IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 8TH AUGUST 2011 / 17TH SRAVANA 1933 WP(C).No. 8832 of 2011(D) ------------------------- PETITIONER(S): --------------- 1. MINOR SREENA NARAYANAN, AGED 17 YEARS, D/O. C.NARAYANAN, R/AT VEENA NIVAS, KARUVAKKOD., PAKKAM POST, PALLIKKARA VIA. KASARAGOD DISTRICT. PIN-671316, REP. BY HER FATHER C.NARAYANAN AGED 45 YEARS. 2. MINOR SHASHITHA.D.S., AGED 17 YEARS, D/O. SANKARA, R/AT DEELAMPADY HOUSE, MULLERIA POST, KASARAGOD DISTRICT, REP. BY HER FATHER SANKARA, AGED 47 YEARS. 3. MINOR HARIPRASAD, AGED 17 YEARS, S/O. K.V.MURALEEDHARAN, R/AT HARIPRASAD, 4TH GATE, UDUMA, BARE.P.O., KASARAGOD DISTRICT. PIN-671319, REP. BY HER FATHER K.V.MURALEEDHARAN, AGED 46 YEARS. BY ADV. SRI.KODOTH SREEDHARAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY,EDUCATION DEPARTMENT, GOVT. SECRETARIAT ANNEX, THIRUVANANTHAPURAM-1. 2. COMMISSIONER FOR ENTRANCE EXAMINATIONS, SHANTHI NAGAR, THIRUVANANTHAPURAM-1. GOVERNMENT PLEADER SRI.MATHEW GEORGE VADAKKEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 8832 of 2011(D) APPENDIX PETITIONER'S EXHIBITS P1: TRUE COPY OF REEVANT PORTIONS OF THE GAZETTE NO.44 VOL.54 ANNEXURE – II P2: TRUE COPY OF RELEVANT PORTIONS OF THE PROSPECTUS FOR PROFESSIONAL DEGREE COURSES IN KERALA -2010 P3: TRUE COPY OF COMMUNITY CERTIFICTE DT.28.1.2011 ISSUED BY THE REVENUE AUTHORITIES TO THE 1ST PETITIONER. P4: TRUE COPY OF THE COMMUNITY CERTIFICATE DT.20.1.11 ISSUED BY THE BOARD OF PUBLIC EXAMINATION TO THE 2ND PETITIONER. P5: TRUE COPY OF REEVANT PORTION OF THE APPLICATION NO.1113305 BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P5(a): TRUE COPY OF REEVANT PORTION OF THE APPLICATION NO.1112615 BY THE PETITOINER BEFORE THE 2ND RESPONDENT. P5(b): TRUE COPY OF REEVANT PORTION OF THE APPLICATION NO.1112458 BY THE PETITOINER BEFORE THE 3RD RESPONDENT. P6: TRUE COPY OF COMMUNICATION DT.7.2.11 ISSUED TO THE 1ST PETITIONER BY THE 2ND RESPONDENT. P7: TRUE COPY OF THE REPRESENTATION DT.10.2.11 BEFORE THE EDUCATIONAL MINISTER BY THE PETITIONER. P8: TRUE COPY OF ANNEXURE – XI TO THE PROSPECTUS. P9: TRUE COPY OF THE G.O.208/66 DT.2/5/66 ISSUED BY THE GOVERNMENT. P10: TRUE COPY OF THE G.O.95/08 DT.6/10/08 ISSUED BY THE GOVERNMENT. P11: TRUE COPY OF THE CREAMY LAYER OF OBC'S IN THE STATE OF KERALA DT.10.9.1993. P12: TRUE COPY OF THE G.O.15/2000 DT.16.2.2000 ISSUED BY THE GOVERNMENT. P13: TRUE COPY OF G.O.36/2000 DT.27.5.2000 ISSUED BY THE GOVERNMENT. P14: TRUE COPY OF THE G.O.8/2006 DT.2/2/06 ISSUED BY THE GOVERNMENT. P15: TRUE COPY OF THE G.O. 37/2006 DT.27/2/2006 ISSUED BY THE GOVERNMENT. P16: TRUE COPY OF G.O.117/2008 DT.19.12.2008 ISSUED BY THE GOVERNMENT. P17: TRUE COPY OF G.O.81/2009 DT.26.9.2009 ISSUED BY THE GOVERNMENT. P18: TRUE COPY OF REPRESENTATION BEFORE THE CHIEF MINISTER BY THE ASSOCIATION OF THE PETITIONERS COMMUNITY. P19: TRUE COPY OF THE REPLY DATED 14.10.2010 ISSUED TO THE PETITIONERS ASSOCIATION. RESPONDENT'S EXHIBIBITS : NIL //True copy// PA to Judge P.R.RAMACHANDRA MENON, J. ------------------------------------------- W.P.(C) No.8832 of 2011 ------------------------------------------- Dated this the 8th day of August, 2011 J U D G M E N T The issue involved in this case is whether the caste 'Chetty' to which the petitioners belong, which is an Other Backward Community as discernible from Ext.P1 list of Other Backward Communities available in the State of Kerala, is liable to have an entry to be included in the list of SEBC - Socially and Economically Backward Communities by way of an automatic incorporation, for the benefits extendable to the particular group who belongs to 'SEBC', is the point to be answered. 2. The petitioners are students and are aspirants to get admission to various professional colleges in the State. After the Higher Secondary Examinations, they applied for the common admission to the professional degree courses for the year 2011 on the strength of their caste stated as 'Chetty' already notified as an OBC in accordance with the provisions of G.O.(P) 208/66/Edn. dated 2.5.1966 and G.O. (MS) 95/2008/SCSTDD dated 6.10.2008, as amended from time to time as pointed out in paragraph 2 of the writ petition. The applications preferred by the petitioners for the benefit of SEBC reservation was however W.P.(C) No.8832 of 2011 2 turned down by the 2nd respondent as per Ext.P6 memo dated 7.2.2011 holding that the caste of the petitioners stated as 'Hindu Chetty' specified in the community certificate (such as Ext.P3) is not included in the list of SEBC in Ext.P2 prospectus for admission to the professional degree courses, Kerala 2011. This forms the subject matter of challenge in this writ petition. 3. Heard the learned Government Pleader as well. 4. The learned counsel for the petitioner submits that there is absolutely no rhyme or reason for having rejected the claim of the petitioners, since all Chetties are included in the list of OBCs in the Kerala State vide Annexure II application published in the Kerala Gazette. However, a diametrically opposite stand is stated as taken by the 2nd respondent, in so far as only two Chetties such as Sadhu Chetty including Telugu Chetty or 24 Manai Telugu Chetty and Wyanadan Chetty are included in Annexure XI to Ext.P2 prospectus; the relevant provision of which has been separately produced by the petitioners as Ext.P8. Entry No.63 showing the list of SEBC in this regard is as follows: “63. Sadhu Chetty including Telugu Chetty or 24 Manai Telugu Chetty and Wynadan Chetty” W.P.(C) No.8832 of 2011 3 The petitioners are challenging the restriction for being included in the list of SEBC, confirming it only to two communities as specified in Entry 63 of Annexure XI to Ext.P2 and the authority of the 2nd respondent to have had such an exercise. Reliance is also sought to be placed on the decision rendered by the Supreme Court in Indra Sawhney's case 2000 (1) SCC 168 (paragraph 77 and 84 ) 5. Learned Government Pleader appearing for the respondents submits that the idea and understanding of the petitioners is quite wrong and misconcieved. It is stated with reference to the contentions in the counter affidavit filed by the 2nd respondent, that all the members of OBC are not liable to have an automatic inclusion in the list of SEBCs in the State; which however depends upon various facts and circumstances. Reference is made to clause 5(4)(2) of Exhibit P2 prospectus and also the relevant GOs issued as stated therein, with regard to which there is no dispute on the part of the petitioners as referred in para 2 of the writ petition. Learned government Pleader also submits that similar issue had already come up for consideration before this Court and as per judgment dated W.P.(C) No.8832 of 2011 4 29.9.10 in WP(C) No.1688/2006, interference was declined and as such, no interference is called for. 6. Going to the materials on record it is seen that the petitioners do not dispute that certain Chetties have not been included in the list of SEBC and it is for this reason that the organization representing the community/caste of the petitoiners have preferred Exhibit P18 representation before the Chief Minister of the State seeking for immediate interference. The socio economic position in relation to the caste is highlighted in the said representation, stating that the said caste/community is actually standing far behind in socio economic and educational level and hence is liable to be included as such (in toto) in the list of SEBCs. The concerned Ministry for SC/ST vide Exhibit P19 reply dated 14.10.2010 has intimated the position to the petitioners, that the Chetty community in toto can be included in the list of SEBCs only after conducting a socio economic and educational survey and as such no relief as sought for can be granted forthwith before pursuing any such step. The prayer of the petitioners stands more to direct the respondents to consider the candidature of the petitioners as persons belongs to SEBC, W.P.(C) No.8832 of 2011 5 notwithstanding the exclusion conveyed by Ext.P6. 7. As mentioned herein before, the benefit of reservation in respect of SEBCs is available only in respect of the candidates who find a place in such list as given in Appendix XI to Ext.P2 (separately produced as Ext.P8 by the petitioners). Entry No.63 takes in only 'two' particular types/groups of Chetties as Sadhu Chetty including Telugu Chetty or 24 Manai Telegu Chetty and Wynadan Chetty and not all the other Chetties who find entry in Ext.P1 list of OBCs in the State of Kerala. It is also relevant to note that such a classification has been made on the basis of a 'conscious decision' with reference to the financial status of the parties concerned, as contained in clause 5(4)(2) of Ext.P2 prospectus and such other clauses forming part of the same, holding that benefit will stand confined only to the persons who have an annual income of not more than 4.5 lakhs. The stipulation in this regard is with a specific intent. It is very much a deciding factor, to decide the economical backwardness, social backwardnesses, to have an entry in SEBC list, apart from the fact that the community might be having a placement already in the 'OBC list' as contained in Ext.P1. This being the position W.P.(C) No.8832 of 2011 6 unless and until it is declared that the community to which the petitioners belong is enlisted as SEBC , no relief can be prayed for and obtained by the petitioners. 8. With regard to the correctness and sustainability of Ext.P2 prospectus issued by the 2nd respondent and his authority in this regard, it is specifically pleaded in paragraph 3 of the counter affidavit as follows : “In order to avail SEBC reservation, it is essential that the candidate should belong to one of the communities listed under SEBC list of Annexure-XI of prospectus. Moreover as per GO(P) No.208/66/Edn. Dated 2.5.1966 and as per GO(MS) No.304/06/RD dated 28.10.2006 mentioned in clause 5.4.2(a) of prospectus the annual family income of the candidate must be up to 4.5 lakhs”. The factual position in this regard stands rather conceded by petitioners as given in paragraph 2 of the writ petition and elsewhere, when specific reference is made to the relevant GOs. Ext. P9 is the G.O bearing No. G.O.(P)208/66/Edn. dated 2.5.1966 and the list of SEBC is given as an Annexure to the said G.O of which entry No. 63 reads as follows: “Sadhu Chetty including Telegu Chetty or 24 Manai Telugu Chetty and Wynadan Chetty”. W.P.(C) No.8832 of 2011 7 It is relevant to note that, it is the said entry, that has been incorporated in Ext.P2 prospectus issued by the 2nd respondent as well, as entry No.63 of Annexure XI (produced as Ext.P8 by the petitioner). This being the position, there is absolutely no variation effected by the 2nd respondent with regard to the entry of the community in the SEBC list in the prospectus and the action pursued by the 2nd respondent is in conformity with the terms of Ext.P9 G.O. 9. Coming to the scope of the decision of the Apex Court cited by the petitioner [2000 (1) SCC 168] (cited supra), the relevant paragraphs (para 77 and 84) are extracted below: 77. "In fact, in the affidavit dated 16.1.98 filed by Kerala State through its Chief Secretary, it was stated merely that there were a few mistakes, namely that there was an omission of 5 communities viz. Kumbarans, Muslims, Thachar, Boyan of Malabar District, Malayan - throughouCrl.R.P.No. 4511 of 2006t the State, except Malabar and of 10 sub-castes viz. Peroorkada Chetties, Sadu Chetties, Manai Chetties (Chetty coomunity), Valan, Nulayan, Paniakkal, Mukaya, Bobi Mukayan, Mukaveeran and Valinjiar (Dheevara community), in the list prepared by the Committee. In our view, these would have to be included in the list of backward W.P.(C) No.8832 of 2011 8 classes in addition to those mentioned in the Report of the High-Level Committee. The guidelines and criteria fixed by the committee would be applicable to these communities and sub-casts also. We direct accordingly. 84. We therefore, direct as follows: (1) We direct that the exclusion of the creamy layer as stated in that Report shall be applicable from today, to all cases where appointment orders have not been issued to the memebrs of the backward classes and for all future selections in public service as stated in the Report. (The five communities referred to in the affidavit of the Chief Secretary dated 16.1.1998 shall also be treated as backward subject to the guidelines and norms fixed by the Committe). It will be obligatory to implement the Reprot, as so modified, in the government departmets of Kerala/organisations/ institutions/public sector undertakings/government- owned companies/co-operative societies/autonomous bodies, as stated in the Report, wherever the princiles of rservation embodied in Article 16(4) or Rules 14 to 17 of Part II of the Kerla State and Subordiante Services Rules, 1958 are applicable. It shall be necessary for the candidates belonging to the backward classes to file the certificates as envisaged in the Report and satisfy the employer that he or she does not belong to the creamy layer. The income limits and property-holdings as mentioned in the schedule to the said report will be applicabel from today. The exclusion of certain occupations/communities etc. shall however be as W.P.(C) No.8832 of 2011 9 specified in the report. Any violation of this direction will make the appointment or selection made on or after this day, unconstitutional. It is made clear that any infraction of this direction will be treated seriously and this Court will also not hesitate to take further fresh action for contempt of court, if need be. (2) We are of the view that it will be appropriate to allow the State of Kerala one more chance to conform to the rule of law. We, therefore, permit the State of Kerala to make such provision as it may deem fit for exclusion of the creamy layer among the backward classes in the State of Kerala, in accordance with law and in a manner consistent with the Constitution, the basic structure of the Constittution, Articles 14 and 16 and the judgments in Indra Sawhney and Ashoka Kumar Thakur and in accordance with the principles laid down in the judgment now rendered by us. (3) Once such provision is made and published in accordance with law, it shall come into force and the recommendations of the Justice K.J.Joseph Committe as accepted by this Court shall cease to apply. But as long as the State of Kerala does not bring about any such alternative provisions to exclude the creamy layer, the recommendation of the Justice K.J.Joseph Committee shall operte from today subject to any further directions which this Court might give in that behalf. Any fresh W.P.(C) No.8832 of 2011 10 alternative provisions that may be made by the State of Kerala, it is needlsess to say, will be subject to such further decision of this Corut, in case the validity thereof is questioned. (4) In the event of alternative provisions being made by the State of Keala either by executive order or by legilstive measures or by way of rules, no court shall entrtain any challenge thereto, and all proceedigns in relation there to shall have to be taken out only in this Court". There is no case for the petitioners that the Government has finalized the proceedings in this regard, so as as to have included the community of the petitioner in the list of SEBC, while the case on the other hand, is that the petitioners' community ought to have been included in such list and that there is no rationale for excluding them, when only 'two' groups have been included in Ext.P9 Government Order and in turn in Annexure XI of Ext.P2 prospectus. 10. In so far as the factual position, as on date, is covered by Ext.P9 G.O and other relevant G.Os, based on which Ext.P2 prospectus has been issued, Ext.P6 memo issued by the 2nd respondent turning down the claim of the petitioners is well based on the relevant provisions of law and it does not call for W.P.(C) No.8832 of 2011 11 any interference. This is more so, in view of the similar course already pursued by another learned Judge of this Court as judgment in WP(C) 16855/06. In such circumstances, interference is declined and the writ petition is dismissed, however, leaving it open to the petitioners to pursue the matter before the Government, to have total inclusion in the list of SEBCs. No opinion is expressed by this Court as to such eligibility or any other point. P.R. RAMACHANDRA MENON, JUDGE. rkc