IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15/09/2010 CORAM: THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NOS.4314 AND 4565 OF 2010 AND CONNECTED MISCELLANEOUS PETITIONS W.P.No.4314 of 2010 TAHDCO Contractors Association Regn.No. 52/2001, No.29/B Trichy Main Road, Villupuram – 605 602. Rep. by State Organiser R.Parthiban ... Petitioner Versus 1.The Principal Secretary to Government Adi - Dravidar and Tribal Welfare Department Fort St. George, Chennai – 9. 2.The Managing Director TAHDCO, Chennai – 600 101. 3.The General Manager TAHDCO, Chennai – 600 101. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorari, calling for the records relating to the order in Letter No.20800/A.D.W.5/08-4 dated 08.02.2010 on the file of the 1st respondent, quash the same. For Petitioner : Mr.S.Doraisamy in 4314/10 For Respondent-1: Mr.S.Veeraraghavan Additional Advocate General Assisted by Mr.V.Viswanathan Additional Government Pleader For Respondents 2&3:Mr.Ramaswamy Additional Advocate General Assisted by Ms.N.Kavitha Government Advocate https://hcservices.ecourts.gov.in/hcservices/ W.P.No.4565 of 2010 1.K.Ragavan 2.P.V.Sukumaran 3.K.Amirthanathan 4.L.Senthil Nathan 5.M.Palani 6.C.Aaron 7.C.Loganathan 8.P.Bhagavan Doss 9.C.Govindasamy 10.A.S.Mani 11.A.Azhagan 12.S.Sakthi 13.Janahipathy 14.R.Sekar ... Petitioners Versus 1.Government of Tamil Nadu Rep. by its Secretary Adi Dravidar and Tribal Welfare Department Ezhilagam, Chepauk, Chennai - 600 005. 2.Tamil Nadu Adi Dravidar Housing and Development Corporation Rep. by its General Manager Thirumangalam, Chennai – 101. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of certiorari, calling for the records relating to the impugned resolution of the 2nd respondent as communicated by the petitioners' vide letter No.C/1958/2003/Tech.A4/dt. 09.02.2010 and the consequential Tender notification No.12/2009-10 dated 16.02.2010 in so far as their division permitting contractors belonging to non Scheduled Caste / Scheduled Tribes to participate in the tenders called for by the 2nd Respondent, quash the same as being illegal, arbitrary, unconstitutional. For Petitioners: Mr.N.G.R.Prasad in 4565/10 for Mr.S.Saravana Kumar For Respondent-1: Mr.S.Veeraraghavan Additional Advocate General Assisted by Mr.V.Viswanathan Additional Government Pleader https://hcservices.ecourts.gov.in/hcservices/ For Respondent-2: Mr.Ramaswamy Additional Advocate General Assisted by Ms.N.Kavitha Government Advocate COMMON ORDER The Tamil Nadu Adi Dravidar Housing and Development Corporation (shortly "TAHDCO") was formed by the Government of Tamil Nadu during 1974. It is a company registered under the Companies Act, 1956 (Central Act of 1956) with equity participation of both Central and State Government with the prime objective of executing various works for the benefit of Scheduled Caste/ Scheduled Tribe (shortly "SC/ST") people in the State of Tamil Nadu. TAHDCO has been undertaking construction schemes like building of houses, schools, hostels, Community Halls etc., for SC/ST people. 2.The Adi-Dravidar and Tribal Welfare Department (shortly "the AD&TW Department") of the Government of Tamil Nadu, issued an order in G.O.Ms.No.2116, Adi Dravidar and Tribal Welfare Department, dated 03.11.1989 providing construction works upto the limit of Rs.6,00,000/- (Rupees Six Lakhs only) to the Engineers of SC/ST community, based on nomination. The AD&TW Department issued another order in G.O.Ms.No.132, Adi Dravidar and Tribal Welfare (ADW-5) Department, dated 15.07.1997 to entrust all the construction works of TAHDCO to SC/ST contractors alone. The Government Order also states that the SC/ST contractors did not like nomination and demanded open tender system. Accordingly, open tender system was introduced in the said G.O.(Ms)No.132, entrusting work to the SC/ST contractors. 3.One of the non-SC/ST contractors challenged the said G.O. (Ms)No.132 by filing a writ petition in W.P.No.15483 of 1997 and obtained an order of interim stay. The Government moved an application for vacating the interim stay. This Court, on 23.02.1988, vacated the interim stay, providing detailed reasons. 4.Again the said G.O.(Ms) No.132 was challenged by filing a writ petition in W.P.No.4084 of 2001 on the ground that the said Government Order is contrary to and in violation of the Tamil Nadu Transparency in Tenders Act, 1998 (Tamil Nadu Act 43 of 1998). This Court upheld the Government Order by dismissing the writ petition on 20.10.2004 in KANNAIYAN VS. THE STATE OF TAMIL NADU reported in 2004 (4) MLJ 651. 5.While so, the second respondent was of the opinion that there were not enough SC/ST contractors to meet the requirements of the construction works that are to be carried out by the second respondent, for the benefit of SC/ST people and that the available SC/ST contractors have no financial capacity to undertake big https://hcservices.ecourts.gov.in/hcservices/ projects of the second respondent. This resulted in issuing repeated tender calls by the second respondent and the execution of works got affected. 6.Under such circumstances, the Managing Director – TAHDCO wrote letters dated 31.07.2008 and 20.10.2009 expressing the aforesaid difficulties and requesting the first respondent permitting them to go for tender, inviting all contractors for participation, if there is no response for two or three tender calls from SC/ST contractors. 7.Based on the said letters dated 31.07.2008 and 20.10.2009, the Principal Secretary to the AD & TW Department, issued the impugned letter dated 08.02.2010 directing the TAHDCO to finalize the tenders to all the civil works as per the provisions of the Tamil Nadu Transparency in Tenders Act, 1998 and Tamil Nadu Transparency in Tenders Rules, 2000. 8.On the basis of the letter dated 08.02.2010 of the Principal Secretary, AD & TW Department, the General Manager of TAHDCO issued the proceedings dated 09.02.2010 to all its Executive Engineers, informing them about the authorization to call for open tender system in future permitting all the contractors as per the provisions of the Tamil Nadu Transparency in Tenders Act, 1998 and Tamil Nadu Transparency in Tenders Rules, 2000. The General Manager, TAHDCO also sought to call for tenders in their proceedings dated 09.02.2010, based on the aforesaid letter dated 08.02.2010 of the first respondent. 9.In these circumstances, the TAHDCO Contractors Association filed a writ petition in W.P.No.4314 of 2010 to quash the aforesaid letter dated 08.02.2010 of the first respondent. 10.SC/ST contractors numbering 14 filed another writ petition in W.P.No.4565 of 2010 to quash the letter dated 09.02.2010 of the General Manager, TAHDCO and the consequential tender notification dated 16.02.2010 inviting contractors belonging to other communities to participate in the tender called for by the General Manager, TAHDCO. 11.Notice was ordered on 05.03.2010 in W.P.No.4565 of 2010 and interim stay was also granted. The writ petition in W.P.No.4314 of 2010 was admitted on 09.03.2010 and interim stay was also granted. The first respondent filed counter affidavits in both the writ petitions and also filed petitions to vacate the interim stay granted by this Court. The General Manager, TAHDCO filed counter affidavit in W.P.No.4565 of 2010. The petitioners filed reply affidavits to the counter affidavits. https://hcservices.ecourts.gov.in/hcservices/ 12.Heard the submissions made on either side and perused the materials available on record. 13.The learned counsels for the petitioners submitted that the funds allocated for the welfare of the SC/ST people are utilized for executing various schemes including construction of houses, schools, hostels, community halls etc., for the benefit of SC/ST people. G.O.(Ms)No.132 was issued by the first respondent in consonance with the directive principles of State Policy enshrined in Article 46 of the Constitution. When the said Government Order was questioned in W.P.No.15483 of 1997, the respondents filed counter affidavit and pleaded that the non-SC/ST contractors do not have the slightest inclination to complete the project meant for SC/ST people within the stipulated period and that since the entire fund was meant for construction work allotted by the AD & TW Department, the work was exclusively entrusted to the SC/ST contractors to economically empower the SC/ST community. Accepting the contentions of the respondents, this Court passed a detailed order on 23.02.1998 in W.M.P.No.24596 of 1997 and 631 of 1998 in W.P.No.15483 of 1997 vacating the interim stay of the operation of G.O.(Ms)No.132. 14.The learned counsels for the petitioners have also brought to the notice of this Court that after the enactment of Tamil Nadu Transparency in Tenders Act, 1998, the said G.O.(Ms)No.132 was sought to be challenged again and that this Court sustained the G.O. in the judgment reported in 2004 (4) MLJ 651. It is further submitted that when the Managing Director, TAHDCO wrote the letters dated 31.07.2008 and 20.10.2009 seeking for participation of non-SC/ST contractors also, whenever there are no SC/ST contractors to take up the work, the first respondent issued the impugned letter totally taking away the benefits enjoyed by the SC/ST contractors. The effect of the impugned letter is scrapping the G.O.(Ms).No.132. According to the learned counsels, it is impermissible, since the G.O. was issued with the executive power of the Government, while the Principal Secretary to the Government withdrew the benefits granted in G.O.(Ms) No.132, by way of the impugned letter. According to the learned counsels, the said Government Order would prevail over the impugned letter. 15.In this regard, the learned counsels for the petitioners relied on a judgment of this Court in K.SAMPATH VS. STATE OF TAMIL NADU reported in 2007 Writ L.R. 521. They also relied on a Division Bench judgment dated 28.02.2008 of this Court in W.A.No.740 of 2007 upholding the contract awarded to Sanitary workers by the local Bodies. 16.The learned counsels for the petitioners contended that G.O.(Ms)No.132 conferred certain benefits to SC/ST contractors in tune with the constitutional scheme. According to them, Article 15(4) of the Constitution has to be read into Article 46 of the https://hcservices.ecourts.gov.in/hcservices/ Constitution so as to enforce fundamental rights guaranteed to the SC/ST people under Article 15(4) of the Constitution. The learned counsel further submitted that while the second respondent sought for participation of non-SC/ST contractors only when the SC/ST contracts are not available, the impugned letter takes away the benefits granted in G.O.(Ms)No.132. Hence, the impugned letter dated 08.02.2010 issued to the Managing Director, TAHDCO was without application of mind. 17.The learned counsels for the petitioners further contended that the impugned letter solely relies on the Tamil Nadu Transparency in Tenders Act, 1998 for taking away the benefits granted to SC/ST contractors in G.O.(Ms)No.132. The first respondent defended the G.O.(Ms)No.132 stating that G.O.(Ms)No.132 was in consonance with the constitutional scheme and that therefore, the same could not be struck down based on the statutory provisions. They also brought to the notice of this Court that Article 17 of the Constitution abolishing untouchability as well as Article 16(4) of the Constitution providing employment opportunities. They also brought to the notice of this Court that in tune with the constitutional scheme, reservation is provided in the local Bodies, State Legislatures and Parliament for SC/ST community so that they should take part in the governance of this Country. Thus, the first respondent proceeded contrary to their own pleadings made before this Court at more than one occasions. They also relied on the special provisions relating to SC/STs' in Chapter XXXVI of the Constitution including the constitution of National Commission for SC/STs' under this Chapter. They elaborately made submissions that even after all these measures, the SC/ST people still live in starving conditions. 18.The learned counsels for the petitioners have taken me through the typed set filed by the General Manager, TAHDCO and pleaded that when compared to the large volume of work carried out by the SC/ST contractors, the alleged repeated calling of tenders is relating to only a negligible portion of work. Even this was due to the policy of the respondents 1 and 2. It is submitted as an illustration that while PWD constructs a hostel for boarding and lodging of 50 students belonging to BC community, the amount sanctioned for such construction is much more than the amount sanctioned for construction of similar hostel in the case of SC/ST students. It is also stated that delay is also due to non-handing over of sites and encroachment in the work sites and also due to paucity of the Engineers in the respondent TAHDCO. 19.On the other hand, Mr.Veeraragavan, learned Additional Advocate General submitted that the impugned letter was passed, taking into account the interest of vast masses of SC/ST people. It is submitted that the interest of the SC/ST people is paramount and not the interest of the SC/ST contractors. Since the schemes meant for SC/ST people are not completed in time by SC/ST contractors due https://hcservices.ecourts.gov.in/hcservices/ to their non-availability, the first respondent had no option, except to call for others to carry out the work, so that the benefits could reach the SC/ST people at the earliest. Hence, the impugned letter is not in conflict with the constitutional goal. 20.Mr.Ramasamy, learned Additional Advocate General submitted that the letter dated 09.02.2010 of the General Manager, TAHDCO is the consequential order and they simply followed the directions of the first respondent, as they are bound to follow the directives of the first respondent. 21.The learned Additional Advocate General for TAHDCO fairly submitted that the conditions prohibiting the SC/ST contractors participating in one division to participate in other divisions is arbitrary and illegal and the same could be looked into and it could be set right. 22.I have considered the submissions made on either side. The respondent – TAHDCO was established in 1974 to carry out the various schemes for the benefit of SC/ST people. The respondent – TAHDCO is involved in constructing houses, hostels, schools, community halls etc., exclusively for the benefit of SC/ST people. Funds are allocated by the first respondent meant for SC/ST people. The respondent – TAHDCO also executes some of the schemes of NABARD for upliftment of SC/ST people. While the PWD authorities does not prohibit the contractors of one division to participate in the tenders in other divisions all over Tamil Nadu, the respondent – TAHDCO prohibits such participation. The SC/ST contractors registered in a division of the respondent - TAHDCO, cannot take up work in other divisions, even if there is no SC/ST contractor coming forward to take up work at that place. The learned Additional Advocate General has fairly admitted before this Court that such a condition imposed by the respondent TAHDCO is arbitrary and the same could be set right. The TAHDCO need not go for repeated tenders in same cases for want of SC/ST contractors, if such deficiencies are attended. 23.In the year 1989, the first respondent issued an order in G.O.(Ms) No.2116, entrusting some work up to the limit of Rs.6,00,000/- (Rupees Six Lakhs only) by resorting to nominating SC/ST contractors. The SC/ST people themselves did not like the nomination method. They wanted open tender system confining to SC/ST contractors. In these circumstances, the first respondent issued the G.O.(Ms) No.132, which is extracted hereunder: "Miz Mjpjpuhtplu; kw;Wk; gH';Foapd kf;fspd; bghUshjhu nkk;ghl;il cah;j;j. muR jhl;nfh jpl;lg; gzpfspy; mtu;fSk; g';Fbgw ntz;o xg;ge;jg;g[s;spfs; my;yJ epakd Kiwfis mt;tg;nghJ eilKiwg;gLj;jp mtu;fis Cf;fg;gLj;jp te;Js;sJ/ https://hcservices.ecourts.gov.in/hcservices/ 2/nkYk; ghu;it 1-y; gof;fg;gl;l murhziapy; Mjpjpuhtplu; kw;Wk; gH';Foapdj;ijr; rhh;e;j og;snkh-gl;lg;gog;g[ goj;j bghwpahsu;fSf;F U:/6 ,yl;rk; tiu kjpg;g[s;s Mjpjpuhtplu; tPl;L trjp kw;Wk; nkk;ghl;Lf; fHfj;jpdhy; nkw;bfhs;sg;gLk; gzpfis ehkpndc&d; mog;gilapy; Xuhz;Lf;F xg;gilj;jy; ntz;Lk; vd Mizfs; gpwg;gpf;fg;gl;ld/ ghu;it 2y; gof;fg;gl;l murhizapy; , j;jpl;lk; 31/3/94 tiu ePl;of;fg;gl;L Mizfs; gpwg;gpf;fg;gl;ld/ 3/nkny gj;jp 2y; Twg;gl;Ls;s jpl;lk; Fwpj;J kPz;Lk; tpupthd guprPyid nkw;bfhs;sg;gl;lJ/ ,j;jpl;lj;jpd; brayhf;fk; bjhlu;ghf jhl;nfhtpd; nkyhz;ik ,af;FeuJ fUj;ij nfl;lwpe;jjpy;. Mjpjpuhtplu;fs; epakd Kiwapy; (kjpg;gPLgo) gzpfis nkw;bfhs;s tpUk;gp tUtjpy;iy; Mdhy; xg;ge;jg;g[s;spfspd; mog;gilapy; jpl;l';fis nkw;bfhs;tjw;F tpUg;gkhf cs;sdu; vd;W bjhptpj;Js;shu;/ nkYk; muR ne/K/f/vz;/15980-Mjpe/6-96-7. ehs; 19/6/96y; "jpwe;j xg;ge;jg;g[s;sp" Kiwjhd; gpd;gw;wg;gl ntz;Lk; vd muR mwpt[Wj;jpaija [k; Fwpg;gpl;Ls;shu;/ 4/nkw;fz;l fUj;Jf;fis Ma;t[ bra;jjpy;. jhl;nfh K:yk; vLj;Jr; bra;ag;gLk; gzpfs; ,dpnky; Mjpjpuhtplu;-gH';Foapdu;f;nf xg;gilf;fg;gl ntz;Lk; vdt[k;. jhl;nfhtpw;F jug;gLk; epjp Mjpjpuhtpl-g:H';Foapdu;f;fhd xJf;fPl;oypUe;nj jug;gLtjhy; gzpfis Mjpjpuhtpl-gH';Foapdu;fns vLj;Jr; bra;a ntz;Lk; vd;gnj rupahdnj vdt[k; muR fUJfpwJ/ ,J bra;ag;god; epakdk; ,dpj; njit ,uhJ/ xg;ge;jg;g[s;spfs; nfhupna bghJthd eilKiwfisf; filgpoj;nj gzpfis xg;gil bra;ayhk; vdt[k; muR fUJfpwJ/ 5/nkny gj;jp 4y; bjhptpj;Js;s fUj;jpd;go jhl;nfhthy; vLj;Jr;bra;ag;gLk; jpl;lg; gzpfs; midj;Jk; Mjpjpuhtplu; gH';Foapdu;fspk; kl;Lnk xg;ge;jg;g[s;spfs; nfhup "jpwe;j xg;ge;jg;g[s;sp" Kiwia gpd;gw;wp xg;gil bra;ag;gl ntz;Lbkd muR MizapLfpwJ/ jkpH;ehL Mjpjpuhtplu; tPl;L trjp kw;Wk; nkk;ghl;L fHfj;jpd; nkyhz;ik ,af;Feu; jFe;j bjhlu; eltof;if nkw;bfhs;st[k; mwpt [Wj;jg;gLfpwhh;/" 24.The said G.O.(Ms) No.132 was put to challenge by a non- SC/ST contractor, as he was excluded from taking work from the respondent - TAHDCO. He was handling work for the respondent - TAHDCO before the issuance of G.O.(Ms)No.132. Hence, he filed a writ petition in W.P.No.15483 of 1997 to quash the aforesaid G.O.(Ms) No.132. It was his contention that exclusion of other communities, is unconstitutional and illegal. 25.On the other hand, the learned Additional Advocate General appearing for the respondents sought to sustain the Government Order. Accepting the view point of the respondents, this Court vacated the interim order granted earlier. The pleadings of the https://hcservices.ecourts.gov.in/hcservices/ first respondent made therein for vacating the interim stay is incorporated in para 7 of the said order and the same is extracted hereunder: "7. While dealing with the impugned Government Order the respondents state that the Government had taken into account the interest of Scheduled Castes and Scheduled Tribes and that the petitioner was under a wrong notion that the works up to Rs.6 lakhs alone are reserved to diploma and degree holders belong to the S.C./S.T. contractors. It was further submitted that having regard to Article 46 of the Constitution of India being one of the directive principles of the State Policy and Article 15(1) of the Constitution, the Government had acted entirely in the interest of the economic advancement of S.C. and S.T. and therefore, the impugned G.O. was well within the provisions of the Constitution. Besides, the Corporation, and organization with a history of 23 years, had been undertaking construction activities of houses, schools, hostels, community halls etc. for the welfare of Scheduled Caste and Scheduled Tribes communities, and most of the tenders were from communities other than S.C./S.T. who do not have the slightest inclination to complete the project within the stipulated period. It was felt that when S.C./S.T. communities it was expected that there will be a better motivation for them to complete the project in time and that in fact in the case of the petitioner himself who was awarded 14 works there were considerable delay in his execution of the work beyond the agreement period. The works undertaken by the TADCO was very much lesser when compared to other departments/agencies of the Government, and as such the contention of the petitioner, that persons like him have been deprives of their livelihood was nor correct. The petitioner was a registered contractor with the Public Works Department and there was no basis for the contention of the petitioner." 26.The reasoning of this Court are found at paras 14 to 16 and 18 in the said order and the same are extracted hereunder: "14.As stated earlier the impugned G.O. is only restricted to works for which allocation of funds have been exclusively for the benefit of Scheduled Caste community and Scheduled Tribe community. Article 46 of the Constitution of India reads as thus: https://hcservices.ecourts.gov.in/hcservices/ "The State shall promote within special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation." The expression "economic interests of the weaker section of the people" would assume significance and the Supreme Court in several judgments have upheld the actions of the State in favour of the depressed classes of the said provisions. In A.I.R.1985 S.C., 389, the Supreme Court dealt with the validity of Sections 3 and 4 of the Maharashtra Restoration of Lands to Scheduled Tribes Act,1975 wherein it was provided for annulment of transfers of lands made by the members of the Scheduled Tribes and for the restoration of the lands to them on certain conditions. The provisions of the Act was held to be valid on the ground that it was an illustration of the concept of distributive justice and that the Legislation was intended to remove economic inequalities and rectifying the injustice as between unequal as in the society. 15. In A.I.R. 1994 S.C. 721,9 STATE OF KERALA V. JOSEPH ANTHONY) the ban on fishing by mechanized nets for protecting the source of livelihood of the already impoverished mass of fishermen in the State was upheld by the Supreme Court. 16. Therefore, there is enough prima facie, power with the State Government to make a provision of the betterment of the downtrodden communities. To repeat what has already been stated, the activities of the TADCO relate only to such of those works for which budgetary allocations have been made specifically for development of members belonging to the Scheduled Castes and Scheduled Tribes communities. ..... 18. As regards the contention that the State would stand to lose in restricting the area of the contractors to bid at the auction, it has to be borne in mind that the basic qualifications of the contractors belonging to the Scheduled Castes and Scheduled Tribes communities are not relaxed and it is only such of those qualified persons belong to https://hcservices.ecourts.gov.in/hcservices/ the respective communities who are qualified to bid at the auction. The impugned Government Order also ensures that the tenders shall be awarded only by open method and not by closed nomination method which is also tended to eliminate any arbitrariness in choosing of the contractors. Therefore, the interest of Government is prima facie, adequately protected and there is no basis for the apprehensions expressed by the petitioner." 27.After the Tamil Nadu Transparency in Tenders Act, 1998 was enacted, again an attempt was made to question the G.O(Ms)No.132 by filing a writ petition in W.P.No.4084 of 2001. This Court considered in detail and dismissed the writ petition in KANNAIYAN VS. STATE OF TAMIL NADU reported in 2004 (4) MLJ 651. Paras 13, 14 and 15 of the said judgment are extracted hereunder: "13.Art.15(4) which was inserted by the Constitution First Amendment Act 1951, may be the answer for most of the doubts raised on the part of the petitioner and therefore, it is necessary to extract Art.15(4) of the Constitution of India. "Nothing in this Article or in clause (2) of the Art.29 shall prevent the State from making any special provisions for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and Scheduled Tribes". This Art.15(4) not only contains Art.15(1) and (2) but also Art.29(2) as well. 14.The scope and object of this clause is to bring Articles 15 and 29 in line with Articles 16 (4), 46 and 340 and to make it constitutional for the State to reserve seats for backward classes of citizens, scheduled castes and Tribes in the public educational institutions as well as to make other special provisions as may be necessary for their advancement. In short, the amendment would validate the reservation and would protect the interests of the scheduled castes and scheduled tribes. Art.15 (4) is an exception to Art.15(1) in so far as it forbids discrimination on the ground of race or caste. It is also in the nature of an exception to Art.29(2). https://hcservices.ecourts.gov.in/hcservices/ 15.No doubt that in general statutory provisions of law have the overriding effect on the Government Orders passed but since this Government Order which is impugned herein has been issued in consonance with the enabling provisions of the Constitution particularly under Art.15(4) of the Constitution of India aimed at the advancement of the socially and economically backward sections of the society as a special provision, the Government Order has been issued by the first respondent State Government and further since the statute cannot override a constitutional right. Though it apparently looks as if the statute has been overridden by the Government Order, if it is seen in the light of Art.15(4), the Government Order can be given effect to and it cannot be said that the statute is being overridden especially when the fundamental obligation of the State is given effect to for the purpose of giving effect to Art.15(4) of the Constitution of India. Moreover in its recent judgments rendered by the Hon'ble Apex Court reported in (2004) 6 SCC, 36 as settled law to the effect saying that "Constitution right cannot be taken away by a statute notwithstanding anything contained contrary in its sense any other law for the time being in force". 28.This Court categorically held that the G.O(Ms) No.132 is in conformity with Article 15(4) of the Constitution. Relying on the decision of the Honourable Apex Court reported in