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K.S. Radhakrishnan, J.—This Writ Petition has been preferred by the Hindu Nadar Corporation, a society registered under the Societies Registration Act, 1860, and a member, who are stated to be interested in the welfare of Nadars who belong to Hindu community. Petitioners submit that Hindu Nadars are socially, educationally and economically backward from time immemorial due to historical reasons and are labouring under severe caste disabilities unlike Nadar Christians who come within the fold of South Indian United Church (CSI) and other Christian denominations.
Petitioners contend that for over half a century Hindu Nadars were treated as a class by themselves for the purpose of reservation in Public Services since they were socially, economically and educationally backward, compared to Nadars converted to Christianity. However, the State Government under Ext. P-2 Notification No. G.O. (MS.) No. 341/79/GAD, dated 20th June 1979 amended the Kerala State Subordinate Services Rules, L958 and clubbed together Hindu Nadars and Nadars included in the SIUC as one class and included in item No. 49. Inclusion of Nadar Christiana of SIUC along with Hindu Nadars in item No. 49, according to the Petitioners is illegal, discriminatory and violative of Articles 14 and 16(4) of the Constitution of India. Till Ext. P-2 amendment was effected, all along Hindu Nadars were treated as a separate class for the purpose of reservation under Article 16(4) of the Constitution and that Nadars converted to Christianity coming under the fold of SIUC formed a separate class for the purpose of reservation. Petitioners submit Hindu Nadars were grouped as a class by themselves, due to their social, educational and economic backwardness. The amendment brought, about in Exts. P-2 and P-3 by bringing in Nadars converted to Christianity (SIUC), hereinafter called Nadar Christians, within the fold of Hindu Nadars would reduce their chances of appointment in Public Services. According to the Petitioners, Exts. P-2 and P-3 would have, the effect of treating unequals as equals which is discriminatory and violative of Article 14 of the Constitution- Petitioners submit that there is no justification or rationale in bringing in such amendment to the prejudice of Hindu Nadars. According-to Petitioners, on conversion Nadar Christians have increased their social, educational and economic status, and, at the same time, Hindu Nadars are still labouring under social, educational and economic backwardness. Petitioners submit that before including Nadar Christians (SIUC) in the Hindu fold vide Exts. P-2 and P-3, no scientific or factual investigation was made by the State Government. All along, the study conducted by the State Government, as well as the Commissions appointed by the State Government in the matter of reservation under Articles 15(4) and 16(4) of the Constitution recognised Hindu Nadars as a class by themselves due to their social, educational and economic backwardness and inadequate representation in Public Services. The test of education, test of appropriation of appointments, test of social backwardness due to historical reasons, economic test, caste test, etc., would justify such differentiation.
A counter affidavit has been filed on behalf of the first Respondent. It is stated that Nadar community as a whole is socially and educationally backward class in Kerala and Tamil Nadu and they are a social group consisting of Hindus and Christians. Further, it is stated that backward class of Nadars is identified not on the basis of religion but on the basis of their social educational and economic backwardness. According to the State Government, on the basis of data collected by the Government regarding category-wise representation to various communities in Kerala, it was decided to give reservation to Nadars as a whole, and it was to implement the said decision, that the Government issued Exts. P-2 and P-3. According to State Government, after a proper and scientific study and investigation, Nadars were identified as a particular backward class. According to the State, it can ascertain the backwardness of a group of persons on the basis of relevant criteria other than taking into consideration their caste in determining the backwardness and that is what has been done in the instant case. It is also the stand of the State Government that the concept of backward class cuts across the religious barriers. Nadars belonging to Christian faith are also socially and educationally; backward as in the case of Hindu Nadars. It was pointed out that it is only after taking into consideration all such factors that the Hindu Nadars and the Nadars included in SIUC were grouped together and included in the rotation chart for appointment as per Exts. P-2 and P-3.
A detailed counter affidavit has been filed by the fourth Respondent, who is the Secretary of the South Kerala Diocese of the Church of South India justifying the inclusion of Nadar Christians of SIUC along with Hindu Nadars. According to the fourth Respondent, Nadar is a homogeneous, social group consisting of Hindus and Christians and the backward class of Nadars is identified not on the basis of religion but caste appellation. Counter affidavit has also been filed by the additional 10th Respondent, for and on behalf of the Backward Class Reservation Protection Council, a body registered under the Travancore-Cochion Literary, Scientific and Charitable Societies Registration Act, 1955. They supported the stand of the State Government as well as fourth Respondent, and contended that Nadars as a whole is a backward community and they are entitled to get reservation as a class. We heard -Mrs. P. Vani, counsel for the Petitioners, Mr. James Vincent, counsel for the fourth Respondent, Mr. P.K. Aboobacker, counsel for the additional 10th Respondent, and the learned Government Pleader, Mr. Jose Thettayil, for the State Government.
Before examining the rival contentions in detail, it is necessary to trace the history and background on which reservations were made from time to time to Nadar community and the historical origin of the Nadar Community.
Reservation in the State of Travancore in respect of Hindu Nadars and Nadar Christians (S.I.U.C.)
Nadars as a class were inhabitants of the southern taluks of Travancore. Their mothertongue is Tamil though some of them speak Malayalam. They seem to have migrated into the southern taluks of Travancore either from or through the Tinnevelly District. They are educationally, socially and economically backward community. They were given reservation in the matter of recruitment to Public Service in the State of Travancore. The question of recruitment to Public Services was persistently agitated and the policy of the Government of Travancore at that time was to afford opportunity to all classes of His Higness'' subjects, without sacrificing efficiency in Public Service or lowering the standard of qualification. When the demand for equality of opportunities became increasingly insistent, stringent departmental instructions were issued to the appointing authorities to afford equal opportunities to all communities to enter the Public Service. In the year 1924, it was decided to institute a thorough scrutiny into the appointments made by Heads of Departments in the years 1098 and 1099 M.E. in pursuance of the policy laid down by the Government. The result of the said study was later published in the Government Order dated 27th April 1925, details of which are available in Ext. R-4 (a) produced in the Writ Petition. It is however profitable to extract the relevant portion of the Government Order dated 27th April 1925 for easy reference:
For the purposes cf these returns the following classification of communities was adopted:
I. Hindu II. Muslim III. Christian 1. Brahmin (Malayala) 1. Protestant 2. Do. (others) 2. Roman Catholic 3. Nadar 3. Syrian 4. Ezhava (a) Jacobite - (b) Reformed (c) Romo Syrian
It was noticed by the then Government of Travancore that subsequently the Roman Catholics were divided into Catholics of Latin rite and of Syrian rite, Romo Syrians being at the same time omitted; Marthomite was substituted for Reformed Syrian Christian; Church of England was newly added and a separate subdivision of Depressed Clas" was indroduced under Christian to show the converts from the Depressed Class Hindus. With the above alterations and additions, the classification of communities earlier mentioned was rescheduled as under:
I. Hindu II. Muslim III. Christian 1. Brahmin (Malayala) 1. Protestant 2. Do. (others) 2. Roman Catholic 3. Nadar (a)Latin rite (b) Syrian rite
.... 3. Syrian (a) Jacobite (b) Marthoma 4. Church of England 5. Depressed Classes
The above was the position that we get in the year 1925 treating Hindu Nadars as a separate class for the purpose of reservation.
The question of communal representation was discussed in the Old Legislative Council and Sri Mulam Popular Assembly and the same finally came up for discussion in the Legislative Council in the form of a resolution on 11th February, 1925, when the Chief Secretary to Government stated, on behalf of the Government, that if the expression "communal representation" meant that every individual community, however small should be represented in public service, it was impracticable and could not be accepted as it was impossible to give separate representation to everyone of those communities. The Chief Secretary placed before the Government certain broad principles in the matter of recruitment to Public Service. The question of communal representation again came up for consideration before the Old Legislative Council in the form of a cut motion on the budget in August 1929 and it was suggested that a committee should be appointed to enquire into and submit a report on the principles to be observed in the matter of recruitment to the Public Services. There were complaints made on behalf of some communities that their claims were not adequately recognised by the appointing authorities. The then Government appointed a committee consisting of officials and non-officials to report inter alia the principles to be observed in the matter of recruitment to the Public Services, keeping in view on the one hand the complaint of certain communities that they were not fairly represented in the Public Service, and on the "other hand, the need for maintaining efficiency and for avoiding injustice and unfairness to other communities. The committee after an elaborate enquiry submitted its report to Government on 16th September 1933. This report was published and was discussed by the members of both Houses of the Legislature at their meetings on 25th, 26th, 29th and 30th May; 1934.
In view of the importance of the problem, the then Government of Travancore decided to appoint Dr. G.D. Nokes, M.A. LL.D., Barister-at-Law, Judge, High Court, as a Special Officer to examine all available materials and submit a report on the principles to be observed in laying down the Government''s future policy. He was also requested to prepare a scheme for the constitution of a Public Service Commission, together with draft rules, defining their duties and powers. Dr. Nokes was given unfettered discretion in making such recommendations for the future recruitment of the services including a revised classification of communities. Dr. Nokes after conducting a detailed study, submitted his report on 14th March 1935. The then Government of Travancore considered Dr. Nokes'' report and issued the followings orders:
Classification of Communities and Communal Recognition.-Government have accepted the view that it is not practicable to make provision for the representation of every individual community in Public Service but only of certain well-defined unitary groups and that it is obviously impossible in a State of over five million people to attempt the recognition of all the communities numbering over 500 and the various subdivisions among them. Government consider that the minimum percentage for communal recognition should not be put too low as otherwise the number of separately recognised communities will be so great as to make any system of selection impracticable. On the other hand, it is desirable not to put it so high as to exclude any community which has already a recognised place. It is also desirable to adopt a figure which is approximately a: common factor in the percentages of population of all important communities. Accordingly, Government have decided that all communities whose population is approximately 2 per cent of the total population of the State or about one lakh, be recognised as separate communities for the purpose of recruitment to the Public Service. The only exception from the above rule will be the Brahmin community who, though forming only 1.3 per cent of the total population will be dealt with as a separate community. On the above basis, the classification of communities will be as follows:
A. Hindu B. Muslim C. Christian
Brahmin 1. Jacobite 2. Nayar 2. Syrian Catholic .... .... 5. Nadar 4. Latin Catholic 5. South India United Church
Over and above the classification ordered by the then Government of Travancore, the Government accepted the report of Dr. Nokes, to constitute a Public Service Commission in the State of Travancore. At that time, Government felt that there was no necessity to have expensive Public Service Commission. Government therefore decided to appoint an Officer of high status as a Public Service Commissioner. Subject to the appointments which His High''ness the Maharajia reserved to be made by himself or his Government in any Division of service, no appointment to the Public Service would be made after the scheme came into operation, except in accordance with the advice of the Commissioner. The duties of the Public Service Commissioner Were also elaborated in the order No. R.Dis No. 893/General dated 25th June 1935 issued by Sri. N. Kunjan Pillai, the then Chief Secretary to Government. The Travancore Public Service Recruitment Rules 1911 M.E were later framed. In Schedule III of the rules, Nadar was shown as against item 9 and SIUC was shown as against item No. 10. The above was the position as far as State of Travancore was concerned treating Hindu Nadars as a separate class for reservation in Public Services.
Reservation in the Travancore-Cochin State for Hindu Nadars and Nadar Christians (S.I.U.C.)
After the formation of the Travancore-Cochin State on 1st July 1949, the rules regulating the recruitment to the Public Services in the erstwhile Travancore State, i.e., Travancore Public Services Recruitment Rules 1111 M.E. were applied to the erstwhile Travancore-Cochin State. The ''Travancore- Cochin Government had been receiving various representations for the purpose of reservation to backward class and members of Scheduled Castes and Scheduled Tribes. This was in line with Articles 16(4) and 335 of the Constitution respectively. In order to examine the questions regarding the determination of the communities in the State as to who were all backward classes for the purpose of reservation under Article 16(4) of the Constitution as well as with regard to the proportion of representation in Public Service to be afforded to such backward classes as also to the members of the Scheduled Castes and Scheduled Tribes under Article 333 of the Constitution, the Travancore-Cochin Government appointed a committee to study and submit proposals with regard to the rules of recruitment and communal representation in Public Services. The committee submitted its report dated 21st March 1952 specifying the communities that should come under "backward classes" and the percentage of recruitment that should be reserved for "backward classes" "Scheduled Castes"1 and "Scheduled Tribes". The above-mentioned report was carefully considered by the Government of Travancore-Cochin and the same was accepted vide order No. S2-15238/50/CS dated L7th September 1952. For the purpose of Articles 16(4) and 335 of the Constitution, the then Government decided to divide Public Service Commission into three divisions. For the purpose of reservation under Article 16(4) of the Constitution, "backward classes" of communities were classified as follows:
(a) Ezhavas
(b) Muslims
(c) Kammalas
(d) Hmdu Nadars
(e) SIUC
(f) Latin Catholics
(g) Other Hindus
(h) Other Christians
Note: (1) Other Hindus will include the following communities:
(a) Maravans
(b) Ezhavathy
(c) Kanian
(d) Valans
....
The order also states that the Other Christians would include, Pulayas, Parayas and other Scheduled Castes and Backward community members converted to Christianity. The order further stated as follows:
The posts reserved for Backward Classes will be distributed among the different Communities coming under Backward Classes in the following proportion. Out of every 35 appointments, 13 shall be given to the Ezhavas, 5 to the Muslims, 4 to Kammalas, 3 to Nadars, 1 to SIUC, 6 to Latin Catholics, 2 to Other Hindus and 2 to Other Christians.
Various other decisions were also taken on the basis of order dated 17th September, 1952, with which we are not concerned. Order stated that those decisions would be in force for a period of 7 years from the date of issue. The order was signed by the Chief Secretary to Government by Order of His Highness, the Raj Pramukh. The above facts reveal that the Travancore-Cochin Government also recognised Hindu Nadars as a separate class for the purpose of Article 16(4) of the Constitution.
Reservation in the Kerala State on its formation in the year 1956 for Hindu Nadars and Nadar Christians (S.I.U.C.)
The State of Kerala was formed on 1st November L956. With the formation of the State, several new communities of backward classes have come in from Kasaragod and Malabar areas, and therefore the Backward Classes in the new State comprised of communities declared as Backward Classes by the Travancore-Cochin Government and by the Madras Government in regard to those in Malabar and Kasaragod areas. The State Government noticed that according to the orders of the Government of Travancore-Cochin, the posts reserved for the Backward Glasses on the one hand and Scheduled Castes and Tribes on the other, would be distributed among different communities under the Backward Classes, Scheduled Castes and Scheduled Tribes, as the case may be, in accordance with the prescribed rotation. This rotation within the communities fixed by the Travancore-Cochin Rules required alteration in the changed circumstances brought about by the reorganisation of the State., A'' large section of the people belonging to communities like Nadars and SIUC which were given reservation in the Travancore-Cochin Rules had gone out of the State when the southern taluks were transferred to Madras State. The State Government noticed without correct data regarding the existing population, etc. of each community included under backward classes, Scheduled Castes or Scheduled Tribes in the new State, it would not be possible to assign the due proportion of reservation which every community should get. The collection of these statistics had taken some time. Government therefore constituted a committee to advise them as to the best working principle that could be adopted in the immediate future. The committee therefore advised as an interim arrangement that all communities included under Backward Classes and all communities included under Scheduled Castes and Scheduled Tribes may be "treated as separate units so that those communities might become eligible for any vacancy reserved for that group. That suggestion of the committee was accepted by the Government. Government then issued Order S. (D)2-41489/56/PD vide its proceedings dated 6th February 1957, the relevant portion of which is extracted below:
Under "Article 16(4) of the Constitution, Government are empowered to make provision for the reservation of appointments or posts in favour of any backward class of citizens, which in the opinion of the State, is not adequately represented in the services under the State: Likewise Article 335 lays down that the claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration in the making of appointments to services and posts in connection with the affairs of the State. The Government of the erstwhile Travancore-Cochin State had issued specific orders mentioning the communities of Backward Classes in the State. With the formation of the Kerala State, new communities of Backward Classes have come in from Kasaragod and Malabar areas. Obviously the Backward Glasses in the new State should comprise of communities declared as Backward Classes by the Travancore-Cochin Government and by the Madras Government in regard to those in Malabar and Kasoragod areas. A list of Backward communities for the Kerala State prepared on the above basis and accepted by the Government for purposes of Article 16(4) of the Constitution is appended to these orders in Annexure I which is extracted below:
ANNEXURE I
Backward Classes in the Kerala State
Agasa 2. Ambalakaran 3. Anglo Indians .... 15. Ezhava 16. Ezhavathi .... 22. Hindu Nadar .... 49. Other Christians-Pulayas, Parayas and other SG or BC members converted to Christianity
....
S.I.U.C.
The above mentioned order and Annexure I would positively show that State of Kerala had recognised Hindu Nadars as a separate class for the purpose of Article 16(4) of the Constitution.
State of Kerala later partly modified its earlier order dated 6th February 1957 after conducting a review and issued order No. 41489/56/PD dated 22nd July 1957. One of the salient features of the order is as follows: (i) the term "Ezhava" occuring in item No. 15 in the list of Backward Classes mentioned in Annexure I of the Appendix in the Government order dated 6th February 1957 should be replaced by the term "Ezhavas and Thiyyas". Changes were also made with regard to the percentage of reservation also. In G.O. (Ms.) No. 1526/Public (Rules) Department dated 17th December 1958, it was ordered that the Latin Catholics, SIUC, and Anglo-Indians together would be given 5 per cent reservation. In G.O. (P) No. 258/Public (Services D) Department dated 31st May 1963 it was ordered that the 5 per cent reservation allowed for "Latin Catholics, Anglo-Indians and S.I.U.C." would be split up into "4 per cent for Latin Catholics" and "1 per cent for Anglo-Indians and S.I.U.C. together". In making direct appointment, the above executive orders are being followed by the Public Service Commission, eventhough the relevant rule No. 17(2) of the General Rules in the Kerala State and Subordinate Services Rules, 1958 has not been amended accordingly. When such a review was made, Government never thought it necessary to make any changes as far as Hindu Nadars are concerned or to bring in converted Nadar Christians into the fold of Hindu Nadars, item No. 22, at the same time Ezhavas and Thiyyas were brought into one category.
The decision of Vaidyalingam, J. (as he then was) in Jacob Mathew v. State of Kerala 1963 K.L J. 820 rendered on 23rd August 1963, with regard to reservation of seats for Backward Classes in Professional Colleges, on the basis of Article 15(4) of the Constitution, led the Government in issuing G.O. (Ms.) No. 243/64/PD dated 8th July 1964. appointing Shri G. Kumara Pillai, Retd. High Court Judge, as Chairman and four others as members, to recommend which sections of the people would require special treatment under Article 15(4) having regard to their social and educational conditions. A Division Bench of this Court though later reversed the above decision in State of Kerala w. Jacob Mathew 1964 K.L.J. 498, the State Government directed the Commission to inquire into the social and educational conditions of the people and report on what sections of the people in the State of Kerala (other than Scheduled Castes and Scheduled Tribes) should be treated as socially and educationally backward and therefore deserving of special treatment by way of reservation of seats in educational institutions. The commission was also requested to recommend what the quantum of such reservation should be and the period during which it may remain in force. The Commission submitted its report on 3rd December 1970. In the report at page 27 the Commission has stated as follows:
Irrespective of consideration as to whether there are social differences within each community itself arising out of economic and other factors all Ezhavas and Thiyyas, all Muslims and all Latin Catholics and Anglo-Indians are included in classes (i) to (ii) respectively. Likewise all members of the S.I.U.C. and all converts to Christianity from Scheduled Castes are included in class (iv). As per directions in the Government Memorandum No. D. Dis. 14141/57/EHD dated 5th July 1957, class (v) "Other Hindus" consists of all classes mentioned in the list in Annexure I to G.P.S. (D) 2-41489/56/PD dated 6th February 1957 (Ext. P-5 in the Writ Petition) excepting "Ezhavas including Thiyyas" and those belonging to religions other than Hinduism. This list is known as the List of Other Backward Glasses in Kerala State (referred to herein after as the P.S.G. list) is kept for purposes of giving representation to Backward Classes in Public Services under Article 16(4).
(emphasis supplied)
In order to determine the socially and educationally backward classes, Commission took note of economic facts and caste/community test, occupationalitest, habitational test, etc. Applying all those tests, the Commission came to the conclusion in paragraph 14 that members of families in the State which have an "aggregate income" of Rs. 4200 and above per annum from all sources put together, cannot be considered to belong to any Socially Backward Class whatever may be the caste or community to which they belong. Appendix VIII is a list of Socially and Educationally Backward Classes of citizens in Kerala for the purpose of Article 15(4). Income limit was subsequently enhanced by the Government on the basis of various orders.
We have referred to Justice Kumara Pillai Commission report only to highlight the fact that for the purpose of Article 15(4) also Hindu Nadars were treated as a separate class. In this connection it is worthwhile to refer to some portion of the Kumara Pillai Commission Report. It is stated in paragraph 26 of the report as follows:
The memoralists have not taken into account that the population of the 5 taluks transferred to the Madras State can no- more from part of the population of Kerala. Further, the population of 503, 387 is not the population of Scheduled Caste converts alone but it includes the population of the converts from Illava (Ezhava), Nadar Mukkuvan, Sakravar, Kerala Mudalis, Kavathy and the Vellala Communities, and no deduction has been made in the memorandum in respect of their population. The converts from classes other than Scheduled Castes and Scheduled Tribes have no social disabilities comparable to those of the converts from Scheduled Castes and Scheduled Tribes. We are Unable to accept the suggestion that the strength of the Backward Christians should be calculated on the basis of their birth rate. For, as time passes, even Scheduled Caste converts will become assimilated with other members of the denominations to which they have been converted, and will cease to be backward, and so their birth rate for assessing the population strength of the Backward Christians is not a deciding factor or even a very relevant factor. They will be merged with the Latin Catholics, Syrian Catholics, Marthomites, Jacobites, etc. to whose, rites they were converted. In our opinion, there is no justification for including among the Sccially and Educationally Backward Classes any section of the Christian population other than the lower income groups among Latin Catholic, S.I.U.C. and converts to Christianity from Scheduled Castes.
Report further says:
Class v. in Appendix VIII consists "of the lower income group among the communities in the Hindu-fold (other than Ezhavas, Thiyya, Izhuvan,'' Illuvan and Billava and Scheduled Castes and Tribes) which are generally recognised as socially inferior. All the communities mentioned under clause v. in Appendix VIII were labouring under great social disabilities on account of their caste or community and large sections of them are even now labouring under such disabilities.
In this connection we may extract Appendix VIII, referred to in G. Kumara Pillai Commission Report, which is shown at page 126 of the report:
List of Socially and Educationally Backward Classes of citizens in Kerala for purpose of Article 15(4)
Sl. No. Name of Community I. .... IV. Other Backward Christians (a) S.I.U.C. (b) Converts from Scheduled Castes to X''ianity V. Other Backward Hindus, i. e. 1. Agasa .... 21. Hindu Nadar ....
It is therefore evident from the above-mentioned extracts and Appendix VIII that on the basis of paragraph 27 of the report, Commission described Hindu Nadars in Class v. of Appendix VIII as Socially and Educationally Backward Class and treated as a separate class. Therefore Justice G. Kumara Pillai Commission also recognised Hindu Nadar as a separate class under item 21 of Glass v. of Appendix VIII, and those Nadars converted to Christianity were shown in the fold of S.I.U.C. in Class IV of Appendix VIII. In other words, Kumara Pillai Commission also recognised Hindu Nadar as a separate class for the purpose of educational concession under Article 15(4) of the Constitution.
The State of Kerala on the basis of observations made by a Full Bench of this Court in Harikaran Pillai v. State of Kerala 1967 KLT 266 issued an order No. G.O. Ms. No. 343/PD, dated 17th October 1967 constituting a committee with Shri Nettur P. Damodaran, Ex. M.P. as Chairman with four members. The terms of reference of the Commission were as follows:
(a) What are the main factors which lead to backwardness of citizens?
(b) What should be the basis for classifying sections of people into backward and non backward?
(c) In the light of answers to (a) and (6) above, what classes of citizens in the State should be treated as backward for purposes of Article 16(4) of the Constitution and which of such classes are not adequately represented in the services under the State, and,
(d) What should be the quantum of reservation and the period for which it is to remain in force so far as the reservation of 40 percent to "Other Backward Classes" is concerned.
The Commission has all together received 360 written memoranda from individuals and organisations. Hie details of memoralists were given in Appendix IV. Commission also took note of oral evidence. The list of persons who gave oral evidence was given in the report. The commission specifically took note of the system which was in vogue in the former Travancore Government, and Travancore-Cochin Governments. The recommendation of the Committee which was constituted in 1951 by the T.C. Government and also the Government Order dated 17th September 1952 passed on the Committee''s report were also considered by the Commission.
The Nettur Damodaran Commission examined various factors which led the Backwardness of citizens for the purpose of Article 16(4) of the Constitution. The test of habitation (test of residence in particular regions), test of caste, test of education, economic test, test of appropriation of appointments, test of social backwardness due to historical reasons, etc., were inter alia the tests adopted by the Commission so as to determine the backwardness of citizens for the purpose of Article 16(4) of the Constitution. In Chapter VIII of the report, Commission dealt with the basis of classification, manner and method of application of tests for classification, and delineation of Backward Glasses. Adequacy of representation of the Backward Classes, quantum of reservation and period for which reservation might continue are all dealt with in Chapter IX. Adequacy of representation of all communities in various services such as last grade, gazetted and non-gazetted, were also analysed by the Commission. The consolidated statement showing the number of appointments in the services under the State, held by members of each Backward Class, in each of the said three compartments separately, the percentage thereof on the total number of such appointments held by all the Backward Classes, and the percentage of population of each Backward Class on the total population of the Backward Classes were given in Appendix XX. After conducting an elaborate study, the Commission at page 109 of the Report mentioned the result of assessment of adequacy of representation of each of the 12 backward classes which include Hindu Nadar as well as S.I.U.C. With regard to Hindu Nadars the Commission has stated as follows:
(v) Backward class drawn from group v. (Kusavan, Arayan, Ezhavathy, Hindu Nadar etc.)
....
According to the Commission, the Backward Class mentioned in Clause (v) is due to historical reasons. It is noticed that all the communities in Group v. from which Clause (v) Backward Class is drawn have been enjoying reservation. According to the commission, Backward Classes are to be treated as inadequately represented in each of the three compartments, namely, last grade, non-gazetted and gazetted in the services under the State. The Commission also independently considered the adequacy or inadequacy of representation of S.I.U.C. which included Nadar Christians as well. The same is dealt with in Clause (iii) "Backward Class drawn from Group III (Syrian Christians, Jews, Paisis, C.S.I., C.M.S., L.M.S., S.I.U.C., Anglo Indians, etc.), and all other denomiations of Christianity other than Latin Catholics and converts from Scheduled Castes" at page 110 of the report. In this connection it is profitable to refer to a portion of the report, which is as follows:
At present the G.S.I, community is not in the list of Backward Classes. That was the reason why the difficulty pointed out by the Public Service Commission regarding the applicability of principles of reservation to the erstwhile S.I.U.C. arose. Now that we have included the C.S.I., C.M.S., L.M.S., S.I.U.C. etc. that is to say all denominations of Christianity, other than Latin Catholics and converts from Scheduled Castes, in the group of citizens listed in Group II, the above mentioned difficulty to get community certificate will not arise. From the group we have drawn one Backward Class. This Backward Class has been delineated as the socially, educationally and economically Backward Class of Group III. So, even if the members of the backward section of the S.I.U.C., C.M.S., etc., churches give their community name as C.S.I, or S.I.U.C. or C.M.S. etc., hereafter there would be no difficulty so far as the production of community certificate is concerned.
We shall now pass on to the question of adequacy of representation in the services under the State, of the Backward Class drawn from Group III. The population of this Backward Class is estimated to be 3,113,564 which forms 17-36 per cent of the total population of the 12 Backward Classes. All the sections included in this Backward Class except S.I.U.C. and Anglo Indians are not enjoying reservation" of appointments or posts. The appointments held by the members of this Backward Class, are by and large, those appropriated through open competition. The appointments secured through reservation are only those secured by the members belonging to the S.I.U.C. and Anglo Indians. The percentage of appropriation of appointments by this Backward Class in the last grade, non-gazetted and gazetted categories are 13.85, 19.02 and 20.23 respectively. It may be seen that in the case of last grade alone, the percentage of appropriation of appointments is below the norm of 17.36. In each of the non-gazetted and gazetted categories, the attainment is above the norm. Therefore the representation of this Backward Class is adequate so far as appointments in the non-gazetted and gazetted compartments are concerned, but it is inadequate so far as appointments in last grade category is concerned.
On the basis of the above finding, the Commission has prepared the following table which is shown at page 119 of the report:
SI. No. Group number Compartment of service in of Backward Classes which each Backward Class is adequately or inadequately represented in the services under the State
Last grade Non-gazetted Gazetted
(1) (2) (3) (4) (5)
Group.... 3. III (The Backward Inadequately Adequately Adequately section of Syrian represented represented represented Christians, Jews, Parsis, Anglo Indians S.I.U.C., C.M.S., L.M.S., C.S.I, of Christians excluding Scheduled Castes converts and Latin Catholics)
(1) (2) (3) (4) (5) 5. V. (The Backward Inadequately Inadequately Inadequa- section of Arayan, represented represented tely Valan, Ezhavathy, represented Hindu Nadar, Kudumbi, Kusavan, Yogi, Pandaram, etc.) .... The above report clearly shows that Hindu Nadars are inadequately represented in the last grade posts in the services under the State. They are also inadequately represented in the non-gazetted as well as gazetted posts. At the same time, S.I.U.C., which includes Nadar Christians as well, are adequately represented in the non-gazetted as well as gazetted posts, except in the last grade. Chapter v. deals with the suggestions made by organisations and individuals and the commission''s decision on the same. It is also worthwhile to refer to SI. Nos. 61, 62 and 63 which deal with the questions put and the Commission''s decision. Question was specifically put for reservation of appointments to the Hindu Nadars and X''ian Nadars put together and the percentage of reservation should be proportionate to their population. This question was negatived by the Commission by answering questions No. 61 and 62. The relevant portions are extracted below:
SI. No. List of representations Commission''s decisions 1. .... 61. that the S.I.U.C. 61. The Nadar Christians and Latin Catholics have belong to various denominations been included in the list of of Christianity. All denominations Backward Classes. But the of Christianity have been included non S.I.U.C. and non-Latin in '' the list of communities prepared Catholic, Nadar X''ians have by us. The Nadar Christians stand not been included in the list included and reckoned in the of Backward Communities. various denominations of They may be included either Christianity to which in the S.I.U.C. or Latin they belong. Catholic group for purposes of reservation.
that, the Nadar Community 62. It is not possible to in general (i.e. Hindu Nadars reckon the population and Nadars together) may be given other statistics relating to separate sub-rotation based ''Nadar community in general'' in and special provision be made addition to the population and for the absorption of Hindu other statistics of the various Nadars in public services. denominations of Christianity, to which they belong because there will be overlapping and duplication of statistics.
that reservation of 63. This cannot be done appointments should be for the reasons allowed to Hindu Nadars mentioned above. and . X''ian Nadars put together and the percentage of reservationshould be proportionate to their population. ....
The above facts reveal that the State of Travancore, the State of Travancore-Cochin as well as the State of Kerala, after its formaion, treated Hindu Nadars as a separate class and the S.I.U.C. as another class, which includes Nadar Christians and other denominations who were converted to Christianity. The said position was also accepted by the G. Kumara Pillai Commission and also later by the Nettur Damodaran Commission reports. As already stated, the above position continued till 1979 when for the first time, Government of Kerala issued Ext. P-2 notification G.O. (Ms.) No. 341/79/GAD, dated 20th June 1979, whereby the Government made the following Amendment:
(3) After the item "48. Muslim", the following item shall be inserted, namely:
Nadars (Hindu Nadars and Nadars included in S.I.U.C;)
(4) for item 64, the following item shall be substituted, namely:
S.I.U.C. (excluding Nadars specified in item 49)
The same is the position that we get in the notification G.O. (P) No. 409/82/GAD, dated 13th December, 1982. Petitioners are aggrieved by these amendments which unsettled the practice which was in vogue for over half a century. The legality of the said amendment is to be considered in this Writ Petition in the background of the facts mentioned herein before. Before we do so, we may examine history and origin of Nadar community.
There is consensus among all the historians that the community Shanar and Nadar is the same. Edgar Thurston and K. Rangachari in Castes and Tribes of Southern Indian, Vol. VI, at page 370 stated that Nadar is a mere title, more or less honorific, assumed by certain members or families of the caste, just as Brahmins are called Aiyars, Aiyangars and Raos. According to the authors, Nadars are Shanars. The word "Shanan" is derived from Tamil Saru, meaning toddy. The learned authors relying on the judgment of the Madras High Court in Kamudi Temple case (1898) stated as follows:
There is no sort of proof, nothing, we may say, that even suggests a probability that the Shanars are decendants from the Kshatriya or Warrior Castes of Hindus, or from the Pandiya, Chola or Chera race of Kings. Nor is there any distinction to be drawn between the Nadars and the Shanars. Shanar is the general name of the caste, just as Vellala and Maravar designate castes. Nadar is a mere title, more or less honorific, assumed by certain members or families of the caste, just as Brahmins are called Aiyars, Aiyangars, and Raos. All Nadars are Shanars by caste, unless indeed they have abandoned caste; as many of them have by becoming Christians.
T.K. Velu Pillai, in the Travancore State Manual, Vol. I, at page 856 described Nadars as follows:
The Nadars are a class inhabiting the southern taluks of Travancore. Their mothertongue is Tamil, though some of them speak Malayalam. Bishop Caldwell considers them as immigrants from the northern coast of Ceylon. They seem to have migrated into the southern taluks of Travancore either from or through the Tinnevelly district. The fact of their having been an important community in the past is borne out not only by such expressions as Nadar and Nadalvar found in some old stone inscriptions of Travancore, but also by numerous customs which are peculiar to them. They were good fighters, hardy and brave.
The learned Author also says that Shanars are called Kaliputhras (sons of Kali or Bhadra Kali) and this Goddess is considered as their tutary diety. The learned Author says that Nadars are governed by the Mithakshara system of Hindu Law, the form of succession being strictly makkathayam. Their hereditary occupation is drawing toddy from the palmyra palm and making coarse sugar called jaggery. But many are agriculturists or land owners and are also engaged in trade.
The number of Hindu Nadars has decreased considerably as a result of conversions to Christianity. Missionary work among the Nadar class has been remarkably successful. In the Kerala District Gazetteers, Sri. Sreeahara Menon, M.A., A.M. (Harvard), at page 264 stated that in the Neyyattinkara Taluk the Hindu Nadars form an important community. They were also mostly engaged in toddy-drawing but have now taken to jaggery making and other industries. Their mother- tongue is Tamil while some of them speak Malayalam. Sri V. Nagam Aiya, in the Travancore State Manual, Vol. II, 1906, at page 392 has dealt with the origin and designation of Shanars. According to the author, Nadar is also called as Shanar. Author further says that the Shanars are a class of Hindus inhabiting Tinnevelly and the southern taluks:of Travancore. They belong to one of ifee races that are commonly classed as Dravidians, Tamil Ming their mothertongue. The Shanars of Travancore from to have migrated into the southern taluks of Travancore either from or through the Tinnevelly District. The learned author further stated as follows:
The people of this caste are ordinarily called Shanars by people of other castes, but they themselves use the term Nadar. The word Nadar is also used as a title. The titles Tiruppapur Nadar, Udaya Martanda Nadar, Nagamani Martanda Nadar, etc., were granted to some families of Shanars by the ancient kings of Travancore. It has to be said in this connection that the Izhavas are sometimes spoken of as Shanars because some families of that class are called by that name. This is however a mistake. Perhaps some families of Izhavas were in ancient times granted the title of Shanars. Izhavas, like oil-mongers, Alavars and others, belong to the left-hand classes, while Shanars occupy a high place among the right hand classes. The Shanars are known as Valankai Vyarvu Kondar or Valankai Uya Kondar. These terms are found in ancient and modern title deeds.
The learned author further stated that according to 1901'' Census the Shanars returned a literate ratio of 7 per cent among males and their women are mostly illiterate. As might be expected they know more of Tamil than Malayalam. With the advent of Christianity the class has begun to rise in the matter of education and enlightenment. The learned author further stated that the Missionary work among the Shanar class has been remarkably successful, and this has done much to improve their material condition. The Christian converts from this class are better educated and several of them occupy positions of trust and responsibility in the service of Government and elsewhere.
We find from the study conducted by the above authors that large number of Nadars were converted to Christianity, and came within the fold of S.I.U.C, S.I.U.C. is a branch of the reformed Protestant Church and '' is the result of union between Presbyterian and Congregational Mission Churches. It believes that the spiritual nature of true religion is; best preserved in simplicity of external organisation. It believes that Christ the Head of the Church is spiritually present wherever believers meet in His name. T.K. Velu Pillai in the Travancore State Manual, Vol. I, at page 791 deals with this branch of Christianity.
The author further says at page 650 that the Christians in Travancore do not form a homogeneous community. There are different churches and various sects. But they are all of them guided by certain common aspirations which have evolved from a common faith in the Gospel of Jesus Christ. The chief sections of the community according to numerical importance, as classified in the Census Report of 1931, are Romo Syrians, Roman Catholics Jacobite Syrians, Mar Thoma Syrians, South Indian United Church and Anglican Communion. There are also other denominations which are numerical small. The more important of these are: the Salvation Army and the Lutheran, Methodist, Baptist and, Brother Missions. As already noted, Nadars by their conversion to Christianity, have increased their social, educational and economic status. Petitioners in this Petition contended that if this group which is converted to Christianity is clubbed together with Hindu Nadar, which was treated as a class by itself the same will be discriminatory and would be treating unequals as equals.
Petitioners stated that S.I.U.C. has merged with the Church of South India in the year 1947. Therefore S.I.U.C. has no legal or factual existence. On September 27, 1947, in St. George''s Cathedral, Madras, the Church of South India was inagurated. The Church of South India is the Church constituted by the union in 1947 of the Madras, Madura, Malabar Jaffna, Kannada, Telugu and Travancore Church Councils of the South India united Church, the South India Province of the Methodist Church, comprising the Madras, Trichinopoly, Hyderabad and Mysore Districts, and the dioceses of Madras, Dornakar, Tinnevelly, and Travancore and Cochin In the Church of India, Burma and Ceylon, to which in 1950 was added the North Tamil Church Council of the South India United Church. According to counsel for the Petitioners, since the S.I.U.C. has merged with CSI, there is no S.I.U.C. and consequently, inclusion of Nadars Christians along with Hindu Nadars under item 49 is illegal and discriminatory. This fact was taken note of by the Nettur Damodaran Commission as well. At page 110 of the report, it is stated that as a result of the formation of the Church of South India in which the S.I.U.C. also is said to have joined, the S.I.U.C. is said to have ceased to exist. Since the S.I.U.C. is said to have ceased to exist from 27th September 1947 there might be some practical difficulty either on the part of the applicant or the certifying authority to get or give such a community certificate. This difficulty was pointed out to the Government by the Public Service Commission. This position is dealt with by the Commission at page 112 of the report, the relevant portion of which we have already extracted.
The above mentioned details would positively establish that for the last many years, Hindu Nadars were treated as a class by themselves due to their social, educational and economic backwardness and historical reasons. The Travancore Government, the Travancore-Cochin Government, the Kerala State, G. Kumara Pillai Commission and Nettur Damodaran Commission, have also upheld such a classification and recognised Hindu Nadars as a class for the purpose of reservation under Articles 15(4) and 16(4) of the Constitution. This position has been upset by Exts. P-2 and P-3 orders. Ext. P-2 amendment has been effected to the Kerala State Subordinate Services Rules on the basis of Government Order, G.O. (P) No. 545/78/GAD dated 13th December 1978, Referring to the Nettur Damodaran Commission report, Government in the said order stated as follows:
In pursuance of the above direction, the Government, in the Government orders read as the second and third papers above, appointed a Commission, viz., "Backward Classess Reservation Commission", with the late Shri Nettur P. Damodaran, Ext. M.P. as chairman, to enquire into matters such as what should be the basis for classification of the citizens into "backward" for the purpose of Article 16(4) of the Constitution, what should be the quantum of reservation, etc., and to submit a report with specific recommendations. The Commission submitted its report to Government on 3rd December 1970. Government have considered the recommendations contained in the Report in detail and also collected extensive data regarding Government servants, community-wise and category wise.
Government feel that the data on which the Commission arrived at its findings might not be valid now in view of the long lapse of time since the. Commission finalised the Report. This is particularly significant in view of the observation of the High Court in the judgment of the O.P. referred to at para 1 above, that the statistics on which the existing provisions regarding reservation were based, had ceased to be accurate. In the circumstances, Government consider that justice could be meted out only by appointing a new Commission to study the question afresh and formulate proposals after examining the various aspects in the light of the existing conditions. Orders in this regard will issue separately.
On the basis of the above reasoning, Government felt that some changes in the existing percentage of reservations were necessary in the light of the data collected by them subsequent to the receipt of the Nettur Commission''s report. Accordingly the Government issued the following order:
(i) For direct recruitment to Class IV posts in different services.-The percentage of reservation for Ezhavas will be from the existing 14 per cent to 11 per cent. This is because, it has been found that in Class IV categories, Ezhavas have fairly adequate representation when compared to the percentage of population and hence a reduction is only appropriate. The percentage of reservation for Muslims in Class IV will continue to be 10 per cent. Latin Catholics and Anglo Indians will form one group and will have a reservation of 4 per cent. Government consider that the Nadar Community (both Nadar) presently included in SIUC and Hindu Nadars) deserve to be treated separately in the matter of reservation and hence they will be allowed a reservation of i per cent. The percentage of reservation for, the Scheduled Castes Converts to Christianity will be from 1 per cent to 2 per cent. The 22 communities like Asari, Mammala, Viswakarma, etc., given in the annexure to this order will be grouped together and they will be treated as one group, and given reservation. Their reservation will be 2 per cent. The Dheevara Community will have a separate reservation of 2 per cent. All other Backward Classes as notified by the Government, excluding those specifically indicated above, will constitute one group and have a reservation of 8 per cent. The reduction from the existing 10 per cent to 8 per cent for Other Backward Classes is justified in view of the fact that some-communities in the Government Notification out Other Backward Classes have now been given separate reservation as indicated above.
(ii) For all direct recruitments other than to Class IV posts.-The percentage of reservation will be 14 per cent Ezhavas (existing), 12 per cent to Muslims (an increase of 2 per cent is fully jusified in view of their inadequate representation), 4 per cent for Latin Catholics and Anglo Indians, I per cent for Nadars (Hindu Nadars and Nadars presently included in S.I.U.C.), 1 per cent for Scheduled Caste converts to Christianity (existing), 3 per cent to the group consisting of Asari, Kammala, Viswakarma, etc., listed in the Annexure to this G.O., 1 per cent for Dheevara and 4 percent for Other Backward Classes, other than those specifically mentioned above.
On the basis of the above mentioned order, Ext. R-4 (m), Government sent a letter to the Public Service Commission on 19th February 1979 stating that the Government had1 decided to amend the Kerala State Subordinate Service Rules, 1958 so as to incorporate the decision contained in Ext. R-4 (m) G.O. dated 13th December 1978, and a draft amendment was accordingly forwarded to the Public Service Commission for their advice. Commission has however approved the draft amendment subject to the following modification:
The Commission would further inform the Government that according to the proposed amendment, different Rules of reservation will have to be followed for posts in the "Last Grade Service" and posts in other services. In-view of the fact that "Last Grade Service" does not apply to posts under the Public Sector undertakings, it may not be possible to follow the amended Rules of Reservation in Government Owned Companies and Corporations. The Commission would therefore advise the Government that separate orders may be issued in regard to the above concerns. The term "Last Grade Service" in relation to posts under Public Sector undertakings to which the rules of reservation apply may also be clarified.
It is under the above mentioned circumstances that Government issued Ext. P-2 amendment followed by Ext. P-3 which have unsettled the separate reservation given to Hindu Nadars.
The extent and percentage of reservation under Article 16(4) of the Constitution vary from castes and communities. Once relevant factors are taken into consideration, and backward class of people is determined on the basis of scientific and statistical data or evidence of expert administrators, the same cannot be unsettled without any scientific study or data. We have indicated in the earlier part of the judgment the principle followed by the Travancore Government, Travancore-Cochin Government, and the State Government for reservation of Hindu Nadars as well as Nadars converted to SIUC separately. We have also noted that such differentiation was justified by historical facts. We have noted that the 1901 Census showed that Shanars returned a literate ratio of 7 per cent among males and their women are mostly illiterate. History also showed that missionary work among Shanar class had; been remarkably successful and this had done much to improve their material condition. The Christian converts from this class are better educated and several of them occupy positions of trust and responsibility in the service of the Government and elsewhere. The materials produced in this case also indicated that Hindu Nadars were inadequately represented in the Last Grade, Gazetted and non-Gazetted posts, but at the same time, Nadars converted to SIUC were adequately represented in the non-Gazetted and Gazetted posts, except in the Last Grade posts, going by Sri Nettur P. Damodaran Commission Report. We have already indicated on the basis of materials that this was the position in the State of Travancore, State of Travancore- Cochin and later in the State of Kerala after its formation. Ext. P-13 Diary of the Church of South India would also show that there are a large number of social and educational institutions which caters to the needs of SIUC which took in its fold Nadar Christians. All the above mentioned facts weighed with the Travancore Government, Travancore Cochin Government and the State Government to treat Hindu Nadars as a separate class for the purpose of reservation under Article 16(4) of the Constitution. As held by a Constitution Bench of the Apex Court in The General Manager, Southern Railway Vs. Rangachari, the condition precedent for the exercise of powers conferred by Article 16(4) is that the State ought to be satisfied that any backward class of citizens is not adequately represented in its service. This condition precedent may refer either to the numerical inadequacy of representation in the services or even to the quahtative inadequacy of representation. The advancement of the socially and educationally backward classes requires not only that they should have adequate representation in the lowest rung of services but that they should aspire to secure adequate representation in selection posts in the services as well.
In Indra Sawhney v. Union of India (1992) Supp. 3 S.C.C. 217 the Apex Court took note of the proceedings of His Highness, Maharaja of Travancore contained in R. Dis. 893/General, dated 25th June 1935 in paragraph 769 of the Judgment, wherein Nadar has been figured against Hindu as a separate class for reservation and at the same , time, SIUC which included Nadar Christians and other Christian converts as another class. In paragraph 798 the Apex Court took the view that not only should a class be a backward class for meriting reservation, it should also be inadequately represented in the services under the State. The language of Clause (4) makes it clear that the question whether a backward class of citizens is not adequately represented in the services under the State is a matter within the subjective satisfaction of the State.
It is on the basis of the said principle that the Travancore Government, Travancore-Cochin Government and the State Government ordered for the purpose of Article 16(4) of the Constitution that Hindu Nadars should form a separate class for reasons weighed with those Governments. When a particular class of people has been treated as a separate class for the purpose of reservation under Article 16(4) of the Constitution, State Government has no jurisdiction to dereserve that community, or dilute the percentage of reservation to that community, without any scientific or rational study. It is well settled that reservation is a process of inclusion and exclusion. Having included Hindu Nadars as a separate class for the purpose of reservation under Article 16(4) of the Constitution, the State Government could dereserve them or dilute the percentage of reservation to, them only through the process known to law, and also on the basis of relevant materials. In the instant case, Government Order dated 13th December 1978 only states that the Government feel that the data on which the Commission arrived at its findings might not be valid now, in view of the long lapse of time since the Commission finalised the report. Government has not stated on what basis the Government reached that conclusion. Government also has not stated on what basis it unsettled the practice followed by the Travancore Government, Travancore-Cochin Government and the State Government for over half a century. By the impugned order, Government was diluting the percentage of reservation granted to Hindu Nadars which, is in clear violation of Article 16(4) of the Constitution. Therefore, we have no hesitation to hold that the Government Order mentioned above as well as Exts. P-2 and P-3 by which percentage of reservation granted to Hindu Nadars was diluted by bringing in Nadar Christians along with Hindu Nardars are illegal, discriminatory and violative of Article 14 of the Constitution.
The Travancore Government, Travancore-Cochin Government as well as the State Government have always treated Hindu Nadars as a separate class for the purpose of reservation, details of which we have discussed in detail in the earlier part of the Judgment. In other words, all the above mentioned Governments have on the basis of materials treated Hindu Nadars as a separate class and Nadars converted to SIUC as another class. All tie Governments thought that there should be separate reservation for Hindu Nadars. In other words, Hindu Nadars and Nadars converted to SIUC were treated differently for the purpose of reservation. Article 14 justifies such a differentiation. That classification was justified by historical facts as well as on the ground of relevant materials. That classification, endorsed by the Travancore Government, Travancore-Cochin Government as well as the State Government, founded on intelligent basis which distinguishes Hindu Nadars from Nadars converted to SIUC. That classification was based on intelligible differentia which distinguished Hindu Nadars and Nadars converted to Christianity. That differentiation had an object to achieve in the matter of reservation in Public Services, since Hindu Nadars as a class were found to be inadequately represented in Public Services. By the impugned order and notifications, the State Government without any materials treated Hindu Nadars and Nadars converted to SIUC alike, thereby unequals were treated as equals by violating the equality clause enshrined In Article 14 of the Constitution. The Apex Court in Venkateshwara Theatre Vs. State of Andhra Pradesh and Others, held that the right conferred by Article 14 postulates that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Since the State, in exercise of its Governmental power, has, of necessity, to make laws operating differently on different groups of persons within its territory to attain particular ends in giving effect to its policies, it is recognised that the State must posses, the power of distinguishing and classifying persons or things to be subjected to such laws. In the said decision the Apex Court also held that discrimination can arise if persons who are unequals, i.e., differently placed1 are treated similarly. In such a case the failure on the part of the legislature to classify the persons who are dissimilar in separate categories and applying the same law, irrespective of the differences, brings about the same consequence as in a case where the law makes a distinction between persons who are similarly placed. A law providing for equal treatment of unequal objects, transactions or persons would be condemned as discriminatory if there is absence of rational relation to the object intended to be achieved by the law. The same principle was followed by the Apex Court in Om Narain Agarwal and others Vs. Nagar Palika, Shahjahanpur and others, and in Sri Srinivasa Theatre and Others Vs. Government of Tamil Nadu and Others, . The Supreme Court in a later decision in Ashok Kumar Gupta and Another Vs. State of U.P. and Others, held that those who are unequals cannot be treated by identical standards. De jure equality must ultimately find its raison d''etre in de facto equality. The State must therefore resort to protective discrimination for the purpose of making people, who are factually unequal, equal in specific areas. It would, therefore be necessary to take into account de facto inequality which exists in the society and to take affirmative action by giving preferences and making reservation in promotions in favour of S.C. and S.Ts. or ''by inflicting handicaps on those more advantageously placed, in order to bring about equality. Such affirmative action, though apparently discriminatory, is calculated to produce equality on a broader bask by eliminating de facto inequality and placing S.Cs. and S.Ts. on the footing of equality with non-tribal employees so as to enable them to enjoy equal opportunity and to unfold their full potentiality. Applying the principle laid down by the Apex Court, we are of the view that by clubbing Hindu Nadars along with Nadars converted to SIUC as one class for the purpose of reservation, the State Government has violated the equality clause enshrined in Article 14 of the Constitution by treating unequals as equals.
Government Order dated 13th December 1978, Ext. R-4 (m), and Exts. P-2 and P-3 notifications, disclose no reasons to unsettle the practice followed for over half a century. Government by order dated 13th December 1978 only says that the data on which the Commission arrived at its findings might not be valid now in view of the long lapse of time since the Commission finalised its report. Government have not stated why and for what reasons, they are unsettling the earlier orders passed by the Travancore Government, Travancore-Cochin Government, and the State Government, i.e., orders dated 27th April 1925, 17th September 1952, 6th February 1957, 22nd July 1957 and so on supported by Justice G. Kumara Pillai Commission Report and Nettur P. Damodaran Commission report. There is absolutely no material or evidence to support the Government order, Ext. R-4 [m) dated 13th December 1978. Government have not conducted any scientific study or enquiry for unsettling the above mentioned orders and /diluting the percentage of reservation of Hindu Nadars by bringing in Nadar Christians into the fold of Hindu Nadars. The Apex Court in Kumari Shrilekha Vidyarthi and Others Vs. State of U.P. and Others, , held that every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims and caprices of the men to whom the governance is entrusted for the time being. It is trite that "be you ever so high, the laws are above you". This is what men in power must remember always. It is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by the State or its officers. If there is power to decide and determine to the prejudice of a person duty to act judicially is implicit in the exercise of such power and the rule of natural justice operates in areas not covered by any law validly made. As held by the Apex Court in Indian Ex-Services League and others Vs. Union of India, what particular rule of natural justice should apply to a given case must depend to an extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the body of persons appointed for that purpose. It is only where there is nothing in the statute to actually prohibit the giving of an opportunity to be heard, but. on the other hand, the nature of the statutory duty imposed itself necessarily implied an obligation to hear before deciding, that the audi alteram partem rule could be imported. In the Instant case before diluting the percentage of reservation of Hindu Nadars no opportunity of being heard was given to them and therefore the order passed, and the notifications issued, by the Government are arbitrary, illegal and violative of the principle of natural justice. The said order and notifications are not supported by any material and the same have to be struck down to the extent of challenged against.
A contention was raised by the State as well as contesting Respondents that this Court in exercise of its power under Article 226 of the Constitution cannot sit in judgment over the Government order, Ext. R-4 (m), as well as Exts. P-2 and P-3 notifications. According to the State, Article 16(4) of the Constitution is only an enabling provision conferring discretionary power on the State Government to make reservation in favour of backward class of citizens, who are not adequately represented in the services under the State, Further it was pointed out that the extent and nature of reservation that will be made for a particular class is a matter for the State Government to decide having regard to the facts and requirements of each case. We do not dispute this proposition. However, every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 and basic to the rule of law, the system which governs us. As held by the Apex Court in Shrilekha Vidyarthi (. Kumari)''s case (1991) S.C.C. 212 (supra) arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is sine qua non to its- validity and in this respect the State cannot claim comparison with a private individual even in the filed of contract. As held by the Apex Court in M.J. Sivani and Others Vs. State of Karnataka and Others, every action of the State or an instrumentality of the State must be informed by reason. Actions uninformed by reason may amount to being arbitrary and liable to be questioned under Article 226 or Article 32 of the Constitution.
Depending upon the inequalities existed between Hindu Nadars and Nadars converted to Christianity and also economical and social backwardness of Hindu Nadars in public services, the Travancore Government, Travancore-Coehin Government and the State Government treated them separately. Whether the conditions postulated for reservation are satisfied or not is a matter on which the State has to form its opinion and its opinion should be based on reasons. The State Government has to take into account all relevant aspects, and eschew from its mind all irrelevant facts, and make a proper assessment of competing claims and then evaluate their respective backwardness before it comes to a conclusion that a particular class has to .be excluded or included along with other group. This must be done on objective evaluation of claims for reservation. The Apex Court in Minor A. Peeriakaruppan and Sobha Joseph Vs. State of Tamil Nadu and Others, held that such conclusions are open to judicial, review, whenever they are challenged. A Constitution Bench of the Apex Court in M/s. Shri Sitaram Sugar Co. Ltd. and another Vs. Union of India and others, dealing with legislative or executive powers held in paragraph 52 as follows:
The true position, therefore, is that any act of the repository of power, whether legislative or administrative or'' quasi-judicial, is open to challenge if it is in conflict with the Constitution or the governing Act or the general principles of the law of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it.
The same principle has been discussed by the Apex Court in Supreme Court Employees'' Welfare Association and Others Vs. Union of India (UOI) and Another, . The Apex Court in Indra Sawhney''s case (1992) Supp. 3 S.C.C. 217 (supra) dealing with adequacy of representation in the services under the State in paragraph 798 held as follows:
Not only should a class be a backward class for meriting reservations, it should also be inadequately represented in the services under the State. The language of Clause (4) makes it clear that the question whether a backward class of citizens is not adequately represented in the services under the State is a matter within the subjective satisfaction of the State. This is evident from the fact that the said requirement is preceded by the words "in the opinion of the State". This opinion can be formed by the State on its own, i.e., on the basis of the material it has in its possession already or it may gather such material through a Commission/Committee, person or authority. All that is required is, there must be some material upon which the opinion is formed. Indeed, in this matter the court should show due deference to the opinion of the State, which in the present context means the executive. The executive is supposed to know the existing conditions in the society, drawn as it is from among the representatives of the people in Parliament/Legislature. It does not, however, mean that the opinion formed is beyond judicial scrutiny altogether. The scope and reach of judicial scrutiny in matters within subjective satisfaction of the executive are well and extensively stated in Barium Chemicals v. Company Law Board which need not be repeated here. Suffice it to mention that the said principles apply equally in the case of a constitutional provision like Article 16(4) which expressly places the particular fact (inadequate representation) within the subjective judgment of the State/Executive.
Again the Apex Court in Indra Sawhneys case (1992) Supp. 3 S.C.C. 217, in paragraph 842 held as follows:
It is enough to say on this question that there is no particular or special standard of judicial scrutiny in matters arising under Article 16(4) or for that matter, under Article 15(4). The extent and scope of judicial scrutiny depends upon the nature of the subject-matter, the nature of the right affected, the character of the legal and constitutional provisions applicable, and so on. The Acts and Orders of the State made under Article 16(4) do not enjoy any particular kind of immunity. ''At the same time, we must say that court would normally extend due deference to the judgment and discretion of the executive-a co-equal wing in these matters. The political executive, drawn as it is from the people and represent as it does the majority will of the people, is presumed- to know the conditions and the needs of the people and hence its judgment in matters within its judgment and discretion will be entitled to due weight. More than this, it is neither possible nor desirable to say. It is not necessary to answer the question as framed.
It is therefore evident from the above mentioned authoritative pronouncements of the Apex Court that the acts and orders of the State Government made under Article 16(4) do not enjoy any particular kind of immunity. Though normally court would give due deference to the judgment and discretion of the executive, there must be some materials upon which the executive has to form its discretion or judgment so as to unsettle a reservation which was in vogue for over half a century. In this case, those materials are totally lacking. In such circumstances, we are of the view that the principle enunciated by the Apex Court would be applicable. We are therefore of the view that the contention that the order and notifications impugned are not liable to challenge under Article 226 of the Constitution cannot be justified and the same is accordingly rejected.
In view of the above mentioned facts and circumstances we find it difficult to sustain Government order, Ext. R-4 (m), as well as Exts. P-2 and P-3 notification, diluting the percentage of reservation for Hindu Nadars. We make it clear that Hindu Nadars should continue to be treated as a separate class for the purpose of Article 16(4) of the Constitution. So also, Nadars converted to S.I.U.C. should form another category. Under such circumstances, Hindu Nadars would remain as a separate class by themselves in item No. 49 and Nadars converted to S.I.U.C. would come within item No. 64 of the Kerala State and Subordinate Services Rules, 1958. We make it clear that the above declaration would operate only prospectively. All appointments hitherto made on the basis of impugned orders would not be disturbed. However, for the purpose of future appointments, Hindu Nadars will have to be treated as a separate class. It is so declared. Order, Ext. R-4 (m), and Exts. P-2 and P-3 notifications to the extent indicated above would stand quashed.
Original Petition is allowed as above.