AT CHANDIGARH. CWP No. 19837 of 2009 Date of Decision: July 26 & Ors. v. Union of India and on the recommendations of the Second Backward Classes

Judgment

2. To be referred to the Reporters or not? Whether the judgment should be reported in the Digest? Yes Yes M.M. KUMAR, J. CWP No. 19837 of 2009 2 The petitioner is a Society registered under the Societies Registration Act, 1860. The Registration Certificate of the petitioner Society, dated 19.11.1990, has been placed on record (P-1). It is engaged for the welfare of the backward classes. In a meeting of the Society it was resolved that instructions dated 20.7.1995 (P-3), bifurcating the backward classes in two blocks, namely, Block ‘A’ and Block ‘B’ and not providing reservation to

the extent of 27% in Class-I and Class-II services be challenged before this High Court by way of filing the petition. Accordingly, a petition has been filed challenging the instructions dated 20.7.1995 (P-3). It would be appropriate to extract the relevant paras of instructions dated 20.7.1995 (P-3), which reads thus:- “ I am directed to invite your attention to Haryana Govt. letters as indicated in the margin on the subject noted above and to say that in view of the directions given by Hon’ble Supreme Court of India in Writ Petition (Civil) No. 930 of 1990, Indira Sawhney and others V/s Union of India and on the recommendations of the Second Backward Classes Commission set up by the Haryana Govt., the State Govt. has further reviewed the existing policy of reservation of posts for SC, BC, ESM and Physically handicapped in Govt. jobs in the State of Haryana and have decided to enhance the reservation for backward classes from 10% to 27% in respect of direct recruitment to Class-III and Class-IV posts.

2. It has further been decided to create two blocks i.e. Block ‘A’ and ‘B’ within the Backward Classes for the purpose of the above mentioned reservation as per list enclosed.

3. Hence forth the quantum of reservation for various CWP No. 19837 of 2009 3 categories in direct recruitment to Class III & Class IV posts will be as under: (i) SC (ii) BC (Block ‘A’) (iii BC (Block ‘B’) ) (iv) ESM/Dependents of ESM (v) Physically handicapped (orthopaedically) Deaf & Dumb and Blind). 20 % 16 % 11 % 10 % 3% The posts reserved for Block ‘A’ of Backward Classes would be filled up from candidates belonging to castes of Block ‘A’ only. Similarly posts reserved for Block ‘B’ would be filled up from members of the castes comprising Block ‘B’ of Backward Classes.” A perusal of the aforesaid instructions shows that after reviewing the policy of reservations for various classes including backward classes, the respondent State enhanced the reservation for backward classes from 10% to 27% in respect of direct recruitment to Class-III and Class-IV posts. However, it further divided the category of backward classes into two further blocks, namely Block ‘A’ and Block ‘B’. In Block ‘A’ and Block ‘B’, the following castes have been mentioned, which were to be given reservation to the extent of 27% in Class-III and Class-IV government jobs:- “List of Backward Classes included in Block ‘A’ for the purpose of reservation in direct recruitment to Class III & IV Government Jobs.

2. CWP No. 19837 of 2009 4

1. Aheria, Aheri, Heri, Naik, Thori or Turi, Hari

2. Barra

3. Beta, Hensi or Hesi

4. Bagria

5. Barwar

6. Barai, Tamboli

7. Baragi, Bairagi

8. Battora

9. Bharbhuja, Bharbhunja 10 . 11 . 12 . 13 . 14 . 15 . 16 . 17 . 18 . 19 . Bhat, Bhatra, Darpi, Ramiya Bhubalia Lohar Changar Chirimar Chang Chimba, Chhipi, Chimpa, Darzi, Rohilla Daiya Dhabis Dakaut Dhimar, Mallah, Kashyap Rajpoot Kahar, Jhinwar, Dhinwar, Khewat, Mehra, Nishad Kamboj Khanghera Kuchband Labana Lakhera, Manehar Lohar, Panchal Madari Mochi Mirasi Nar Noongar Nalband Pinja, Penja Rehar, Rehara or Re Raigar Rai Sikhs Rechband Shorgir, Shergir Soi 35 . 36 . 37 . 38 . 39 . 40 . 41 . 42 . 43 . 44 . 45 . 46 . 47 . 48 . 49 . 50 . 51 . 52 . 53 . CWP No. 19837 of 2009 5 Dhosali, Dosali Faquir Gwaria, Gauria or Gawar Ghirath Ghasi, Ghasiara or Ghosi Gorkhas Gawla, Gowala Gadaria, Pal Garhi-Lohar Hajjam, Nai, Nais, Sain Jhangra-Brahman, Khati Suthar, Dhiman, Tarkhan, Barhai, Baddi. Joginath, Jogi, Nath, Jangam-Jogi Kanjar or Kanchan Kurmi Kumhars, Prajapati Singhikant, Singiwala Zargar, Sunar, Soni Thathera, Tamera Teli Vanzara, Banjara Weaver (Jullaha) Bhattu/Chhatu Badi/Baddon Mina Rahbari Charan Caraj (Mahabrahman) Udasin Ramgariha 54 . 55 . 56 . 57 . 58 . 59 . 60 . 61 . 62 . 63 . 64 . 65 . 66 . 67 . 20 . 21 . 22 . 23 . 24 . 25 . 26 . 27 . 28 . 29 . 30 . 31 . 32 . 33 . 34 . List of Backward Classes included in Block ‘B’ for the purpose of reservation in direct recruitment to Class III & IV Government Jobs.

1. Ahir/Yadav

2. Gujjar

3. Lodh/Lodha

4. Saini

5. Meo” CWP No. 19837 of 2009 6 For backward classes - Block ‘A’ reservation to the extent of 16% has been provided and for Block ‘B’ it is restricted to 11%. Likewise, horizontal reservation of 10% for Ex-servicemen and Physically Handicapped persons have also been provided, as is evident from the perusal of paras 4 and 5 of the instructions. In para 6, a roster of reservation for different categories in a block of 100 posts in each cadre has been incorporated in respect of Block ‘A’ and Block ‘B’, which include horizontal reservation for Ex-servicemen and Physically Handicapped. Mr. P.R. Yadav, learned counsel for the petitioner has vehemently argued that reservation cannot be restricted to Class-III and Class-IV posts alone. It deserves to be extended to Class-I and Class-II services as well. His second submission is that division of a class of backward class into microscopic classification is wholly un-warranted and is against the principles of law envisaged by Article 16(4) of the Constitution, as interpreted by a Division Bench of this Court in the case of Suresh Pal v. State of Haryana and others (CWP No. 19753 of 2004, decided on 26.10.2006). In support of his argument, learned counsel has also placed reliance on another Division Bench of this Court rendered in the case of Gajey Singh v. State of Haryana (CWP No. 398 of 2004, decided on 6.7.2006). Ms. Mamta Singhal Talwar, AAG, Haryana, however, has tried to justify the reservation in Class-III and Class-IV posts alone by referring to the averments made in para 5 of the written statement. She has argued that the respondent State appointed a Commission with specific term of reference, which was to entertain, examine and recommend upon request for inclusion and complaints of over-inclusion and under-inclusion in the list of Backward Classes in the earlier list. The Commission vide notification dated 26.5.1994, CWP No. 19837 of 2009 7 was allocated the function of specifying the basis for excluding socially advanced persons/sections (Creamy Layer) from Backward Classes. A report was submitted by the Commission on 16.5.1995 and it has entertained 192 representations in favour/against. The Commission specifically mentioned in the report that from Yadav Kalyan Parishad (Registered) i.e. the petitioner, a detailed representation was received with a request to include in the list of Backward Classes of Haryana the Yadav community because they are socially, economically and educationally backward. The representation further detailed that Yadav’s were migrated from Bihar and Uttar Pradesh and be included in the Backward Classes list. Their main occupation is agriculture but they have small holdings. Accordingly, sometime they have to work as labourers and their side business is cattle breeding. Acting on the recommendation made by the Commission, the instant instructions dated 20.7.1995 (P-3) were issued. After hearing learned counsel for the parties and perusing the paper book with their able assistance, we are of the view that no further microscopic classification dividing a coherent class of Backward Class is permissible in view of the judgment of Hon’ble the Supreme Court rendered in the case of E.V. Chinnaiah v. State of Andhra Pradesh, (2005) 1 SCC 394, which has been followed by the Division Benches of this Court in the cases of Suresh Pal (supra) and Gajey Singh (Supra). The observations made in E.V. Chinnaiah’s case (supra) reads thus:- “ The conglomeration of castes given in the Presidential Order, in our opinion, should be considerd as representing a class as a whole. The contrary approach of the High Court, in our opinion, was not correct. The very fact that a legal fiction has been created is itself suggestive of the fact that the Legislature of a State cannot take any action which would be contrary to or CWP No. 19837 of 2009 8 inconsistent therewith. The very idea of placing different castes or tribes or group or part thereof in a State as a conglomeration by way of a deeming definition clearly suggests that they are not to be sub-divided or sub-classified further. If a class within a class of members of the Scheduled Castes is created, the same would amount to tinkering with the List. Such sub-classification would be violative of Article 14 of the Constitution of India. It may be true, as has been observed by the High Court, that the caste system has to stuck up in the Society but with a view to do away with the evil effect thereof, a legislation which does not answer the constitutional scheme cannot be upheld. It is also difficult to agree with the High Court that for the purpose of identifying backwardness, a further inquiry can be made by appointing a commission as to who amongst the members of the Scheduled Castes is more backward. If benefits of reservation are not percolating to them quitably measures should be taken to see that they are given such adequate or additional training so as to enable them to compete with the others but the same would not mean that in the process of rationalizing the reservation to the Scheduled Castes the constitutional mandate of Articles 14,15 and 16 could be violated.” (emphasis added) However, the argument that there should be provision for reservation in Class-I and Class-II posts does not deserve any consideration because apart from the fact that it is a policy matter, the provision regarding reservation is an enabling provision. No direction could be issued to make reservation where State has decided not to give reservation. In that regard reliance may be placed on the judgments of Hon’ble the Supreme Court in the CWP No. 19837 of 2009 9 cases of Gulshan Prakash (Dr.) v. State of Haryana, (2010) 1 SCC 477 and Post Graduate Institute of Medical Education and Research v. Faculty Association, (1998) 4 SCC 1. Therefore, the argument is hereby rejected. In view of the above, the writ petition is allowed to the extent it divides coherent backward classes into further microscopic classification. However, with regard to the challenge to grant reservation to backward classes in Class-I and Class-II posts is repelled because Article 16(4) is an enabling provision and following the mandate of the Constitution, the respondent State is within its right to grant reservation to a particular class and refuse the same in a defined area of public service. No mandamus can be issued to the State to include Class-I and Class-II posts. The writ petition is accordingly disposed of. (M.M. KUMAR) JUDGE (A.N. JINDAL) JUDGE July 26, 2010 Pkapoor