Jayshukhkumar Gordhandas Karia v. STATE — 1993 DIGILAW 473 (GUJ)

R. K. ABICHANDANI, J. ( 1 ) THE petitioners have challenged the Government Resolution dated 30th September, 1980 by which religious and linguistic minorities named therein have been extended certain benefits in the field of education. The benefits are exended to only some of the students whose family is within the income bracket of Rs. 4800/- per year. The benefits are in the nature of scholarship to the students belonging to specified minorities and those who have secured the specified minimum percentage of marks to pursue their studies in the higher classes. The petitioners have also prayed for a direction on the respondents to treat the list prepared by the Baxi Commission identifying the socially and Educationally Backward Class persons as only illustrative and not exhaustive and to extend all benefits to the petitioners also. ( 2 ) WHEN the petition was filed in the year 1981, the petitioner no. 1 was studying in 10th class and the petitioner no. 2 was in the 11th class. According to them, the income of their families did not exceed Rs. 4800/- per annum and both the petitioners had secured more than 50% marks in the 9th and 10th standards. It is their case that Baxi Commission which was appointed for classifying socially and educationally backward class persons in the State of Gujarat, has recommended classification of 82 communities and recommended benefits to be given to them in social and educational fields. The benefits were to be extended only to such of the members of the enumerated classes whose income did not exceed Rs. 4800/- and the persons like the petitioners who are within the same income bracket should also be given such benefits. It is further their case that the government in their Social Welfare Department made a provision under Resolution dated 30th September, 1980 conferring certain benefits to the members of minority communities on the basis of religion and language. Accordingly, the religious minorities namely, Christians, Buddhists, Parsis, Muslims, Sikhs and the linguistic minorities speaking Urdu, Sindhi and Marathi were also made eligible for certain benefits such as exemption in the examination fees, award of scholarship etc. subject to the condition that the benefits would be given to such of them who were not covered under the list prepared by Baxi Commission and who did not have their family income in excess of Rs. 4800/- per annum. subject to the condition that the benefits would be given to such of them who were not covered under the list prepared by Baxi Commission and who did not have their family income in excess of Rs. 4800/- per annum. It has been contended by the petitioners that the said Government Resolution dated 30th September, 1980 giving benefits to religious and linguistic minorities was in violation of Articles 14,15 and 46 of the Constitution of India. ( 3 ) IT was contended by the learned counsel for the petitioners that by giving special treatment to the religious and linguistic minorities, the State Government had discriminated against the petitioners. It was contended that the impugned Resolution of the Government conferring benefits on a particular section of citizens only on the basis of religion and language was not saved by Article 15 (4) of the Constitution because benefits were conferred on persons who may not be socially and educationally backward. It was argued that religion could not be made as the basis of classification and all religious minorities cannot be said to be socially and educationally backward. It was also contended that the impugned Resolution did not disclose whether the process of identification was undertaken by the State Government before giving benefits to religious minorities on the ground that they are socially and educationally backward. It was contended that if benefit was to be given only on the basis of poverty, then the petitioners were equally entitled to similar benefits and they could not be discriminated against on the ground that they did not belong to the religious or linguistic minorities. ( 4 ) THE learned Additional Adovocate General appearing for the respondents contended that no special benefits were given on the ground of religion alone and the state Government had identified religious and linguistic minorities as persons belonging to socially and educationally backward class in the State. He submitted that religion can be made the basis for indentifying a class for the purpose of Article 15 (4) of the constitution of India. He also submitted that the list prepared pursuant to the recommendation of Baxi Commission cannot be treated as only illustrative one. The benefits were intended to be given only to those who were identified in the said list as socially and educationally backward classes of persons. He also submitted that the list prepared pursuant to the recommendation of Baxi Commission cannot be treated as only illustrative one. The benefits were intended to be given only to those who were identified in the said list as socially and educationally backward classes of persons. After the recommendations of the baxi Commission were accepted, it appears to the State Government on the basis of the recommendation of the High Power Committee succeeded by the Gujarat Minorities board that the members of religious and linguistic minorities in the State were educationally and socially backward on account of the factors peculiar to them in the state of Gujarat. He contended that the State Government had taken into account material which was already there before the Baxi Commission even in respect of these minorities. Therefore, the State Government was perfectly justified in making special provisions for the upliftment of these minorities in the State. ( 5 ) UNDER Article 15 (1) of the Constitution of India, there is a mandate on the State not to discriminate against any citizen on grounds only of religion, race, caste, sex, place or birth or any of them. Sub-Article (3) of Article 15 enables the State to make any special provision for women and children. Sub-Article (4) enables the State to make special provisions for advancement of socially and educationally backward classes of citizens or for Scheduled Caste and Scheduled Tribes. There has been much debate on the scope and extent of the provisions of Article 15 (4) as also Article 16 (4) of the Constitution. It would appear on the plain reading of the provisions of Article 15 (4) that a special provision for advancement of socially and educationally backward classes of citizens or for Scheduled caste and Scheduled Tribes can be made by the State Gvemment either by statutory provision or by an executive order. Therefore, the Government can, by a Resolution make special provisions for advancement of the backward classes and Scheduled Castes and scheduled Tribes under Article 15 (4) of the Constitution of India. ( 6 ) AS regards giving of benefits to Scheduled. Castes and Scheduled Tribes, there would arise no difficulty in identifying those who may be given the benefits. Scheduled castes and Scheduled Tribes are determined as per process laid down in the Constitution itself in Part XVI. ( 6 ) AS regards giving of benefits to Scheduled. Castes and Scheduled Tribes, there would arise no difficulty in identifying those who may be given the benefits. Scheduled castes and Scheduled Tribes are determined as per process laid down in the Constitution itself in Part XVI. The Scheduled Castes and Scheduled Tribes would be specified by the president by Notification issued as per the provisions of Articles 341 and 342 of the constitution of India. There is however, no such provision for notifying socially and educationally Backward Classes. There is a provision under Article 340 under which president may appoint a Commission to investigate conditions of socially and educationally backward classes within the country and to make recommendations to ameliorate their lot. Unlike Article 16 (4), Article 15 (4) contains the qualifying words "socially and educationally" preceding the expression "backward classes". Therefore backward class contemplated by Article 15 (4) is both socially and educationlly backward. In P. Rajendran vs. State of Madras reported in A. I. R. 1968, S. C. 1012, the Supreme court while considering the provisions of Article 15 (1) and 15 (4) held that a caste is also a class of citizens and if the caste as a whole is socially and educationally backward, reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward class of citizens, within the meaning of Article 15 (4) of the constitution. Though socially and educationally backward classes may be specified by reference to caste, it would not necessarily mean that caste was the sole consideration and that persons belonging to these castes are also not a class of socially and educationally backward citizens. It has been judicially recognised that caste system which was peculiar to Hindus had percolated into other religions to a certain extent. This fact was noted by the Apex Court in K. C. Vasanth Kumar vs. State of Karnataka A. I. R. 1985 SC 1495, wherein a reference is made to the caste system having penetrated in other religions. Caste system was practiced with as much rapidity as it was among Hindus, amongst converts from Hinduism in Southern India. This fact was noted by the Apex Court in K. C. Vasanth Kumar vs. State of Karnataka A. I. R. 1985 SC 1495, wherein a reference is made to the caste system having penetrated in other religions. Caste system was practiced with as much rapidity as it was among Hindus, amongst converts from Hinduism in Southern India. Among Muslims, a distinction is made between asrafs, who are supposed to be descendants of Arab immigrants, and the non-Asrafs who are native converts and both are divided into sub-groups as noted in Encyclopaedia britanica-II- Micropaedia, 618, 619, a note of which is taken by the Apex Court in Indra sawhney vs. Union of India, AIR 1993 SC 477 , 552. For identifying socially and educationally backward classes under Article 15 (4) of the Constitution one has to begin somewhere by taking up a group or section in absence of any recognised method provided by law. The expression "socially and educationally backward class" would not only include castes which may. be identified as socially and educationally backward but also other groups, classes and sections among the populace Besides castes that may be found among Hindus and other communities, there may also be other classes who may be socially and educationally backward classes of citizens in a particular State. The concept of religious and linguistic minorities finds recognition under Article 30 of the constitution. The religious and linguistic minorities have a fundamental right to establish and administer educational institutions of their choice. As provided under Article 29 (1), any section of citizens residing in India and having distinct script or culture of its own is entitled to conserve the same. They are therefore identifiable classes of citizens. For the purpose of surveying the entire populace of the State with a view to ameliorate the conditions of socially and educationally backward classes as envisaged by Article 15 (4), all groups, communities, and sections may be considered by the State. Since religious or linguistic minorites are recognised classes, the State can examine the conditions of the religious or linguistic minorities residing within the Slate to ascertain whether they are socially and educationally backward so as to deserve benefits by making special provisions for their upliftment. Since religious or linguistic minorites are recognised classes, the State can examine the conditions of the religious or linguistic minorities residing within the Slate to ascertain whether they are socially and educationally backward so as to deserve benefits by making special provisions for their upliftment. Therefore, if the State Government has taken up religious and linguistic minorities for the purpose of finding out whether they can be characterised as socially and educationally backward classes of the State on the basis of the criteria of backwardness evolved by it, it cannot be said that the State Government has adopted any unconstitutional of illegal method. As held by the Supreme Court in India Sawhney (Supra) at page 555 "if the real object is to discover and locate backwardness and if such backwardness is found in a caste, it can be treated as backward; if it is found in any other group, section or class, they too can be treated as backward. " Thus, once a religion or linguistic minority satisfies the criteria of backwardness, it would become a backward class. ( 7 ) RELIGIOUS or linguistic minority may in a particular State for various historical reasons, be socially and educationally backward. It would be for the authority concerned to evolve an appropriate and relevant criteria to find out whether any such classes of citizens are socially and educationally backward. As held by the Apex Court in Indra sawhney (Supra): "so long as the approach adopted by the authority is fair and adequate, the Court has no say in the matter. " There can be no uniform test to apply for identifying the backward classes in a country like India having diverse culture. Though backwardness cannot be determined exclusively with reference to economic criteria, poverty may enter into consideration or basis alongwith and in addition to social backwardness. Poverty will have reference even in context of the benefits which are to be given by making special provisions for the amelioration of the conditions of socially and economically backward classes. Though backwardness cannot be determined exclusively with reference to economic criteria, poverty may enter into consideration or basis alongwith and in addition to social backwardness. Poverty will have reference even in context of the benefits which are to be given by making special provisions for the amelioration of the conditions of socially and economically backward classes. In this complex task of ascertainment of social and educational backwardness of any class of people, factors such as income level, nature of occupation, mode of life, habitation, propagation of literacy, standard of education and variety of other factors are required to be taken into Account There is no need to compare the level with Scheduled castes and Scheduled Tribes who are notified under Articles 341 and 342 of the constitution of India. The factors such as inadequate representation of such class in the field of trade, commerce and industry, in Government service, lack of education and low social position, have to be taken into account All this exercise to evolving the test of criteria on relevant grounds which could be applied or determining which class or section would be really entitled to get special relief or assistances would be best left to the authority concerned. ( 8 ) IT appears from the report of the Socially and Educationally Backward Class commission, Volume-I which was referred to by the learned counsel for the parties, that the Commission had taken note of a variety of relevant factors such as functional mode of life, illiteracy, poverty, occupation, representation in public service, social status, mode of living, customs and beliefs, educational backwardness, the caste system and backwardness in other ways, in the process of identifying the socially and educationally backward classes. After duly considering all the relevant material, the Commission considered 82 classes/groups as socially and educationally backward classes. The rest of the castes/classes/groups were not included in the said list as the Commission did not find adequate evidence to consider them socially and educationally or in any other way backward. Admittedly, the report of the Commission was accepted by the Government and the Resolution dated 1st April, 1978 at Annexure "a" to the petition was passed by the Government to give the benefits to these classes identified by the Commission. Only those who are in the income bracket of Rs. 4800/- per year were to be given these benefits. Admittedly, the report of the Commission was accepted by the Government and the Resolution dated 1st April, 1978 at Annexure "a" to the petition was passed by the Government to give the benefits to these classes identified by the Commission. Only those who are in the income bracket of Rs. 4800/- per year were to be given these benefits. It is therefore, clear that the list prepared by the Baxi Commission cannot be treated as merely an illustrative one. So far as the Commission was concerned, it had enumerated all classes/groups considered by the Commission as socially and educationally backward classes within the scope of the terms of its reference. The petitioners cannot, therefore, claim any inclusion in the said list on the ground that it should be treated as merely an illustrative one. ( 9 ) AS held above, the State Government could have validly taken up religious and linguistic minorities for finding out whether any of them could be classified as socially and educationally backward class on the basis of the criteria evolved for the purpose. The criteria that the Baxi Commission adopted was a valid criteria and no one has suggested that it was in any manner improper or inadequate. The respondent State has taken up a stand that minorities which were not included in the list prepared by the Commission were also found by the State to be socially and educationally backward. It has been stated in the affidavit-in-reply that the State Government had appointed by the Resolution dated 19. 1. 74, a High power Committee for the purpose of safeguarding and protecting the interests of the minorities in the State of Gujarat At that time, an attempt was made by the state Government to identify communities which were in minority in the State of Gujarat. On the basis of their numerical strength in the State, Muslims, Christians, Sikhs, buddhists were religious minorities and communities speaking Urdu, Sindhi and Marathi were linguistic minorities. The State recognised these religious and linguistic minorities for the purpose of consideration by the High power committee. It has been stated that it was found that these minorities referred to in the resolution were educationally and socially backward on the ground of their peculiar status in the State of Gujarat. The State recognised these religious and linguistic minorities for the purpose of consideration by the High power committee. It has been stated that it was found that these minorities referred to in the resolution were educationally and socially backward on the ground of their peculiar status in the State of Gujarat. The High power committee came to the conclusion that for the purpose of upliftment of level of education amongst members of minorities, certain educational benefits were required to be conferred on those sections of minorities whose earnings were comparatively low. The high power committee therefore, made several recommendations to the State government for the purpose of providing various educational benefits to those minorities. It is stated that the recommendations of the High power committee were taken into consideration by the State Government which found them to be justified on the ground that these minorities were socially and educationally backward as compared to other inhabitants of the State. The State Government also considered the report of the Baxi commission and found that only certain other sections were not included in recommendations made by the Baxi Commission though they were socially and educationally backward. This fact came to the notice of the State Government while considering the recommendations made by the High power Committee in that context. It has been asserted in the affidavit-in-reply that educational benefits have not been conferred upon these minorities because they follow a particular religion or speak a particular language which have been taken into consideration only for the purpose of identifying these communities. From the report of the Socially and Educationally backward Commission (Appendices), volume-II which was referred to by the learned counsel of the parties, it was pointed out that date as regards muslims other than those who were indentified on the basis of their caste or their following, Buddhists, Christians, jains, Zorostrians, Jews and unidentified sections was also collected by the Commission. The report indicates various heads under which the data was collected. The criteria evolved for finding out whether a particular caste or group belonged to socially and educationally backward class was there before the State Government as is reflected from the report of the Baxi Commission. Having kept in view the relevant criteria, which is not assailed as improper or inadequate,,the State Government found that these religious and linguistic minorities in the State were socially and educationally backward. Having kept in view the relevant criteria, which is not assailed as improper or inadequate,,the State Government found that these religious and linguistic minorities in the State were socially and educationally backward. As held by the supreme Court in Indra Sawhney (Supra), it was for the authority to adopt such approach and procedure as it deemed appropriate and so long as the approach adopted by it was fair and adequate, the Court had no say in the matter. When the State Government, keeping in view the same criteria which was evolved by the Baxi Commission for identifying socially and educationally backward classes and that from amongst them those who were within the income bracket of Rs. 4800/- per year should be given certain benefits in the field of education, it cannot be said that the State Government acted in violation of the provisions of Article 14 or 15 (1) of the Constitution of India. Such a course was clearly available to the State Government in view of the enabling provisions of Article 15 (4) of the Constitution. There is therefore, no valid reason for assailing the impugned Resolution which is intended to benefit only the poorest of poor from among the religious and linguistic, minoritiess which are considered to be socially and educationally backward in the State. ( 10 ) IN view of the above discussion, there is no merit in this petition. The petition is therefore, rejected. Rule discharged with no order as to costs .