S. Chandra Mouli and Others vs The State of Tamil Nadu and Another

Rengasamy, J.—This petition under Article 226 of the Constitution of India challenges the validity of the notification of the second

respondenttamil Nadu Public Services Commission, dated 15.11.1996 as modified by the Memorandum No. 10163/APD-CJ B/96 dated

24.4.1997 calling for the application for the post of Civil Judge-Junior Division/Judicial Magistrate. The petitioners would challenge the above said

notification on the ground that the notification refers to the reservation of 69% for the scheduled caste, scheduled tribe and backward communities

in-cluding reservation for women which is against the dictum of the case in Indra Sawhney etc. etc Vs. Union of India and others, etc. etc., and

therefore this notification has to be held ultra vires, unconstitutional and without jurisdiction.

Incidentally we have to mention that these petitioners participated in the written test conducted by the Tamil Nadu Public Service Commission

and they are unsuccessful candidates having failed in not securing the minimum marks required to appear for the viva voce. However, it is argued

by the learned Counsel for the petitioner Mr. V. Raghavachari that it will not be an estoppel for them to challenge the validity of the notification

which is offending the dictum of the Supreme Court and the petitioners have every right to challenge the validity of the notification. He elabo-rately

argued referring to the reasoning given by the Apex Court in Indra Sawhney etc. etc Vs. Union of India and others, etc. etc., to why the executive

authority should not exceed 50% in the case of the reservation for the backward classes and the scheduled castes and scheduled tribes and that

the State Government conscious of this decision and having failed to follow the law of the land has issued the notification reserving 69% for the

scheduled castes, Scheduled tribes and backward classes including the women candidates and therefore the notification is illegal. Even in the

decision relied upon by the learned Counsel for the petitioner Mr. V. Raghavachari, it is observed ""while 50% shall be the rule, it is necessary not

to put out of consideration certain extraordinary situations inher-ent in the great diversity of this country and the people. It might happen that in

farflung and remote areas the'' population inhabiting those areas might, on account of their being out of the main stream of national life and in view

of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become

imperative. In doing so, extreme caution is to be exercised and a special case made out.

Therefore it is not the absolute rule laid down by the Apex Court that on any account, it should not exceed 50% but it has given the margin for

certain categories taking into considertion the backward-ness of the State. Now the important aspect is that the State Legislate has enacted a law,

Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments on

posts in the Services under the State) Act, 1993, Tamil Nadu Act 45 of 1994 (hereinafter referred to as the Act'') prescribing 69% for the

reservation of the scheduled castes. Scheduled tribes and backward classes. Only in pursuance of this Act, the impugned notification has been

issued by the second respondent calling for the applications. It is pertinent to mention that the petitioners have not chosen to challenge the very

enactment itself which prescribes the quote for the reservation. On the other hand, they have come for-ward to challenge only the validity of the

notification. When the State enactment has prescribed a particular percentage for the reserved category, naturally the second has to follow that

enactment for implementation or the statute. So if at all the petitioners are aggrieved of the notification, their right is only to challenge the enactment

itself, but without doing so the attack on the notification does not give any weight for their reasoning to challenge the notification. Therefore, we find

that this petition challenging only the notification is not sustainable without challenging the validity of the Act itself. Therefore the writ petition is

dismissed in the admission stage. Consequently, W.M.P. No. 18647 of 1997 is dismissed.