High Court of Punjab and Haryana, Chandigarh
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Attar Singh Dhoor & Ors v. State of Punjab - CWP-15302-2005  RD-P&H 5564 (17 August 2006)
Date of Decision :- 25.7.2006.
Attar Singh Dhoor and others
State of Punjab
(2) C.W.P.No.5815 of 2006
Dr.Krishah Pal and others
State of Punjab and others
Coram:- HON'BLE THE ACTING CHIEF JUSTICE Mr. H.S. BEDI.
HON'BLE MR. JUSTICE RANJIT SINGH
Present:- Dr.M.S.Rahi and Mr.P.C.Suman, Advocates, for the petitioners.
Mr.A.S.Grewal, Additional Advocate General, Punjab.
Mr.Gurbachan Singh, Advocate
Mr.Vivek Sharma, Advocate.
Mr.Girish Agnihotri, Advocate.
This order will dispose of C.W.P.No.15302 of 2005 and C.W.P.No.5815 of 2006 as challenge in these petitions is to the same instructions issued by Govt. of Punjab.
Government of Punjab issued the instructions dated 5.5.1975 (Annexure P1) providing that 50% vacancies of quota reserved for the members of scheduled castes should be offered to Balmikis and Mazbi Sikhs if available as a first preference from amongst scheduled caste candidates. The petitioners in these two writ petitions claim that they belong to castes of Ramdasia and Ad Dharmi etc. and being scheduled caste were aggrieved against the reservation of 50% of the vacancies for two castes (i.e. Balmiki and Mazbi Sikhs) only from amongst the scheduled caste as contained in the impugned instructions dated 5.5.1975. It is claimed that the reservation in the instructions (Annexure P1) has been made without conducting any survey and was done simply on account of political consideration and pressure. It is further stated that there is no reason mentioned in making this reservation for two castes from amongst the scheduled caste. It has also been disclosed in the writ petitions that the said instructions were challenged before this Court in the year 1979 by one Kanwaljit Singh Sidhu and the case was referred to Full Bench after noticing a conflict between two judgments of Division Benchs of this Court.
The instructions under challenge in the present writ petitions were upheld by the Full Bench as constitutionally valid and this decision is reported as Kanwaljit Singh Sidhu P.C.S. (Executive) and others Vs. State of Punjab and others, 1980 (3) SLR 34. Decision in the case of Sadhu Singh in CWP No.2425 of 1976 dated 6.7.1976 holding that providing of quota for reservation within reservation was not permissible, was overruled. These instructions, as such, continued to operate ever since 1975. The challenge in the writ petitions now is on the ground that the instructions are in direct derogation to law laid down by the Hon'ble Supreme Court in a recent judgment of E.V.Chinnaiah Vs. State of Andhra Pradesh and others, AIR 2005 Supreme Court 162 =(2005 (1) S.C.C.394). It is claimed that by operation of the instructions, immense injustice has been done to the likes of the petitioners, who are from 35 castes as mentioned in the Presidential List (Annexure P2). It is also brought out that the respondent-State never reviewed its policy and continued to give preferential treatment reserving 50% vacancies for two castes only as noted above whereas remaining 50% vacancies were being offered to the remaining 35 castes. Case set up in the respective writ petition is that the Hon'ble Supreme Court in the case referred to above has now clearly ruled that such policy of reservation within reservation was unconstitutional. It is then disclosed that on the basis of this judgment, the petitioners had given representations to the State Government to stop 50% reservation of vacancies for Mazbi Sikhs and Balmikis, being contrary to the law laid down by the Hon'ble Supreme Court. As per the petitioners, the State was likely to fill up various posts in different departments by offering 50% of such posts to these two castes out of the scheduled caste on the basis of instructions (Annexure P1) and that said course would totally be unsustainable in view of the law now settled by the Hon'ble Supreme Court. When the Govt. of Punjab failed to attend the issues raised by the petitioners, the present writ petitions have been filed.
On 26.9.2005, this Court issued notice in the first writ petition.
On that day only, notice regarding stay was also issued. On 9.11.2005, this Court passed an interim order to the effect that any appointment made in terms of the impugned instructions shall be subject to the final out-come of this writ petition. On 22.2.2006, Additional Advocate General, Punjab appearing on behalf of the State submitted that the policy decision in terms of the Judgment of Supreme Court was likely to be taken within four weeks. The writ petition was, accordingly, adjourned to 6.4.2006. On that date, the case was adjourned to 24.5.2006 giving final opportunity to the State to take a final decision in the matter within 4 weeks. It was further directed by this Court that in case no decision was taken, then the Secretary, Department of Welfare of Scheduled Castes and Backward Classes will appear in person to assist the Court. During the pendency of the writ petitions, some applications came to be filed seeking impleadment. Notice in some of the applications were issued to the counsel for the petitioners and ultimately the main case was adjourned to 25.7.2006, on which date, the writ petitions have been finally heard.
As already noticed above, the respondent-State, though had taken time to take a decision in terms of the judgment of the Supreme Court, yet in its reply filed has justified the impugned instructions dated 5.5.1975.
It is stated that these instructions were issued keeping in mind the relative social, economic and educational backwardness and inadequate representation to these two castes. It has also been mentioned that these instructions have been upheld by the Full Bench of this Court. State has further pleaded that it was the bounden duty of the State to impart social justice to down trodden section of the society. It is also claimed that this has been done after assessing relative backwardness based on social and economic education factors etc. As per the State, it is necessary to make preference for down trodden castes within the scheduled castes in case the scheduled caste did not form a homogeneous class in a particular State.
Thus, continuing of the instructions has been justified without making any reference to the law laid down by Hon'ble Supreme Court in E.V.Chinnaiah's case (supra) on the basis of which the instructions have been challenged.
Learned counsel, appearing on behalf of the petitioners have submitted that the issue in the present writ petitions is fully covered by the Constitutional Bench decision referred to above. Counsel appearing on behalf of the State and some of the interveners, on the other hand, have urged that the present instructions issued by the State of Punjab are not covered by the decision rendered by the Hon'ble Supreme Court and hence have pleaded for dismissal of the writ petitions. Though the judgment of the Hon'ble Supreme Court has been referred to in extenso in the writ petitions, but it would be appropriate to make reference to the same in detail so as to see if the impugned instructions can still be held valid in view of the law laid by the Hon'ble Supreme Court.
It is required to the noticed that Constitutional Bench decision in the case of E.V.Chinnaiah (supra) has been rendered while overruling the judgment of Five Judges Bench of Andhra Pradesh High Court. Andhra State had issued an Ordinance dividing 57 castes in four groups on the basis of inter-se-backwardness and this was upheld by the Full Bench of Andhra Pradesh High Court. This judgment rendered by Andhra Pradesh High Court, has been overruled by the Hon'ble Supreme Court in E.V.Chinnaiah's case (supra). The facts in the case reveal that State of Andhra Pradesh while accepting the report of a commission appointed to identify the Scheduled Castes, who failed to secure benefits of reservation, had issued an ordinance dividing 57 Castes into four groups on the basis of inter-se- backwardness and fixed separate quota for each group. Thus, the castes enumerated in the Presidential list were grouped into four and different percentage of reservation was provided for each in the educational institution and in the service under Article 15(4) and Article 16(4) of the Constitution of India. The said ordinance, which was subsequently replaced by an Act, was challenged before the High Court of Andhra Pradesh through a number of writ petitions. The matter was heard by Five Judge Bench of the High Court and all the writ petitions were dismissed by a majority of Four Judges. This decision of the High Court was challenged before the Supreme Court which overruled the judgment of Andhra High Court. This judgment E.V.Chinnaiah's case (Supra) has been referred to and relied upon by counsel for the petitioners to challenge the validity of the impugned instructions Annexure P1 issued by Govt. of Punjab.
We have noticed that the Hon'ble Supreme Court has held that any inclusion or exclusion from the Presidential List in respect of State or Union Territory under Article 341, specifying the caste, races, or tribe etc.
deemed to be Scheduled Castes can only be done by the Parliament under Article 341 (2) of the Constitution of India. Supreme Court also found that there was no provision to either sub-divide, sub-classify or sub-group these castes which are found in the Presidential list of Scheduled Castes and that Constitution included all the Castes including sub-caste, races and tribe in the list to be members of one group for the purpose of Constitution. As held in this case that any executive action or legislative enactment which interferes, disturbs, re-arranges, re-groups or re-classifies the various castes found in the Presidential List will be violative of scheme of the Constitution besides being violative of Article 341 of the Constitution.
Not only this, the Hon'ble Supreme Court after referring to various judgments has ruled that all the castes including in the Presidential List for a State are deemed to be a Scheduled Castes and they form a class by themselves. In this regard reference was made to the following observations of Supreme Court in the case of State of Kerala and another Vs. N.M.Thomas and Orders (1976) 2 SCC 310. Para 82 at 348, Mathew.J.
discussing the status of the caste found in the Presidential List observed:- " This shows that it is by virtue of the notification for the President that the Scheduled Castes come into being. Though the member of the Scheduled Castes are drawn from castes races or tribes, they attain a new Status by virtue of the Presidential notification."
Justice Krishna Iyer in the same judgment said, " We may clear the clog of Article 16(2) as it stems from a confusion about castes in the terminology of Scheduled Castes and Scheduled Tribes. This latter expression has been defined in Article 341 and 342. A bare reading brings out the quintessential concept that they are no castes in the Hindu fold but an amalgam of castes, races, groups, tribes, communities or parts thereof found on investigation to be the lowliest and in need of massive State aid and notified as such by the President" Accordingly, it was held that caste once included in the Presidential List, form a class by themselves and any division of these classes of persons based on any consideration would amount to tinkering with the Presidential List.
Having regard to the grouping done by the State of Andhra Pradesh as brought about, the Supreme Court also examined the case if the impugned enactment created a such classification or micro classification of the Scheduled Castes so as to invite the wrath of Article 14 of the Constitution. After referring to different decisions, the Supreme Court held: " The conglomeration of castes given in the Presidential Order, in our opinion, should be considered as representing a class as a whole. The contrary approach of the High Court, in our opinion, was not correct. The very fact that a legal fiction has been created is itself suggestive of the fact that the Legislature of a State cannot take any action which would be contrary to or inconsistent therewith. The very idea of placing different castes or tribes or group or part thereof in a State as a conglomeration by way of a deeming definition clearly suggests that they are not to be sub-divided or sub- classified further. If a class within a class of members of the Scheduled Castes is created, the same would amount to tinkering with the List. Such sub-classification would be violative of Article 14 of the Constitution of India. It may be true, as has been observed by the High Court, that the caste system has got struck up in the Society but with a view to do away with the evil effect thereof, a legislation which does not answer the constitutional scheme cannot be upheld. It is also difficult to agree with the High Court that for the purpose of identifying backwardness, a further enquiry 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 rationalizing the reservation to the Scheduled Castes the constitutional mandate of Article 14, 15 and 16 could be violated." Referring to the definition of Scheduled Castes and Scheduled Tribes as given in Article 366 (24) & (25), the Supreme Court said that these terms are not used in ordinary sense but in the sense of the definition.
Supreme Court held thus:
" Thus, the pious object for issuing the Presidential Notification is to afford them special protection having regard to social and educational backwardness. The Presidential Notification under Article 341 of the Constitution as well as the benefits of reservation of appointments or posts which in the opinion of the State, is not adequately represented in the services under the State is afforded to a class of persons specified in Presidential Notification under Article 341 of the Constitution. The backward class of citizens enshrined in Article 16(4) of the Constitution includes Scheduled Castes and Scheduled Tribes."
Even the aspect of sub classification or division permissible on the basis of Article 330 of the Constitution was noticed by the Hon'ble Supreme Court to hold:
"------ there is no reference to any sub-classification or division in the said list except, may be, for the limited purpose of Article 330 which refers to reservation of seats for Scheduled Castes in the House of People which is not applicable to the facts of the case."
Otherwise also, Article 330 of the Constitution by which a Class of Scheduled Tribe has been treated as a separate category is a constitutional provision in distinction to any legislative or executive act.
Rather this provision, as noticed by the Supreme Court, would indicate that where the makers of the Constitution wanted to do, sub-classification, it provided in the Constitution itself and thus did not empower any legislation or Government to make sub-classification.
Despite the above noted finding of the Hon'ble Supreme Court, which had been duly brought to the notice of the respondent-State, the learned counsel for the State and all the other respondents whether impleaded or not tried in vain to convince us that the decision of the Supreme Court was distinguishable for its applicability so far as the impugned instructions were concerned. Attempt has been made to justify the said instructions in view of the Full Bench decision of this Court in the case of Kanwaljit Singh Sidhu (supra). After referring to the different contentions raised in this case, the Full Bench finally held that the impugned instructions prescribing 50% reservation for Majbi Sikhs or one of the quota for scheduled castes were constitutionally valid.
Reasoning given by the Full Bench as can be seen from para 17 of the judgment, was, that for the purpose of Art.15 (4) backward class was differentiated from the scheduled caste for making special provision for their advancement. The Court further went on to observe that every backward class was made entitled to preferential treatment for representation in service where it was considered that they are not adequately represented. Accordingly, it was viewed that for the purpose of Art. 16 (4), no distinction was sought to be made between a socially and educationally, 'backward class' and 'scheduled caste', which was not the case under Art. 15 (4) of the Constitution. It was also observed that all sections of scheduled castes, in the nature of things, were socially and educationally backward classes, so they stood included in the 'expression backward class' as used in Art. 16 (4) of the Constitution of India. It was thus concluded by the Full Bench that a particular class of citizen may be socially and educationally backward, yet it may not be entitled to preferential treatment if its representation in the service is considered adequate i.e. all socially and educationally backward classes by virtue of that fact are not entitled to preferential treatment. Accordingly, the Full Bench held as under:- "In the circumstances, therefore, it cannot be said that the reservation effected for Balmikis or Mazbi Sikhs (both classes in English language are known as sweepers or scavengers is solely on the basis of caste. The dominant criteria that has gone into consideration is the social and educational backwardness of all persons belonging to Balmikis or Mazbi Sikhs caste.
What is more besides this caste or class label, they have additionally to satisfy an objective and secular requirement of inadequacy of their representation in the Government services."
It was specifically argued before the Full Bench that scheduled caste by virtue of Presidential Notification envisaged under Article 341 of the Constitution of India would become an individual class and the groups have to sink and swim together with other groups in the matter of appointments and posts and that any particular group, caste, community of race, which together with other such groups, caste, community and race constitute scheduled caste, cannot be separated from the other for preferential treatment. Obviously, this argument did not find favour with the Full Bench and accordingly, the notification making reservation by preference to the Balmikis and Mazbi Sikhs to the extent of 50% of the posts was upheld.
In contrast to above finding/observation of the Full Bench, the Hon'ble Supreme Court in E.V.Channaiah's case has said:- "Article 15 (4) especially refers to Scheduled Castes and Scheduled Tribes and Clause (4) of Article 16 does not refer to Scheduled Castes and Scheduled Tribes, but as above noticed it has judicially been interpreted that the terms would come within the purview of term of Backward Class as Scheduled Castes and Scheduled Tribes are treated to be more backward then the backward class people. Even otherwise, by nature of thing, under Article 15 (4) Scheduled Castes have been recognized to be backward but at the same time besides this it has been recognized that there are other groups who may be backward and may deserve preference."
We have already reproduced the finding of the Hon'ble supreme Court that benefit of reservation of appointment or posts, which in the opinion of the State, is not adequately represented in the services of the State is afforded to a class of persons specified in Presidential notification under Art.341 of the Constitution and that backward class of citizen enshrined in Art.16 (4) of the Constitution includes S.C. and S.T. We have also reproduced above the observations of the Hon'ble Supreme Court wherein it did not agree with High Court of Andhra Pradesh that for the purpose of identifying backwardness, a further inquiry can be made to find as to who amongst the members of the scheduled caste is more backward.
The Hon'ble Supreme Court has categorically held that there is no provision to sub divide, sub-classify or sub-group the castes, which are found in the Presidential List of scheduled caste. It has also held that all the castes including sub castes, races and tribes are to be taken as member of the one group for the purposes of Constitution and that any executive action or legislative enactment, which disturbs, rearranges or regroups or reclassifies the various castes will be violative of Article 341 of the Constitution. While so holding, Hon'ble Supreme Court has said that any caste once included in the Presidential List forms a class and any division thereof would amount to tinkering with the Presidential List. It would be noticed that as per the Hon'ble Supreme Court, if a class within class of member of scheduled caste is created then the same would be violative of Article 14 of the Constitution besides amounting to tinkering with the Presidential List. The justification given by the Full Bench noted above can be seen in total contrast to the law laid down by the Hon'ble Supreme Court. The Full Bench had observed that the dominant criteria that was gone into consideration while issuing the instructions was social and educational backwardness of the persons belonging to the Balmikis and Mazbi Sikhs. This aspect and the inadequacy of their representation in the Government service were duly considered by the Hon'ble Supreme Court. In this regard, it was held that if benefits of reservation are not percolating to them equitably, then 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 rationalizing reservation to the scheduled caste, the constitutional mandate of Articles 14 and 16 of the Constitution could be violated. In this view of the matter, the reliance by the counsel for the respondents to justify the legality of the impugned instructions or to say that the judgment of the Hon'ble Supreme Court would not be attracted in the present case is totally misplaced and misconceived. It may also need a notice that it was argued before the Hon'ble Supreme Court in the case of E.V.Chinnaiah (supra) that the authority to decide to provide reservation or not and if yes, then the quantum of reservation to be provided is the exclusive privilege of the State. In that process, the State will have to keep in mind the extent of backwardness of a group be of other backward class, scheduled castes or scheduled tribes. Therefore having found a class of person, within scheduled caste as having been deprived of such benefit, the State has the exclusive legislature power to make such grouping for reservation under Arts. 15 (4) and 16 (4) of the Constitution. These arguments did not find favour with the Hon'ble Supreme Court. Thus, the justification given by the Full Bench of this Court, while upholding the instructions can not now prevail any more.
In the instructions impugned before us, the Government of Punjab has placed two castes in one block for the purposes of reservation.
As per the instructions, the Balmikis and Mazbi Sikhs have been given reservation of 50% vacancies whereas the remaining 35 castes have been clubbed together for remaining 50% of said vacancies. Thus, a scheduled caste given in the Presidential Notification has been divided or sub- classified for the purposes of reservation in the service by providing 50% vacancies within the quota reserved for Scheduled Castes. This, as per the judgment of the Hon'ble Supreme Court referred to above, cannot be done and if so done it would not only be violative of Article 341 of the Constitution being beyond the legislative or executive competence of the State but also would be discriminatory and thus violative of Article 14 of the Constitution of India. Equal protection clause mandates all persons under like circumstances should be treated alike. While reasonable classification is permissible under Article 14 of the Constitution but it is impermissible to provide for micro classification or mini classification as is being done in the instructions impugned in these writ petitions.
We, accordingly, find that the present controversy is fully covered by the decision of the Hon'ble Supreme Court in the case of E.V.Chinnaiah (supra). We also find that the Full Bench decision of this Court in view of the above judgment can no more be treated as binding law.
It is further required to be noticed that the justification which had been given by the respondent-State and other counsel appearing on behalf of some of the private respondents was the one which had found favour by the Full Bench of the Andhra Pradesh High Court. This has been overruled by the Hon'ble Supreme Court as noticed above. Accordingly, the view expressed by the Full Bench of this Court in the case of Kanwaljit Singh Sidhu (supra) cannot be given effect or allowed to prevail in view of the decision of the Hon'ble Supreme Court. We, accordingly, hold that the instructions issued on 5.5.1975 cannot be validly followed as the same are ultra vires of the Constitution of India in view of the law laid down in E.V.Chinnaiah's case (supra). The writ petitions are, accordingly, allowed with no order as to costs. The instructions dated 5.5.1975 (Annexure P1) are hereby quashed.
Acting Chief Justice
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