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2009 Supreme(Mad) 2830

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO
& THE HONOURABLE MR. JUSTICE T.S. SIVAGNANAM
J. Loganathan
Versus
Union of India rep.by its Secretary to Government & Others
Writ Petition No.43632 of 2006
Decided on: 31-07-2009

Advocates Appeared:
For the Petitioner:Karthick, Advocate.
For the Respondents:R1, R3, R4, C.V. Ramachandramoorthy, R.2, K. Sridhar, Advocates.

Ratios:
a. Orders issued by the Governmental authorities are only prospective, unless it specifically provides for retrospective operation.
b. Notification issued to clarify another notification would be retrospective.
c. On the ground of possibility of floodgate of litigations, the valuable right of a citizen cannot be permitted to be taken away.


Headnote:(A)Constitution of India-Art.14, 15, 16-Interpretation of statutes-Reservation-Other backward classes-Mistake-Clarification-Clarificatory statutes/notifications-Prospective or retrospective-Petitioner belong to ’Kannadiyar’ community and participated in the civil service examination-He was not selected in OBC category on the ground that ’Kannadiyar’ community was available only in three districts of Tamil Nadu, the petitioner belonged to Cudalore district which was not notified and so he could not claim the benefit of reservation-On the representation of the petitioner the Tamil Nadu Government clarified the matter and stated that the community was available throughout the State based upon which the Government of India also issued clarificatory notification-But, the petitioner was not given the benefit by holding that the clarification was prospective and if it was given retrospective effect, it would open floodgate of claims-When the Administrative Tribunal rejected the claim of the petitioner, he challenged the order by filing writ petition-Held, clarificatory notification would be retrospective in nature-Petitioner suffered only because of the mistake of the State-Respondents were directed to treat him as OBC and allot him suitable cadre with retrospective effect from the year 2001, if necessary, by creating supernumery post-Writ petition was allowed.

        (B)Interpretation of statutes-Notification-Mistake-Clarification-Clarificatory statutes/ notifications-Prospective or retrospective- Orders issued by the Governmental authorities are only prospective, unless it specifically provides for retrospective operation-Notification issued to clarify another notification would be retrospective.

        True, the orders issued by the Governmental authorities are only prospective, unless specifically it provides for retrospective operation. But, one thing must be made clear, an extraordinary situation like the one in hand, will call for an extraordinary remedy and Courts are not handcuffed or prevented in any manner from dealing with such situations in an appropriate manner, particularly to cure the illegality perpetrated on a citizen and there was complete inaction on the part of the Executive. Para 21

        Further more, the Resolution passed by the fourth respondent dated 13.1.2004 is in the nature of clarification to the Resolution published by them earlier in No.12011/68/93 BCC (C), dated 10.9.1993, in which event, it will have the effect of retrospective operation. Para 22

        (C)Constitution of India-Art.14-Right-Violation-Litigation-Denial of relief- On the ground of possibility of floodgate of litigations, the valuable right of a citizen cannot be permitted to be taken away.

        Only because there is possibility of floodgate litigation, a valuable right of a citizen cannot be permitted to be taken away. This proposition laid down by the Honourable Apex Court would be a straight answer to the desperate argument advanced on the part of the respondents. Para 25

Judgment :

Elipe Dharma Rao, J.

This case would narrate as to how the slumberous attitude exhibited on the part of the Governmental authorities, in rectifying the mistakes committed by them, would dig a deep pit in the career of an individual and spoil his prospects and opportunities.

2. The facts, shedding out the unnecessary details, required for the disposal of this matter are that the petitioner, belonging to Kannadiyar community, declared as OBC in the State of Tamil Nadu, had applied for the Civil Services Examination held by the 2nd respondent during 2001, but the claim of the petitioner that he belong to OBC was not accepted by the Government of India, on the ground that as per the notification issued by the Union Government, the community Kannadiyar was declared as OBC only in three districts of Tamil Nadu viz. Coimbatore, Periyar and Nilgiris and inasmuch a the petitioner belonged to the Cuddalore District, he was not considered to be belonging to OBC.

3. The petitioner would submit that on the recommendation of the Tamil Nadu State Backward Classes Commission, the State of Tamil Nadu has enumerated the lists of castes which are considered to be backward classes; that the Kannada Sainegar and Kannadiyar are considered to be Backward Class communities throughout the State of Tamil Nadu, whereas the Dasanalanjika community is considered as Backward Class only in three Districts; that in G.O.Ms.No.437, Social Welfare Department, dated 15. 1972 issued by the State of Tamil Nadu, the Kannada Saineegar and Kannadiyar communities were declared as Backward Classes throughout the State and without any area restriction; that subsequently, by G.O.Ms.No.72, Social Welfare Department, dated 2. 1980, the list was amended by including a new caste in Sl.No.38 as Dasapalangika; that though an area restriction was intended for the Dasapalangika community as applicable only to Coimbatore, Erode and Nilgiris Districts, by mistake the area restriction was included for all the three communities covered by Sl.No.38, which reads as follows:

"Kannada Saineegar, Kannadiyar and Dasapalangika (Coimbatore, Erode and Nilgiris)"

4. It has been further stated by the petitioner that subsequently, this mistake was noticed and corrected in G.O.Ms.No.1962, Social Welfare Department, dated 8. 1984 and Sl.No.38 was modified as follows:

"Kannada Saineegar, Kannadiyar (throughout the State) and Dasapalangika (Coimbatore, Periyar and Nilgiris Districts)"

Thereafter, a fresh list was prepared in G.O.Ms.No.824, Social Welfare Department, dated 25. 1987 by including some more communities and the petitioners community was changed from Sl.No.38 to Sl.No.71 and it reads as follows:

"Kannada Saineegar, Kannadiyar (throughout the State) and Dasapalangika (Coimbatore, Erode and Nilgiris Districts)."

.5. It has been further submitted by the petitioner that after the judgment of the Honourable Supreme Court in Indra Sawhaneys case [Indra Sawney Vs. Union of India, 1992 Supp. (3) SCC 217], the fourth respondent herein prepared a list of backward classes for reservation of 27% vacancies in civil posts and services under the Government of India; that the enumeration of the backward classes in respect of various States was made on the basis of the recommendation made by the third respondent and this recommendation was based on the enumeration done by various Backward Classes Commissions of the States, however, when the third respondent made a recommendation to the fourth respondent, by error, it relied upon the earlier enumeration included in G.O.Ms.No.72 Social Welfare Department dated 2. 1980 of the State of Tamil Nadu, even though the same had been corrected and rectified in the two latter orders dated 8. 1984 and 25. 1987.

6. It has been further submitted that on the basis of the recommendation of the third respondent, the fourth respondent has issued a Resolution No.12011/68/93-BCC(C), dated 9. 1993, which has enumerated various backward classes, who are eligibl

































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