Karnataka High Court
Ningappa Basappa Hullara vs State Of Karnataka on 2 August, 1988
Equivalent citations: ILR1988KAR2771, 1988(2)KARLJ416
ORDER Bopanna, J.
1. In these petitions, the constitutional validity of Rule 2 of the Rules framed under the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 (in short the Mandal Panchayats Act) is challenged by the petitioners who are the Members of certain Mandal Panchayats having been elected to the respective Mandal Panchayats in the 1987 elections held under the Mandal Panchayats Act.
2. In one of the petitions, the validity of Section 2(2) of the Mandal Panchayats Act is also challenged on the ground that the same confers an arbitrary power on the Government to define what Back-ward Class is. These petitions were followed by a number of petitions by the elected Members of the Zilla Parishads and Mandal Panchayats questioning the right of Adhyaksha to nominate two persons of his choice from the Backward Class in the event of Members from that Class are elected in the Mandal Panchayat elections under Section 5(3) of the Mandal Panchayats Act. Though that question is also before this Court in these petitions, it is not necessary to go into these questions since those questions are set at rest by the earlier decision of this Court in NINGAPPA RAMACHANDRA GURAV v. STATE OF KARNATAKA, which was affirmed in Writ Appeal No. 1942 of 1987 disposed of on 30-3-1988 and reported in STATE OF KARNATAKA v. NINGAPPA RAMACHANDRA GURAV,
3. I will take up the case of the petitioner in Writ Petition No. 8888 of 1987 since the State Government has filed its return in that petition. I will also refer to the facts in Writ Petition No. 4545 of 1987 since in that case also the State Government has filed the return disputing the contentions of the petitioners therein.
4. In Writ Petition No. 8888 of 1987, the petitioner who was elected as a Member of the Hullura Mandal Panchayat has averred that that Mandal Panchayat comprises of 24 seats out of which the Congress(l) Party secured 16 seats and the Janata Party secured 8 seats. The election was fought on party principles and the electorate of the Hullura Mandal Panchayat gave an absolute majority to the Congress (I) Party when they elected 16 Members out of total membership of 24. Respondents 4, 6 to 9 were also elected to the Mandal Panchayat as the nominees of the Congress (I) Party. Respondent-4 was elected to the Mandal Panchayat as a nominee of Janata Party and respondents 10 and 11 were nominated as Members of Hullura Mandal Panchayat by the 2nd respondent in colourable exercise of power under Section 5(3) of the Mandal Panchayats Act.
5. The plea of the petitioner in this case is that under Section 5(3) of the Mandal Panchayat Act, Zilla Parishad is empowered to nominate two persons belonging to Backward Class. The power under Section 5(3) should conform to the Constitutional goal envisaged under Article 15(4) of the Constitution and in order to give effect to the Constitutional goal it must appear that the beneficiaries of this Special provision should be persons who are backward socially and educationally other than Scheduled Castes and Scheduled Tribes and that Section 5(3) should be made applicable only for their advancement. Several factors have not been taken into consideration such as means-cum-caste or community before identifying the beneficiaries of the special provision of Section 5(3) of the Mandal Panchayats Act, Therefore, the context in which the words 'Backward Classes' are used in Section 5(3) requires that these Backward Classes are none other than those identified by the State Government by proper investigation and collection of up-to-date data on the backwardness of its citizens. In support of this contention, the petitioner has relied on L.G. Havanur Commission Report made sometime in the year 1977. That report was based on a mass survey of caste and communal groups in Karnataka. On the basis of that report, the Government of Karnataka had notified the list of backward classes by its order dated 4th March, 1977. So it was incumbent on the Government to make the special provisions under Section 5(3) of the Mandal Panchayats Act applicable to persons who are described as Members belonging to the backward classes on the basis of Havanur Commission Report and the order based thereon. This order was modified by the State Government after the report of the Second Backward Class Commission called the 'Venkataswamy Commission'. Even this report also did not become final since the Government has now appointed a Third Backward Class Commission. But all the same till the Third Backward Class Commission submits its report, the Government must adhere to the tests of identification prescribed by the earlier two commissions for conferring the benefit of the special provisions under Section 5(3). According to the petitioner, the meaning of the words 'Backward Class' should be understood as such of the castes and communities properly identified by the State Government for the purpose of Articles 15(4) and 16(4) of the Constitution and State Governments have no power to define the words 'Backward Class' in any manner they like. But by the impugned rule, Backward Classes are defined as a class of persons which leaves no scope for the State Government to comply with the mandate of Article 15(4) of the Constitution. At this stage this definition of the words 'Backward Class' for the purpose of the Mandal Panchayats Act should be noticed. The words 'Backward Class' were not defined under the Mandal Panchayat Act. What all Section 2(2) says is 'Backward Class' means such classes as may be prescribed. That takes us to the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Rules (in short the Election Rules). In these rules, under Sub-rule (2) of Rule 2 'Backward Class' means the backward communities, backward castes and backward tribes notified by the Government in Order No. DPAR 1 SBC 77 dated 4th March, 1977 or in such other order as may be issued from time to time. Obviously this Government Order of 1977 refers to the order based on Havanur Commission Report. But the Government has reserved liberty to make a departure from the Havanur Commission Raport by making notifications from time to time, in this regard. This rule was amended by Notification No. RDP 442 BS 87 dated 25-3-1987. The amended rule reads as under:
"Amendment of Rule 2 - For Clause (2) of Rule 2 of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats (Conduct of Election) Rules, 1985 following clause shall be substituted, namely :-
(2) "Backward Classes" means rural artisans and landless agricultural labourers whose gross annual income from all sources (including his share of income of the joint family, if any, of which he is a Member) does not exceed Rupees six thousand four hundred.
Provided that no person shall be deemed to belong to a backward class unless the population of the caste or tribe to which he belongs is less than one per cent of the total population of the district.
Explanation - For the purpose of this Rule, the population shall be the population as estimated by the Karnataka Backward Classes Commission 1975."
So by this amendment there has been a major shift from what has been recognised as backward class by the Government under the Havanur Commission Report and also under the Venkataswami Commission Report.
6. The grounds now on which this amended rule are challenged may be noted now. The petitioner has averred that the Government having rightly defined the word 'backward class' in the earlier Rule 2(2) which is in conformity with Article 15(4) of the Constitution, this amendment was introduced after the elections were over in order to tilt the balance in favour of the Ruling Party since in a large number of elections to the Mandal Panchayats the Ruling Party did not get an absolute majority and fearing that it would be unseated in the Mandal Panchayats if the matter is left to the electoral results of the said Mandal Panchayats, it had brought about the impugned amendment by amending the earlier rule in direct contravention of Article 15(4) of the Constitution and the law laid down by the Supreme Court and the High Courts. His further case is that though the impugned amendment was made on 25-2-1987, public notice of the amendment was given only after 31-3-1987 and the notification was gazetted on 26-3-1987 replacing the old definition of Backward Class. Additionally the amendment notification was made on 26-3-1987 long after the Mandal Panchayat Election results were announced on and after 21-1-1987 when it was found that the Ruling Janatha Party in the State had failed to get an absolute majority in a large number of Mandal Panchayats in the State and in all such Mandal Panchayats the Congress (I) opposition party had an edge over the ruling Janata Party. The Minister concerned was rather perturbed and to set right this imbalance in the power structure of the Mandal Panchayat he was instrumental in bringing about the amendment which in effect totally negates the constitutional mandate under Article 15(4) of the Constitution. It is also alleged that the Minister with a view to capture power by adopting dubious tactics prevailed over the respondents and unlawfully stalled the elections of Pradhan and Upapradhan through telex messages issued to the Deputy Commissioner of the respective Districts. So, Section 2(2) of the Act and the impugned Rule 2(2) are violative of Article 15(4) of the Constitution and that the present definition of the word 'Backward Classes' for the purpose of Section 5(3) of the Mandal Panchayats Act was introduced to enable the ruling party to regain its strength in every Mandal Panchayat for electing Pradhan and Upapradhan which is opposed to law. That was presumably the reason for the State Government to define the word 'Back ward Classes' in an arbitrary manner contrary to the enunciation of law laid down on Article 15(4) of the Constitution and therefore, the impugned Section and the rule are ultra vires of the Constitution, void and without jurisdiction. That the impugned rule is also not binding on the petitioner since the same was not duly published in the Gazette as required under law.
7. The State Government has filed its return. The contesting respondents 4 to 9 have entered appearance and have filed their return in support of the validity of the impugned Section and the Rule. Another set of objections are filed by Respondents 10 and 11. But what is material for the purpose of these cases is the stand of the State Government since the Constitutional validity of the impugned provisions of the Act and the Rule are involved.
8. In the return filed by them, the State Government have taken the following contentions: That prior to the incorporation of the impugned rule 'backward classes' meant: 'the backward communities backward classes and backward tribes' notified by the Government Order dated 4-3-1977 or in such other order as may be issued from time to time. Further, after the Venkataswami Commission Report was published, backward classes for the purpose of the said rule covered all classes mentioned in the order of the Government dated 13-10-1986. The Government having found that the classifications made by the two Commissions' reports were neither desirable nor satisfactory since the intention of the Act was to give benefit to those persons belonging to the classes who are below the poverty line, the Government was of the opinion that it was desirable to give the benefit of reservation to the back ward classes consisting of two categories of classes, namely, rural artisans and landless agricultural labourers whose annual income does not exceed Rs. 6,400/- per annum, if the said classes are not represented in the elections to the Mandal Panchayat. So, the right to nominate two persons belonging to this class who are below the poverty line would enure to the Zilla Parishad if two Members are not elected from the said classes in the Mandal Panchayat elections. Hence, the Government published the draft rules by notification dated 25-2-1987. These rules were published in the Karnataka Gazette on 25-2-1987 and the same was made available to the public on the very same day. The objections or suggestions received by the State Government in respect of the said draft were considered. The Government, in exercise of its powers under Section 2(2) of the Mandal Panchayats Act r/w Section 284 of that Act made the rules in question and these rules were published in the Karnataka Gazette on 26-3-1987 and they came into force on the same day. The motives attributed for making a departure for the purpose of identifying the backward classes are denied by the State Government in para 2 of its return. According to them, almost all the Mandals in the State of Karnataka are predominantly in the rural areas. The persons who are rural artisans or landless agricultural labourers whose income is less than Rs.6,400/- per annum are 'backward' in its real sense of the term. The chances of their being elected as Members of the Mandal Panchayat by the persons who are rural artisans or landless agricultural labourers whose gross income is less than Rs. 6,400/- and the population of the caste to which they belong is less than one percent of the District population are remote. Hence, the Government has framed the rule so as: to enable the persons belonging to these categories to be nominated to the Mandal Panchayat by the Zilla Parishads under Section 5(3) of the Act.
9. The other averments regarding malafides and arbitrary exercise of power are denied by the State Government in para 3 of the return and they have taken the contention that the amendment to Rule 2(2) was made bona fide and the rule was amended to make the persons who are really backward eligible to be nominated by the Zilla Parishad Section 5(3) of the Act.
10. In Writ Petition No. 5861 of 1987 the petitioner is a Member of the Harsikatta Mandal Panchayat. In the election held to the said Panchayat on 20-1-1987 Congress (I) secured 8 seats including that of the petitioner and 1 Independent seat supported by Congress (I). Janatha Party secured 8 seats. Thus the Congress (I) Party obtained a majority. The Deputy Commissioner published the list of Members as required under Section 5(3) of the Act by the end of January 1987 without putting the date. That notification is produced as Annexure A. It is alleged that under Section 5(3) of the Act, Respondent-2 made nominations nominating 2 persons who do not come directly within the scope of the provisions of that Act; this was done with a view to help the Janatha Party to secure control over the Mandal, that is clear by the amended definition of the word 'Backward Class' under the relevant rule and that classification of Backward class under the amended rule is arbitrary without being supported any material whatsoever before Respondent-1. It is further submitted that landless agricultural labourers like (1) Harijan Muka Timma (2) Harijan Gourya Gutya (3). Harijan Bira Jaganna (4) Channayya Sanni W/o Marya who belong to Channayya Community having an income of less than Rs.2,000/- per year and belong to a community which is less than 1% of the population of the District comes within the definition of Backward Class as amended. That being so, Respondent-2 had no power to make any nomination. But he has nominated Respondents 4 and 5 as Members of the Mandal Panchayat, It is further submitted that Respondent-4 belongs to Kelsi Community who are barbers by profession. He owns land measuring 1 acre and 27 guntas. Respondent-5 belongs to Bovi caste and is working as a Kallu Voddar even today. He was never an agricultural labourer at any point of time. Respondent-4 is an agriculturist as also a barber. Barber cannot be termed as an artisan inasmuch as his profession is agriculture like the profession of many others. Further in the Mandal Panchayat in question Smt. Sanni w/o Marya Channayya belonging to Backward Class is already elected and therefore Respondent-2 has no power to nominate. On these facts, the petitioner has challenged the validity of the impugned rule on the ground that the same is illegal and was made in colourable exercise of power conferred under Section 2(2) of the Mandal Panchayat Act. The impugned rule is also attacked on the ground that classification of Backward Class as amended is most arbitrary as there was no material before the Government to show that rural artisans by themselves would form a Backward Class. It is also attacked on the ground that the classification is highly vague and obscure inasmuch as rural artisans by themselves do not form a caste, community or tribe. It is further submitted that the classification being arbitrary and unintelligible, nominations cannot be resorted to unless a machinery is set up to find out whether any backward class person is elected to any Mandal Panchayat. Further there is neither a birth mark nor a registration certificate to show that a certain person is a rural artisan or an agricultural labourer. In the absence of any data to show that the classification of rural artisan was made for the purpose of the Act and the Rule, the Classification on the basis of trade is arbitrary and it is also bad on account of vagueness.
11. Respondents have met these allegations in the common counter filed in Writ Petition No. 8888 of 1987 to which I have made a brief reference in the earlier part of this order. The other contentions in the other Writ Petitions are more or less the same as the contentions in these 2 Writ Petitions and therefore it is unnecessary to make a detailed reference to the pleadings in the other Writ Petitions.
12. On the pleadings of the parties, the points for consideration are -
1. Whether the petitioners, as a matter of right, can demand that the State Government should have made the necessary reservation for Backward Class in order to fulfill the Constitutional mandate which is enshrined in'. Article 15(4) of the Constitution;
2. If no such mandate is cast on the Government but if they take the view that even in the case of local bodies interest of the backward classes should be taken into consideration by providing certain reservation for them, is the definition of 'Backward Class' in exercise of the power under Section 2(2) of the Mandal Panchayat Act bad in law;
3. Whether such exertion of power is bad in law on the ground that the amended Rule 2(2) offends the Constitutional mandate of Article 15(4) of the Constitution or whether the impugned amended rule could be sustained by the provisions of Article 15(4) and Article 14 of the Constitution.
Point No. 1 :
13. The power to legislate is found in Entry 5 in List 11 of Schedule VII and that power, of the State Legislature to make the rule in question is not seriously challenged and cannot be challenged. The power to nominate in terms of Section 5(3) of the Mandal Panchayat Act also is not challenged. Under the provisions of the Constitution, viz., Article 433, Article 81A and Article 171(1)(c), power is conferred on the Central State Legislatures to nominate persons in the Rajya Sabha or the Upper House of the State Legislature. The power to nominate to local bodies also cannot be questioned and, if that be so, the power to make nominations for filling up seats in the local bodies could not be challenged.
14. These questions arose in an indirect way before this Court in L.R. NAIK v. STATE OF KARNATAKA, . The validity of certain provisions of the Mandal Panchayat Act was challenged in that case and in the course of arguments the learned Advocate General for the State raised the following among other contentions:
"that there is no legal or constitutional right to demand reservation in local bodies elections. The State Legislature may or may not make reservations. In case no reservation had been made under the Zilla Parishad Act, the petitioners or any other person would not have a right to ask for a direction to make a provision for reservation nor could the Act or the procedure laid down for election be struck down on the plea that no reservation has been made. In support of this contention the learned Advocate General pointed out that so far as Rajya Sabha and Legislative Council elections are concerned there is no reservation. It was further submitted that in the instant case this question need not be adverted to as in the Act itself, on the basis of the population, adequate reservation has been provided. The petitioners have no right to ask for a specific percentage of representation nor is there any law which says that so much percentage has to be fixed for Scheduled Castes and Scheduled Tribes."
There were no answers by the petitioner in that case to this contention, as could be seen from the observations of the Division Bench in para 28 of the aforesaid Judgment:
"This brings us to question as to what is the right of the petitioners to claim reservation on the basis of 1981 census. Having held that the Act is valid and is not in any way circumscribed by the provisions of the Central Act or Delimitation Act, 1972, the question in our view hardly arises. However on due consideration of the matter, we find that no such right exists in the petitioners. It was conceded at the Bar by the learned Counsel for the petitioners that if no reservation of seats in the Zilla Parishad election had been made, no claim could validly have been laid for any such reservation. That being so the State Legislature could have validly enacted a law without providing for any reservation of seats for Scheduled Castes and Scheduled Tribes. But, in the instant case, we find that under the provisions of Section 143, a minimum of 18 per cent of the reservation besides the reservation for women under Section 142 has been provided. Here, it is not the case where no reservation at all for the Scheduled Castes & Scheduled Tribes has been made. As it transpires from the averments in the counters filed on behalf of the State, in the Zilla Parishad elections while providing representation, full care has been taken by the State Legislature to safeguard the interests of the Scheduled Castes and Scheduled Tribes. In 38 parlimentary seats, 4 have been reserved for Scheduled Castes and Scheduled Tribes which comes to 14.3 per cent of the total number of seats. Similarly, there are 224 seats in the State Legislature out of which 35 seats are reserved for Scheduled Castes and Scheduled Tribes which comes to 15.65 per cent of the total number of seats. But, in the case of Zilla Parishad, the State Legislature has assured a minimum of 18 percent seats to the Scheduled Castes and Scheduled Tribes,"
I have only referred to these observations with a view to understand the scope of the challenge made by the petitioners to the definition of the word 'Backward Class' for the purpose of nomination under Section 5(3) of the Act. No duty was cast on the State Government to provide for such nomination under Section 5(3) of the Mandal Panchayat Act. But regard being had to the fact that the persons belonging to the socially and educationally backward class may not have a chance of competing with other candidates in the field for the purpose of getting themselves elected to the Mandal Panchayat, the State Government was of the view that it should protect the interests of these persons who belong to socially and educationally backward group by nominating them under Section 5(3) of the Mandal Panchayat Act. It is common ground that this group of persons comes under the label of 'socially and educationally backward' class within the purview of Article 15(4) of the Constitution.
Point No. 2 :
15. That takes us to the meaning of the words 'socially and educationally backward' class for the purpose of giving effect to Article 15(4) of the Constitution. The learned Counsel on both sides relied on a large number of decisions of the Supreme Court and this Court on this point. Perhaps our High Court is a trend setter on the question of reservation for backward class, the scheduled caste and the scheduled tribes as this question had arisen in this State even before the integration of States and we have the advantage of a number of decisions on this point from the Judgments of this Court which were tested by the Supreme Court in appeal. See the Judgments of the Supreme Court in M.R. BALAJI AND ORS. v. STATE OF MYSORE AND ORS., and in R. CHITRALEKHA v. STATE OF MYSORE AND ORS., . But before going into those decisions we must know the limitations of the Havanur Report on which strong reliance was placed by the learned Counsel Sri. A.K. Subbaiah for the petitioners. According to him, the Havanur Commission which was constituted specially for the purpose of defining the Backward Class had made an elaborate survey in the entire State village to village, school to school, etc. - and met individuals, social workers and various associations. The 'Commission had also prepared a list of communities who would be characterised as communities coming under the label of Backward Class. The Government had accepted the Havanur Commission Report and by the order made in the year 1977 notified the communities which belonged to Backward Classes. Later on the Government appointed the 2nd Commission, i.e., the Venkataswamy Commission, and that report was also before the Government and in terms of that report the Government made a further order in 1986 defining the Backward Class for the purpose of Article 15(4) of the Constitution. It is common knowledge that the 2nd report was the subject matter of serious controversy resulting in public agitation and grave law and order problems. These facts were there before the Government in the year 1987 and in the light of these facts the Government evolved a definition of Backward Class to achieve its object, i.e., the object of helping the rural people, who are below the poverty line, to participate in the social and economic life of the village community. What was the effect of these reports on the definition of the words 'Backward Class' for the purpose of Article 15(4) of the Constitution could be gathered from the decision of the Division Bench of this Court which had gone into the Havanur Commission Report in great detail. The report of the Havanur Commission was challenged in this Court as being contrary to the provisions of Article 15(4) of the Constitution as also Article 16(4) of the Constitution. We need not trouble ourselves with the provisions of Article 16(4) of the Constitution, since we are not concerned with the question of reservations in public offices. But as regards the approach of the Commission for defining the word 'Backward Class' as required under Article 15(4) of the Constitution, Jagannatha Shetty, j. as he then was, speaking for the Bench observed in para 20 of the Judgment in S.C. SOMASHEKARAPPA AND ORS. v. STATE OF KARNATAKA AND ORS., ILR (Karnataka) 1979(2), 1496 as follows:
"Before we examine the validity of the classification of Backward Classes and legality of the reservations made, it maybe useful to have the bio data of the State of Karnataka with its economic profile. The State has an area of about 1,92,000 kilometres; it has a coastline of about 300 kilometres; population is about 29.3 million (provisional figures of 1971 population census). That represents some 5.5. per cent of the total population of India. About 76 per cent of the population live in rural area, that is in 29,500 villages. The remaining 24 per cent live in the State's 245 towns and about one-half of them (12 per cent) remain in the 11 principal centres of over 1,00,000 people. Some 6.7 million persons are engaged in agriculture. Document of International Bank for Reconstruction and Development, International Development Association, published on 7th March, 1973." These statistics reveal that about 76 per cent of the population of the State live in rural areas, and 65 per cent of the total working population are engaged in agriculture."
Further in para 30 of the Judgment the learned Judge after considering the decisions of the Supreme Court commencing from BALAJI'S CASE, and ending in KUMARI K.S. JAYASRFE AND ANR. v. THE STATE OF KERALA AND ANR., observed that:
"The principles stated in the above cases may briefly be summaried as follows:
(i) Socially and educationally backward classes is a part of weaker sections of people envisaged in Article 46. The class or communities envisaged as backward, in the concept in which it has been used in the Constitution cannot cover a bulk of State's population. It must necessarily cover only the lower layers of the strata with their degree of backwardness comparable to backwardness of the Scheduled Castes and Scheduled Tribes. But that social and educational backwardness need not be exactly similar in all respects to that of the Scheduled Castes and Scheduled Tribes.
(ii) Articles 15(4) and 16(4) do not speak of Castes, but only speak of classes. But caste is not an irrelevant factor to determine whether any class of citizens is socially backward. However, its importance should not be exaggerated and no classification of backward classes should be based solely on the caste of the citizens. The social backwardness of groups or classes of citizens may, in the ultimate analysis, be the result of poverty to a very large extent, but poverty by itself is not the determining factor of social backwardness. Caste and poverty are both relevant for determining the backwardness.
(iii) Though Backward Class is not synonymous with backward caste or backward community, the Members of an entire caste or community may in the social, economic educational and occupational scale of values, may on that account be treated as a Backward Class, but that is not because they are Members of a caste or community, but because they by sharing some common characteristics, form a distinct class."
In paras 44 and 45 of the Judgment, the learned Judge observed that:
"From these observations, it is apparent that the Supreme Court in BALAJI's case only indicated the broad principles to be kept in view while classifying the citizens as Backward leaving liberty to the State to decide the matter consistent with the equality classes. We may incidentaly point out that in BALARAM's case , the Supreme Court has even upheld the validity of the classification of certain classes of citizens whose educational average was slightly above the State average.
It shows clearly, that in matters like this, the Judges could move with less assurance in spite of their training and full sense of the seamless web of life. We cannot lay down a hard and fast rule in this vast ocean of myriad social problems. We must, however, endeavour to feet the pulse of the masses and know the conscience of the community and then shape the categories through which life could flow and flourish."
After examining the report of the Havanur Commission, the Division Bench found that some of the communities were wrongly included in the list as backward classes and some other communities were wrongly excluded from the list. Accordingly, the Division Bench declared that the inclusion of Arasu community in the backward class was bad in law and also the inclusion of the other communities, viz., (i) Balija, (ii) Devadiga, (iii) Ganiga, (iv) Nayinda, (v) Rajput, (vi)Satani and Backward Castes, viz., (i) Banna, (ii) Gurka, (iii) Jat, (iv) Konga, (v) Kotari. (vi) Koyava, (vii) Malayali, (viii) Maniyanani or (Muniyani) (ix) Padarti, (x) Padiyar, (xi) Pandavakulam, (xii) Raval, (xiii) Rawat in the notification dated 4th March 1977 was also bad in law and consequently the Division Bench quashed the 20% reservation made to Backward Communities in the State Civil Service under Article 16(4) of the Constitution reserving liberty to the State to provide appropriate reservation having regard to the principles stated in that Judgment. The classification and reservation in all other respects were left undisturbed.
16. I have relied on this decision in order to underscore the fact that the determination of Backward Class for the purpose of giving effect to Article 15(4) of the Constitution is a complex task and the determination made earlier by the Havanur Commission Report may not be very relevant for determining the said class in the year 1980. We have to take into consideration the factors like social evolution in our economic life and when we talk about economic life we mean the large percentage of our population below the poverty line in villages. The Zilla Parishad and the Mandal Panchayat do not enter the field of economic activities which are normally carried on by municipalities and other local bodies in Urban Areas. These local bodies are constituted primarily for the betterment of the life of the village communities and the village communities consist of, as mentioned in the counter filed by the State Government, persons who are below the poverty line or persons who could barely keep their heads over the starvation level like marginal farmers, rural artisans, etc. who make both ends meet by earning their daily wages. If they do not earn their daily wages, they fall below the poverty line on the days they do not earn. These are the persons who really deserve the helping hand of the society. The landless agricultural labourers make a precarious living by earning their daily wages from their masters. Their occupation is seasonal. Rural artisans are another category of persons whose living is also very precarious and they depend mostly on their daily earnings. These persons may either be carpenters, was her men or blacksmith and they may work either on their own or for wages for their employers and the wages for the day would be sufficient to make both ends meet. Sometimes they have to seek employment elsewhere to supplement their income. Under the amended rule the State Government thought of protecting the interest of these persons, viz., landless agricultural labourers and rural artisans whose income per year does not exceed Rs. 6,400/-. Rs. 6,400/- per year would work out Rs. 500/- and odd per month and this Court can take judicial notice of the fact that in the rural areas landless agricultural labourers and rural artisans make their living by earning daily wages/income and not monthly wages/ income and that means to say the daily earnings of these persons - either artisans or landless agricultural labourers -would not be more than Rs.15/- to 18/- per day. So, by the impugned rule, the Government thought of protecting the interest of these classes of persons who have to maintain themselves and their families by earning a sum of Rs. 15/-to 18/- per day, the idea of fixing the limit at Rs. 6,400/-per year is only to ensure that persons who belong to lowest strata of the society and live on their wages should get the benefit of Backward Class classification and none others.
17. Now let us take the rulings of the Supreme Court on the meaning of the words 'socially and educationally backward' as they appear in Article 15(4) of the Constitution. In the earliest case before the Supreme Court which arose from the Judgment of this Court in Balaji's case, the following points were answered by the Supreme Court :
Firstly, the State Government can make provision by an executive for the purpose of Article 15(4) of the Constitution and legislation for that purpose is not necessary. Secondly, Article 15(4) of the Constitution has to be read as a proviso to Articles 15(1) and 29(2) of the Constitution. Thirdly, classification based solely on caste is invalid since Article 15(4) is a special provision for advancement of socially and educationally backward classes of citizens and thereby reserving seat in technical and medical institutions for backward class cannot be made solely on the consideration of caste. Fourthly, for considering educational backwardness, class of citizens whose average of student population was the same or just below the State average cannot be a relevant criterion. Fifthly, the sub-classification made by the State Government by its order dated 31-7-1962 reserving seats for backward classes in technical institutions by creating two groups, i.e., backward classes and more backward classes does not appear to be justified under Article 15(4) of the Constitution. Article 15(4) authorises special provision being made for the really backward classes. In introducing two categories of backward classes what the impugned order, in substance, purports to do is to devise measures for the benefit of all the classes of citizens who are less advanced, compared to the most advanced classes in the State, and that is not the scope of Article 15(4). The result of the method adopted by the impugned order is that nearly 90% of the population of the State is treated as backward, and that illustrates how the order in fact divides the population of the State into most advanced and the rest, and put the latter into two categories of backward and more backward. The classification of the two categories, therefore, is not warranted by Article 15(4) of the Constitution. The Supreme Court concluded on the facts of that case that classification made only on the basis of caste is a fraud on the Constitution and does not advance the object of Article 15(4) of the Constitution. As regards the tests for determining backwardness the Supreme Court observed as follows :
".....It may well be that there may be other ways and means of achieving the same result. In our Country where social and economic conditions differ from State to State, it would be idle to expect absolute uniformity of approach; but in taking executive action to implement the policy of Article 15(4), it is necessary for the States to remember that the policy which is intended to be implemented is the policy which has been declared by Article 46 and the Preamble of the Constitution. It is for the attainment of social and economic justice that Article 15(4) authorises the making of special provisions for the advancement of the communities there contemplated even if such provisions may be inconsistent with the fundamental rights guaranteed under Article 15 or 29(2). The context, therefore, requires that the executive action taken by the State must be based on an objective approach free from all extraneous pressures. The said action is intended to do social and economic justice and must be taken in a manner that justice is and should be done."
So, on the question relating to reservation, the Supreme Court struck down the communal Government Order in that case solely on the ground that there could not be a socially and educationally backward class under Article 15(4) of the Constitution solely on the basis of caste.
18. This decision was clarified later by the Supreme Court in CHITRALEKHA'S CASE. After referring to this case the Supreme Court observed in para 15 of its Judgment as follows:
"Two principles stand out prominently from the said, observations, namely, (i) the caste of a group of citizens may be a relevant circumstance in ascertaining their social backwardness, and (ii) though it is a relevant factor to determine the social backwardness of a class of citizens, it cannot be the sole or dominant test in that behalf. The observations extracted in the Judgment of the High Court appear to be in conflict with the observations of this Court. While this Court said that caste is only a relevant circumstance and that it cannot be the dominant test in ascertaining the backwardness of a class of citizens, the High Court said that it was an important basis in determining the class of backward Hindus and that the Government should have adopted caste as one of the tests. As the said observations made by the High Court may lead to some confusion in the mind of the authority concerned who may be entrusted with the duty of prescribing the rules for ascertaining the backwardness of classes of citizens within the meaning of Article 15(4) of the Constitution, we would hasten to make it clear that caste is only a relevant circumstance in ascertaining the backwardness of a class and there is nothing in the Judgment of this Court which precludes the authority concerned from determining the social backwardness of a group of citizens if it can do so without reference to caste. White this Court has not excluded caste from ascertaining the backwardness of a class of citizens, it has not made it one of the compelling circumstances affording a basis for the ascertainment of backwardness of a class. To put it differently, the authority concerned may take caste into consideration in ascertaining the backwardness of a group of persons; but if it does not, its order will not be bad on that account, if it as certains the backwardness of a group of persons on the basis of other relevant criteria."
So, this decision lays down the proposition that for the determination of backward class under Article 15(4) of the Constitution caste may be a relevant consideration. But if it does not, the order of the authority will not be bad on that account, if it can ascertain the backwardness on the basis of other relevant criteria.
19. Then we go to the decision of the Supreme Court in STATE OF ANDHRA PRADESH AND ANR. v. P. SAGAR, . The plea of the State of Andhra Pradesh in that case was that the list provided for reservation for Sack-ward Class under Article 15(4) of the Constitution was prepared after a full consideration of all the relevant material and not solely on the caste basis. No materials were placed before the Supreme Court for determining the truthfulness of this assertion. The notification was quashed by the Supreme Court being invalid. The Supreme Court observed :
"In the context in which it occurs the expression 'class' means a homogenous section of the people grouped together because of certain likenesses or common traits and who are identifiable by some common attributes such as status, rank, occupation, residence in a locality, race religion and the like. In determining whether a particular Section forms a class caste cannot be excluded altogether. But in the determination of a class a test solely based upon the caste or community cannot also be accepted. By Clause (1) Article 15 prohibits the State from discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. By Clause (3) of Article 15 the State is, notwithstanding the provisions contained in Clause (1), permitted to make special provision for women and children. By Clause (4) a special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribe is outside the purview of Clause (1). But Clause (4) is an exception to Clause (1). Being an exception, it cannot be extended, so as in effect to destroy the guarantee of Clause (1). The Parliament has by enacting Clause, (4) attempted to balance as against the right of equality of citizens the special necessities of the weaker sections of the people by allowing a provision to be made for their advancement. In order that effect may be given to Clause (4), it must appear that the beneficiaries of the special provision are classes which are backward socially and educationally and they are other than the Scheduled Castes and Scheduled Tribes and that the provision made is for their advancement. Reservation may be adopted to advance the interests of weaker sections of society, but in doing so, care must be taken to see that deserving and qualified candidates are not excluded from admission to higher educational institutions."
One more decision of the Supreme Court that requires to be noticed in D.N. CHANCHALA v. THE STATE OF MYSORE AND ORS., . That is a decision of the Supreme Court in an appeal by some of the students belonging to forward community against the Judgment of this Court in regard to the admission to Medical College on the basis of the notification made in exercise of the powers under Article 15(4) of the Constitution. In para 43 of the Judgment, Shelat, J. speaking for the Court observed:
".....The principle underlying Article 15(4) is that a preferential treatment can validly be given because the socially and educationally backward classes need it, so that in course of time they stand in equal position with the more advanced sections of the society. It would not in any way be improper if that principle were also to be applied to those who are handicapped but do not fall under Article 15(4). It is on such a principle that reservation for children of Defence personnel and Ex-Defence personnel appears to have been upheld. The criteria for such reservation is that those serving in the Defence forces or those who had so served are and were at a disadvantage in giving education to their children since they had to live, while discharging their duties, in difficult places where normal facilities available else where are and were not available. In our view it is not unreasonable to extend that principle to the children of political sufferers who inconsequence of their participation in the emancipation straggle became unsettled in life ; in some cases economically ruined and were therefore, not in a position to make available to their children that class of education which would place them in fair competition with the children of those who did not suffer from that disadvantage. If that be so, it must follow that the definition of 'political sufferer' not only makes the children of such sufferers distinguishable from the rest but such a classification has a reasonable nexus with the object of the rules which can be nothing else than a fair and just distribution of seats."
I have referred to this observation to underscore the fact that the principle underlying Article 15(4) of the Constitution does not exclude persons who strictly do not come under the category of socially and educationally backward persons. In this case reservations made for political sufferers and to the children of the defence personnel were upheld on the ground that Article 15(4) is not the sole repository of the power of the State Government for reservation to the socially and educationally backward class persons. If that be so, it is difficult to contend that persons who are living below the poverty line, being landless agricultural labourers and rural artisans and are dependent on the daily wages that they earn have as good a chance to participate with others who are more affluent, in the social and political life of the village community. In Chanchala, and in Balaji, the competition was for seats in educational institutions and reservation was made to ensure that the persons who are socially and educationally backward should be in a position to compete with others who do not come under that group and to share the benefit of higher education that is imparted to the students in this State. But here we are concerned with the participation of the socially and. educationally backward classes in the life of the village community. The very object of the Mandal Panchayat Act as could be seen from the preamble is to decentralise the District administration in every one of its aspects so that the people at the grass root level will have their say in the betterment of their economic and social conditions and with that view in mind this Act was ushered in as a measure of social revolution in this State. With such lofty ideals being attributed to this piece of legislation, persons who should have the benefit of such legislation are the persons who are socially and educationally backward. How this should be determined has been laid down by the Supreme Court in the decisions adverted to above. The Supreme Court has categorically ruled that caste only is not the relevant consideration but may be a consideration for the determination of this group other things being equal. In MINOR P. RAJENDRAN v. STATE OF MADRAS AND ORS., the rule made for the purpose of reservation of seats for socially and educationally backward class on the basis of caste was upheld by the Supreme Court because it was found that caste as such is a class of citizens and if the caste as a whole is socially and educationally backward, reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward class of citizens within the meaning of Article 15(4) of the Constitution. In para 7 of the Judgment, Wanckoo, C.J., speaking for the Bench observed as follows:
".... Now if the reservation in question had been based only on caste and had not taken into account the social and educational backwardness of the caste in question, it would be violative of Article 15(1). But it must not be forgotten that a caste is also a class of citizens and if the caste as a whole is socially and educationally backward reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward class of citizens within the meaning of Article 15(4). Reference in this connection may be made to the observations of this Court in M.R. Balaji v. State of Mysore, to the effect that it was not irrelevant to consider the caste of a class of citizens in determining their social and educational backwardness."
Going into the facts of the case the Supreme Court observed :
"...... No such averment was made in the affidavit in support of their cases, nor was any attempt, made to traverse the case put forward on behalf of the State of Madras by filing a rejoinder affidavit to show that even one of the castes included in the list was not educationally and socially backward. In this state of the pleadings, we must come to the conclusion that though the list is prepared caste-wise the castes included there in are as a whole educationally and socially backward and therefore the list is not violative of Article 15."
All these cases were reviewed by the Constitution Bench of the Supreme Court in K.C. VASANTH KUMAR AND ANR. v. STATE OF KARNATAKA, . In this case the learned Judges of the Supreme Court have expressed their opinion on the issue of reservations, which may serve as a guideline in all future cases for examining the question of affording better employment and educational opportunities to Scheduled Castes, Scheduled Tribes and other Backward Classes. Of course, the Supreme Court was not concerned with the nominations to be made to the local bodies. But, what the Supreme Court has observed on the meaning and social content of Article 15(4) of the Constitution in so far as it relates to reservation for Backward Class could be taken as binding on this Court to determine whether the authorities erred in steering clear of the controversy between caste on the one hand and backwardness on the other for identifying the Backward Class for the purpose of Section 2(2) of the Act. The Supreme Court in para 80 of the Judgment observed as follows:
"Class poverty, not individual poverty, is therefore the primary test. Other ancillary tests are the way of life, the standard of living, the place in the social hierarchy, the habits and customs, etc. etc. Despite individual exceptions, it may be possible and easy to identify social backwardness with reference to caste, with reference to residence, with reference to occupation Or some other dominant feature. Notwithstanding our antipathy to caste and sub-regionalism, these are facts of life which cannot be wished away. If they reflect poverty which is the primary source of social and educational backwardness, they must be recognised for what they are along with other less primary sources. There is and there can be nothing wrong in recognising poverty wherever it is reflected as an identifiable group phenomena whether you see it as a caste group, a sub-regional group, an occupational group or some other class. Once the relevant factors are taken into consideration, how and where to draw the line is a question for each State to consider since the economic and social conditions differ from area to area. Once the relevant conditions are taken into consideration and the backwardness of a class of people is determined, it will not be for the Court to interfere in the matter. But, lest there be any misunderstanding, judicial review will not stand excluded."
In para 95 of its Judgment, the Supreme Court dealt with the history of reservations in the State of Karnataka which originated in 1918. After a review of various decisions of this Court and the report of the Backward Class Committees constituted in 1918 and also in the year 1960, the Supreme Court observed thus:
"The occupations of citizens may also contribute to make classes of citizens socially backward. There are some occupations which are treated as inferior according to conventional beliefs and classes of citizens who follow these occupations are apt to become socially backward. The place of habitation also plays not a minor part in determining the backwardness of a community of persons. In a sense, the problem of social backwardness is the problem of Rural India and in that behalf, classes of citizens occupying a socially backward position in rural area fall within the purview of Article 15(4). The problem of determining who are socially backward classes is undoubtedly very complex. Sociological, social and economic considerations, come into play in solving the problem and evolving proper criteria for determining which classes are socially backward is obviously a very difficult task; it will need an elaborate investigation and collection of data and examining the said data in a rational and scientific way. That is the function of the State which purports to act under Article 15(4). All that this Court is called upon to do in dealing with the present petitions is to decide whether the tests applied by the impugned order are valid under Article 15(4). If it appears that the test applied by the order in that behalf is improper and invalid, then the classification of socially backward classes based on that test will have to be held to be inconsistent with the requirements of Article 15(4)."
In para 91 of the Judgment, Venkataramiah, J. observed as follows :
"The questions involved in these cases are delicate ones and have, therefore, to be tackled with great caution. The issues raised here and the decision rendered on them are bound to have a great impact on society. They are indeed highly sensitive issues. A superficial approach to the problem has, therefore to be avoided. The questions have to be tackled with sympathy for persons who are really in need of the benign assistance at the hands of the State and with due regard to the interests of the general public."
The learned Judge after considering the history of reservations as it existed in the erstwhile Princely State of Mysore and after the enactment of the Constitution and after a review of all the earlier cases on the subject observed :
"Since economic condition is also a relevant criterion, it would be appropriate to incorporate a 'means test' as one of the tests in determining the backwardness as was done by the Kerala Government in Jayashree's case (supra). These two tests namely, that the conditions of caste or group or community should be more or less similar to the conditions in which the Scheduled Castes or Scheduled Tribes are situated and that the income of the family to which the candidate belongs does not exceed the specified limit would serve as useful criteria in determining beneficiaries of any reservation to be made under Article 15(4). For the purpose of Article 16(4) however, it should also be shown that the backward class in question is in the opinion of the Government not adequately represented in the Government services.
There is one other basis on which a classification made for purposes of Article 15(4) or Article 16(4) of the Constitution has received the approval of this Court in Chitralekha's case (supra). in that case the Court was concerned with a list of backward classes prepared on the basis of economic condition and occupation. According to that Government order, persons whose family income was Rs. 1,200/- per annum or less and who were engaged in occupations such as agriculture, petty business, inferior services, crafts or other occupations involving manual labour were treated as belonging to backward classes. The petitioner who had filed the petition in the High Court did not challenge the validity of the said classification. But on a submission made on behalf of the State Government, the Court expressed its general approval to the method of classification. Even in the case before us now, there is a reservation of 15% of seats of posts in favour of Members falling under a classification styled as 'special group' which is based on similar occupation-cum-income considerations. Even here no serious objection is taken by any party to the said classification treating persons who satisfied the prescribed tests as being eligible for reservation. It is apparent that this 'special group' is a creature of social, economic and political necessity. Since a classification made on the above said basis has received the approval of a Constitution Bench of equal strength and its correctness is not challenged before us, we treat this classification as a valid one even though a criticism of this kind of classification was made, not unjustifiably as we now see, by the Mysore High Court in D.G. Viswanath's case AIR 1964 Mys.132. This classification would include persons of all castes, groups and communities provided the two tests namely, occupation test and income test are satisfied."
20. We need not be burdened with the requirements of proof under Article 16(4) of the Constitution, since we are not concerned with the case of reservation in public service. We are concerned with the case of nomination to local bodies. Backward class as such has no right to demand reservation as ruled by the Division Bench in Naik's case. But the reservation if made should satisfy the requirements of Article 15(4) of the Constitution.
21. Mr. Subbaiah, learned Counsel for some of the petitioners, has relied on the book "Reservations for Social Justice" written by a well known author Principal D.N. Sandanshiv. The learned author himself has expressed the difficulty in arriving at a proper solution to this complex question. At page 73 of the book he has commented on the reports of the earlier Central Government Commissions and observed as follows:
"The Commission turns the meaning into mystery:
It is most unfortunate that the Second Commission has prepared caste-based set of Indicators tor identifying backward classes. The determination of relative importance of social, educational and economic heads by assigning three points to the social indicators, two points to educational indicators and one point to economic indicators, is wrong and not in keeping with the constitutional philosophy and objective of the constitution to establish caste less society in India. On the basis of the Constitutional philosophy and its objective of establishing casteless society in India, it is submitted that the conclusion reached by the Commission in evolving caste-based set of indicators on its reasoning that Commission has tried to explain in its report in Chapter IV, Chapter V. Chapter VI is wrong.
Thus it is submitted the conclusion reached by the Commission in evolving the caste-based criteria for identifying backward classes suffer from very serious infirmities of reasoning with which the Commission wants to support its conclusion. When the reasoning is wrong, the conclusion is bound to be wrong. When the reasoning suffers from infirmities, the conclusion is bound to suffer from infirmities. The end result of a product depends on the material used by the producer. The Commission should have fostered the Constitutional philosophy and directed its recommendations on identification of backward classes towards destroying caste. Unfortunately Commission has not done so, but directed its efforts towards strengthening caste. It is against the Constitution.
It is further submitted that the question on the meaning of Backward Classes which was kept open and unanswered by the framers of the Indian Constitution is made a mystery by the Backward Classes Commission Reports, first of 1955, second of 1980. It is submitted that the Second Backward Classes Commission have confounded the confusion as it has turned unsolved question into a mystery on the meaning of backward classes."
22. We have the same experience in this State. the State Government has appointed a Third Commission and that is because the material gathered by the earlier 2 Commissions and the manner of approach made by the earlier 2 Commissions were not satisfactory and as such the Government felt that there was a vast scope for arriving at an acceptable solution for identifying backward class group with a view to achieve the Constitutional goal under Article 15(4) of the Constitution. In these circumstances and in the light of the rulings of the Supreme Court adverted to above it cannot be said that the State Government was in error in adopting a pragmatic and practical approach to the problem by limiting the Backward Class group to persons who belong to economically weaker sections of the community. In my view, by linking the rural artisans with the landless agricultural labourers the community or caste to which they belong also comes into play. It could be said that these rural artisans and the landless agricultural labourers in many of the villages belong to certain backward communities and they come under the protective umbrella of Article 15(4) of the Constitution. Many of the landless agricultural labourers belong to Harijan or Girijan communities and likewise many of the rural artisans belong to communities which are backward by any reckoning. In my view, the impugned rule is an amalgam of not only the criteria of economic backwardness based on the income of the persons, but also the community to which they belong. Judged by these tests which are relevant the rule is valid though there is no express reference to the caste or community in the rule. The implication of caste or community is always there when we are dealing with the village communities consisting of rural artisans like barbers, potters, blacksmiths, goldsmiths, was her men, etc. and landless agricultural labourers. By limiting the income for these classes upto Rs. 6,400/- per year the State would be able to demarcate the poverty line that is to say persons who earn more than Rs. 6,400/- are above the poverty line and the persons who earn less than Rs. 6,400/- are below the poverty line. It cannot also be disputed that the Members of the Mandal Panchayat are all elected by the village community or communities mostly employed in agriculture as their occupation or as rural artisans in 29,500 villages in this State. Therefore, the State Government had to make a rational approach to the problem of nomination to local bodies and that should also satisfy the tests prescribed by the Supreme Court. The proviso to Rule 2 indicates that persons belonging this group will hardly have any chance to win the elections and hence this group does require the support of the Zilla Parishad under the circumstances more particularly mentioned in Section 5(3) of the Mandal Panchayat Act.
23. For these reasons, I am unable to accept the plea of malafides alleged against the State Government and I do not think that that plea is established by the petitioners. No doubt the amendment was introduced just after the Mandal Panchayat elections, but no motives could be attributed to the State Government on this account. The matter was under consideration by the State Government and they were engaged in a socio-political experiment of gigantic proportions and such social experiment would require a huge administrative machinery and good deal of time to be bestowed on all aspects of the proper working of the Zilla Parishad and Mandal Panchayat. For these reasons I am unable to subscribe to the view that the power conferred on the Government under Section 2(2) is bad in law. That power under Section 2(2) of the Act was exercised by having recourse to the guidelines prescribed under Article 15(4) of the Constitution. The power to make rules under the Mandal Panchayat Act cannot be questioned in the light of the relevant entries in List 11 Entry 5 of the vii Schedule to the Constitution. The amended rule brings into play the twin guidelines -economic backwardness and caste - and it appears to be a happy synthesis of the tests prescribed by the Supreme Court to which I have made a detailed reference. As observed by the Supreme Court, any test made in this regard would not satisfy every section of the community and the Legislature must take care of it by setting up a further commission and entrust them with proper terms of reference to make backward class under Article 15(4) of the Constitution more broad based with a view to achieve the objects of the Directive Principles of the Constitution. But it is not proper for this Court to interfere with such a classification on the ground that there has been infraction of some guidelines. Mere infraction of a rule or a guideline will not be violative of Article 14 of the Constitution as observed by the Supreme Court in HARJEET SINGH v. UNION OF INDIAN, . In this case there is no such infraction of the Constitutional provisions much less the provisions of the Act in question.
24. One more contention which requires consideration is whether the proviso to Rule 2 has any relevance to social and educational backwardness. In my view, this proviso was introduced not for the determination of social and educational backwardness but with a view to protect the interests of the Backward classes. The population test is prescribed with a view to ensure that these persons who are landless agricultural labourers and rural artisans get a chance of being nominated, I have already quoted the relevant portion of the return in para eight of this order. The averment of the State Government is that "Almost all the Mandals in the State of Karnataka are predominantly rural areas. The persons who are rural artisans or landless agricultural labourers, whose income is less than Rs. 6,400/-per annum are "Backward" in its real sense of the term. The chances of being chosen as a Member of the Mandal Panchayat by the per sons who are rural artisans or landless agricultural labourers whose gross annual income is less than Rs. 6,400/- and the population of the caste to which they belong is less than one percent of the District are remote. Hence, the Government has framed the Rule so as to enable the persons belonging to those categories to be nominated to the Mandal Panchayat by the Zilla Parishads under Section 5(3) of the Act". These averments of the State Government cannot be said to be a baid assertion. It brings out the real intendment, i.e., that these classes of people who are below the poverty line get a chance of protecting their interest by nomination and hence I do not find that the amended rule would be bad in law all because the rule is linked to the population and the population as such may not have any relevance to determine the 'backward class' under Article 15(4) of the Constitution. I am of the view that this proviso was incorporated to give more meaningful representation to persons living below the poverty line.
25. The last contention of the learned Counsel is that the amended rule is violative of the principles of natural justice since the proviso was not there when the draft rule was published. No doubt, that proviso was not in existence at the time the rule was at the draft stage. But the draft was published in Gazette and suggestions and objections were called for from the public in regard to the draft rule. After considering those objections and suggestions Government thought that the proviso as it stands now should be introduced to make the representation of Backward Class more effective and meaningful. This is one form of subordinate legislation and therefore the principle audi alteram partem would not be applicable when they exercised the rule making power. If any authority is necessary, the decision of this Court in VASAVI TRADERS v. STATE OF KARNATAKA AND ORS., ILR (Karnataka) 1982(2) 961: 1982(2) KLJ 357 may be referred to.
26. For these reasons, neither Section 5(2) of the Mandal Panchayat Act or the amended Rule 2(2) is violative of Article 15(4) or Article 14 of the Constitution. Hence Writ Petition No. 4545 of 1987 is dismissed.
Writ Petition No. 8888 of 1987 is partly allowed and the nominations of Respondents 10 and 11 are set aside since the same were made by the Adhyaksha and the Zilla Parishad is at liberty to make fresh nominations in accordance with law.
Writ Petition No. 5861 of 1987 is partly allowed and the nominations of Respondents 4 and 5 are set aside and there will be a fresh election to the office of Pradhan and Upapradhan.
Writ Petition No. 5864 of 1987 is also partly allowed and the nominations of Respondents 4 and 5 are set aside and there shall be a fresh election to the offices of Pradhan and Upapradhan. The contention in this petition is that there are already elected members from the Backward Class coming under Rule 2(2). If there any nominations from this Class the petitioner is at liberty to challenge the nominations on that ground.
In Writ Petition No. 16777 of 1987 the nomination was made by the Zilla Parishad and not by the Adhyaksha and, therefore, the petition stands dismissed.