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2011 DIGILAW 708 (CAL)

V. D. Sivabalan v. UNION OF INDIA

2011-05-19

KALYAN JYOTI SENGUPTA, KANCHAN CHAKRABORTY

body2011
JUDGMENT Kalyan Jyoti Sengupta, J. 1. THE petitioners above named filed this Public Interest Litigation challenging the report submitted by Andaman and Nicobar Other Backward Classes also the subsequent decision dated 16th June, 2003 of the said Commission whereby a further reservation of 11% was made in excess of 27% in violation of the solemn order passed by the Hon'ble Apex Court in the case of R.K. Sabharwal vs. State of Punjab, letter issued by the Secretary (TW), A 85 N Administration vide No.8-3/2003-TW/1310 dated 18th July, 2005, letter N0.12011/13/2004-BCC dated 12th September, 2005 issued by the Under Secretary to the Government of India of Social Justice and Empowerment; Notification dated 16th December, 2005 by the Special Secretary (TW), A and N Administration notifying five categories. Further direction has been sought for to conduct proper survey of the entire islanders defined in Order No. 4247 dated 8th December, 2004. 2. THE petitioners are claiming to be the permanent inhabitants of these islands and they owe their origin to their ancestors who said to have come to these islands three or four generations back. As such, they are permanent settlers. Their families have been contributing for the socio-economic development of these islands. Similarly other categories of the people had also come to these islands and settled and those classes of settlers are serving the Municipal Council, Panchayats as dhobis, barbers mochis (cobbler), fishermen, agricultural labourers etc. These two petitioners are not only ventilating their grievance of their own but also grievances of those persons who are rather similarly circumstanced with that of the petitioners who have been identified by A and N Administration as permanent inhabitants of these islands. As such, they have their locus standi to file this application. In order to get relief the grounds for challenge of the said report of the Commission and the order of acceptance of the said report and follow up decisions as stated above amongst others are as follows: The Commission has failed to identify, really Backward Classes, hence job reservation based thereon is bad in law as the same is not done in terms of the judgement of the Hon'ble Apex Court in the case of Indra Sawhney more particularly the direction given in paragraphs 648, 675 and 700 of the said judgement. The said Commission failed to consider the cases of other eligible categories which will be classified as permanent inhabitants of these Islands and also they are socially, economically and educationally backward. On the other hand, the said Committee recommended the cases of the alleged five categories who are not OBC in real sense, and thereby there has been deprivation of large number of people who are the real beneficiaries of the OBC scheme. The Committee while choosing those categories of persons, had failed to consider that they having got job in various departments are no longer backward in any sense. They have now become creamy layer of this class. The decision of reservation of 38% of those categories is absolutely contrary to the judgment and order of the Hon'ble Supreme Court in R.K. Sabharwal case which has been directed that reservation in any manner should not exceed 27% of the post. 3. THE constitution of this Commission has not been done in accordance with the provisions of the Constitution, for such Commission has to be constituted under Article 340 of the Constitution of India. 4. THE respondent Nos.5,6,7,8 and 9 have filed affidavit opposing this application affirmed by one M.R. Trivedi. In the affidavit it has been stated that in compliance with the direction contained in the judgement dated 16th November, 1992 of the Hon'ble Supreme Court of India in the Writ Petition (Civil) No.930 of 1990 (Indira Sawhney and Ors. vs. Union of India and Ors.) and in exercise of the powers conferred by Article 239 read with Article 16(4) of the Constitution of India a permanent body known as A and N Commission of other Backward Classes has been constituted to examine the communities of people residing in A and N Islands and declared Other Backward Classes in these Islands. The constitution of the said Commission has been notified on 23rd February, 1994, The said Commission had to conduct survey and had examined large number of persons in almost all the parts of these Islands and subsequently submitted a report to the A and N Administration based on the survey conducted by the said expert body viz. Directorate of Economics and Statistics. Thereafter, the Lieutenant t Governor of A and N Islands issued notification No.354 dated 16th December, 2005 declaring the following communities as Other Backward Classes in A and N Islands. Directorate of Economics and Statistics. Thereafter, the Lieutenant t Governor of A and N Islands issued notification No.354 dated 16th December, 2005 declaring the following communities as Other Backward Classes in A and N Islands. The pre-1942 settlers of A and N Islands comprising of (1) Local Born (2) Bhatus or Bhantus, (3) the Moplahs, (4) the Karens, (5) the post-1942 Bengali settlers settled in the Islands under various rehabilitation scheme of the Central Government. The said Commission consists of four members with a Chairperson who is or has been a judge of the High Court or a Supreme Court. The other members are Chairperson, A and N Islands Social Welfare Advisory Board (Member Ex-officio), two non-official members who have have special knowledge in matters relating to backward classes to be nominated by the Administration and a Secretary (Social Welfare), A and N Administration who is the member Secretary Ex-officio. The said Commission in consultation with non-official members recommended certain communities as OBC in A and N Islands based on the guidelines of the Government of India and after I carrying out a survey as per following criteria: (i) Social backwardness to be adjudged in the background of general level of advancement of the entire population of the UT as a whole. (ii) Economic condition of the community, (iii) Occupation-cum-income factor, (iv) Level of education for (v) Inclusion of communitie s in the list of SCs/STs/OBCs in the mainland, (vi) Adequacy and inadequacy of representation of the community in the services under the State, as many as 33 villagers of pre-42 settlers and post 1942 settlers were covered under the survey. Those who are not considered for OBC status in these Islands were people who migrated from the state of their origin to these islands for their livelihood. The literacy percentage of certain communities declared as OBC in these islands has invariably been incorporated in the report of the Commission. Previously five communities were declared as OBCs on the basis of the report given by the OBC Commission after conducting survey by the Directorate of Economics and Statistics and with the approval of the Government of India, Ministry of Social Justice and Empowerment. The Ministry of Human Affairs has been requested to include the remaining four communities declared as OBC in the Central list. 5. The Ministry of Human Affairs has been requested to include the remaining four communities declared as OBC in the Central list. 5. THE Mandal Commission arrived at the figure of 27% after deducting 22.5% from the ultimate limit of 50%. This 22.5% comprised 15% of the SCs and 7.5% for the STs. In these Islands there are persons amongst the post 1942 settlers, overwhelming in number who would have come under the category of the SCs had they been living in West Bengal. The Commission had identified them as the OBC of the Islands and included them other Pre-1942 settlers who had been identified as OBC of these Islands. Therefore, the percentage which should have gone to the members of the Scheduled Castes should also be allotted to the OBCs of the Islands. The percentage is very reasonable since it appears to be about half of the population of the Islands consist of Backward Classes. The Commission is also of the view that if in future any of the constituent communities of other backward of Islands be declared as Scheduled Caste of the Islands, the percentage of jobs and services to be reserved for them whatever that may be, shall be deducted from 38% of the jobs and services reserved for the Other Backward Classes. On the basis of the projected population of identified communities in 1998 the percentage of OBCs in the islands had come to 49.38%. 6. IT is contended in the affidavit that the petitioner, each of them has no locus standi to make the instant application. The Commission was set up long time back and report was also published and since then no action had been taken. In view of the aforesaid facts and circumstances there is no illegality and infirmity of the report. If the petitioners or for that matter any of the community had any grievance they would have approached the Commission because the Commission held meeting -after advertising and notifying the people at large. 7. STILL the Commission is the only authority who can review the situation and any grievance with regard to this declaration of any community being OBC they may agitate before the Commission and not before the Court. Hence the writ petition should be dismissed. 8. WE have heard the learned Counsel extensively and we have gone through the records of this matter. Hence the writ petition should be dismissed. 8. WE have heard the learned Counsel extensively and we have gone through the records of this matter. Before we proceed further it is appropriate to mention that in terms of the earlier order of this Court dated 9th February 2010, an advertisement was issued in the newspaper inviting response for any aggrieved individuals, parties or bodies or association to this notification. Pursuant to the said order it appears at one point of time on behalf of a body described to be Local Borne Association Mr. M. Tabriz appeared on 12th March 2010 when a direction was given to file affidavit. The said Local Borne Association was added as party respondent and time to file affidavit on its behalf was extended on 9th July, 2010. On 30th July 2010 further extension was granted by the Court. However, no affidavit was filed by the said added respondents. Therefore, the application was heard on the basis of the petition, affidavit-in-opposition and reply of the original parties. It appears to us the issue in this writ petition is very limited which are as follows: (i) Whether the said Commission has been constituted in accordance with the direction of the Hon'ble Supreme Court and further under the provision of the Constitution or not? (ii) Whether the Commission recommending the classes of people and suggesting reservation for them has adopted pick and choose policy? (iii) Whether the section of Islanders are correctly identified as other backward classes as observed by the decision of the Hon'ble Supreme Court or not? (iv) Whether 38 per cent reservation as fixed by the Commission and later on accepted by the impugned notification by the Government is contrary to the Supreme Court pronouncement in the case of R.K. Sabarwal vs. State of Punjab, AIR 1995 SC 1371 ? (v) Whether the acceptance of the said report by the Government is in accordance with the provision of the Constitution or not? 9. WHILE addressing to the first issue we need to examine how the said Commission was constituted. In the affidavit-in-opposition filed on behalf of the respondent Nos. 2,5,6,7,8 and 9 it is explained how it was done. The learned Counsel for the petitioner contends that the Constitution of the Committee is not in accordance with the Article 239 of the Constitution of India. In the affidavit-in-opposition filed on behalf of the respondent Nos. 2,5,6,7,8 and 9 it is explained how it was done. The learned Counsel for the petitioner contends that the Constitution of the Committee is not in accordance with the Article 239 of the Constitution of India. We are unable to accept this contention of the learned Counsel for the petitioner that Commission has to be constituted under Article 340 of the Constitution of India for the simple reason that this Commission was constituted in terms of the direction given by the Hon'ble Supreme Court of India in its judgment in the case of Indira Sawhni and Ors. vs. Union of India and Ors., reported in AIR 1993 SC 497. In paragraph 123 of the said judgment it has been specifically directed by the Supreme Court that the Government of India, each of the State Governments and the administrations of the Union Territories to constitute a permanent body for entertaining, examining and recommending upon request for inclusion and balancing of over-inclusion and under-inclusion in the list of the other backward classes of citizens. In compliance with the said direction Lieutenant Governor of Andaman and Nicobar Islands in exercise of the power conferred by Article 239 read with Article 16(4) of the Constitution of India, constituted a permanent body for the purposes of identification of Other Backward Classes and to suggest extent of reservation. The said Commission consists of following five Members. (a) A Chairperson of the Commission who is or has been a Judge of High Court or the Supreme Court. (b) Chairperson, Andaman and Nicobar Islands' Social Welfare Advisory Board (Member Ex-officio) (c) Non-official Members having special knowledge over matters relating to Backward Classes to be nominated by the administration of the Andaman and Nicobar Islands. (d) The Secretary Andaman and Nicobar Islands' Social Welfare (Member Secretary ex-officio) 10. THUS we are unable to accept the contention about the validity and j legality of the constitution of the said Commission. The Supreme Court while rendering judgment is deemed to have taken note of the Constitutional provision with regard to setting up of the Commission. The Supreme ' Court had occasion to examine all the aspects of the policy and 'the method of providing reservation policy for the various classes viz. Scheduled Castes and Scheduled Tribes and Other Backward Classes. The Supreme Court while rendering judgment is deemed to have taken note of the Constitutional provision with regard to setting up of the Commission. The Supreme ' Court had occasion to examine all the aspects of the policy and 'the method of providing reservation policy for the various classes viz. Scheduled Castes and Scheduled Tribes and Other Backward Classes. We cannot decide subsequently the same issue which the Hon'ble Supreme Court has decided. Now we consider the next point as to whether the said Commission has adopted any pick and choose policy while identifying five groups of OBC categories. After the said Commission was constituted it appears from the affidavit as well as the report of the Commission, general notice was published in March 1995 m the local newspapers in various languages inviting applications from the people of Andaman and Nicobar Islands, class-caste-community wise for the inclusion in the list of other Backward Classes of Andaman and Nicobar Islands. In the said notice it was stipulated that the applications were to be received by 19th June 1995. Only eight applications were received within the said time, accordingly it was decided by the Commission that the date of receiving of the applications should be extended, so it was extended till 15th of January 1996. It also appears that wide publicity through the Government and Private media and Pradhans and Gram Panchayats were given. In spite of taking aforesaid extensive publication of notice 45 Applications were received. It was decided that 13 applications out of 45 received could not be taken into consideration as those have been submitted by individuals and the remaining 32 applications were received from associations of persons from different communities originated from main lands who came to this islands of their own for making their living here. The Commission felt that those classes of people could not be considered as being OBC communities of these islands since they came to the islands of their own as they found it profitable to do so. They have no root in these islands but in the main lands and in all probability they may return there. The Commission has recorded reasons for non-inclusion of these applicants. 11. THE Commission has identified the following groups being OBCs. (i) Pre-1942 Settlers. (ii) Post-1942 Settlers and the descendants of both the groups. (iii) Moplahs. (iv) Carens. (v) Bhatus. 12. They have no root in these islands but in the main lands and in all probability they may return there. The Commission has recorded reasons for non-inclusion of these applicants. 11. THE Commission has identified the following groups being OBCs. (i) Pre-1942 Settlers. (ii) Post-1942 Settlers and the descendants of both the groups. (iii) Moplahs. (iv) Carens. (v) Bhatus. 12. THE reasons for identification of these categories are given in the report extensively after making a study. The Commission has also observed that a number of other families brought from main lands and settled here from different parts of the main lands, by the Central Government, did not make any application for consideration of their reservation. In spite of that the Commission decided that these settlers may be taken into consideration by the Commission later on as and when they apply for being identified as OBC. 13. THE Commission has recorded the criteria and/or basis of identification of the backward classes/The Commission found that these criteria are economic condition of the community, occupation, income factor, educational standard, the counter-part of a community in the main land in the list of Scheduled Castes, Scheduled Tribes and OBC. In order to conduct the survey the Commission undertook the household survey, through an expert group which is called NIC. It appears that the said Commission held study having met representatives of various groups at various places of these Islands. Even all the members have gone to the rural areas located deep into the Islands. The aforesaid groups of representatives identified, approached the Commission and they made representation. After conducting survey and taking note of representation of all sections of people in the Islands the Commission reported for the time being the aforesaid five categories are to be treated as OBC and Commission also felt that 38 per cent should be reserved for them. It is also explained that this percentage of course includes reservation for Scheduled Tribes. Based on aforesaid criteria it was found that 50 per cent of the entire population should have been categorized as OBC category however keeping in view of the Supreme Court judgment the said percentage was fixed at 38 per cent which is reasonable. 14. THE aforesaid fact of conducting survey and inviting applications from various sections are not disputed in the affidavit-in-reply filed by the petitioner. 14. THE aforesaid fact of conducting survey and inviting applications from various sections are not disputed in the affidavit-in-reply filed by the petitioner. We think that on factual score it cannot be held that the exercise undertaken by the Commission is arbitrary or discriminatory. On the other hand we are constrained to observe that the writ petitioners are really estopped from challenging the same as they failed to approach the Commission in spite of notification being issued. The aforesaid percentage appears to be ad hoc measure and it is always variable as it has been observed by the Commission itself. So it is possible for the Commission to revise as and when the proper materials are brought before it. 15. NOW coming to the question of percentage, we are of the opinion that when the Commission has observed basis on fact finding that 38 per cent reservation is reasonable we cannot substitute our reasonableness as the Court cannot make any guess work whatsoever particularly when the percentage has not been decided on a mechanical approach rather it is fixed on detail survey if not research work going to every remotest corner possible and on finding that half of the population of these Islands can be categorized as OBC category. In this circumstances it cannot be said 38 per cent is unreasonable, irrational. 16. WE are unable to accept the contention of the learned Counsel for the petitioner that the said percentage of reservation is contrary to the judgment of Supreme Court in case of R.K. Sahani vs. State of Punjab, AIR 1995 SC 1371 . We have carefully gone through the said judgment mentioned by the learned Counsel for the petitioner. We do not find any maximum percentage has been fixed by the Supreme Court. In paragraph 8 the Supreme Court only observed amongst others that the ...." Portion of a roster or filling the cadre strength, by itself ensures the reservation remains within the 50 per cent limit." Thus we can gather the Supreme Court has said that the reservation must not exceed 50 per cent. In this case the Commission has not exceeded the aforesaid percentage. Now coming to the last point agitated by the petitioner acceptance of the said report of the Commission and implementation thereof are not in accordance with the Constitutional provision. 17. In this case the Commission has not exceeded the aforesaid percentage. Now coming to the last point agitated by the petitioner acceptance of the said report of the Commission and implementation thereof are not in accordance with the Constitutional provision. 17. WE are of the view this point has no substance at all for the simple reason it is the direction of the Supreme Court to appoint amongst other Andaman and Nicobar Islands' Administration to constitute a Committee for the purpose as above. 1 Once such Committee submits report unless it is patently bound or devoid of any materials, the Government has no option but to implement the same. We do not find any Constitutional infirmity or departure in accepting this report. 18. IN view of the aforesaid discussion we think that the grievance made in the petition should have been placed before the Commission We, therefore, give liberty to the petitioner to make a comprehensive representation with the materials warranting revision of earlier decision of the Commission to the Chairperson of the Commission. We request the Honble Chairperson of the Commission to examine the same. If the Chairperson of the Commission feels that the review is required then He will ask the Andaman and Nicobar Islands' Administration to arrange for sitting of the Commission for review and revision of the earlier, reservation to examine the aspect of inclusion, non-inclusion and over-inclusion of any particular category or class or community. Once the Commission decides that review is required on receipt of these materials and request is made to Andaman and Nicobar Islands' Administration, this Administration shall take step for arrangement of sitting of the Commission to review. 19. WE direct the Central Government to think whether the reservation policy should continue for indefinite period or not as reservation policy itself is constitutionally recognized favourable treatment as far as particular class is concerned. WE feel reservation policy for a longer time may have counter- productive and demoralizing effect upon the other community not being favoured with the privileged treatment. 20. WE feel survey should be conducted afresh to identify whether any family belonging to particular community is getting such benefit generation after generation and being unduly enriched economically, educationally and socially with the benefit of reservation. 20. WE feel survey should be conducted afresh to identify whether any family belonging to particular community is getting such benefit generation after generation and being unduly enriched economically, educationally and socially with the benefit of reservation. WE are of the opinion that object of reservation is not to enrich any class, and it is temporary measure aiming at to bring about equilibrium and not to create new privileged class with State patronage. With the aforesaid observation and direction as above this writ petition is disposed of. Kanchan Chakraborty, J. I agree. B.D.