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1964 DIGILAW 61 (PAT)

Abdul Latiff v. State Of Bihar

1964-03-27

N.L.UNTWALIA, V.RAMASWAMI

body1964
Judgment 1. In the year 1960, the Bherno Ganja shop was ordered to be shifted to Doranda in the town of Ranchi and applications were called for by the Deputy Commissioner of Ranchi for settlement of this Ganja shop. About 39 persons submitted applications in that year for settlement of the Doranda Ganja Shop, but proceedings for settlement were stayed by the High Court in M. J. C. 1229 of 1960 on the application of Abdul Wahab. licensee of the Ganja and Bhang shop at Lower Bazar, Ranchi, on the ground that the shifting of the Bherno Ganja shop to Doranda during the currency of his license for the Lower Bazar Ganja shop would adversely affect his business. On the 30th of November, 1962, M. J. C. No. 1229 of 1960 was dismissed by the High Court. After dismissal of that case, the Deput Commissioner of Ranchi took up the matter of settlement of Doranda Ganja shop for the year 1963-64. He did not invite fresh applications but proceeded to make a selection from the 39 applications received for the year 1960-61. Out of these 39 applications, the Superintendent of Excise, Ranchi5 prepared a list of seven persons, all of whom were members of scheduled caste or scheduled tribe, amongst whom the final selection for settlement of licence of the shop was to be made. This list did not contain the name of the petitioner Abdul Latiff who made an application on the 9th May, 1963 to the Deputy Commissioner of Ranchi for including his name in the approved list. The application was rejected by the Deputy Commissioner of Ranchi on the nth May, 1963, on the ground that the petitioner was not a member of a scheduled tribe or scheduled caste and thereafter the Deputy Commissioner of Ranchi proceeded to draw a lot for settlement of the Ganja shop only amongst the members of scheduled caste and scheduled tribe applicants. The lottery was drawn in favour oi Jagmohan Naik? respondent No. 4 and the Deputy Commissioner of Ranchi accordingly ordered settlement of the shop to be made with him. 2. The lottery was drawn in favour oi Jagmohan Naik? respondent No. 4 and the Deputy Commissioner of Ranchi accordingly ordered settlement of the shop to be made with him. 2. In injecting the application of the petitioner Abdul Latif by his order dated the nth May, 1963^ the Deputy Commissioner of Ranchi relied upon the order of the State Government contained in Excise Commissioners Memo No. 9520 dated the nth October, 1958, which is to the following effect: -- To The Collectors /Deputy Commissioners of all Districts Excise Superintendents of all Districts. Patna, the 29th Srawan, 1880 (S) 20th August, 1958 It was decided by Government in 1952 to give preference to scheduled caste and scheduled tribe candidates in the settlement of new Excise shops under the Sliding Scale System for a period of one year, in the interest of advancement of such socially and economically backward classes. The concession has been extended from year to year since then, but the implementation of the policy has not been very effective so that the objective has not been fully achieved. 2. It has; therefore, been decided by Government that preference should continue to be given to the scheduled caste and scheduled tribe candidates, if otherwise suitable, in the matter of settlement of Excise shops under the Sliding Scale System and that the standard of suitability in such cases should as in the matter of their appointment and promotion to posts under Government, be lower than that prescribed for candidates of other castes. To achieve the desired objective, it has also been decided by Government that the following procedure should be adopted in settlement of Excise Shops: (a) whenever any Excise shop is proposed to be settled, an intimation about this should be sent to the Welfare Department who will give due publicity to the matter amongst scheduled caste and scheduled tribe candidates. (b) When there are several candidates for an Excise shop, out of whom one is a scheduled caste or scheduled tribe candidate and he is otherwise suitable, the shop should not be settled by lot but could be settled straightway with the scheduled caste or scheduled tribe candidate. (c) If there are more than one suitable scheduled caste or scheduled tribe candidate for the same shop, the lot should be drawn only among the suitable scheduled caste and scheduled tribe candidates and the winner should get the shop. (c) If there are more than one suitable scheduled caste or scheduled tribe candidate for the same shop, the lot should be drawn only among the suitable scheduled caste and scheduled tribe candidates and the winner should get the shop. (d) Candidates of scheduled caste and scheduled tribe should not be rejected as unsuitable except after very careful consideration of the matter. When none of the applicants of the scheduled caste and scheduled tribe is found suitable, the order of Excise Commissioner should be obtained before they are rejected as unsuitable and the full facts as to why they are considered unsuitable should be stated. 3. The progress achieved in the settlement of Excise shops with the candidates of scheduled caste and .scheduled tribe should be reported to Excise Commissioner for the information of Government in the month of April each year, for chat financial year. Sd. K.K. Mitra, 20.8.58 Additional Secretary to Government. The petitioner has obtained a rule from the High Court calling upon the respondents to show cause why the order of the State Government dated the 20th August, 1958 and the order of the Deputy Commissioner of Ranchi dated the nth May, 1963 making settlement of the Doranda Ganja shop in favour of respondent No. 4 should not be quashed by grant of a writ in the nature of certiorari under Article 226 of the Constitution. Cause has been shown by the learned Advocate General and other Counsel on behalf of the respondents to whom notice of the rule was ordered to be given. 3 The main question presented for determination in this case is whether the order of the State Government dated the 2oth August, 1958 violates the guarantee granted by Article 15 of the Constitution which states: "15. (1) The State shall not discriminate against any citizen on grounds only of religion race, caste, sex, place of birth or any of them. (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them be subject to any disability, liability, restriction or condition with regard to: (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. (3) Nothing in this article shall prevent the State from making any special provision for women and children, (4) Nothing in this article or in Clause (2) at Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes." Learned Counsel for the petitioner put forward the argument that the effect of the Government notification is not merely to give preference to candidates belonging to scheduled castes or scheduled tribes but to exclude candidates from all other communities in cases where there was a single candidate belonging to scheduled caste or scheduled tribe. It was, therefore, submitted on behalf of the petitioner that the Government notification dated the 2oth August, 1958 exceeds the constitutional limits of the power granted to the State under Article 15(4) of the Constitution for making special provision for the advancement of scheduled castes or scheduled tribes, or any socially and educationally backward classes of citizens. In our opinion, the argument put forward on behalf of the petitioner is well" founded and must be accepted as correct. As a matter of construction it is manifest that Article 15(4) of the Constitution is not an independent or substantive enactment but it is an exception or a qualification to the main guarantee under Article 15(1) of the Constitution. It is, therefore, not permissible to interpret Article 15(4} of the Constitution in such a way as to destroy or nullify the meaning of guarantee under Article 15(1) of the Constitution. It is because the interest of the society as a whole is served by promoting the advancement of the weaker elements of that society that Article 15(4) of the Constitution authorises special provision to be made. But if a provision which is in the nature of an exception completely excludes the rest of the societv, that clearly is outside the scope of Article 15(4). It is highly unreasonable to assume that in enacting Article 15(4) the Constitution-makers intended to provide that where the advancement of the backward classes or the scheduled castes and tribes was concerned, the fundamental rights of the citizens constituting the rest of the society should be completely and absolutely ignored. It is highly unreasonable to assume that in enacting Article 15(4) the Constitution-makers intended to provide that where the advancement of the backward classes or the scheduled castes and tribes was concerned, the fundamental rights of the citizens constituting the rest of the society should be completely and absolutely ignored. The view that we have expressed is borne out "by the decision of the Supreme Court in M.K. Balaji V/s. The State of Mysore, AIR 1963 SC 640 where the question was debated with regard to the constitutional validity of an order of the State Government of Mysore dated the 31st July 1962, reserving 68 o£ of the seats in technical institutions for backward classes, scheduled tribes and scheduled castes. It was held by the Supreme Court in that case that Article 15 (4) which was added by the Constitution (First Amendment) Act, 1951 must be read as a proviso or an exception to Article 15(1} of the Constitution, It was pointed out by the Supreme Court that considerations of national interest and the interests of the community or society as a whole cannot be ignored in determining the question as to whether the special provision contemplated by Article 15(4) can be special provision which excludes the rest of the society altogether. It was also pointed out by the Supreme Court that a special provision contemplated by Article 15(4) like reservation of posts and appointments contemplated by Article 16(4) must be within reasonable limits. The interests of weaker sections of society which are a first charge on the States and the Centre have to be adjusted with the interests of the community as a whole. Undoubtedly the adjustment of these competing claims is a difficult mater, but if under the guise of making a special provision, a State reserves practically all the seats available in all the colleges, that clearly would be subverting the object of Article 15(4). It was accordingly held by the Supreme Court that the order of the Mysore Government dated the 31st July, 1962 which reserved 68 per cent of the seats in Engineering and Medical Colleges for backward classes, scheduled castes and scheduled tribes was inconsistent with the special provision of Article 15 (4) and was a fraud on the constitutional power conferred on the State by that Article. In our opinion, the principle of the decision of the Supreme Court governs the present case also and it must be held that the order of the State Government dated the 20th August, 1958, which is annexure IV to the counter-affidavit and annexure B to the writ application, violates the guarantee under Article 15(1) of the Constitution and is, therefore, unconstitutional and ultra vires. It follows that the order of the Deputy Commissioner of Ranchi dated the nth May, 1963 which is based on the Government order dated the 20th August, 1958 is also illegal and ultra vires and must be quashed by grant of a writ in the nature of certiorari under Article 226 of the Constitution. 4. For the reasons expressed, we hold that this application must be allowed and a writ in the nature of certiorari under Article 226 of the Constitution must be issued quashing the older of the Deputy Commissioner of Ranchi dated the 11th May, 1963 making settlement of the Ganja shop with respondent No. 4. Jagmohan Naik. We accordingly allow this application, but there will be no order as to costs.