Karnataka High Court
Miss. Rafia Shaheen And Etc. vs State Of Karnataka And Others on 3 March, 1994
Equivalent citations: AIR1994KANT295, ILR1994KAR753, 1994(2)KARLJ404, AIR 1994 KARNATAKA 295, ILR(1994) KANT 753 (1994) 2 KANT LJ 404, (1994) 2 KANT LJ 404
Bench: Chief Justice, R.V. Raveendran
ORDER Raveendran, J.
1. The common question that arises in these two appeals is whether a student claiming to belong to the Group of 'Darvesu' among Muslims, will be entitled to the benefit of reservation under Article 15(4) of the Constitution provided under Group A of the Government Order No. SWL 66 BCA 86 dated 13-10-1986, only if his parents carry on the occupation denoted by the name 'Darvesu'.
2. Admissions to Medical, Engineering and certain other professional courses are regulated by the Karnataka Selection of candidates for admission to Engineering, Medical, Dental, Pharmacy and Nursing Courses Rules, 1993 ('Rules' for short). Rule 12(4) of the said Rules provides that reservations shall be made for the candidates belonging to Scheduled Castes, Scheduled Tribes, Groups A, B, C, D and E in accordance with the order issued in G.O. No. SWL. 66 BCA 86 dated 13-10-1986 and other related orders issued from time to time. Rule 10(3) of the said Rules provides that no candidate seeking reservation for admission under Rule 12(4) shall be admitted to any institution unless he produces a validity certificate obtained under Rule 7 of Karnataka Schedule Castes, Schedule Tribes and other' Backward Classes (Reservation of Appointment etc.) Rules, 1992.
3. The appellants claim to be muslims belonging to the group 'Darvesu'. They passed the common entrance test held under the said Rules and were selected and provisionally allotted seats in the course of Bachelor of Engineering subject to their obtaining and furnishing caste validity Certificate from the Caste Verification Committee (Second Respondent). The said Committee by endorsement dated 22-9-1993 and 10-9-1993 respectively rejected the claim of the appellants, holding that they did not belpng to the group 'Darvesu'. Against the said rejections, the appellants filed appeals before the State Government and the appeals were rejected as per communications dated 18-10-1993 and 19-10-1993. Feeling aggrieved by the said orders, they filed W.P. Nos. 36967/93 and 37365/93 respectively and the learned single Judge rejected the said petitions by order dated 22-10-1993 following the decision of this Court in State of Karnataka v. Shylaja in and Syed Noor Fathima v. Selection Committee, reported in 1984 (1) Kar LJ 19 : (AIR 1984 NOC 274 (Kant) holding that mere production of certificates showing that candidates belonging to 'Darvesu' tribe will not entitle them to the benefit of reservation under the Govt. Order dated 13-10-1986 and that to claim benefit thereunder, it is necessary for the members of the family of the candidates to actually follow the vocation or occupation of 'Darvesu' which is begging. As the father of the "appellant in W.A. No. 3330/ 1993 was a School Inspector and father of the appellant in W.A. No. 3458/1993 was a State Government employee, it was held that they were not following the occupation of begging and therefore not entitled to claim the benefit of reservation. The said decisions are challenged in these appeals.
4. During the hearing of the appeals the appellant in W.A. 3458/1993 also obtained and produced a copy of the order passed by the first respondent, rejecting his appeal against the decision of the Caste Verification Committee. It reads as follows:---
"It has been well settled in law that all those who belong to sub-groups like Darvesh, Chapparband, Nalband, Kasai Bazigars of the Muslim Community can claim the reservation benefit provided to them under Group A and B only if they profess the traditional family occupation. In this case the parents of the appellant are employees of the State Government drawing regular salaries attached to the posts. In view of the position, the appellant is not eligible to claim the benefit provided to persons belonging to Group A."
5. Learned counsel for the appellants contended that the group/tribe of Muslims known as 'Darvesu' was included in Group A. (list of Backward Tribes) in the Govt. Order dated 13-10-1986, as the Government after considering the class poverty" and social backwardness of the said section of muslims, found that the entire class as such required to be specially provided for, by including them in the list of socially and educationally backward classes of citizens' for whom reserva-' tions are made irrespective of the extent of income. He contended that while in the case of Groups B, C and D in the Annexure to Notification dated 13-10-1986, economic criterion has been found to be relevant (which is evident from the prescription of a annual income limit of Rs. 10,000/-), in the case of persons falling under Group A, the economic criterion was not found to be relevant as no income limit has been fixed; and therefore it is clear that in regard to persons falling under Group A, the poverty and social backwardness of the entire class/group as such has been taken note of, to consider the entire group as worthy of being encouraged by providing reservation. He also contended that if it was held that to obtain reservation under Group A, the Appellants' parents should follow the occupation of 'Darvesu', then the very purpose of the Government trying to uplift the said section of muslims will be defeated. He submitted that the learned single Judge ought not to have followed the decision in the cases of Shylaja and Syed Noor Fathima as the said decisions were no longer good law in view of the decision of the Supreme Court in Indira Sawhneyv. Union of India, .
6. In Shylaja's case, a Division Bench of Ihis court was concerned with the earlier Government Order No. SWL TBS 77 dated 22-2-1977 issued by the Government listing the Backward Communities, Backward Castes and Backward Tribes, as Groups A, B and C respectively as backward classes for purpose of Article 15(4) and Article 16(4) of the Constitution. In that case, a student who claimed to belong to the Community 'Bestar' having failed to obtain admission, challenged the selection of certain students belonging to 'Darvesu' Tribe/Group, on the ground that among persons professing muslim religion, there were no caste's or communities and therefore no section of Muslims can claim to belong to a backward tribe. This Court referred to the report of Karnataka Backward Classes Commission (Vol. I Part I, Page 222) wherein it was stated that although there is no caste system as such, in the Muslim social order, and though the conventional idea of high and low is peculiar to Hindu Society and is unknown to Muslim society, unfortunately, the Muslim community is divided and stratified into hereditary, professional and functional groups, following professions which are most unremunerative and uneconomic and which had relegated them to the lowest strata of society of the State, economically and educationally and that certain groups amongs Muslims can be readily identified by their occupation or profession. This Court did not therefore accept the contention that persons belonging to 'Darvesu' section of Muslim, who had been included in the list of Backward Tribes could not be regarded as coming in the category of Backward Tribes for the purpose of reservation of seats. However, this Court observed that where the parents of the students claiming to belong to the 'Darvesu' Group, were Government servants, the Selection Committee ought to have called upon the said applicants to show how their parents could be regarded as 'Darvesu', as 'Darvesu' was an occupational or professional group among Muslims whose traditional occupation was begging. The inference from the said observation is that unless the parents of the candidates for selection carried on the occupation of 'begging', they could not be treated as 'Darvesu'. This Court stressed the need for the Selection Committee to scrutinise strictly the claims of applicants who claim to be 'Darvesu' seeking the benefit of reservation for Backward Tribes. This Court found that not prescribing an income limit in the case of Backward Tribes, while prescribing an income limit of Rs. 10,000/- per annum in the case of Backward Communities and Backward Castes was anomalous and made the following suggestions for consideration of the Government:--
"Before concluding, we suggest that the Government may consider whether an income limit should not be put for claiming the benefit of reservation for Backward Tribes also. In cases of Backward Communities and Backward Classes, the Government Order provides that no applicant whose parents' or guardian's annual income exceeds Rupees 10,000/- can claim the benefit of reservation for those categories. Similar income ceiling in the case of Backward Tribes also, will prevent the benefit of reservation being taken away by comparatively affluent sections of Backward Tribes and will help the really lower strata of that category which needs most the reservation, to get the benefit of reservation."
7. In Syed Noor Fathima's case, a similar question arose for consideration and after referring the earlier Government order dated 22-2-1977 (read with Order dated 12-5-1978) Rama Jois,. J. (as he then was) posed the question for decision as follows:--
"In view of the above order, there can be no doubt that a Muslim can claim the benefit extending to Backward Communities on the basis that he is a Muslim provided the family income is Rs. 10,000/- or less per annum. Further, a person belonging to Darvesu tribes can claim the benefits provided for Backward Tribes without reference to family income. To this extent there is no dispute. But the crucial question for consideration in this case is who among muslims, which is a single community, can be regarded as belonging to 'Darvesu' tribes." (para II) To find an answer, this Court referred to the Report of the Havanur Commission on which the Government Order dated 22-2-1977 was based and observed:
"Thus it may be seen that the Muslim Society unlike Hindu Society is not divided into various castes and communities. Neither there are castes among Muslims nor there is any gradation. The entire Muslim community constitutes one homogeneous unit and there is no question of high and low among them. However, there was a plea to the effect that such of the Muslims who belonged to Denoti-fied, nomadic and Semi-Nomadic tribes are akin to scheduled castes and scheduled tribes in the matter of backwardness and they required liberal assistance from the state." (para 11) The Court then proceeded to consider who are those who belong to the aforesaid tribes in the light of the said Report of Karnataka Backward Classes Commission and reached the following conclusion:
"It is those tribes, which have been classi fied as backward tribes by the Government order. Therefore, there can be no doubt that unless a person proves to the satisfaction of the concerned authority that the hereditary occupation of his family is one of those alluded to in the report, he cannot secure the benefit of reservation provided for Backward Tribes." (para 13).
After examining the facts relating to the petitioners in these cases, it was held, following Shylaja's case, as follows:
"But, both of them claim to belong to a still backward class, i.e., Backward tribe. In view of the occupation and income of the father of each of the petitioner, the decision of the respondents in rejecting their claim on the material (cannot be) regarded as unreasonable or arbitrary and in fact by doing so the respondents have only discharged their duty (See State of Karnataka v. M. P. Shylaja)" (para 14).
8. The Government of Karnataka constituted the Karnataka Second Backward Classes Commission by its order dated 18-4-1983 which submitted its report dated 31-3-1986. After considering the said Report, the Government felt that having regard to the methodology adopted by the said Commission, the nature and reliability of the data collected by the Commission and the indicators adopted by the Commission for the determination of backwardness, the recom-mendations of the said Commission cannot be accepted and acted upon by the State Government, without serious danger of injustice being meted out to many backward sections of society in the State and therefore the Report was not acceptable. Hence, the Government decided to constitute a new commission for determination of the backward classes in the State as well as entrust to the new Commission the task of identifying the backward classes under Articles 15(4) and 16(4) of the Constitution. Hence, pending receipt of the report of the new Commission the State Government made an order dated 13-10-1986 as the earlier orders could not be continued, for the following reasons:
"Further backwardness for the purpose of Article 15(4) of the Constitution must be social and educational. The problem of determining socially and educationally backward classes is a very complex one. An elaborate investigation and collection of data and examination of such data would inevitably involve considerable length of time. But the obligation of the State to make special provisions for the advancement of the backward classes is a pressing problem which cannot be postponed. Pending such an elaborate study and investigation of the problem, Government consider it necessary to lay down a just classification of socially and educationally backward classes."
9. The said order dated 13-10-1986 states that it was made after taking into account the available information in regard to the social and educational backwardness of the backward communities, castes and tribes and considering the class poverty of each community, their way of life, standard of living, habits and customs, the place of each community 'in the social hierarchy. By the said order, in supersession of all previous orders, the State Government listed the other backward classes of citizens under Articles 15(4) and 16(4) of the Constitution, in Annexures I and II respectively to the said order. Though the said order was intended to be in force only for a period of three years, it is still in force and the Karnataka Selection of candidates for admission to Engineering, Medical, Dental, Pharmacy and Nursing Courses Rules, 1993, provides that the reservation for other backward classes will be made as per the said order dated 13-10-1986. 'Darvesu' is listed as items 17 of Group 'A' (Backward Tribes) in An-nexure I which is the list of Backward Classes of Citizens under Article 15(4) of the Constitution and in Annexure II which is the list of Backward Classes of Citizens under Article 16(4) of the Constitution. In regard to-Backward Tribes falling under Group A there is no income limit at all. On the other hand, in. regard to Castes/Tribes falling under Groups B, C and D, special treatment by way of reservation under Arts. 15(4) and 16(4) is made available only if the annual income of the family is below Rs. 10,000/-. In regard to Classes falling under Group E (Backward Special Group) the corresponding maximum annual family income is Rs. 8.000/-.
10. Significantly neither the said order dated 13-10-1986 nor the corresponding earlier order dated 22-2-1977 specified that persons claiming to be 'Darvesu' will be entitled to the benefit of reservation, only if their parents pursue the occupation of a 'Darvesu'. The question is, when the Government Order does not require or contemplate that persons belonging to 'Darvesu' Group of Muslims should follow a particular vocation, to become entitled to the special treatment under Article 15(4), whether this Court can read into the said order, a requirement that the claimant's parents should practice an occupation indicated by the name of the Tribe.
11. This Court in Shylaja and Syed Noor Fathima proceeded on the basis that while caste system based on occupation is recognised among Hindus, there is no caste system among Muslims and therefore, if a particular group of Muslims are recognised as a separate group on account of their occupation, to continue to belong to that particular group, they should continue to be involved in such occupation or profession; in other words, a Muslim ceases to be a 'Darvesu' entitled to the benefits of reservation under Arts. 15(4) and 16(4) if his parents no longer practise 'begging.
12. But the said view runs counter to the decision of the Supreme Court in Indra Sawhny v. Union of India, wherein it was held that even if a person ceases to follow the occupation indicated by the Group name, he will still remain a member of the Group. Though Indira Sawhney was primarily concerned with Article 16(4) and not Article 15(4), the principles laid down in regard to identification of backward classes with reference to occupation apply with equal force to Article 15(4). Question No. 3(a) and (b) formulated in the said case by Jeevan Reddy J., speaking for the majority, related to identification of the backward classes. Questions 3(a) and 3(b) found at page 517 and answers thereto at para 88A are extracted below:
Question 3(a): What does the expression "backward classes of citizens in Article 16(4) means?
Answer: A caste can be and quite often is a social class in India. If it is backward socially, it would be a backward class for the purposes of Article 16(4). Among non-Hindus there are several occupational groups, sets and denominations, which for historical reasons are socially backward. They too represent backward social collectives for the purposes of Art. 16(4).
Question 3(b): Whether backward classes can be identified on the basis and with reference to caste alone?
Answer: Neither the Constitution nor the law prescribed the procedure or method of identification of backward classes. Nor is it possible or advisable for the Court to lay down any such procedure or method. It must be left to the authority appointed to identify: It can adopt such method/procedure as it thinks convenient and so long as its survey covers the entire populace, no objection can be taken to it. Identification of the backward classes can certainly be done with reference to castes, among and along with other groups, classes and sections of people. One can start the process with the castes, wherever they are found, apply the criteria (evolved for de-terming backwardness) and find out whether it satisfies the criteria. If it does what emerges is a "backward class of citizens" within the meaning of and for the purposes of Article 16(4). Similar process can be adopted in the case of other occupational groups, communities and classes, so as to cover the entire populace. The central idea and overall objective should be to consider all available groups, sections and classes in society. Since caste represents an existing, identifiable social group/class encompassing on overwhelming majority of the country's population, one can well begin with it and then go to other groups, sections and classes..... The classes contemplated by Article 16(4) may be wider than those contemplated by Article 15(4).
The reasons given to arrive at the aforesaid findings, at paras 82 to 84 are equally relevant and portions thereof are extracted below:
"82. The above material makes it amply clear that caste is nothing but a social class.--a socially homogeneous class. It is also an occupational grouping , with this difference that its membership is hereditary. One is born into it. Us membership is involuntary. Even if one ceases to follow that occupation, still he remains and continues a member of that groups. To repeat, it is socially and occupa-tionally homogeneous class. Endogamy is its main characteristic. Its social statute and standing depend upon the nature of the occupation followed by it. Lawlier the occupation, lowlier the social standing of the class in the graded hierarchy. In rural India, occupation-caste nexus is true even today. A few members may have gone to cities or even abroad but when they return -- they do, barring a few exceptions -- they go into the same fold again. It does not matter if he has earned money. He may not follow that particular occupation. Still, the label remains. His identity is not changed. For the purposes of marriage, death and alfother social func; tions. it is his social class -- the caste -- that is relevant."
"81: Non-Hindu religions like Islam, Christianity and Sikh did not recognise caste as such though, as pointed out hereinabove, castes did exist even among these religions to a varying degree."
"The concept of 'caste' in this behalf is not confined to castes among Hindus. It extends to castes, wherever, they obtain, as a fact. "irrespective of religious sanction for such practice. Having exhausted the castes or simultaneously with it, the authority may take up for consideration other occupational groups, communities and classes. For example, it may take up the Mluslim Community (after excluding those Sections, castes and groups, if any, who have already been considered) and find out whether it can be characterised as a backward class in that State or region, as the case may be. The approach may differ from State to State since the conditions in each State may differ... ."(para 83).
"We do not mean to suggest -- we may reiterate -- that the procedure indicated here inabove is the only procedure or method/ ap proach to be adopted. Indeed, there is no such thing as a standard or model procedure/ap proach. It is for the authority (appointed to identify) to adopt such approach and proce dure as it thinks appropriate, and so long as the approach adopted by it is fair and ade quate, the Court has no say in the matter. The only object of the consideration in the pre ceding para is to emphasise that if a Commis sion/Authority begins its process of identi fication with castes (among Hindus) and occupational groupings among others, it cannot by that reason alone be said to be constitutionally or legally bad. We must also say that there is no rule of law that a test to be applied for identifying backward classes should be only one and/ or uniform. In a vast country like India, it is simply not practicable.
If the real object is to discover and locate backwardness, and if such backwardnesses found in a caste, it can be treated as backward; if it is found in any other group, section or class, they too can be treated "as backward." -
The following passages from paras 418 and 419 of the concurring judgment of Ratnavel Pandian J. are also relevant.
"As far as Islam is concerned, Islam also does recognise castes or caste system. However, among the Muslims, infact there are Ashrafs and Ajlafs, i.e., high born and low born .... All other mohamedans including the occupational groups and all converts of lower ranks are known by the contemptuous terms, Ajlafs, wretches or 'mean people'... .In some places a third class, called 'Arzal' or lowest of all is added. With them no other Mohamedan would associate and they are forbidden to enter the mosque and to use the public burial ground. Within these groups, there are castes with social precedence of. exactly the same nature as one finds among the Hindus. . . . , At present there are many social groups among muslims which are included in the list of Scheduled Castes in some states. . . . This shows that the muslims in India have not remained immune from the same social evils as are prevelant among the Hindus".....
"The castes were inextricably associated with occupations and the low and the mean occupations belonged to the lower castes. In the new religion, along with the castes, most of the converts carried their occupations as well. The backward classes among the Hindus and non-Hindus can therefore easily be identified by their occupations also. Whether, therefore, the backward classes_are identified on the basis of castes or occupations, the result would be the same. For, it will lead to the identification of the same collectivities or communities. The social groups following different occupations are known among Hindus by the castes named after the occupations, and among non-Hindus by occupation names. Hence, for identifying the backward classes among the non-Hindus, their occupations can furnish a valid test. It is for this reason that both Articles 15(4) and 16(4) do not use the word 'caste' and use the word 'class' which can take within its fold both the caste and occupational groups among the Hindus and non-Hindus."
13. In this case the State Government taking note of the class poverty of the occupational group of 'Darvesu' their way of life, standard of living, habits and custom, has decided to include 'Darvesu' as a backward tribe under 'Group A', where income is not at all relevant. If the income was relevant, the group would have been included with muslims in Group 'C' itself. Once the State has identified and found backwardness in the group known as 'Darvesu1 which is an occupational group and treated the entire group as backward, and such identification cannot be found fault with, it is impermissible for the Court to add a rider that to fall under Group 'A', persons belonging to the "Occupational Group" should actually practise the occupation with reference to which the group is named. The occupational Group of 'Darvesu' has been treated as a Backward class eligible for special treatment without reference to income.
14. It should also be remembered that the provisions of the order dated 13-10-1986 are transitional, pending receipt of the Report of the new Commission. When the third Commission gives its report or when the Govt. accepts such report, the suggestion of this Court in Shylaja's case that income limit should also be made applicable to the Backward Tribes falling under Group 'A', may be considered or accepted. Or having regard to the social/economic advancement during these years, the State may choose to remove a specified group/tribe from the Schedule. Or the State may regroup A, B, C, D and E in some other form. It is for the State to do that exercise in accordance with law and in the light of the principles laid down in Indira Sawhney and related cases. As observed in Indira Sawhney, it is for the authority appointed to identify the Backward Classes, to adopt such approach and procedure as it thinks appropriate, and so long as the approach adopted by it is fair and adequate, the Courts will have no say in the matter. Hence, we hold that as long as the reservation continues to be on the basis of the Order dated 13-10-1986, a person falling under a named Group/tribe/community, in Group 'A' can claim the benefit of reservation, irrespective of whether he or his parents practise the denoted occupation. For this purpose there is no difference between 'groups' named after occupations in Muslims or 'castes' named after occupations in Hindus. If practice of the 'occupation' denoting the Group is necessary in the case of Muslims, it should equally be so in the case of castes referable to occupations, in the case of Hindus. That is neither the intention nor necessary.
15. We would like to refer to one other aspect before conclusion. Both in Shylaja and Syed Noor Fathima, this Court has assumed that the occupation of 'Darvesu' is begging. That may not represent the true picture. P. Ramanatha Aiyar's Law Lexicon and other Dictionaries define the Persian word 'Darvesu' as meaning a Moh anted an Religious mendicant or Fakir. The New Encyclopaedia Briiannica (Vol. III, p. 482, 15th Edition) defines 'Dervish' as a member of Muslim religious fraternity, sometimes mendicant, resembling in some respects a Christian monastic order. Dervishes could be either resident in community or lay members, both groups generally drawn from the lower classes. In the World Book Encyclopaedia (Vol. 5, page 129), 'Dervish' is defined as a member of one of the mystical religious orders of the Islamic religion who lead wandering lives of self-denial and live by begging. Though the word 'Darvesh1 literally means a person who begs from door to door, the term is generally used to refer to a person who leads a religious life. The Privy Council in Sain Maule Shah is Ghane Shah reported in 40 BLR page 1071 : (AIR 1938 PC 202) defines a dervish as a person who abjured the world and becomes an humble servitor of God. Hence, the fact that a 'Darvesu' begs, incidental to his being a religious mendicant, docs not make him a 'beggar' or a person whose occupation is begging,
16. In the result these appeals are allowed as follows:
(i)The decisions in W. P. 36967/93 & 37365/93 are set aside.
(ii)The order dated 22-9-1993 (Annexure-H in W.P. No. 36967/93) and order dated 10-9-1993 (Annexure-C in W.P. No. 37365/ 93) passed by second respondent and the orders dated 18-10-1993 and 19-10-1993 of the first respondent in appeals therefrom are quashed.
(iii) It is declared that persons belonging' to 'Darvesu' in the list of backward tribes (Group "A") cannot be denied reservation on the ground that their parents are not practising the occupation denoted by the 'group' name.
(iv) Appellants shall be entitled to admission to I Year B.E. (if they are found to be otherwise eligible) in the free seat category. However, as it is too late to admit the appellants to the first year B.E. course for the 1993-94 academic year, the first respondent is directed to provide them seats in I Year B.E. in the academic year 1994-95 as a special case from the 1994-95 free seat quota reserved for Group 'A' category and only the remaining quota seats in Group 'A' shall be allotted to the eligible candidates claiming admission for 1994-95.
(v) Parties to bear their respective costs.
Appeals allowed.