Skip to content


Raghava Panicker and anr. Vs. the Administrator, Union Territory, Lakshdweep and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKerala High Court
Decided On
Case NumberO.P. No. 2306 of 1980-G
Judge
Reported inAIR1982Ker114
ActsConstitution of India - Articles 14, 15, 15(4), 16 and 16(1)
AppellantRaghava Panicker and anr.
RespondentThe Administrator, Union Territory, Lakshdweep and ors.
Appellant Advocate K.K. Usha,; N.D. Premachandran and; V.P. Seemandini,
Respondent Advocate Addl. Central Govt. Pleader and; P.K. Balasubramaniam, Adv.
Excerpt:
constitution - validity - articles 14, 15, 15 (4), 16 and 16 (1) of constitution of india - petition for declaration that provisions of 'rules for selection' in clause 1 (iii) (a) illegal and unconstitutional - overriding preference given to majority community described as schedule tribe in matter of selection deprives who constitute minority for competing in selection - reservation not be excessive to defeat purpose of articles 15 (1) and 16 (1) - clause 1 (iii) (a) cannot be upheld as it works as total reservation in favour of one section of people eliminating others - held, clause 1 (iii) (a) illegal and unconstitutional. - .....government pleader, at the time of hearing is that ext. p-2 is the copy of the revised rules for selection of candidates forwarded to the 1st respondent along with ext. r-3, and that had the approval of the 2nd respondent as per ext. r-2 communication dated 25-5-1972. he would also contend that though ext. p-1 communication from the 2nd respondent to the 1st respondent is later in point of time than exts. r-l to r-3 and p-2, in the guideline given by the union government in paragraph 3 of ext. p-1, it has been made clear that the instruction that sole criteria for selection would be the academic merit of the candidates was subject to any special orders issued with the concurrence of the government of india. according to him it was open to the 1st respondent to depart from the criteria.....
Judgment:

Bhaskaran, J.

1. The petitioners have been in the service of the 1st respondent, Administrator, Union Territory of Lakshadweep, for over 15 years. The 1st petitioner's daughter and the second petitioner's son were applicants for admission to the Pre-Medical/M. B. B. S. course for the year 1980-81 in the Medical Colleges in India against the four seats allocated by the Government of India for the students of the Union Territory of Lakshadweep. It would appear that it was out of the apprehension on the part of the petitioners that their children stood no chance to get themselves nominated if the selections were to be made in accordance with the norms contained in Ext. P-2 'Rules for selection' that the writ petition was brought. Subsequent to the filing of the writ petition, the petitioners having come to know that additional respondents 3 to 6 had actually been selected by the 1st respondent for nomination, they too were impleaded as per the order on C. M. P. No. 13684 of 1980. At the time of final hearing of the writ petition Sri p. K. Balasubramoniam the counsel for additional respondents 3 to 6, submitted that the petitioners were not entitled to any relief as against additional respondents 3 to 6 inasmuch as the year with reference to which thepetitioners' children had applied for seats had already expired, and the admission of additional respondents 3 to 6 to the colleges concerned had become a fait accompli. Mrs. Usha Sukumaran, the counsel for the petitioners, however, drew our attention to the fact that the main relief sought in the writ petition was a declaration that the provisions of Ext. P-2, particularly Clause 1 (iii) (a) therefore, are illegal and unconstitutional. According to her submission, if this Court declines to examine the validity of the impugned clause in Ext. P-2, it would only tend to perpetuate an injustice, by unequal treatment to which the petitioners' children had already been subjected. In the light of this submission, we feel persuaded to consider the question whether Ext. P -2 is invalid, though our pronouncement on that question might not affect the right of additional respondents 3 to 6 to continue their studies on the basis of the selection made for the year 1980-81.

2. From the pleadings of the petitioners it has to be inferred that they were, at the time of filing the writ petition, under the impression that Ext. P-2 was issued by the 1st respondent in violation of the guidelines given by the 2nd respondent, the Union of India, in their communication dated 21-3-1980, a true copy of which is Ext. P-1, thereby implying that Ext. P-2 was issued subsequent to the issue of Ext. P-1. Curiously, what is produced as Ext. P-2 does not bear any date. Ext. P-1 letter addressed by the 2nd respondent to the 1st respondent begins with an observation that certain instances where some of the allottee agencies had not followed the relevant instructions issued by the Government of India while selecting and nominating candidates against the seats allotted to them had been noticed; it then proceeds, in paragraphs 2 to 4, to lay down the norms to be followed by the allottee agencies. To facilitate easy reference we are extracting those paragraphs hereunder:

'2. 'It is once again reiterated that only the children of (i) permanent residents of the State/U.T. concerned (ii) the employees of the State/U.T. Government concerned, (iii) the employees of the Central/Other/State/U.T. Government on deputation to the State/U. T. concerned and (iv) the employees of theCentral/other State/U.T. Government posted in and having their headquarter within the State/U.T. concerned will be eligible.

3. The children of State/Central U. T. government employees, as aforesaid should be treated at par with the local resident. The sole criteria for selection will be academic merit of the candidates, subject to any special orders issued with the concurrence of the Government of India.

4. 20% of seats allotted to each State/U. T. concerned will be reserved for students belonging to Scheduled Castes/Scheduled Tribes of that State/ U. T. The break-up of this reservation will be as follows:--

(a) a district reservation of 15% for Scheduled Castes and 5% for Scheduled Tribes:

(b) the reservation as mentioned in sub-para (i) above can be interchanged. Thus if sufficient number of candidates are not available to fill up the seats reserved for Scheduled Tribes they may be filled up by suitable candidates from scheduled castes and vice versa; and

(c) if the number of available scheduled caste/tribes qualified candidates is less than 20% of the seats the balance can be given to non-scheduled caste and scheduled tribes candidates.'

The case of the petitioners, as we understand it, is that the selection for nomination of candidates should have been made in strict compliance with the norms laid down in paragraphs 2 to 4 of Ext. P-1 quoted above, without being in any way affected by the directions contrary to that contained in Clause 1 (iii) (a) of Ext. P-2. That clause of Ext. P-2 reads as follows :--

(iii) The following criteria will be followed in determining the preference for allotment of seats for pre-Medical/ M. B. B. S. Courses:

(a) First preference to local scheduled tribe candidates (to have overriding preference concessions allowed to Scheduled Tribe candidates).'

3. In paragraph 6 of the counter-affidavit dated 15-11-1980 filed on behalf of respondents 1 and 2 it is stated as follows :--

'6. Exhibit P-2 is a copy of the Rules approved by the Ministry of Health and Family Planning vide Ext. R-2. Itis therefore clear that the first respondent is to follow Exhibit P-l as amended by Ext. P-2 and Exhibit p-2 amendment has already been approved by Exhibit R-2. That being so, the contention of the petitioners that the criteria to be followed in the matter of selection to medical colleges is as per Exhibit P-1 not sustainable.'

When the matter came up for hearing earlier on 14-7-1981, this Court found that it was not easy to understand the averments in the counter affidavit, with particular reference to paragraphs 4, 5 and 6 thereof. This Court then pointed out that Ext. P-2, going by the averments in the writ petition, which averments were not denied, was a circular issued in violation of Ext. P-1 and, therefore, it must have been after Ext. P-1, i.e., it must have been after 1980. If it was a circular of 1980, there was no meaning in the words 'vide Exhibit R-2' since Ext. R-2 was of the year 1972. This Court then passed an order directing the respondents to file a further counter affidavit specifically answering the contentions raised in the original petition. Pursuant to this direction dated 14-7-1981 the respondents have filed an additional counter affidavit dated 31-7-1981, producing along with it a copy of the communication from the 1st respondent to the 2nd respondent, marked Ext. R-3, which also does not bear any date of issue.

4. Ext. R-1 is a copy of Government of India letter dated 12-5-1971 addressed to the 1st respondent among others. In Ext. R-1, as in Ext. P-1, it is stated that 20% of the seats allotted to each of the Union Territory etc., could be reserved for students belonging to Scheduled Castes/Scheduled Tribes of that territory. Again in Ext. R-1 also what is provided is that the basis of selection should be merit, which should be determined by the marks obtained by the candidates in English, physics, Chemistry and Biology in the qualifying examination. The details of the criteria to be followed for determining the merit also are given therein. It is to be noticed that any provision in the nature of what is contained in Clause 1 (iii) (a) of Ext. P-2 is not contained in Ext. R-1. Ext. R-2 dated 25-5-1972 addressed to the Settlement Officer, Union Territory of Lakshadweep in its operative portion reads as follows:--

'With reference to your letter No. 16/ 20/71 Dev. II dated the 28th Feb. 1972 on the subject mentioned above, I am directed to say that the Government of India approve the amendments to the criteria proposed in paragraph 3 of your above quoted letter for the allotment of seats for pre-Medical/M. B. B. S. courses reserved by this Ministry for the students of your Administration.'

According to the averments made in the counter affidavit Ext. R-3 is the copy of letter No. F. 16/20/71 Dev. II dated the 28th Feb. 1972, though the copy produced does not appear to contain any date of its origin. The submission made by Sri P. C. Chacko, Additional Central Government Pleader, at the time of hearing is that Ext. P-2 is the copy of the revised rules for selection of candidates forwarded to the 1st respondent along with Ext. R-3, and that had the approval of the 2nd respondent as per Ext. R-2 communication dated 25-5-1972. He would also contend that though Ext. P-1 communication from the 2nd respondent to the 1st respondent is later in point of time than Exts. R-l to R-3 and P-2, in the guideline given by the Union Government in paragraph 3 of Ext. P-1, it has been made clear that the instruction that sole criteria for selection would be the academic merit of the candidates was subject to any special orders issued with the concurrence of the Government of India. According to him it was open to the 1st respondent to depart from the criteria laid down in Ext. P-1 provided such deviation from the normal rule had the approval of the Union Government.

5. The observation at the beginning of Ext. P-1 letter that some instances where some of the allottee agencies had not followed the relevant instructions issued by the Government of India for selecting and nominating candidates against the seats allotted to them had been brought to the notice of that Government, is pregnant with meaning. The first sentence in paragraph 3 of Ext. P-1 lays down:

'The children of State/Central/U. T. Government employees, as aforesaid should be treated at par with the local resident.'

It could not be the intention of the Government of India to completely destroy the effect of this sentence when therein it its stated:

'The sole criteria for selection will be academic merit of the candidates, subject to any special orders issued with the concurrence of the Government ofIndia.'

If the whole idea was to give a preferential treatment to the native inhabitants of the Island in such a way as to virtually create a monopoly in their favour, what has been said earlier in that paragraph makes little or no sense. It has to be said so particularly for the reason that Ext, p-l is a communication from the 2nd respondent to the 1st respondent for his guidance. The contention of respondents 1 and 2 would have had some meaning if Ext. P-1 was in the nature of a circular addressed to all the Union territories for common guidance, and Ext. P-2 was issued for particular guidance of the Union Territory of Lakshadweep. It is unlikely that if the intention of the Government was to make a vital departure in the nature of what is contained in Clause 1 (iii) (a) of Ext. P-2 from the guideline given in Ext. R-1, that also would have been omitted to be stated in Ext. P-1 itself. We are, therefore, of the opinion that the expression 'subject to any special orders issued with the concurrence of the Government of India' has to be understood as referring to special orders that might be issued prospectively.

6. Assuming that Clause 1 (iii) (a) of Ext. P-2 is saved by the condition 'subject to any special orders issued with the concurrence of the Government of India, occurring in the latter part of the second sentence in paragraph 3 of Ext. P-1 letter, the further question is whether it is unconstitutional in view of the fundamental rights guaranteed under Articles 14 and 15(1) of the Constitution.

7. In paragraph 12 of the counter affidavit of respondents 1 and 2 it is stated that the people of the Union Territory who and both of whose parents, were born in the Lakshadweep are classified as Scheduled Tribe. What is stated in paragraph 8 of the said counter is:

'Since there are sufficient number ofapplicants from the eligible ScheduledTribe students, the claim of the petitioners cannot be allowed.'

From the above averments it is clearthat the overriding preference given tothe majority community, described asScheduled Tribe, in the matter of selection completely deprives others who numerically constitute a microscopic minority from competing in the selection. Respondents 3 to 6 who were selected against the quota of seals allocated for the year 1980-81 are all admittedly persons belonging to the majority community described as Scheduled Tribe. The majority community has thus secured all the four seats by excluding the rest applying the principle of over-riding preference contained in Clause 1 (iii) (a) of Ext. P-2. We have to bear in mind that Articles 14, 15 and 16(1) form part of the same constitutional code of guarantee and supplement each other, Call it overriding preference or reservation: if the effect of such stipulation is to create a monopoly in favour of one section, of the people by cornering all the seats allotted to themselves to the exclusion of others totally, as was done in the case of selection for the seats allotted for the M. B. B. S. course in the year 1980-81, that would certainly be opposed to the spirit of the fundamental rights guaranteed under Articles 14 and 15(1) of the Constitution. No doubt, the benefit of the weaker and socially and educationally backward sections of the people reservations are permissible as saved by Article 15(4) of the Constitution All the same, if, in the name of protection under Article 15(4), cent per cent seats are reserved for the benefit of a particular community--Whether it is a majority community or a minority community --to the detriment of the rest, such reservation would cut at the very root of the fundamental rights guaranteed under Article 15(1), and it cannot be said that it is saved by Article 15(4) of the Constitution. Article 15(4) is meant for the advancement of any socially and educationally backward class. The class of communities envisaged as backward, in the concept in which it has been used in the Constitution, cannot cover a bulk of State's population. Article 15(4) being in the nature of an exception, the condition which justifies the departure from Article 15(1) must be strictly shown to exist in justification of the special provisions for the advancement of the backward class of citizens. In this view it has to be construed that there is a limitation on the power of the authorities so much so that the reservation should not be excessive or extravagant so as to defeat the purpose of Article 15(1) orArticle 16(1) of the Constitution. The reservation provided should not be prejudicial to the interests of the community or nation as a whole.

8. The conclusion we reach, therefore, is that Clause 1 (iii) (e) of Ext. P-2 not being in consonance with the guideline given in Ext. P-1 issued as late as 21-3-1980, that Clause cannot be upheld inasmuch as that Clause in effect works as a total reservation in favour of one section of the people, completely eliminating the other sections of the people from the field of competition on merit which is opposed to Articles 14 and 15(1), not saved by Article 15(4) of the Constitution. For these reasons we find that Clause 1 (iii) (a) of Ext. P-2 is invalid and unconstitutional. Once that Clause is struck down, the other preferences indicated in Clauses (b), (c), (d) and (e) of Clause 1 (iii) of Ext. P-2 cannot be retained, particularly in view of the fact that no reservation for scheduled castes and scheduled tribes is seen to have been made in Ext. P-2. We are, therefore, inclined to quash Ext. P-2 as a whole and we do so without prejudice to the right of respondents 1 and 2 to make any additional rules for proper selection and nomination of candidates if they choose to do so not inconsistent with the criteria laid down in Ext. P-1.

The writ petition is disposed of in the above terms. There will be no order as to costs.

The Central Government pleader immediately after the judgment was delivered made an oral submission that leave to appeal to the Supreme Court may be granted. We find no substantial question of law of general importance requiring a decision by the Supreme Court involved in this case. Leave is therefore declined.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //