sudhir agrawal judjement about adequate representation and exclusion of yadav kurmi caste from obc list

 

Sumit Kumar Shukla And Others v. State Of Uttar Pradesh And Others

Judgment

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Sumit Kumar Shukla And Others

v.

State Of Uttar Pradesh And Others

(High Court Of Judicature At Allahabad)

Civil Miscellaneous Stay Application No. 247959 of 2013 in Civil Miscellaneous Writ Petition No. 46249 of 2013 | 03-10-2013

Sudhir Agarwal, J.—The Four petitioners who have come to this Court by way of this writ petition, filed under Article 226 of the Constitution of India, are aspirants for the post of Constable in Civil Police (hereinafter referred to as "C.P."), Fireman and Provincial Armed Constabulary (hereinafter referred to as "P.A.C."), for which, an advertisement/requisition has been published by Uttar Pradesh Police (Recruitment and Promotion Board) vide notification dated 20.6.2013 with respect to 35,500 vacancies of Constable, C.P., 4033 vacancies for Constable, P.A.C. and 2077 vacancies for Fireman. Out of above, 17750 vacancies are unreserved for Constable, C.P. while in P.A.C. and Fire services 2016 and 1038 vacancies are unreserved. Rest of the vacancies are reserved for different categories as mentioned in paragraphs No. 2, 3 and 4 of the advertisement/notification which reads as under:

Besides above, other kinds of reservations are also provided, like, "dependents of freedom fighters etc. They are horizontal. However, the same are not in dispute in this matter.

2. Petitioners have applied, pursuant to the aforesaid advertisement, as stated in para 6 of the writ petition. They have assailed huge number of vacancies reserved for O.B.C., S.C. and S.T., on the ground that representation of these categories is extremely higher in the State service, including that of police, therefore, continuation of reservation for them is unconstitutional. In alternative, it is stated that the State Government without looking into the level of representation of various classes constituting O.B.C., S.C. and S.T., in a mechanical manner, is continuing with reservation, irrespective of the fact whether their representation has gone much beyond the required level i.e. adequate representation. Reliance has been placed on M. Nagrajan and others v. Union of India and others, (2006) 8 Supreme 89; Ashok Kumar Thakur. Union of India and others, 2008 (3) ST 491 and Division Bench judgment of this Court in Sanjeev Kumar Singh Vs. State of U.P. and Deputy Inspector General of Police (Establishment) and Secretary Police, P.A.C. Selection Board . It is argued that that continuation of reservation in civil services in respect of persons of reserved classes in such service has now entered into realm of colourable exercise of power, malice and mala fide and is also sheer political exploitation without looking to strict Constitutional requirements in this regard.

3. In the Supplementary-affidavit, a report dated 31.8.2001 of Social Justice Committee has been appended to demonstrate representation of different classes in civil posts, as found at that point of time, to fortify that continuance of reservation in respect of certain classes, highly represented, is unconstitutional.

4. Sri S.P. Gupta, learned Advocate General, though found a bit handicapped for himself, due to the lapse on the part of respondents in not filing counter-affidavit, despite opportunity given to them, however, opposed application for interim order, contending as follows:

(i) The community-wise census is under process at the level of Government of India. The aforesaid body having been appointed by Government of India, the State Government has no role to play. Unless and until a report of the said body is available, current/present status of population, showing different classes included in the list of O.B.C., S.C., S.T., cannot be ascertained. Therefore, adequacy of representation in civil services also cannot be ascertained as on date.

(ii) Adequacy of representation though has not been defined, but it cannot be cumulative for all services, but will have to be with respect to different services, individually as well as collectively. So long as exercise of community-wise census is not complete, the correct figures cannot be worked out at this stage. Therefore, the State is justified in continuing with the reservation without any tinkering therein.

(iii) Similar matter came up before this Court in special appeal No. 910 of 2005 in which an order was passed on 21st December, 2012, where against a SLP No. (CC) 8393 of 2013 was filed. The Apex Court has stayed further proceedings in that appeal and, therefore, this matter should also be deferred till the aforesaid appeal is decided by Apex Court.

(iv) Lastly, that the petitioners have not stated anywhere that they have applied for any civil post. In fact, what has been pleaded in the petition shows that writ petition is in the nature of Public Interest Litigation (hereinafter referred to as "P.I.L."), therefore, must be dealt with by the Court concerned, assigned with the jurisdiction of P.I.L.

5. I have heard learned counsel for the parties. My order is confined only to the extent of consideration, necessary to dispose of application for interim order. Earlier the matter was deferred for today giving time to file Counter-affidavit. It was also clarified in my order dated 9.9.2013 that I do not propose to pass ex parte order, hence prayer for interim order shall be considered on the next date.

6. It is worthy to notice that this matter was heard at length at the time of admission and thereafter, I passed a detailed order noticing various contentions, advanced by learned counsel for petitioner at that time and while affording opportunity to respondents to file counter-affidavit, I also required them to explain certain aspects which I found, necessary, for proper adjudication of issues raised in this writ petition. It is relevant to reproduce order 9.9.2013 which is as under:

1. Supplementary-affidavit filed today is taken on record and shall be treated to be part of the record of the writ petition.

2. It is contended that representation of the various categories of Other Backward Classes (hereinafter referred to as "OBC") in services has already reached and surpassed what can be said to be adequate representation, but due to lapses on the part of respondents in not undergoing any study on this aspect, in a wholly unconstitutional and illegal manner, the reservation to all the categories is continuing in a mechanical way. It is also pointed out that this Court as well as Apex Court have repeatedly directed the respondents to make an investigation about the extent of representation of various categories in public services to find out whether continuance of reservation to those categories is valid or not, but for the reasons other than bona fide, the State is not deliberating on the matter of reservation and the reservation in public service is continuing to all the categories. It is also prayed that since the representation in respect to various categories of OBC has already crossed the stage of adequate representation, therefore, it should be stayed and should not be continued.

3. Learned counsel for petitioner drew my attention to supplementary-affidavit in which he has appended copy of the affidavit of Sri J.P.N. Dwivedi, Deputy Secretary, Personnel Department, as Annexure SA-1 in which copy of a report dated 31.8.2001 submitted by Samajik Nyay Samiti constituted by the U.P. Government has been appended. In Chapter 7 thereof, there is a chart showing that in Group-A service of all the kinds, representation of OBC of all classes is 6.25 per cent, percentage of scheduled castes (hereinafter referred to as "SC") is 16.42 per cent and Scheduled Tribes (hereinafter referred to as "ST") is 0.43 per cent. In Group-B services, representation of OBC in all classes on an average basis is 15.23 per cent, for SC 16.56 per cent and for ST, 0.44 per cent. In Group C services, the representation is 27.17 per cent of OBC, 16.97 per cent for SC and 0.19 per cent for ST. Lastly in Group-D service, OBC representation is 28.62 per cent, SC representation is 36.13 per cent and ST representation is 0.33 per cent. These figures compiled therein admittedly represent the ground situation as it stood in August 2001 or earlier thereto. Thereafter, there is another Chart on page 58 of the supplementary-affidavit prepared by aforesaid committee considering-individual class wise representation of various categories which is in the list of SC, OBC and SC categories respectively. In SC category, the percentage representation of those belong to category of Chamar, Dhusiya, Jatav in Group-A is 60.93 per cent, in Group-B 68.95 per cent, in Group-C 61.23 per cent and in Group-D 45.50 per cent. The average percentage (Weightage Formula) of all three categories in SC list, the representation comes to 59.67 per cent as per the aforesaid report.

4. Similarly, in the category of OBC, Ahir, Yadav, Yaduvanshi and Gwala is one category and in the list of OBC, their representation in various services as per the aforesaid in Group-A is 30.26 per cent, in Group-B 40.29 per cent, in Group-C 33.84 per cent and in Group-D 25.05 per cent. The percentage representation through weightage formula has been calculated as 34.49 per cent. Similarly, those in the category of Kurmi, Chanau, Patel Patanwar, Kurmi Malla, Kurmi Sandhwar, the representation in Group-A is 23.03 per cent, in Group-B 19.17 percent, in Group-C 13.51 per cent and in Group-D, 7.21 per cent. These figures obviously represent the position as in 2001. In the last more than a decade, since the reservation has continued, the representation percentage must have got up. Founded thereon it is contended that the aforesaid representation ratio leaves no manner of doubt that many of categories amongst reserved classes are already represented to a very high level and their continued reservation is wholly unconstitutional and impermissible, therefore, the further reservation to such categories at least should be stayed forthwith, else it will allow wholly unconstitutional selection and appointment in public services.

5. Having gone through the record and also the submissions made above, prima facie, I find that matter requires consideration as it involves serious issues and if the figures, as stated above, are correct, State is under an obligation to explain the justification for continued reservation at least for the categories who are represented to such an extent, as mentioned in the aforesaid report.

6. However, at this stage, I do not propose to pass any ex parte interim order and this shall be considered on the next date.

7. Learned Standing Counsel prays for and is allowed two weeks time to file counter-affidavit giving reply to the averments made in the writ petition as well as supplementary-affidavit. Looking to the pleadings and material placed on record, I direct that in the counter-affidavit while giving reply, the following aspects shall be highlighted and explained by the respondents:

(1) What does the State understand by the term adequate reservation. In other words, what is the criteria or point or level of representation to hold that a class is adequately represented or not. Whether any class is adequately represented in service and still reservation is available.

(2) Whether any investigation or enquiry has been done or any committee was constituted in last ten years to find out, what is the present status of representation of various castes/classes in State services in which reservation of different classes is continuing.

(3) If any Commission report is available, and consequential action, if any, taken by the respondents, shall also be placed before this Court.

8. The aforesaid affidavit shall be filed by a person not below the rank of Special Secretary, who is authorized by Secretary (Appointment).

9. List on 30.9.2013.

7. It is really unfortunate that the respondents have not chosen to file any counter reply and have come up as usual, with a prayer for further time, without explaining as to why no counter-affidavit could have been filed by them in three weeks time which has lapsed in the meantime.

8. Now, I first deal with the objection about entertainability of this writ petition by this Court, as objected by learned Advocate General contending that in fact, the present writ petition is in the nature of P.I.L.

9. It appears that paragraphs 3, 5, and 6 of writ petition have escaped attention of learned Advocate General, otherwise this argument may not have been advanced, A huge recruitment of several thousand of vacancies is in process. Around 20,000 vacancies are reserved for O.B.C., S.C. and S.T. The petitioners have applied to participate in the aforesaid recruitment, but they belong to General Category, therefore, the advertisement in question permits their consideration only against unreserved vacancies. In order to augment their right of consideration against other/more vacancies, reserved for different classes, they have come to this Court, challenging the aforesaid reservation, not only on the ground that reservation as of now, as such, is bad, but also its continuation despite adequacy of representation of reserved classes in civil posts, is unconstitutional. As right of petitioners likely to be adversely affected by aforesaid reservation, is personal to them, and, therefore, it cannot be said that they have not raised any grievance about infringement of their own fundamental rights and/or petitioners have raised an issue which is in the nature of P.I.L. This objection taken by learned Advocate General, therefore, holds no ground and is rejected, accordingly.

10. The next objection is about deferment of this matter till SLP No. (CC) 8393 of 2013 pending before Apex Court is decided. The learned A.G.A. did not dispute that Special Appeal No. 910 of 2005 connected with 18 other appeals was finally decided by a Division Bench, vide judgment dated 22nd December, 2006. There against, a number of appeals were filed under Article 136 i.e., by the petitioners, in so far as issues were decided against them and by the State Government also, in respect of certain direction with regard to vacancies of women quota which according to State Government, was not justified since all vacancies were already filled up by suitable male candidates. The appeals preferred by candidates/petitioners, were rejected/dismissed by Apex Court in Jitendra Kumar Singh and Another Vs. State of U.P. and Others, . In paragraph 78 the Court said:

78. In view of the above, the appeals filed by the general category candidates are without any substance, and are therefore, dismissed.

11. So far as the appeals filed by State Government are concerned, the Court found that the State Government was right that all vacancies meant for women were filled up by suitable male candidates and, therefore, none was carried forward. In these facts and circumstances, the direction issued by this Court in its judgment dated 22.12.2006, with regard to filling up of vacancies, reserved for women, was set aside, by observing that this exercise had already been completed. This is evident from paragraph 85 of the judgment. Similarly, there was one more direction with regard to 34 posts reserved for Sportsman category. The Court held that there was already mention about separate selection in regard thereto, hence direction with regard to those 34 posts issued by this Court also was not correct. The appeals preferred by State Government were allowed to the extent of direction, as contained in final paragraph, in response to the aforesaid aspect, as is evident from para 80 of the judgment. The aforesaid appeals, therefore, attained finality, not only at the level of this Court, but at the level of Apex Court also.

12. It however, further appears that with regard to study of level of representation of various classes in State Services, this Court found that there was no proper study on the part of respondents and, therefore, a direction was issued to the State Government to constitute a committee and submits its report within six months. In respect of this direction, it does not appear that any of the party felt aggrieved and, therefore, with regard to compliance of the aforesaid direction, the matter came up before this Court subsequently, and some order was passed, where against above S.L.P., filed by the State is pending.

13. This cannot be construed so as to infer that any contentious issue is pending before this Court or before Apex Court, which are involved in this case, for the reason, that appeal was already decided finally by this Court and SLP filed there against also stood decided by Apex Court in Jitendra Kumar Singh (Supra). In my view, aforesaid proceedings, cannot be "taken as arising from the compliance part of the judgment, and therefore, cannot construe so as to deprive these petitioners from raising separately, an issue with regard to continuation of reservation, on the ground, that it is now adequately represented and, therefore, cannot continue being violative of Article 16(4) of the Constitution.

14. Now I come to the question whether any interim order, as prayed, should be granted to the petitioner.

15. The learned Advocate General has not disputed any averment made in the writ petition as well as in the supplementary-affidavit, since in response thereto, respondents were given opportunity to file counter-affidavit, but they failed. Now, his only argument is that community-wise census is under process at the level of Government of India and, so long its report is not available, it would not be possible to form an opinion whether there is adequate representation of certain classes in civil services so as to disentitle reservation.

I propose to consider this aspect from two angles:

(1) What is the basis and foundation for implementing reservations initially, and its continuance, at present?

(2) Whether the alleged expected report of community-wise census, which is in process, can come in the way of State Government in determining adequacy of representation, of one or more or all classes in civil services and validity of continuance of reservation for them.

16. From the documents placed on record, particularly page 102 of the Supplementary-affidavit, it appears that the Governor of U.P. constituted a Samajik Nayay Samiti, vide notification dated 28.6.2001. The terms of reference in the said committee read as under:

1. To examine the schemes, measures and facilities for Scheduled Caste, Scheduled Tribes and Other Backward Classes.

2. To examine and suggest necessary amendments in the scheme of reservation according to the change in population of various classes consequent to the creation of Uttaranchal State.

3. To examine the current status of employment of Scheduled Castes, Scheduled Tribes and other backward classes in the state public service with respect to their quota.

3. To examine the participation and progress of various sections of Scheduled Castes, Scheduled Tribes and other backward classes in the state public services.

4. To suggest measures for improvement in the scheme of reservation and other schemes/measures for Scheduled Castes, Scheduled Tribes and other backward classes towards securing social justice.

(emphasis added)

17. The reasons for such reference have also been mentioned in the minutes of consultation between "Samajik Nyaya Samiti" and "National Commission for S.C. and S.T.", as evident from the minutes dated 17.8.2001, relevant part whereof reads as under:

The Sate made an endeavor to make available reservation for equal and equitable enjoyment of all the Scheduled casts, Scheduled Tribes and other backward classes, but it was felt that benefits of reservation have been enjoyed only by a few of these classes.

The Samajik Nyaya Samit, in view of this widespread perception, has endeavored to study the caste-wise dispersion on these classes in the state public services, admissions to the institutions of higher learning and various welfare schemes in the state. The samiti has taken pains to gather employment data from most of the sectors of public employment in the state, admissions to a large number of educational institutions including almost all the technical and professional institutions. The Samiti also undertook a mammoth exercise, spanning all the 53000 Village Panchayats of the state and involving more-than 70000 personnel, to determine the caste-wise population of the state. Special efforts were made to collect the data of Government welfare schemes. The Samit toured extensively to whom the public opinion on these issues, especially from the deprived sections of these classes. In addition, the Samiti has also invited suggestions from the general public.

The preliminary analysis of the data obtained so for strongly substantiates the general perception, that the benefit of reservation has gone only to a few sections/castes among these classes. In its public meetings across the State, several sections have demanded a separate arrangement of quota for themselves, as they have not been able to take benefit of the existing scheme. Similarly, the majority also felt that even amongst the sections/caste who have benefited from reservation the benefit has largely been confined to those families who have already taken these benefits earlier and consequently are relatively advanced and do not suffer from disabilities. Thus, it has been widely suggested that a scheme be constituted, that the benefit of the reservation may reach all the section equitably and uniformly; and that the most deserving people of these section may also get an opportunity so as to achieve the larger objectives of social justice.

(emphasis added)

18. The aforesaid committee was presided by a Cabinet Rank Minister, and another Cabinet Rank Minister was co-chairman, while a Legislative Council Member was its Member.

19. At this stage, I do not propose to go into details of recommendations made by the Committee, but suffice it to mention that said Committee has given population of O.B.C., S.C., S.T. and General, district wise, in rural areas, based on Pariyar Register and made a part of their report. Besides, the category-wise population of various reserved categories has also been given alongwith aforesaid report, which is evident from page 119 to 123.

20. The percentage of representation in service of certain classes shown at page 58 and 59 of the Supplementary-affidavit, which is part of aforesaid report shows following position:

21. The aforesaid figure have been considered in reference to population of these various categories in rural area. The population has been determined on the basis of Parivar Register, hence, obviously it would not have included urban areas, though in urban areas, the position cannot be lesser than what was found in rural areas.

22. Besides, the class-wise representation of different reserved classes, vis-?-vis unreserved against sanctioned strength and occupied/vacant posts has also been detailed in chapter VII at page 37 of the report.

23. The committee has also expressed its observation in respect of different classes, included in O.B.C., at page 57 of the report, which reads as under:

24. It has been noticed in Sanjeev Kumar Singh (Supra) that for determining extent of reservation, class wise census of 1931 was made the basis in various studies conducted in this regard, whether it was Chhedi Lal Setti Commission report, or Mandal Commission report. On this aspect facts are discussed in detail in Sanjeev Kumar Singh (supra).

25. Presently, the State Government is continuing with reservation for different categories posts on the basis of aforesaid reports. Initially, in 1977 reservation provided to O.B.C. was for 15% and same extended to 27% in 1989. More than three and half decades since have elapsed. Unless this issue is examined by Government whether all/some/any of the classes constituting O.B.C. are still inadequately represented in State Service, continuation of reservation may would run the risk of being unconstitutional.

26. Exclusion of classes which are now well represented in service would also help the other groups in reserved category, who are not able to compete intra class with those groups which are much advanced, well represented and excel over the other groups, so as not to allow them to compete them at par. The exclusion of well represented groups will increase available vacancies to left over groups and will give them a boost in getting more seats in reserved quota which will be conducive to the objective of providing speedier better representation to them.

27. The Apex Court has also repeated and reiterated that the reservation under Article 16(4) can continue only if particular class is not "adequately represented" in service. In these facts and circumstances, prima facie, in my view, the State Government deserves to be restrained from continuing with reservation in respect of such classes which are now adequately represented in service in the recruitment in question.

28. The next question would be, what is the dividing line of adequate representation. For the said purpose, at this stage, I find it expedient to follow the proportionate representation. Those, whose proportionate representation in service (individual or collective) is 50% and above, can safely be taken as adequately represented.

29. I order accordingly.

30. The respondents are restrained from continuing with reservation under article 16(4) of Constitution of India to such classes, which are now adequately represented in service for the purpose of recruitment in question. It is also clarified that for the time being, the respondents shall construe adequate representation as proportionate representation, i.e. classes whose representation in service (individual or collective) is 50% of the percentage of their population vis-?-vis all and considering the occupancy percentage in service of all categories.

31. However, I further provide that selection/appointment made against reserved vacancies with reference to Article 16(4) of the Constitution in the recruitment in question shall be subject to any further order/modification or the result of this writ petition, as the case may be.

32. The respondents shall also have liberty to seek any modification/clarification/vacation of this order after filing Counter-affidavit.

33. The writ petition is admitted. Learned counsel for respondents prays for and is granted one months time to file Counter-affidavit. Learned counsel for petitioner shall have two weeks time, thereafter to file Rejoinder-affidavit. List for hearing after exchange of pleading

Sumit Kumar Shukla and Others v. State of Uttar Pradesh and Others