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Judgment
K. Chandru, J.—The Petitioner Association has come forward to challenge the order of the first Respondent made in G.O. Ms. No. 98 Backward Classes, Most Backward Classes and Minorities Welfare Department dated 5/12/2007 and the consequential proceeding of the fourth Respondent dated 16/7/2009 seeks for a direction to the Respondents to give preference to the Piramalai Kallar Community candidates at the time of appointment of Teachers in Kallar Reclamation Schools situated in Theni, Madurai and Dindigul District.
The writ petition came to be admitted on 6/10/2009. Pending the writ petition, in application for interim stay viz., M.P. No. 2 of 2009, only notice was ordered. In M.P. No. 3 of 2009, it is stated that any appointment is made, subject to the result of the writ petition.
The first Respondent has filed a counter affidavit dated 30/10/2009 together with supporting documents.
The case of the Petitioner Association was that it is a registered Society under the Tamil Nadu Societies Registration Act with Registration No. 45/2008. It is also stated that the Association is started for the welfare of the Piramalai Kallar Community.
It is claimed that the said Community has been declared as a backward class among the socio, educational and economical stages. The Government has created a project in the name of "Kallar Reclamation Scheme". The said scheme was started for the welfare of the people belongs to Piramalai Kallar Community in Madurai, Dindigul and Theni District. In the above three Districts, under the Kallar Reclamation Scheme, there are 260 Schools in which 50,000/- students are studying. Apart from that, 48 hostels are also running under the control of the fourth Respondent and there are about 1700 Teachers are working in the Schools. During the year 1963, Kallar Reclamation Scheme was brought under the control of Adi Dravidar and Backward Classes Welfare Department and special Rules were also framed known as "Adi Dravidar Welfare Subordinate Service Rules." It was claimed that the people belongs to Piramalai Kallar Community were given preference to the appointment of Teachers'' post in Kallar Reclamation Schools have revoked inadvertently. This has created an untoward hardship to the members of the Community.
On being represented, the State Government issued G.O. Ms. No. 7 Backward Classes, Most Backward Classes & Minorities Welfare Department dated 5/2/1999. In paragraph No. 7 of the order, it was claimed that in respect of Kallar Reclamation School, Piramalai Kallar Community has given a preference and the special rules for the Tamil Nadu Backward Classes Subordinate Rules should be properly amended and the authorities must do the same before filling up the post. He has also stated that it is the policy of the State to continue to provide preference in the Schools.
The support is also given to the subsequent order to the Government Order in G.O. Ms. No. 24, Backward Classes, Most Backward Classes & Minorities Welfare Department dated 4/6/2002 wherein the Government held that preference must be given to Piramalai Kallars at the time of appointment made to the School and if the candidates belong to the said Community are not available, the post should not be filled up with other candidates. But, however, by the impugned order in G.O. Ms. No. 98 Backward Classes, Most Backward Classes & Minorities Welfare Department dated 5/12/2007, permission was given to the fourth Respondent to fill up the post in Kallar Reclamation School for the classes from 6 to 10 with Graduate Teachers. Instead of routing the same to the Teachers Recruitment Board, the fourth Respondent has called for the names from the Employment Exchange, Theni, Madurai and Dindigul Districts and appointed on the basis of the employment exchange seniority. As per the special Rules and communal roaster and other guidelines, if no candidates are available in these three Districts, then the candidates may be called for from the neighbouring District. While calling the candidates from the employment exchange 1: 1 ratio has to be followed for each post.
According to the Petitioner, the latest order is diametrically passed to the earlier orders. If this is permitted, then the people belonging to the Piramalai Kallar Community will be affected. It is under these premises, the present writ petition came to be filed.
In this context, the earlier writ petition filed by the Petitioner in W.P. No. 5264 of 2009 for similar relief was also referred to, wherein this Court by an order dated 25/6/2009, directed the Respondents to consider their representation. The stand of the State was that the preferential Chairman for Piramalai Kallar Community was adopted only in the matter of appointing Secondary Grade Teachers'', wherein the District Level Selection Committee where the competent authority and the same reservation will not apply to the graduate teachers. The earlier G.O. Ms. No. 24 dated 4/6/2002 was issued as a one time measure to fill up the post of 118 Secondary Grade Teachers. As no qualified Teachers are available and to safeguard 19% reservation due to them and on the basis of the G.O., granting of similar benefit in respect of Adi Dravidar Schools. It is also claimed that the recruitment of graduate Teachers which are estimated with the Tamil Nadu Public Service Commission from 1981 to 1983 and thereafter, within the purview of the Teachers Recruitment Board from 1993 till 5/10/2007. The appointments were made subject to the adoption of General Rules of Reservation for 26 years. The only change made in the impugned order was that instead of Teachers'' Recruitment Board Selection, the fourth Respondent will select candidates from the local employment exchange. The procedure for the adoption of the existing procedure is to provide quality in education to children studying in the Schools and there was no violation of any constitutional provisions. The Petitioner cannot claim any new right which was never been the policy of the Government and never has been practised over the years. Therefore, the short question that arises for consideration is
Whether the Petitioner association claim can be countenanced by this Court?
It must be noted that in the State of Tamil Nadu, the reservation is provided in terms of Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services under the State) Act, 1993 (Act 45 of 1994). The Act provides for mandatory reservation in not only Educational Institutions, but also in the Appointments or posts in the services under the State.
7.7. Section 5 of the Act reads as follows:
Reservation in appointment or posts in the services under the State.
(1)Notwithstanding anything contained in any judgment, decree or order of any court or other authority, having regard to the inadequate representation in the services under the State of the Backward Classes of citizens and the persons belonging to the Scheduled Castes and the Scheduled Tribes, who constitute the majority of the total population of the State of Tamil Nadu, the reservation for appointments or posts in the services under the State, for the Backward Classes of citizens and for the persons belonging to the Scheduled Castes and the Scheduled Tribes, shall be sixty-nine percent.
Explanation.-For the purposes of the Act, "services under the State" includes the services under
(i)the Government;
(ii)the Legislature of the State;
(iii)any local authority;
(iv)any corporation or company owned or controlled by the Government'' or
(v)any other authority in respect of which the State Legislature has power to make laws.
(2)the reservation referred to in Sub-section (1) shall in respect of the persons belonging to the Backward Classes, the Most Backward Classes and Denotified Communities, the Scheduled Castes and the Scheduled Tribes, be as hereunder.-
(a)Backward Classes
(b)Most Backward Classes and Denotified Communities 30% 20;
(c)Scheduled Castes
(d)Scheduled Tribes 18% 1;
Therefore, for the Most Backward Classes, there is a reservation of 20%. If the Petitioner''s demand is accepted, then there will be an exclusive reservation in respect of only Piramalai Kallar Community whereas there are 68 denotified tribal Communities and 46 Most Backward Communities under the list identified by the State as a Socio and Economic and Backward Classes eligible for admission and this will create a further classification within the existing classification.
Whether a further classification among the S.C came to be considered by the Constitutional Bench of the Supreme Court in E.V. Chinnaiah Vs. State of Andhra Pradesh and Others, , wherein it is held as follows:
On a detailed perusal of the Act it is seen that Section 3 is the only substantive provision in the Act, rest of the provisions are only procedural. Section 3 of the Act provides for the creation of 4 groups out of the castes enumerated in the Presidential List of the State. After the regrouping it provides for the proportionate allotment of the reservation already made in favour of the Scheduled Castes amongst these 4 groups. Beyond that the Act does not provide for anything else. Since the State had already allotted 15% of the total quota of the reservation available for the backward classes to the Scheduled Castes the question of allotting any reservation under this enactment to the backward classes does not arise. Therefore, it is clear that the purpose or the true intendment of this Act is only to first divide the castes in the Presidential List of the Scheduled Castes into 4 groups and then divide 15% of reservation allotted to the Scheduled Castes as a class, amongst these 4 groups. Thus it is clear that the Act does not for the first time provide for reservation to the Scheduled Castes but only intends to redistribute the reservation already made by sub-classifying the Scheduled Castes which is otherwise held to be a class by itself. It is a well-settled principle in law that reservation to a backward class is not a constitutional mandate. It is the prerogative of the State concerned if it so desires, with an object of providing opportunity of advancement in the society to certain backward classes which includes the Scheduled Castes, to reserve certain seats in educational institutions under Article 15(4) and in public services of the State under Article 16(4). That part of its constitutional obligation, as stated above, has already been fulfilled by the State. Having done so, it is not open to the State to sub-classify a class already recognised by the Constitution and allot a portion of the already reserved quota amongst the State-created subclass within the list of Scheduled Castes. From the discussion herein above, it is clear that the primary object of the impugned enactment is to create groups of sub-castes in the list of Scheduled Castes applicable to the State and, in our opinion, apportionment of the reservation is only secondary and consequential. Whatever may be the object of this sub-classification and apportionment of the reservation, we think the State cannot claim legislative power to make a law dividing the Scheduled Castes List of the State by tracing its legislative competence to Entry 41 of List II or Entry 25 of List III. Therefore, we are of the opinion that in pith and substance the enactment is not a law governing the field of education or the field of State public services.
...
We have earlier noticed that by the impugned Act the State has regrouped the 59 castes found in the Presidential List into 4 separate groups and allotted them different percentage out of the total reservation made for Scheduled Castes as a class. We have also noticed from Article 341 and the judgment of this Court in N.M. Thomas3 that all the castes in the Schedule acquire a special status of a class and all the castes in the Schedule are deemed to be a class. Under the State''s reservation policy the backward class consists of Other Backward Class, Scheduled Castes and Scheduled Tribes. Therefore, there is already a classification for the purpose of reservation. In that background the question that arises is whether further classification amongst the class of Scheduled Castes for the very same object of providing reservation is permissible and if so will it stand the test of Article 14.
In Om Prakash Sharma case 6 this Court noticed that the Constitution Bench in Triloki Nath Khosa5 while deciding the case took care to add that one has always to bear in mind the facts and circumstances of the case in order to judge the validity of a classification. Applying the aforesaid principles the Court is required to interpret the provisions of the impugned Act on the touchstone of Clause (4) of Article 15 and Clause (4) of Article 16 of the Constitution. Articles 14, 15 and 16 form a group of provisions guaranteeing equality. Such provisions confer a right of equality to each individual citizen. Article 15 prohibits discrimination. Article 16 confers a right to equality of opportunity for being considered for public employment.
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Legal constitutional policy adumbrated in a statute must answer the test of Article 14 of the Constitution. Classification whether permissible or not must be judged on the touchstone of the object sought to be achieved. If the object of reservation is to take affirmative action in favour of a class which is socially, educationally and economically backward, the State''s jurisdiction while exercising its executive or legislative function is to decide as to what extent reservation should be made for them either in public service or for obtaining admission in educational institutions. In our opinion, such a class cannot be subdivided so as to give more preference to a minuscule proportion of the Scheduled Castes in preference to other members of the same class.
Furthermore, the emphasis on efficient administration placed by Article 335 of the Constitution must also be considered when the claims of Scheduled Castes and Scheduled Tribes to employment in the services of the Union are to be considered.
The Supreme Court negatived such a right of further classification within an identified group.
In the light of the above, this Court is not inclined to entertain the writ petition and hence the writ petition stands dismissed. No costs. Consequently, the connected Miscellaneous Petitions are closed.