that these criteria are economic condition of the community, occupation, income factor, educational standard, the counter-part of a community in the main land in the list of Scheduled Castes, Scheduled Tribes and OBC. 4. We do not find any maximum percentage has been fixed by the Supreme Court. In paragraph 8 the Supreme Court only observed amongst others that the ...." Portion of a roster or filling the cadre strength, by itself ensures the reservation remains within the 50 per cent limit." Thus we can gather the Supreme Court has said that the reservation must not exceed 50 per cent. In this case the Commission has not exceeded the aforesaid percentage. 5. We are of the view this point has no substance at all for the simple reason it is the direction of the Supreme Court to appoint amongst other Andaman and Nicobar Islands' Administration to constitute a Committee for the purpose as above. Once such Committee submits report unless it is patently bound or devoid of any materials, the Government has no option but to implement the same.
Final Decision: The writ petition was disposed of with liberty to the petitioner to make a comprehensive representation with the materials warranting revision of earlier decision of the Commission to the Chairperson of the Commission. The Chairperson of the Commission was requested to examine the same and if required, ask the Andaman and Nicobar Islands' Administration to arrange for sitting of the Commission for review and revision of the earlier, reservation to examine the aspect of inclusion, non-inclusion and over-inclusion of any particular category or class or community.
Kalyan Jyoti Sengupta, J.
1. THE petitioners above named filed this Public Interest Litigation challenging the report submitted by Andaman and Nicobar Other Backward Classes also the subsequent decision dated 16th June, 2003 of the said Commission whereby a further reservation of 11% was made in excess of 27% in violation of the solemn order passed by the Hon'ble Apex Court in the case of R.K. Sabharwal vs. State of Punjab, letter issued by the Secretary (TW), A 85 N Administration vide No.8-3/2003-TW/1310 dated 18th July, 2005, letter N0.12011/13/2004-BCC dated 12th September, 2005 issued by the Under Secretary to the Government of India of Social Justice and Empowerment; Notification dated 16th December, 2005 by the Special Secretary (TW), A and N Administration notifying five categories. Further direction has been sought for to conduct proper survey of the entire islanders defined in Order No. 4247 dated 8th December, 2004.
2. THE petitioners are claiming to be the permanent inhabitants of these islands and they owe their origin to their ancestors who said to have come to these islands three or four generations back. As such, they are permanent settlers. Their families have been contributing for the socio-economic development of these islands. Similarly other categories of the people had also come to these islands and settled and those classes of settlers are serving the Municipal Council, Panchayats as dhobis, barbers mochis (cobbler), fishermen, agricultural labourers etc. These two petitioners are not only ventilating their grievance of their own but also grievances of those persons who are rather similarly circumstanced with that of the petitioners who have been identified by A and N Administration as permanent inhabitants of these islands. As such, they have their locus standi to file this application.
In order to get relief the grounds for challenge of the said report of the Commission and the order of acceptance of the said report and follow up decisions as stated above amongst others are as follows: The Commission has failed to identify, really Backward Classes, hence job reservation based thereon is bad in law as the same is not done in terms of the judgement of the Hon'ble Apex Court in the case of Indra Sawhney more particularly the direction given in paragraphs 648, 675 and 700 of the said judgement. The said Commission failed to consider the cases of other eligible categories which will be classified as permanent inhabitants of these Islands and also they are socially, economically and educationally backward. On the other hand, the said Committee recommended the cases of the alleged five categories who are not OBC in real sense, and thereby there has been deprivation of large number of people who are the real beneficiaries of the OBC scheme. The Committee while choosing those categories of persons, had failed to consider that they having got job in various departments are no longer backward in any sense. They have now become creamy layer of this class. The decision of reservation of 38% of those categories is absolutely contrary to the judgment and order of the Hon'ble Supreme Court in R.K. Sabharwal case which has been directed that reservation in any manner should not exceed 27% of the post.
3. THE constitution of this Commission has not been done in accordance with the provisions of the Constitution, for such Commission has to be constituted under Article 340 of the Constitution of India.
4. THE respondent Nos.5,6,7,8 and 9 have filed affidavit opposing this application affirmed by one M.R. Trivedi. In the affidavit it has been stated that in compliance with the direction contained in the judgement dated 16th November, 1992 of the Hon'ble Supreme Court of India in the Writ Petition (Civil) No.930 of 1990 (Indira Sawhney and Ors. vs. Union of India and Ors.) and in exercise of the powers conferred by Article 239 read with Article 16(4) of the Constitution of India a permanent body known as A and N Comm
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
