* THE HON’BLE THE ACTING CHIEF JUSTICE SRI BILAL NAZKI THE HON’BLE SRI JUSTICE SRI JUSTICE GODA RAGHURAM THE HON’BLE SRI JUSTICE V.V.S.RAO THE HON’BLE SRI JUSTICE N.V.RAMANA And THE HON’BLE SRI JUSTICE R. SUBHASH REDDY + Writ Petitions Nos. 13832, 13894, 14276, 14290, 14293, 14338, 14387, 14388, 14396, 14485, 14507, 14541, 14819, 14936, 14959, 15009 AND 15812 of 2005 % , OF SEPTEMBER, TWO THOUSAND FOUR # Kum B. Archana Reddy, D/o B. Narayana Reddy, R/o H.No.2-2-25/P/4/A, D.D.Colony, Bagh Amberpet, Hyderabad and Others Petitioners Versus $ State of A.P., rep. by its Secretary, Law (Legislative Affairs & Justice) Department, Secretariat, Hyderabad, and Others. Respondents ! Counsel for the petitioners : 1. T.Suryakaran Reddy 2. B.Mahindra Reddy, represented by K.Ramakrishna Reddy 3. L.Ravi Chander 4. K.Sita Ram 5. D.Radhiv Reddy, represented by D.Prakash Reddy ^ Counsel for the respondents : 1. S.Ramachandra Rao—Asaduddin Owasi, Lal Jan Basha , Muslim United Front, Muslim Reservation Porata Samithi 2. Advocate General (Counsel for Interveners:) 3. S.S.Prasad--- Bezawada Muslim Lawyers Welfare Association 4. E.Ayyapa Reddy—Muslim Minorities Welfare Association 5. Noushad Ali—Decccan Youth Association 6. K.G.K.Prasad--- Akbaruddin Owasi 7. K.Ramakantha Reddy, Akbar Ali Khan 8. K.Balagopal--- Habeebur Rahaman, Mahaboob Alam Khan 9. S.Niranjan Reddy,-- Syed Anwar Basha, Sultan- Ul- Uloom Educational society 10. M.A.Ashfq Mohiuddin – The Kul Hind Sunni Zamitatul Masaiq 11. Ch.Satish Kumar—Muzaid Khan 12. C.V.Nagarjuna Reddy—Ibrahim Khalwelulah Trust 13. Ghulam Yezdan --- 14. Basit Ali Yavar -- < Gist : >Head Note: (BNJ CITATIONS) ? CITATIONS: (1) 1995 (2) ALD 147 (2) 2004 (6) ALD 1 (LB) (3) AIR 1963 SC 649 (4) 1992 Supp (3) SCC 217 (5) (2000) 1 SCC 168. (GRJ CITATIONS) ? Citations: 1) 2004 (5) ALT 634 2) 1992 Supp. III SCC 217 3) AIR 1951 SC 229 4) AIR 1951 SC 226 5) (1972) 1 SCC 660 6) AIR 1963 SC 649 7) AIR 1968 SC 1012 8) AIR 1969 SC 1 9) (1972) 1 SCC 660 10) (1971) 1 SCC 38 11) (1995) Supp. SCC 714 12) AIR 1964 SC 1823 13) 266 US 507 (1925) 14) (1973) 1 SCC 420 15) (1975) 1 SCC 267 16) AIR 1987 AP 53 17) 123 SC 325 (2003) 18) 515 US 220 19) 416 US 312 (1974) 20) 497 US 547 (1990) 21) AIR 1968 SC 1339 (VVSRJ CITATIONS) ? Citations 1. (2003) 6 SCC 697 = AIR 2003 SC 3724 2. 1992 Supp (3) SCC 217 = AIR 1993 SC 477 3. (1966) 1 An.W.R. 294 4. AIR 1963 SC 649 5. AIR 1968 AP 165 6. AIR 1968 SC 1379 7. (1972) 1 SCC 660 = AIR 1972 SC 1375 8. 1971 A.P.High Court Notes 210 9. AIR 1987 AP 53 (FB) 10. AIR 1995 APF 248 (FB) 11. 2004 (6) ALD 1 (LB) 12. AIR 1951 SC 226 13. AIR 1964 SC 179 14. AIR 1964 SC 1823 15. AIR 1969 SC 1 = (1969) 1 SCR 103 16. (1973) 1 SCC 420 = AIR 1973 SC 980 17. (1975) 1 SCC 267 = AIR 1975 SC 563 18. (1976) 2 SCC 310 = AIR 1976 SC 490 19. (1976) 3 SCC 730 = AIR 1976 SC 2381 20. (1985) Supp. SCC 714 = AIR 1985 SC 1495 21. (1994) 4 SCC 401 22. (2000) 1 SCC 168 = AIR 2000 SC 498 23. (1974) 40 L Ed 2d. 164 24. (1990) 111 L Ed 445 = 497 US 547 25. 515 US 220 = (1995) 132 L Ed 2d 158 26. (1980) 448 US 448 = 65 1 Ed 2d 902 27. 534 US 103 = (2001) 151 L Ed 2d 489 28. 539 US 306 (2003) 29. 488 US 469 30. AIR 1952 SC 75 31. AIR 1955 SC 191 32. AIR 1958 SC 538 33. (2001) 7 SCC 708 = AIR 2001 SC 3616 34. AIR 1967 SC 1427 35. (1974) 4 SCC 3 = AIR 1974 SC 555 36. (1978) 1 SCC 248 = AIR 1978 SC 597 37. (1991) 1 SCC 212 = AIR 1991 SC 536 38. AIR 1993 SC 935 39. (1983) 1 SCC 147 = AIR 1983 SC 239 40. (1984) 3 All ER 935 = (1984) 3 WLR 1174 = 1985 AC 374 41. (1994) 6 SCC 651 = AIR 1996 SC 11 42. (1996) 3 SCC 709 = AIR 1996 SC 1627 43. (1994) 3 SCC 1 = AIR 1994 SC 1918 44. (1993) Supp 1 SCC 96 = AIR 1992 SC 522 45. (1983) 1 SCC 305 = AIR 1983 SC 130 46. AIR 1954 SC 728 47. (1969) 2 SCC 248 = AIR 1970 SC 129 48. (1983) 2 SCC 277 = AIR 1983 SC 473 49. 1991 (1) AC 696 = 1991 (1) All ER 720 50. (2001) 2 SCC 386 = AIR 2000 SC 3689 51. (2004) 4 SCC 714 = AIR 2004 SC 3800 52. 94 US 113 = 24 L Ed 77 (1876) 53. (1982) 3 All ER 141 = (1982) 1 WLR 1155 (HL) 54. (1997) 7 SCC 209 55. (1991) 3 SCC 91 56. (1985) 1 SCC 641 = AIR 1986 SC 515 57. (1993) 2 SCC 299 = AIR 1993 SC 1435 58. AIR 1951 SC 229 59. (1990) 2 SCC 746 = AIR 1990 SC 1402 60. (1995) 1 SCC 428 61. 1998 (3) ALT 244 = 1998 (2) ALD 739 62. (1983) 2 AC 570 (CA) 63. (2002) 2 SCC 333 = AIR 2002 SC 350 64. 1987 (1) ALT 665 (FB) 65. (1973) 4 SCC 225 = AIR 1973 SC 1431 66. AIR 1955 SC 271 67. AIR 1967 SC 1353 68. AIR 1957 SC 164 69. AIR 1963 SC 779 70. AIR 1971 SC 1537 71. AIR 1960 SC 1208 72. AIR 1969 SC 1 73. 1994 Supp (1) SCC 324 = AIR 1993 SC 1804 74. AIR 1958 SC 538 75. AIR 1979 SC 478 76. AIR 1955 SC 166 77. (2004) 11 SCC 1 = AIR 2004 SC 2615 78. (1984) 1 SCC 224 = AIR 1984 SC 121 79. (1970) 1 SCC 248 = AIR 1970 SC 564 C/15 THE HON’BLE SRI BILAL NAZKI, THE ACTING CHIEF JUSTICE THE HON’BLE SRI JUSTICE GODA RAGHURAM THE HON’BLE SRI JUSTICE V.V.S.RAO THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION Nos. 13832, 13894, 14276, 14290, 14293, 14338, 14387, 14485, 14388, 14396, 14507, 14541, 14819, 14936, 14959, 15009 and 15812 of 2005 % 07-11-2005 Between: Kum.B.Archana Reddy, rep.by father and natural Guardian,B.Narayana Reddy, R/o.Bagh Amberpet, Hyderabad & Others. ..... PETITIONERS AND The State of A.P., rep.by its Secretary to Govt., Law (Legislative Affairs and Justice) Department, Secretariat Buildings, Hyderabad & Others. .....RESPONDENTS THE HON’BLE SRI BILAL NAZKI, THE ACTING CHIEF JUSTICE THE HON’BLE SRI JUSTICE GODA RAGHURAM THE HON’BLE SRI JUSTICE V.V.S.RAO THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION Nos. 13832, 13894, 14276, 14290, 14293, 14338, 14387, 14485, 14388, 14396, 14507, 14541, 14819, 14936, 14959, 15009 and 15812 of 2005 COMMON JUDGMENT : (Per Hon’ble Sri Bilal Nazki, ACJ for himself & on behalf of Hon’ble Sri R.Subhash Reddy, J) I have the privilege of going through the elaborate opinions framed by my brother Judges Mr.Justice Goda Raghuram and Mr.Justice V.V.S.Rao. By and large, I am in agreement with them, but there are some areas, where I could not pursue myself to go along with the opinion of my brothers, though the fate of the cases would be the same and the writ petitions would have to be allowed. Facts have been mentioned in detail by my learned brothers in their judgments, but in order to frame my opinion, certain facts would have to be repeated. Andhra Pradesh Reservation of seats in the Educational Institutions and of appointments/posts in the Public Services under the State to Muslim Community Ordinance, 2005 (Ordinance No.13 of 2005, dated 20.06.2005), is under challenge in these writ petitions. A battery of lawyers assisted us in these writ petitions. There are writ petitioners, respondents and the interveners. Mainly, there were following questions, which fell for our consideration; (1) Whether Muslims, as a community, can be declared socially and educationally backward for the purposes of Articles 15 and 16 of the Constitution ? (2) Whether there was relevant and scientific material before the Commission to come to a conclusion that Muslims in Andhra Pradesh were, as a Community, backward socially and educationally ? (3) How far the Court could go into analyzing the material which was collected by the Commission ? (4) Whether the criteria adopted by the Commission was right and if the Court could go into the relevance of the criteria ? My reservations are with regard to 1st question itself, as to whether Muslims, as a community, could be declared socially and educationally backward. The facts which are relevant for the purpose of this question are; On 25th of August, 1994, the Government of Andhra Pradesh issued G.O.Ms.No.30 Backward Classes Welfare (P.II) Department, ordering Muslims, Kapus, Balijas and Telagas to be treated as socially and educationally backward classes of citizens for the purpose of reservation of seats in educational institutions and for recruitment to jobs in Government and local bodies. In this G.O., the Government took note of the fact that Government of A.P. had constituted a Commission under Act 20 of 1993 and while the Commission was examining the representations received from various communities for inclusion in the list of backward classes, there had been considerable unrest among the members of various Castes and Communities on the question that they were not being declared as backward classes. The Government made a request to the Commission for an interim report. But the Commission did not submit a report and expressed its inability to do so. The Government noted the demand and was of the view that this was a long pending demand with mass support. This G.O. was challenged in A.P.State Backward Classes Welfare Association v. State of Andhra Pradesh, Backward Classes Welfare Department[1]. This Court interpreted the G.O. and found that it was not a final decision for providing reservations for those communities. After this judgment, it appears that the Government took out meeting of various Secretaries on 2nd of June, 2004. On 4th of June, 2004, Government issued G.O.Ms.No.50, entrusting the work, “relating to the study of socio-economic and educational conditions of Muslim community in the State to the Commissionerate of Minorities Welfare, headed by the Ex-officio Commissioner to examine the social, economic and educational backwardness of Muslim Community in the State for the purpose of including them within the purview of the Backward Classes of citizens under Articles 15(4) and 16(4) of the Constitution and present its report to the Government at an early date”. The Commissionerate of Minorities Welfare submitted its report to the Government on 5th of July, 2004. It recommended 5% reservation to Muslim minorities in employment, education and other fields on par with the Backward Classes in the State. The Government accepted the recommendations and issued an order vide G.O.Ms.No.33, dated 12.07.2004, directing that Muslims in the State be provided with 5% reservations in educational institutions and employment in the State. This was over and above the reservations provided to the backward classes under an earlier G.O. A new category i.e. Category-E was added to the A, B, C, D categories. This G.O. was challenged by way of a writ petition being T.Muralidhar Rao v. State of A.P. and others[2]. The G.O. was struck down by a five-Judge Bench of this Court. One of the grounds on which this G.O. was quashed by the Court, was that the matter had not been referred to Backward Classes Commission. The Judges of the Larger Bench wrote three different opinions. Mr.Justice B.Sudershan Reddy in para 251, gave three directions to the State Government after quashing G.O.Ms.No.33. They are; “1. The Government of Andhra Pradesh shall forthwith initiate the process of reconstituting the Andhra Pradesh Commission for Backward Classes and complete the same within a period of three months. That immediately upon such reconstitution, the Government shall initiate the process of consultation and seek the opinion of the Commission for inclusion of the Muslim Community into the list of Backward Classes. 2. The Commission shall examine the requisition/request of the Government and shall decide the same by duly giving its opinion within a period of six months from the date of such requisition/request being made by the State Government. It shall be open to the State Government to forward the entire material in its possession, including the material collected by the Commissionerate of Minorities Welfare for the perusal and consideration of the Backward Classes Commission. 3. The identification of any caste, social group or community involves exclusion of creamy layer. The State of Andhra Pradesh though a party to the decision rendered by the Supreme Court in Indra Sawhney’s case [1992 Supp (3) SCC 217], so far did not lay down any criteria for identification of creamy layer. In the circumstances, it would be just and necessary to direct the State Government to lay down the criteria for identification of creamy layer so that it could be applied while considering the case of the Muslim Community for identification as backward class. That an appropriate criteria shall be evolved by the Government in terms of the directions of the Supreme Court in Indra Sawhney’s case. The very process of identification of Backward Classes involves identification of creamy layer amongst them. The criteria in this regard shall be laid down by the State Government within a period of three months or in the alternative to follow the criteria laid down by the Government of India in its Memorandum dated 08.09.1993 which has received its affirmation in Ahok Kumar Thakur v. State of Bihar [AIR 1996 SC 75] and Indra Sawhney’s Case-II [2000 (1) ALD 54 (SC)], in order to facilitate the expeditious disposal of the claim of the Muslim Community for their identification as a Backward Class.” Mr.Justice J.Chelameswar in para 62, held; “62. Another submission is made by the State that the requirement to consult the Commission arises only when there is a general revision of the list, but not in the case of a proposal to include a new group of backward class of citizens to the existing list. This argument is required to be rejected for more than one reason. The expression “revision” according to the New Oxford Dictionary means reconsider and alter, re-examine and make alterations to. It has its root in the latin expression “revisery” meaning “look at again”. It therefore need not necessarily mean in the context of Section 11 that a revision is with reference to all the entries in the existing list. Even an examination of the part of the list with reference to some existing classes is also a revision and so would be an addition of one or two new classes of the existing list. In fact, the last clause of Section 11(1) makes the same abundantly clear. To give any other meaning to the expression “revision” such as the one as suggested by the State would, in my view, simply defeat the purpose of the mandate of consultation embedded in Section 11(2). The State in order to avoid the consultation with the Commission may never undertake the revision of the entire list at one time and resort to a piecemeal examination from time to time. Such a construction which would defeat the logical purpose behind the mandate and therefore is required to be avoided. Apart from that it was positively directed by the Supreme Court that whenever the State proposes to include a new group/class, the matter must be referred to Backward Classes Commission in the first instance and action taken on the basis of its recommendation. Therefore, this submission is liable to be rejected.” Mr.Justice Ghulam Mohammed, who wrote the third opinion, held in para 67; “67. In the circumstances, the impugned G.O., passed by the Government is unsustainable on the grounds of non-consultation with the Backward Classes Commission as per provisions of Section 11(2) of the A.P. Act 20 of 1993, and the dicta laid down by the Supreme Court in Indra Sawhney’s case. However, it is made clear that there is no impediment for the State Government to grant reservations to the Muslim Community, supported by sufficient material fulfilling the subjective satisfaction of the State, at this stage also, in accordance with law.” After this judgment was pronounced, Government issued G.O.Ms.No.57 on 18.11.2004 while exercising powers conferred by Section 3 of the Andhra Pradesh Commission for Backward Classes Act, 1993 (Act 20 of 1993). The Commission was to be headed by a Former Judge of this Court with four other members. Commissioner, B.C. Welfare is the Member Secretary of the Commission. The terms of reference were given in para 2 of the G.O. and it reads; “2. The Commission shall:- (i) Examine requests for inclusion of any class of citizens as a backward class in the lists and hear complaints of over-inclusion or under-inclusion of any Backward Class in such list and tender such advice to the Government as it deems appropriate; (ii) Examine and make recommendations on any other matter relating to the backward classes that may be referred to it by the Government from time to time.” On 25.11.2004, Government wrote a letter to the Member Secretary of the A.P.Commission for Backward Classes, Hyderabad. It gave a reference to the judgment in Muralidhar Rao’s case and quoted directions given by the Court, which have been referred to hereinabove, and thereafter, wrote to the Commission, “In view of the above directions, I am to inform you that, Government after careful examination of the issue, decided to seek the opinion of the Commission under section 9(1) of the A.P.Commission for Backward Classes Act, 1993 (Act 20 of 1993), whether to include Muslim community within the purview of Backward Classes of citizens under Articles 15(4) and 16(4) of the Constitution. I am, therefore, to communicate the following material and request you to furnish the advice of the Commission to the Government, as it deem appropriate at the earliest.” Thereafter, the Commission took upon the task of examining whether Muslims, as a community, could be declared Backward Class citizens under Articles 15(4) and 16(4) of the Constitution. It gave a report to the Government and on the basis of that report, the impugned Ordinance was issued. The facts have been narrated in order to appreciate the controversy with regard to the 1st question, as to whether the Muslims can, as a community, be declared socially and educationally backward for the purposes of Articles 15(4) and 16(4) of the Constitution and in my view, this question was decided and it fell for consideration directly before the five-Judge Bench in Muralidhar Rao’s case. It was not even seriously contended at the Bar by the battery of lawyers appearing for the petitioners that the judgment of the five-Judge Bench in Muralidhar Rao’s case needs a reconsideration. Now, let us examine what was the question before the five-Judge Bench and what were the answers given by it. As noted hereinabove, there were three different opinions, and in my view, in all the three opinions, this question was raised, considered and answered. Mr.Justice B.Sudershan Reddy framed question 1(b) in para 93 of the judgment as under; “1(b) Whether the Muslims as a group are entitled to affirmative action/social reservations within the constitutional dispensation ?” It was answered in para 111 as under; “111. Reservations for Muslims or sections/groups among them, in no manner militate against secularism, which is a part of the basic structure of the constitution. The concept of secularism is based on a benign neutrality to benefit all including religious groups and it seeks to advance “good” for all including religious groups. Articles 14, 15 and 16 enjoin upon the State to treat all its people equally irrespective of their religion, faith or belief. The State while discharging its constitutional obligation cannot make any distinction between one group of citizens and other on the ground of religion, faith or belief. The religion, faith or belief of a person or group of persons is totally immaterial so far as the State action is concerned. The State cannot exclude from its consideration the demands, entitlements of any constitutional claimants on the ground of religion, faith or belief. Whether a group, caste or class is entitled to the benefit of affirmative action does not depend upon religion, faith or worship.” In para 251 again, Mr.Justice B.Sudershan Reddy, while asking the Government to initiate the process of reconstituting the Andhra Pradesh Commission for Backward Classes, asked the Government to initiate the process of consultation and seek the opinion of the Commission for inclusion of the Muslim community into the list of Backward Classes. Mr.Justice J.Chelameswar, in paragraphs 28 and 32 of his opinion, held; “28. The fact that Muslims or for that matter Christians and Sikhs etc., are not excluded for the purpose of conferring the benefits under Articles 15(4) or 16(4) was recognized at the earliest by the Supreme Court in M.R.Balaji v. State of Mysore [AIR 1963 SC 649]. Though the question was not directly in issue, the possibility of these groups of people being treated as Backward Class of citizens for the purpose of Articles 15 and 16 was not ruled out in the following words: “Besides, if the caste of the group of citizens was made the sole basis for determining the social backwardness of the said group, the test would inevitably break down in relation to many sections of Indian society which do not recognize castes in the conventional sense known to Hindu society. How is one going to decide whether Muslims, Christians or Jains or even Lingayats are socially backward or not ? The test of castes would be inapplicable to those groups, but that would hardly justify the exclusion of these groups in toto from the operation of Article 15(4). It is not unlikely that in some States some Muslims or Christians or Jains forming groups may be socially backward. That is why we think that though castes in relation to Hindus may be a relevant factor to consider in determining the social backwardness of groups or class of citizens, it cannot be made the sole or the dominant test in that behalf. Social backwardness is on the ultimate analysis the result of poverty, to a very large extent. It is true that social backwardness which results from poverty is likely to be aggravated by considerations of caste to which the poor citizens may belong, but that only shows the relevance of both caste and poverty in determining the backwardness of citizens.”” “32. For the same reason, I do not find any legal infirmity in identifying a group or section of people by their profession or calling or the religion they follow. The next step is to examine whether such a class in its entirety answers the description of a backward class of citizens within the meaning of the Articles 15(4) or 16(4). The initial step of identifying a section of the society on the basis of the religion they follow is only an identification of a class of citizens, but not identification of a backward class of citizens. In my view, such an exercise is perfectly justified and within the parameters of the law laid down by the Supreme Court in this regard. Therefore, the submission is required to be rejected.” Mr. Justice Ghulam Mohammed, in his opinion, held in para 54; “54. The Apex Court thus observed that the authority may take up the Muslim Community, after excluding those sections, castes and groups, if any, who have already been considered, and find out whether it can be characterized as a backward class in the State. Identifying a section of society on the basis of the religion they follow is only an identification of class of citizens. Considering the circumstances, I am of the view that such an exercise