Madras High Court
R. Sangilimuthu, R. Perumal, R. Shanthy ... vs State Of Tamil Nadu, Represented By ... on 26 July, 2002
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
1. Aggrieved by the letter of the respondent dated 3-9-92 directing the District Collector, Tirunelveli Kattabomman District to cancel the community certificates issued in favour of the petitioners, they filed the above writ petition to quash the same and issue direction to the respondent to include the community of Sadhu Chetty (including Telugu Chetty and Twenty-four Manai Telugu Chetty) in the list of Most Backward Classes comprised in G.O.Ms.No. 242, Backward Classes Welfare Nutritious Meal Programme and Social Welfare Department dated 28-3-89 and in G.O.Ms.No. 1566 and 1567, Social Welfare Department dated 30-7-85.
2. The case of the petitioners is briefly stated hereunder: According to them, they belong to the Parent Caste of Twenty four Manai Telugu Chetty and the members of this community are being called by different names, namely, Sadhu Chetty, Telugu Chetty, Twenty Four Manai Telugu Chetty and Telugu Patty Chetty. The first petitioner belongs to Telugu Pattu Chetty which is notified as a denotified community in Trichy and Pudukottai Districts. The second petitioner belongs to Telugu Pattu Chetty which is notified as Most Backward Class. The third petitioner belongs to 24 Manai Telugu Chetty which is notified as Backward Class. The fourth petitioner belongs to Telugu Chetty which is notified as Backward Class. The fifth petitioner belongs to Sadhu Chetty which is notified as Backward Class. The cultural and religious habits and traditions of all the persons called under different sub names are one and the same. The First Backward Classes Commission constituted by the Government of Tamil Nadu in G.O.Ms.No. 842, Social Welfare Department, dated 13-1-1969 under the Chairmanship of Thiru A.N. Sattanathan, in its report suggested certain reforms. The Second Backward Classes Commission headed by Shri Ambasankar, I.A.S., (Retired) was appointed by the State of Tamil Nadu in 1982. The Second Backward Classes Commission submitted its report in 1985, wherein it is stated that Sadhu Chetty is otherwise called Telugu Patty Chetty. Pursuant to its report, the Government of Tamil Nadu in G.O.Ms.No. 1564, Social Welfare Department, dated 30-7-85 had published a revised list of backward classes and shown against Serial No.148 as Sadhu Chetty (including Telugu Chetty, Telugu Patty Chetty and Twenty-four Manai Telugu Chetty). The above said facts will clearly show that all the people who are called by the names of Sadhu Chetty, Telugu Chetty, Telugu Patty Chetty and Twenty four Manai Telugu Chetty belong to a single caste and all of them are socially, educationally, economically and politically very backward and all of them are equal in status in all aspects. By G.O.Ms.No. 353, I.L and C, dated 31-1-1957, the then Government of Madras notified a list of Most Backward Classes, among the Backward Classes, containing 58 castes and in that list against serial No.44, Telugu Patty Chetty was included. In the said Government Order, it is not stated as to why the others called by the names of Sadhu Chetty, Telugu Chetty and Twenty four Manai Telugu Chetty were not included in the list of Most Backward Classes. In the rest of the paragraphs, the petitioners highlighted and furnished various details with a claim that the other 3 sub-sects are also to be included in the list of Most Backward Classes. Since their requests/representations were not considered and by the impuged letter, the respondent requested the District Collector, Tirunelveli Kattabomman District to cancel the community certificates holding the petitioners as Most Backward class, cancelled forthwith. Questioning the same, the petitioners have filed the above writ petition and also prayed for necessary direction to the Government for inclusion of the community of Sadhu Chetty including Telugu Chetty and Twenty four Manai Telugu Chetty in the list of Most Backward Classes.
3. Deputy Secretary to Government, Backward Classes and Most Backward Classes Welfare Department has filed a counter affidavit disputing various averments made by the petitioners. After tracing the history of reservation, classification of various communities, Government Orders, constitution of Sattanathan Commission on 13-11-1969, Ambasankar Commission dated 13-12-1982 and their respective reports dated 26-11-1970 and 28-02-1985, suggestions and the decision taken by the Government pursuant to the same, it is stated that the Ambasankar Comission has not recommended the inclusion of Sadhu Chetty, Telugu Chetty and Twenty four Manai Telugu Chetty communities in the list of Most Backward Classes. The petitioners are at liberty to approach the Tamil Nadu Backward Classes Commission to get appropriate remedy and the grievance cannot agitated and considered by this Court exercising jurisdiction under Article 226 of the Constitution of India.
4. In the light of the above pleadings, I have heard Mr. K. Doraisamy, learned Senior counsel for the petitioners and Mr. R. Muthukumaraswami, learned Additional Advocate General for respondent.
5. Mr. K. Doraisamy, learned senior counsel for the petitioners, after taking me through the constitution of Commissions for classification of various communities, their reports, suggestions, various Government Orders, would contend that in the light of the abundant materials and also of the fact that all the four communities, namely, Sadhu Chetty, Telugu Chetty, Telugu Patty Chetty and Twenty four Manai Telugu Chetty belong to a single caste and all of them socially, economically and politically very backward, the Government ought to have included and notified all the four as Most Backward Class communities. In any event, according to him, the direction by the Government to the Collector, Tiruneveli for cancellation of the community certificate of the petitioners without notice, enquiry or opportunity cannot be sustained. On the other hand, Mr. R. Muthukumaraswami, learned Additional Advocate General, after placing before me the entire history of reservation, classification of various communities in this State and the report of the two Commissions as well as the permanent Commission for backward Class and Most Backward Class communities, would contend that this Court is not the appropriate forum to agitate the grievance of the petitioners and after the judgment of Indra Sawhney v. Union of India, , the Government have no power to pass orders without the recommendation of the Commission; accordingly it is for the petitioners to approach the Commission to vindicate their grievance.
6. I have carefully considered the rival submissions.
7. Though in the affidavit as well as before this Court elaborate details have been furnished with reference to facts and figures in support of their claim that all the four communities namely Sadhu Chetty, Telugu Chetty, Twenty four Manai Telugu Chetty and Telugu Patty Chetty belong to a single caste and all of them are socially, educationally, economically and politically very backward, as rightly contended by the learned Additional Advocate General, in the light of the permanent Commission for backward and most backward classes constituted by the State Government, I am of the view that the grounds expressed by the petitioners cannot be gone into by this Court exercising jurisdiction under Article 226 of the Constitution of India. In this regard, learned Additional Advocate General has very much relied on the observation and direction of the Supreme Court in Indra Sawhney's case. In the said decision in paragraphs 83 and 84, the Supreme Court has suggested constitution of appropriate authorities for identification of backward classes and other communities. They also observed that it is for the authority (appointed to identify) to adopt such approach and procedure as it thinks appropriate, and so long as the approach adopted by it is fair and adequate, the Court has no say in the matter. Para 117 is also relevant:
"Desirability of a permanent statutory body to examine complaints of over-inclusion/under-inclusion.
117. We are of the considered view that there ought to be a permanent body, in the nature of a Commission or Tribunal, to which complaints of wrong inclusion or non-inclusion of groups, classes and sections in the lists of Other Backward Classes can be made. Such body must be empowered to examine complaints of the said nature and pass appropriate orders. Its advice/opinion should ordinarily be binding upon the Government. Where, however, the Government does not agree with its recommendation, it must record its reasons thereof. Even if any new class/group is proposed to be included among the other backward classes, such matter must also be referred to the said body in the first instance and action taken on the basis of its recommendation. The body must be composed of experts in the field, both official and non-official, and must be vested with the necessary powers to make a proper and effective inquiry. It is equally desirable that each State constitutes such a body, which step would go a long way in redressing genuine grievances. Such a body can be created under clause (4) of Art.16 itself - or under Art. 16(4) read with Article 340 - as a concomitant of the power to identify and specify backward class of citizens, in whose favour reservations are to be provided. We direct that such a body be constituted both at Central level and at the level of the States within four months from today. They should become immediately operational and be in a position to entertain and examine forthwith complaints and matters of the nature afore-mentioned, if any, received. It should be open to the Government of India and the respective State Governments to devise the procedure to be followed by such body. The body or bodies so created can also be consulted in the matter of periodic revision of lists of O.B.Cs. As suggested by Chandrachud, C.J. in Vasant Kumar , there should be a periodic revision of these lists to exclude those who have ceased to be backward or for inclusion of new classes, as the case may be."
Learned Additional Advocate General has also brought to my notice that pursuant to the direction of the Supreme Court, the Government of Tamil Nadu have also constituted a permanent Commission headed by a Retired Judge of this Court. In such a circumstance, as observed by Their Lordships, the matters relating to inclusion or non-inclusion of groups, classes or sections in the list of other Backward Classes or even if no class or group is proposed to be included, such matters must be referred to the said body, namely, the Commission in the first instance and based on their decision, it is for the Government to take action.
8. It is also relevant to refer the latest decision of the Supreme Court in State of Maharashtra v. Milind, reported in AIR 2001 Supreme Court 393 wherein Their Lordships have held that the jurisdiction of the High Court would be much more restricted while dealing with the question whether a particular caste or tribe would come within the purview of the notified Presidential Order, considering the language of Articles 341 and 342 of the Constitution. It is also clear that in a matter like this, identifying particular caste or sub-sect with backward class or most backward class, it is for the appropriate authority/Commission and this Court is not expected to make roving enquiry.
9. In the light of the decisions of the Supreme Court and after going through the factual details furnished by the petitioners as well as the respondent in the form of affidavit and counter affidavit and inasmuch as the relief sought for involves "investigation" by a competent authority, I hold that the writ petition is not the proper remedy. Though it is stated that similar request was not properly considered by the Commission, it is for the petitioners to persuade and convince the Commission and only on the basis of their recommendation, it would be possible for the Government to pass appropriate orders and not in any other manner.
10. Coming to the other contention namely direction of the Government to the District Collector, Tirunelveli Kattabomman District for cancellation of community certificates, certifying that petitioners belong to Most Backward Class, learned senior counsel for the petitioners has vehemently contended that the petitioners were not given notice or any opportunity to put-forth their case before such direction. No doubt, the direction by the respondent is only to the District Collector and before passing an order of cancellation cancelling the community certificates obtained by the petitioners, undoubtedly the petitioners are entitled to notice and opportunity to put-forth their case. Accordingly, though the Government have directed the Collector, Tirunelveli Kattabomman District to cancel the community certificates of the petitioners, it is clarified that the District Collector, Tirunelveli is to issue notice to the petitioners, afford reasonable opportunity to put-forth their case and thereafter pass appropriate orders in accordance with law.
11. In the light of what is stated above, the relief sought for in the form of Mandamus is dismissed with a liberty to the petitioners to make representation to the Backward Classes Commission to vindicate their grievance. In so far as the impugned letter of the Government dated 3-9-92, as observed earlier, it is clarified that the petitioners are entitled to notice and reasonable opportunity before cancellation of their community certificates at the hands of the District Collector, Tirunelveli Kattabomman District. Writ Petition is disposed of on the above terms.