IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 36159 of 2003(D)
1. BINDU GANESH, "KRISHNAPRIYA",
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY ITS
... Respondent
2. THE TAHSILDAR, KARUNAGAPPALLY.
3. THE KERALA STATE COMMISSION FOR
4. THE DISTRICT OFFICER, KERALA
For Petitioner :SRI.C.UNNIKRISHNAN (KOLLAM)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :18/08/2007
O R D E R
THOTTATHIL B.RADHAKRISHNAN, J.
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W.P(C).No.36159 OF 2003, O.P.Nos.17231 OF 2000,
8516 OF 2001, 3058 OF 2002,
W.P(C).Nos. 37584 OF 2003 & 2001 OF 2004
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Dated this the 18th day of August, 2007
JUDGMENT
“C.R.”
These writ petitions are filed challenging G.O(NC)No.
77/98/SCSTDC dated 10.8.1998, whereby, the Government acted
on the advice tendered to it by the Kerala State Commission for
Backward Classes, hereinafter referred to as the ‘Commission’,
on the question of inclusion of the ‘Chakkala Nair’ community in
the State list for Other Backward Classes, for reservation
purpose.
2. The thrust of the contentions advanced in these writ
petitions, at the time of final hearing can be encapsulated as
follows:
(i) The Commission erred in relying on the opinion of
the Ananthakrishna Iyer International Centre for
Anthropological Studies, hereinafter referred to as ‘AICAS’,
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and ignoring the report of the Kerala Institute of Research,
Training and Development Studies on Scheduled Castes
and Tribes(KIRTADS).
(ii) The reliance placed on the report of AICAS and the
prominence given to Dr.P.R.Govindankutty Mathur as a
special invitee to assist the Commission are wholly
unfounded and against public interest because, Dr.Mathur
was earlier held by the Government to have
misrepresented facts in relation to an issue of caste status
of ‘Thandans’ and as per G.O.(MS) 6/91/SCSTDD dated
11.2.1991, the Government had reduced his pension after
he retired as Special Officer of KIRTADS.
(iii) ‘Chakkala Nair’ is a community which ought to be
treated as ‘Chakkala’ and the advice to the contrary,
tendered by the Commission and the consequential
Government Order are contrary to law and the materials on
record.
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3. In support of the impugned decisions, the learned Special
Government Pleader argued that on the basis of the materials
on record, the impugned decisions cannot be found fault with
and that a reading of the advice of the Commission would show
that the report of KIRTADS as well as AICAS and the other
different materials produced before the Commission were taken
into consideration in making the advice.
4. Learned Standing Counsel for the Kerala Public Service
Commission pointed out that no challenge having been
specifically pleaded and urged regarding the findings in para 33
of the impugned advice that the representation of the employees
belonging to the community in question would show that the rate
of representation is indeed very high, the impugned decision
cannot be found fault with because, adequacy of representation
in different services is the criterion to make a reservation.
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5. Before entering on to adjudicate on the basis of the
contentions advanced, it needs to be noticed that the
Commission is constituted under the provisions of the Kerala
State Commission for Backward Classes Act, 1993, to examine
the request for inclusion of any class of citizens as a backward
class in the list, to hear the complaints of over-inclusion of any
backward class in such list and to tender such advice to the
Government, if it deems appropriate. Section 10 provides
different powers of the Commission while performing its
functions. It shall have all the powers of a civil court in trying a
suit and in particular, in respect of the matters enumerated
therein. Sub-section 2 of Section 9 of that Act provides that the
views and findings of the Commission shall ordinarily be binding
upon the Government.
6. Section 11 of the Act, of which specific note has to be
taken, provides that the Government may, at any time, and shall
at the expiry of 10 years from the coming into force of the Act
and every succeeding period of 10 years thereafter, undertake
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revision of the lists with a view to exclude from such lists the
particular classes who have ceased to be Backward Classes or
for including any such class in the lists of Backward Classes.
The Government are to consult the Commission for such
purpose. In view of the aforesaid statutory provision, it has to be
noticed that the over all intention is to assess and identify those
classes which are to be treated as backward classes and the
purview of the consideration is normally a span of 10 years. This
is because, continued inclusion could be subjected to periodic
revision every 10 years while necessity to inclusion is also a
matter that could be considered. So much so, the consideration
of the Commission while making an advice to the Government, is
not merely to be an exercise of reading out of the entire history
of a particular community and confining itself to an
anthropological study. The result of the entire exercise has to be
to reach at a conclusion whether a particular class is to be
treated as a backward class for the purpose of being included in
the list or for letting such a class to continue in the list, for
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which, the representation that the said class has in public
service, has also to be taken into consideration.
7. The advice made by the Commission in the case in hand
was generated on the basis of seven associations claiming to be
organisations of Chakkala Nairs, the names of which
organisations are enumerated in the opening paragraph of the
impugned advice. None of those organizations has challenged
either the advice or the Government Order which runs contrary
to the claims made by them. The advice contains the undisputed
fact that due publicity was given to the scheduled hearing
through the press, inviting objections to or comments on the
inclusion of Chakkala Nair in the list of OBC for reservation in
public service. None among the petitioners has a case that he
participated in the proceedings before the Commission pursuant
to such public notice. The provisions made in the Act are for the
constitution of the Commission to take care of the responsibility
of advising the Government after considering all aspects of a
particular matter. So much so, when the Commission has made
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the advice after considering the materials placed before it and
after public notice, I do not deem it appropriate to let the advice
to be subjected to judicial scrutiny at the instance of individuals,
who had not chosen to participate in proceedings before the
Commission, particularly when none among the organisations,
seven in number in the case in hand, has chosen to challenge the
advice made by the Commission to the Government or to
challenge the Government decision that followed the advice of
the Commission.
8. Be that as it may, adverting to the arguments raised, it has
to be noticed at the outset that the report of KIRTADS has been
taken note of by the Commission. The argument to the contrary
is unsustainable. The KIRTADS’ report contained in letter dated
22.3.1995, addressed by its Director to the Government, has
been rightly treated by the Commission as a document which is
not a report of any fact finding study, but a compilation of very
useful extracts about the community in question, culled from
the works of authors who have made special studies of that
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caste group. The Commission specifically noticed that KIRTADS
has not made any field study. The Commission, headed by a
former Judge of this Court and by members in terms of the
provisions of the Act, has categorically stated that the
Commission had made use of the report of KIRTADS also to
arrive at a conclusion. I find no material to overrule that.
9. The criticism of Dr.Mathur that the Government had found
that he had wrongly advised the Government on an earlier
incident is correct. But the fact remains that he, at that time,
was essentially heading KIRTADS. He was made a special
invitee by the Commission and the AICAS report was also
considered by the Commission. It is not as if the Commission
relied exclusively on the AICAS report or on the statement of
Dr.Mathur. Even if any comment that Dr.Mathur had made is
eschewed, it can be seen that the Commission acted on various
materials, including the oral evidence of different witnesses and
the views of the KIRTADS, along with AICAS survey report.
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10. Incidentally, it has to be mentioned that it was attempted to
be pointed out on behalf of the petitioners that the Accountant
General has criticized the expenditure shown to have incurred by
AICAS in conducting the survey and that the Government had
explained about it to the Accountant General. Those matters are
irrelevant and do not really go to the root of the reliability of the
advice tendered by the Commission, which has been acted upon
by the Government, particularly when no case of personal bias or
malice is attributed to the members of the Commission. Nor is
there any plea of ill-constitution or incompetence of the
Commission.
11. The conclusion of the Commission was that Chakkala Nairs
are educationally and economically poor, but that they had
enjoyed the benefit by reaping the quota that was available to
Chakkalas and that, as of now, the representation of Chakkala
Nairs in the various services of the State Government reflects
that their rate of representation is indeed very high. The
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following statement is made by the Commission in para 33 of the
advice on the basis of the statistics collected by the Commission.
“Of the 187 departments/Autonomous
Bodies/Public Sector Undertaking in respect of which
data are available, they had representation in 68. The
total number of employees belonging to this
community is 575, comprising top level (1), gazetted
(40), middle level (2), non-gazetted (365), last grade
(102) and workmen (65).”
12. The aforesaid factual findings of the Commission, on
statistics, are not challenged by the petitioners. Therefore, even
if Chakkala Nair has been identified as educationally and
economically poor, the advice of the Commission to the
Government that the community Chakkala Nair does not satisfy
the requirements and the criteria involved to identify backward
class of citizens, cannot be found fault with. Equally, the
impugned decision of the Government cannot also be interfered
with.
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13. A further fact that is not in dispute is that the PSC, while
issuing notification, included ‘Chakkala Nair’ within brackets
along with ‘Chakkala’ in the list of Other Backward Classes and
such action of the PSC was without the authority of the
Government. So much so, any action of the PSC on the basis of
which the ‘Chakkala Nair’ community had also enjoyed certain
benefits that were extended to ‘Chakkala’, cannot be claimed as
a matter of right and by the Government Order, the situation
has been appropriately settled.
14. For the aforesaid reasons, I find no ground to interfere
either with the advice of the Commission or with the decision of
the Government.
In the result, these writ petitions fail and are hence
dismissed. No costs.
Sd/-
THOTTATHIL B.RADHAKRISHNAN,
Judge
kkb.
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=======================
THOTTATHIL B. RADHAKRISHNAN, J
W.P(C).No.36159 OF 2003,
O.P.Nos.17231 OF 2000,
8516 OF 2001, 3058 OF 2002,
W.P(C).Nos. 37584 OF 2003 &
2001 OF 2004
JUDGMENT
AUGUST, 2007.
=======================