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Madhya Pradesh High Court · body

2017 DIGILAW 1153 (MP)

Pranav Dwivedi v. Union of India

2017-11-10

S.K.AWASTHI, SANJAY YADAV

body2017
ORDER : SANJAY YADAV, J. 1. The petitioner, by way of present petition, seeks following reliefs: "10. Relief(s) Prayed For: On the basis of the aforementioned facts and the grounds urged, it is most humbly prayed before the Hon'ble court to allow the instant writ petition filed by the petitioner, it is further prayed: (a) to direct the government to revise the central backward class list which is mandatory public duty under section 11(1) of National Commission for Backward Classes Act, 1993 through appropriate methodology which may include constitution of commission. (b) To direct the government to carry out the abovementioned revision within six months of passing of such order. (c) To grant any other relief, writ, order, direction which the Hon'ble court deem fit and necessary for upholding Justice, Equity and Good Conscience." Section 11 of the National Commission For Backward Classes Act, 1993 (for brevity "the Act of 1993) stipulates: "11. Periodic revision of lists by the Central Government.-(1) The Central Government may at any time, and shall, at the expiration of ten years from the coming into force of this Act and every succeeding period of ten years thereafter, undertake revision of the lists with a view to excluding from such lists those classes who have ceased to be backward classes or for including in such lists new backward classes. (2) The Central Government shall, while undertaking any revision referred to in subsection (1), consult the Commission." 2. Evident it is that the Act of 1993 was enacted to constitute National Commission for Backward Classes other than the Scheduled Castes and the Scheduled Tribes and to provide for matters connected therewith or incidental thereto. In the statement of object and reasons it finds mention that the decision by the Supreme Court in the case of Indra Sawhney on 16.11.1992 paved the passage for enactment of Act of 1993 with an object to carry out the verdict of the Supreme Court. 3. In the statement of object and reasons it finds mention that the decision by the Supreme Court in the case of Indra Sawhney on 16.11.1992 paved the passage for enactment of Act of 1993 with an object to carry out the verdict of the Supreme Court. 3. Section 2(c) defines "lists" to mean : "lists prepared by the Government of India from time to time for purposes of making provision for the reservation of appointments or posts in favour of backward classes of citizens which, in the opinion of that Government, are not adequately represented in the services under the Government of India and any local or other authority within the territory of India or under the control of the Government of India." Thus, it is the opinion of Government of India for purpose of making provision of reservation of appointments on posts in favour of backward classes of citizen not adequately represented in the service of the Government of India and any local or other authority which is paramount. That chapter III deals with the functions and powers of the commission. Section 9 envisages function of the commission that, the commission shall examine requests for inclusion of any class of citizens as a backward class in the lists and hear complaints of over-inclusion or under-inclusion of any backward class in such lists and tender such advice to the Central Government as it deems appropriate. Subsection 2 of Section 9 stipulates "The advice of the Commission shall ordinarily be binding upon the Central Government." 4. Section 11 provides for that the Central Government may at any time, and shall, at the expiration of ten years from the coming into force of this Act and every succeeding period of ten years thereafter, undertake revision of the lists with a view to excluding from such lists those classes who have ceased to be backward classes or for including in such lists new backward classes. Sub-section (2) of Section 11 stipulates that the Central Government shall, while undertaking any revision referred to in sub-section (1), consult the commission. 5. The question is can a mandate be issued to the Central Government to undertake the exercise under Section 11 after the expiry of 10 years. In other words, whether the provision is mandatory or only enabling. Sub-section (2) of Section 11 stipulates that the Central Government shall, while undertaking any revision referred to in sub-section (1), consult the commission. 5. The question is can a mandate be issued to the Central Government to undertake the exercise under Section 11 after the expiry of 10 years. In other words, whether the provision is mandatory or only enabling. Because if they are mandatory, then a mandate may lie against the Government, but if these provisions are directory and only enabling, then a mandamus cannot be issued. 6. Before dwelling on the above legal issue, the facts adverted to by the Union of India is taken note of. 7. It is revealed from the return that the Ministry of Social Justice & Empowerment vide its letter No. 12015/13/2000-BCC dated 31st October 2000 entrusted the task of undertaking the identification of backward classes to this commission for the purpose of revising the lists of OBCs, as envisaged under section 11 of the Act. As desired by the Ministry, this commission also submitted an Action Plan for undertaking this exercise to the Ministry vide DO No. 117/revision/MS/NCBC-2000 dated 13.12.2000 and the same was approved by the Ministry vide its DO No. 12015/13/2000-BCC dated 11.1.2001. However, inspite of various steps taken by this Commission it has not been possible to obtain the necessary data from most of the State/Union territories to carry out the proposed revision. In this connection a self contained Note is enclosed. As stated in para 9 of this Note, most of the State/UTs are unable to make available the requisite data to determine as to which of the castes/communities that have been notified in the central lists, have ceased to be backward. In view of the above, this matter was considered in depth by Commission in its 26th Meeting held on 29.07.2003 and it was decided that in the absence of the data the Commission requires to identify castes/communities that have ceased to be backward, none of the castes/communities notified in the Central Lists may be deleted at this stage. 8. It is further revealed that Ministry of Social Justice and Empowerment, in October, 2000, decided to entrust the NCBC with the task of identification of OBCs to undertake a revision of lists as envisaged under Section 11 of the 1993 Act. 8. It is further revealed that Ministry of Social Justice and Empowerment, in October, 2000, decided to entrust the NCBC with the task of identification of OBCs to undertake a revision of lists as envisaged under Section 11 of the 1993 Act. The NCBC was also requested to send a proposal specifying the procedure to be adopted, time schedule and the action plan for undertaking the exercise. The NCBC submitted the plan of action on 13.12.2000, in accordance whereof the questionnaire was to be sent to the State Governments/Union Territories by January, 2001 and they were required to furnish the data within three months' time. That after receiving the data, the next step was identification of backward classes that have ceased to be backward based on quantitative data furnished by the States/Union Territories. It was envisaged that examination of data, public hearings, surveys/studies etc would take about 1 and 1/2 years and the whole process would be completed at the end of year 2002. As the Commission was unable to obtain necessary data from the States and Union Territories and after considering the matter in its 26th Meeting held on 29.07.2003 it was decided by the Central Government that in the absence of data which the Commission required to identify castes/communities that have ceased to be backward, none of the castes/communities notified in the Central List can be deleted at this stage. 9. It is further borne out from the record that the Central Government in 2007 again undertook the exercise under Section 11 of the Act of 1993 whereon it was noted that the following considerations continued to be relevant: "(a) NCBC had pointed out lack of data from the State Governments as the main reason for their recommendation. (b) Only a few applications complaining about wrong inclusion of castes/communities had been received by NCBC and if the exercise was limited to such petitions, the impact may not be discernible. (c) If the NCBC was to undertake a de-novo exercise with respect to other communities, it would be voluminous and time consuming as it would include surveys and public hearings in several cases. (d) NCBC had informed in October, 2007 that the exercise to revise the Central List of OBCs may take 3 to 5 years and a detailed procedure would have to be evolved by the Commission before undertaking the exercise. 10. (d) NCBC had informed in October, 2007 that the exercise to revise the Central List of OBCs may take 3 to 5 years and a detailed procedure would have to be evolved by the Commission before undertaking the exercise. 10. In view whereof the Central Government decided to hold a meeting with the NCBC for a preliminary discussion for undertaking revision exercise. A note to that effect was circulated for meeting on 14.05.2011. It was inter-alia mentioned in the said note that the Government has decided to conduct Caste Census for all persons as an independent exercise after population enumeration 2011 was over. That Caste Census was likely to be conducted from June, 2011. The note which was circulated mentioned the following issues for consideration in the light of the proposed BPL-Caste Census:- (i) Possible modalities and timing for undertaking the revision exercise u/s. 11 of NCBC Act, in view of the above facts, especially the up-coming Caste Census. (ii) Role which the NCBC may play in the above exercise. (iii) Need for a consultation with State Governments and State Commissions for Backward Classes, and if so, at what stage. 11. In the meeting held on 14.05.2011, the minutes whereof as reflected in the document Annexure R-5, which are extracted below, reveal: "5. Hon'ble Minister also stated that the Government had decided to conduct a Caste Census along with the BPL Census, in 2011. Hence socio-economic data was going to be available on all castes, including OBCs. He sought the view of Chairman & Members of NCBC in this regard. 6. Chairman, NCBC, mentioned that the Commission had consulted research organization including ICSSR to explore the possibility of undertaking a separate OBC Survey in the context of the revision exercise u/s. 11 of the NCBC Act. From the response of these organizations, he observed, that it would take at least 2 to 3 years to complete the exercise. Keeping in view the time factor involved in conducting a separate survey, he felt that it would be appropriate if the results of the BPL caste survey beginning in June, 2011 are awaited, before the revision exercise is initiated u/s. 11 of the NCBC Act. 7. The Addl. Keeping in view the time factor involved in conducting a separate survey, he felt that it would be appropriate if the results of the BPL caste survey beginning in June, 2011 are awaited, before the revision exercise is initiated u/s. 11 of the NCBC Act. 7. The Addl. RGI informed that the data on castes would be collected along with the BPL survey which is proposed to be conducted by Ministry of Rural Development (for rural areas) and Ministry of Housing & Urban Poverty Alleviation (HUPA) (for urban areas) from June, 2011, and a draft Questionnaire was prepared to collect information by both the Ministries. He also informed that Ministry of Social Justice and Empowerment has to set up an Expert Group to categorize the OBCs. Hon'ble Minister clarified that the RGI has to assume nodal responsibility in the matter in view of its expertise acquired over the years in collection of data for SCs/STs, while the Ministry of Social Justice & Empowerment does not have such expertise and also that the decision regarding constitution of the Expert Group would be taken by the government at an appropriate time. A clarification was also sought from the Addl. RGI if the data on DNTs could be obtained through the caste census. The Addl. RGI clarified that this data could be obtained as all castes were going to be canvassed. In this connection, Chairman, NCBC mentioned that most of the DNTs are already listed as OBCs. 8. Secretary (SJ&E) invited attention to the guidelines of NCBC for consideration of requests for inclusion and complaints of under inclusion in the Central List of OBCs. He mentioned that a comparison of the draft Questionnaires of the two Ministries for collecting information during the BPL and Caste Census and the guidelines of NCBC indicate that perhaps some more information on socio economic status of castes/communities may need to be collected. In this regard, the Hon'ble Minister (SJ&E) pointed out that the migratory nature of habitation and occupation was an important element in ascertaining the status of DNTs. Secretary (SJ&E) said that periodicity of employment of individuals (number of days employed in a year) is also an essential component to determine the socioeconomic status of individuals. It was decided to take up the matter of getting suitable questions on socio-educational status incorporated in the BPL-cum-Caste Census with the Ministry of Rural Development & HUPA. Secretary (SJ&E) said that periodicity of employment of individuals (number of days employed in a year) is also an essential component to determine the socioeconomic status of individuals. It was decided to take up the matter of getting suitable questions on socio-educational status incorporated in the BPL-cum-Caste Census with the Ministry of Rural Development & HUPA. It was also decided that the exercise of undertaking a revision u/s. 11, NCBC Act, may be commenced after the results of BPL-cum-Caste Census become available." 12. The record further reveals that Ministry of Social Justice and Empowerment again sought views from NCBC in August, 2012 on the revision of the Central List of OBCs. The matter was discussed, Commission's meeting was held on 23rd August, 2012 and it was decided that to undertake the work of revision of central list of OBCs, it was absolutely necessary to have details about the social backwardness with details of the caste profession (traditional occupation of the caste) are necessary. It was also noticed that SECC 2011 survey covered the data in respect of SC/ST and "Others" and no separate OBC specific data was provided in the enumeration questionnaire. That as there were repeated requests made by NCBC to finalize SECC data, a meeting was held by Secretary, Ministry of Social Justice and Empowerment with Member Secretary, NCBC and Registrar General of India (RGI) officials on 23.12.2014 to discuss SECC-2011. The record further reveals that in May, 2015, the Commission addressed the Registrar General and Census Commissioner of India to send the complete set of schedules which were canvassed by the field staff during General Census Operations of 2011. 13. The NCBC also requested the Registrar General and Census Commissioner of India to offer advice and suggestions on how to obtain the OBC related data in the schedules which would be prepared for the next General Census-2021. 14. As the above exercise was underway, the judgment came to be delivered by the Supreme Court in the matter of "Ram Singh & Ors. v. Union of India [(2015) 4 SC 697]" wherein their Lordships were pleased to observe: "52. 14. As the above exercise was underway, the judgment came to be delivered by the Supreme Court in the matter of "Ram Singh & Ors. v. Union of India [(2015) 4 SC 697]" wherein their Lordships were pleased to observe: "52. A very fundamental and basic test to determine the authority of the Government's decision in the matter would be to assume the advice of the NCBC against the inclusion of the Jats in the Central List of Other Backward Classes to be wrong and thereafter by examining, in that light, whether the decision of the Union Government to the contrary would pass the required scrutiny. Proceeding on that basis what is clear is that save and except the State Commission Report in the case of Haryana (Justice K.C. Gupta Commission Report) which was submitted in the year 2012, all the other reports as well as the literature on the subject would be at least a decade old. The necessary data on which the exercise has to be made, as already observed by us, has to be contemporaneous. Outdated statistics cannot provide accurate parameters for measuring backwardness for the purpose of inclusion in the list of Other Backward Classes. This is because one may legitimately presume progressive advancement of all citizens on every front i.e. social, economic and educational. Any other view would amount to retrograde governance. Yet, surprisingly the facts that stare at us indicate a governmental affirmation of such negative governance inasmuch as decade old decisions not to treat the Jats as backward, arrived at on due consideration of the existing ground realities, have been reopened, inspite of perceptible all round development of the nation. This is the basic fallacy inherent in the impugned governmental decision that has been challenged in the present proceedings. The percentage of the OBC population estimated at "not less than 52%" (Indra Sawhney) certainly must have gone up considerably as over the last two decades there has been only inclusions in the Central as well as State OBC Lists and hardly any exclusion therefrom. This is certainly not what has been envisaged in our Constitutional Scheme. 53. In so far as the contemporaneous report for the State of Haryana is concerned, the discussion that has preceded indicate adequate and good reasons for the view taken by the NCBC in respect of the said Report and not to accept the findings contained therein. This is certainly not what has been envisaged in our Constitutional Scheme. 53. In so far as the contemporaneous report for the State of Haryana is concerned, the discussion that has preceded indicate adequate and good reasons for the view taken by the NCBC in respect of the said Report and not to accept the findings contained therein. The same would hardly require any further reiteration. 54. Past decisions of this Court in M.R. Balaji v. State of Mysore [ AIR 1963 SC 649 ] and Janaki Prasad v. State of Jammu & Kashmir [ (1973) 1 SCC 420 ] had conflated the two expressions used in Articles 15(4) and 16(4) and read them synonymously. It is in Indra Sawhney's case (supra) that this Court held that the terms "backward class" and "socially and educationally backward classes" are not equivalent and further that in Article 16(4) the backwardness contemplated is mainly social. The above interpretation of backwardness in Indra Sawhney (supra) would be binding on numerically smaller Benches. We may, therefore, understand a social class as an identifiable section of society which may be internally homogenous (based on caste or occupation) or heterogeneous (based on disability or gender e.g. transgender). Backwardness is a manifestation caused by the presence of several independent circumstances which may be social, cultural, economic. educational or even political. Owing to historical conditions. particularly in Hindu society, recognition of backwardness has been associated with caste. Though caste may be a prominent and distinguishing factor for easy determination of backwardness of a social group, this Court has been routinely discouraging the identification of a group as backward solely on the basis of caste. Article 16(4) as also Article 15(4) lays the foundation for affirmative action by the State to reach out the most deserving. Social groups who would be most deserving must necessarily be a matter of continuous evolution. New practices, methods and yardsticks have to be continuously evolved moving away from caste centric definition of backwardness. This alone can enable recognition of newly emerging groups in society which would require palliative action. The recognition of the third gender as a socially and educationally backward class of citizens entitled to affirmative action of the State under the Constitution in National Legal Services Authority v. Union of India [ (2014) 5 SCC 438 ] is too significant a development to be ignored. The recognition of the third gender as a socially and educationally backward class of citizens entitled to affirmative action of the State under the Constitution in National Legal Services Authority v. Union of India [ (2014) 5 SCC 438 ] is too significant a development to be ignored. In fact it is a path finder, if not a path- breaker. It is an important reminder to the State of the high degree of vigilance it must exercise to discover emerging forms of backwardness. The State, therefore, cannot blind itself to the existence of other forms and instances of backwardness. An affirmative action policy that keeps in mind only historical injustice would certainly result in under-protection of the most deserving backward class of citizens, which is constitutionally mandated. It is the identification of these new emerging groups that must engage the attention of the State and the constitutional power and duty must be concentrated to discover such groups rather than to enable groups of citizens to recover "lost ground" in claiming preference and benefits on the basis of historical prejudice. 55. The perception of a self-proclaimed socially backward class of citizens or even the perception of the "advanced classes" as to the social status of the "less fortunates" cannot continue to be a constitutionally permissible yardstick for determination of backwardness, both in the context of Articles 15(4) and 16(4) of the Constitution. Neither can backwardness any longer be a matter of determination on the basis of mathematical formulae evolved by taking into account social, economic and educational indicators. Determination of backwardness must also cease to be relative: possible wrong inclusions cannot be the basis for further inclusions but the gates would be opened only to permit entry of the most distressed. Any other inclusion would be a serious abdication of the constitutional duty of the State. Judged by the aforesaid standards we must hold that inclusion of the politically organized classes (such as Jats) in the list of backward classes mainly, if not solely, on the basis that on same parameters other groups who have fared better have been so included cannot be affirmed. 15. It is stated on behalf of the Central Government that in its exercise to revise the OBC list, the parameters as have been laid down by the Supreme Court are also being enumerated. 16. 15. It is stated on behalf of the Central Government that in its exercise to revise the OBC list, the parameters as have been laid down by the Supreme Court are also being enumerated. 16. In view of all these facts, it is stated on oath in para 7 and 8 of the additional return: "7. That it is further submitted that it is a matter of record that the Central Government has in the two decades and beyond, following the NCBC Act of 2nd April, 1993, made amendments in the Central List of OBCs, as per advises of the NCBC. In other words, the Central Government has acted much before the expiration of 10 years and subsequent 10 year period of the coming into force of the NCBC Act, in notifying modifications in the Central List of OBCs for various states. 8. That in view of the foregoing, the contentions of the petitioner are unfounded and apprehensive without a reason. The reliefs sought based on such misapprehension are thereby inadmissible and are undeserving of the attention of this Hon'ble Court. Hence, the present clarification/additional return is being submitted, which deserves to be taken on record." 17. After taking note of the entire facts on record, rival submissions, as also measures taken by the Central Government in consultation with NCBC for revision of list of the OBCs in exercise of powers under Section 11 of the Act of 1993 it cannot be said that no action is being taken by the Central Government as would warrant issuance of mandamus as sought for by the petitioner. 18. Therefore, while leaving issue stated supra in paragraph 6 to be decided in an appropriate case, we find no good reason to issue a mandate to the Central Government to take up the work of revision of list of OBCs in exercise of its powers under Section 11 of the Act of 1993. 19. Petition stands disposed of finally in above terms. There shall be no costs.