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TMI Blog2007 (2) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... stered under Section 25 thereof. The objects of the Society are said to be : (i) to remove the difference prevailing from places to places amongst Nairs in their social customs and usages as well as the unhealthy practices prevalent among them; (ii) to participate in the efforts of other communities for the betterment of their lot and to maintain and foster communal amity; (iii) to work for the uplift of the depressed classes; (iv) to start and maintain such institutions as are found necessary to promote the objects of the society. It is not in dispute that it had filed a writ petition before the Kerala High Court questioning the validity of the report commonly known as Mandal Commission Report. The writ petition was later on transferred to this Court. It also took part in the proceedings before Narendran Commission. Mandal Commission Report was accepted by Union of India. A writ petition was filed before this Court, questioning the said action on the part of the Union of India by one Indra Sawhney. This Court, in its judgment in Indra Sawhney Ors. vs. Union of India Ors. [1992 Supp. (3) SCC 217] (hereinafter referred to as Indra Sawhney-I ), inter alia, dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in (1995) 5 SCC 429, observed : We are, therefore, of the opinion that this is a case for taking action in contempt. We hold the respondent guilty of contempt. However, in order to give the respondent an opportunity to purge the contempt before we pass the sentence, we adjourn the matter by two months to enable the State Government to report compliance before 11-9- 1995, failing which this Court will proceed to pass appropriate orders in respect of the contempt. The Chief Secretary will remain present at the next date of hearing i.e. on 11-9-1995 to inform this Court whether or not the order has been complied with. If not, he runs the risk of being sentenced. Let the IAs Nos. 35 and 36 come up on 11-9-1995. The legislature of the State of Kerala thereafter enacted the Kerala State Backward Classes (Reservation of Appointments or Posts in the Services Under the State) Act, 1995 ( the State Act ), in terms whereof it was declared that there was no socially advanced section in the State. Section 4 of the State Act contemplates that nothing contained in the law or in any judgment, decree or order of any Court or any other authority, the reservation, which had been in operati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nefits of reservation in accordance with the observations in the judgment of the Supreme Court or what criteria should be adopted to provide maximum protection to those belonging to such communities in accordance with the above mentioned judgment. (b) Whether there is any class which may be excluded from the creamy layer on the basis of hereditary occupation or otherwise. (c) (i) Whether there should be different criteria regarding income/property for different categories coming within the creamy layer. (ii) If so, what should be the ceiling for such income/property. (iia) While calculating the income, whether it is necessary to exclude income from any particular source or sources. (iii) While making its recommendations, the Commission will take into account the existing socio-economic conditions and the special features of the Other Backward Classes in the State. (iv) The Commission should submit its report to Government within one month. (v) The Officer of the Commission will be at Thiruvananthapuram and its Headquarters at Ernakulam. (vi) The Commission will have the salary, allowances and other perquisites as admissible to a sitting Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16(4) of the Constitution of India. Our attention has been drawn to the notification dated 12.6.2000 wherein guidelines were issued, which, inter alia, are on the following terms: 7. The rule of exclusion made mention in the schedule attached to these guidelines will not apply to persons working as artisans or engaged in hereditary occupations, calling and included in Annexure B appended herewith and person/group of persons coming within the definition of the expression Fishermen Community in Annexure C appended to these guidelines. It was submitted that such guidelines have been issued by the Central Government as would appear from the office memorandum issued by the Government of India, as was noticed in Ashoka Kumar Thakur vs. State of Bihar Ors. [(1995) 5 SCC 403] which is on the same terms. Our attention was further drawn to Annexure B to the said guidelines wherein seven categories of hereditary occupations/calling, which had been excluded from the category of creamy layer , have been identified. It was urged that it would not be correct to contend that even where the persons concerned have left their hereditary occupation, still they would be entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the year 2004 the Central Government opined that the income limit should be fixed at ₹ 2.5 lakhs. The Commission received a vast majority of representations, including one from the petitioner-Society. The purport and object of the said report sought for is stated in paragraph 10.4 thereof. According to the Commission, the only question was as to what criteria should be adopted for identifying the creamy layer . It criticized the Joseph Committee Report in paragraph 11.3 of its Report observing that the former did not assign any reason nor was there any justification for making the provision stricter in the matter of exclusion from creamy layer of backward classes. It also advocated the change of age from 40 to 35. Although, it noticed that a few representations have been submitted by the forward classes, the same have not been dealt with at all. While identifying the backward classes in several categories, i.e. category Nos. I, II, III, V and VA, the exclusion was recorded only on the basis of status and not on the basis of annual income. However, in addition to category No.VI it was stated that in calculating the annual income, the salary income or income from agric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in the aforementioned context the correctness of the report of the Narendran Commission is required to be considered. At the outset, we may mention that it is not possible for us to dismiss the writ petition summarily on the ground of lack of locus standi on the part of the petitioners. 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. It is not in dispute that the Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its which distinguish them from the others. In a backward class under clause (4) of Article 16, if the connecting link is the social backwardness, it should broadly be the same in a given class. If some of the members are far too advanced socially (which in the context, necessarily means economically and, may also mean educationally) the connecting thread between them and the remaining class snaps. They would be misfits in the class. After excluding them alone, would the class be a compact class... The observations aforementioned are not to be read in isolation. For the purpose of construing a judgment, it is well-known that the same must be read in its entirety. The validity of the terms of reference of the Narendran Commission and the report submitted by it would, thus, fall for our consideration not only on the anvil of the aforementioned observations of this Court but also on reading the judgment in its entirety as also the criteria laid down in the subsequent judgments. The judgment of this Court in Indra Sawhney-I clearly lays down that what is necessary is identification of a class which had never been backward or ceased to be backward during the passage of time, but it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court that for the purpose of identifying backwardness, a further inquiry can be made by appointing a commission as to who amongst the members of the Scheduled Castes is more backward. If benefits of reservation are not percolating to them equitably, measures should be taken to see that they are given such adequate or additional training so as to enable them to compete with the others but the same would not mean that in the process of rationalising the reservation to the Scheduled Castes the constitutional mandate of Articles 14, 15 and 16 could be violated. Therein, noticing Indra Sawhney-I, it was observed: Jeevan Reddy, J. incidentally who wrote the majority judgment in Indra Sawhney made a reference to his judgment in V. Narayana Rao v. State of A.P wherein the learned Judge opined: (AIR pp.95-96, para 94) 94. ... Article 15(4) or Article 16(4) are not designed to achieve abolition of caste system much less to remove the meanness or other evils in the society. They are designed to provide opportunities in education, services and other fields to raise the educational, social and economic levels of those lagging behind, and once this is achieved, these articles mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson equality before law or equal protection of laws within the territory of India. The two expressions although do not lead to the same conclusion, we may notice that Section 1 of the XIV Amendment to the U.S. Constitution uses only the latter expression whereas the Irish Constitution (1937) and the West German Constitution (1949) use the expression equal before law alone. Both these expressions are used together in the Universal Declaration of Human Rights, 1948, Article 7 whereof says All are equal before the law and are entitled without any discrimination to equal protection of the law. The said expressions are of great significance. Equality before law is a dynamic concept having many facets. Despite Article 38 of the Constitution of India, the courts are bound to interpret a law which seeks to achieve the said purpose not only on the anvil of the Articles 14 and 16 but also having regard to the international law. We, however, do not mean to say that international law shall ipso facto be applied for interpretation of our domestic laws but then relevance thereof, we reiterate, in a grey area, cannot be lost sight of. It was, thus, imperative on the part of the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mit specified in Category VI will apply. Category VI: Income/Wealth test Sons and daughters of persons having gross annual income over ₹ 1 lakh or possessing wealth above the exemption limit as prescribed in the Wealth Tax Act. Categories I, II and III afore-mentioned are excluded on the basis of the status held by the persons concerned. Category IV is subject to the income limit specified in Category VI. We may, at this stage, however, state that we do not find any merit in the submission of Mr. Venugopal that bringing down the age limit from 40 to 35, vis-`-vis, the Office Memorandum issued by the Central Government fixing age limit as 40 is bad in law in view of the fact that age of superannuation of the employees in the State of Kerala is 55, as compared to the age of superannuation of the Central Government employee is 60. So far as the income/wealth test is concerned, the same has been considered in Indra Sawhney-II. We would refer to the findings of this Court a little later, but indisputably, it is of some importance. In the Joseph Committee report the actual increases in the Consumer Price Index ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (in July 1979) the State of Tamil Nadu did indeed prescribe such an income limit but had to delete it in view of the practical difficulties encountered and also in view of the representations received. In this behalf, the learned counsel invited our attention to Chapter 7-H (pages 60 to 62) of the Ambashankar Commission (Tamil Nadu Second Backward Classes Commission) Report. According to the respondents the argument of creamy layer is but a mere ruse, a trick, to deprive the backward classes of the benefit of reservations. It is submitted that no member of backward class has come forward with this plea and that it ill becomes the members of forward classes to raise this point. Referring to K.C. Vasanth Kumar vs. State of Karnataka [(1985) Supp. SCC 714], it was opined : In our opinion, it is not a question of permissibility or desirability of such test but one of proper and more appropriate identification of a class a backward class. The very concept of a class denotes a number of persons having certain common traits which distinguish them from the others. In a backward class under clause (4) of Article 16, if the connecting link is the social backwardness, it should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions, the occupants of which can be treated as socially advanced without any further enquiry. For example, if a member of a designated backward class becomes a member of IAS or IPS or any other All India Service, his status is society (social status) rises; he is no longer socially disadvantaged. His children get full opportunity to realise their potential. They are in no way handicapped in the race of life. His salary is also such that he is above want. It is but logical that in such a situation, his children are not given the benefit of reservation. For by giving them the benefit of reservation, other disadvantaged members of that backward class may be deprived of that benefit. It is then argued for the respondents that one swallow doesn t make the summer , and that merely because a few members of a caste or class become socially advanced, the class/caste as such does not cease to be backward. It is pointed out that clause (4) of Article 16 aims at group backwardness and not individual backwardness. While we agree that clause (4) aims at group backwardness, we feel that exclusion of such socially advanced members will make the class a truly backward class and would more appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State but evidently in relation to the backward classes, the same is applicable. Keeping in view the legal history, as also the directions made by this Court in a series of judgments referred to hereinbefore, it was obligatory on the part of the Narendran Commission to consider seriously that aspect of the matter. In any event the same could not have been ignored. 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. We, therefore, do not find any justification for fixing the income limit at ₹ 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ict 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Scheduled Castes and Scheduled Tribes for employment. The States have made Acts, rules or regulations for implementing the above constitutional guarantees and any recruitment to the service in the State or in the Union is governed by such Acts, rules and regulations. The Constitution does not envisage any employment outside this constitutional scheme and without following the requirements set down therein. It was furthermore held : 43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution Yet again it was stated : The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in tribunals and courts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be set aside. This Court reiterated the limit on state power imposed by the creamy layer rule and the invalidity of any state action in violation of the same by concluding as follows: We reiterate that the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse. However, in this case, as stated, the main issue concerns the extent of reservation . In this regard the concerned State will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SC/ST in matter of promotions. However if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest or public good, including enforcement of fundamental rights. The Court never hesitates to express its opinion on the interpretation of the Constitution despite political thicket. {See Anil Kumar Jha vs. Union of India Ors. reported in (2005) 3 SCC 150, Rameshwar Prasad (IV) Ors. vs. Union of India Anr. reported in (2005) 7 SCC 157, W.B. Freedom Fighters Organisation (supra) and Bombay Dyeing Mfg. Co. Ltd. vs. Bombay Environmental Action Group Ors. reported in 2006 (3) SCC 434].} This Court has repeatedly held that under Article 144, the state was bound to act strictly in terms of the decisions of this Court and even, it has reservation about some of its directions, it could approach this Court and could not have acted otherwise. However, the question, which arise for consideration is as to what relief could be granted by this Court. Nothing has been brought on record to show that the paragraph 2(1)(c) of G.O. dated 27th May, 2000 had been given a go-by. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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