R. Krishnaiah vs The State Of Telangana on 21 November, 2024

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Telangana High Court

R. Krishnaiah vs The State Of Telangana on 21 November, 2024

Bench: Surepalli Nanda

         HON'BLE MRS JUSTICE SUREPALLI NANDA


              WRIT PETITION No.30381 of 2024

ORDER:

Heard Sri B. S. Prasad, learned Senior Designated Counsel appearing on behalf of the petitioner, learned Government Pleader for GAD, appearing on behalf of respondent No.1, learned Government Pleader for MA&UD, appearing on behalf of respondent No.2, learned Government Pleader for Panchayat Raj, appearing on behalf of respondent No.3, and learned Government Pleader for BC Welfare, appearing on behalf of respondent Nos.4 and 5, Sri K. Ravinder Reddy, learned Standing Counsel for GHMC, appearing on behalf of respondent No.6 and Sri P. Sudheer Rao, learned Counsel appearing on behalf of respondent No.7.

2. The petitioner approached the Court seeking prayer as follows:

"...to issue Writ, order, or direction more particularly one in the nature of Mandamus declaring the action of the respondents in appointing the BC Commission 2 as Dedicated Commission vide G.O.Ms.No.199 dated 06.09.2024, General Administration (Cabinet) Department for conducting contemporaneous, rigorous empirical enquiry for the purpose of providing reservations for backward classes in all the local bodies in the State of Telangana as illegal, arbitrary, and violative of Articles 243-D (6) and 243- T (6) of the Constitution of India and contrary to the Constitution Bench judgment of the Hon'ble Supreme Court in the case of Dr.K.Krishna Murthy Vs Union of India (2010) 7 SCC 202 and Vikas Kishanrao Gawali (2021) 6 SCC 73 and consequently direct the respondents to take immediate steps in constituting a Dedicated Commission for conducting the contemporaneous, rigorous empirical enquiry for the purpose of providing reservations by the State for the other backward classes in the ensuing local body elections in the place of the BC Commission and pass such other order or orders as this Hon'ble Court deems fit in the circumstances of the case and in the interest of justice."

3. This Court vide its order dated 30.10.2024 in I.A.No.1 of 2024 in W.P.No.30381 of 2024 passed interim orders in favour of the petitioner observing as under:

"Heard Sri B.S. Prasad, learned Senior Designated Counsel, appearing on behalf of the petitioner, learned Advocate General Sri A.Sudharshan Reddy, appearing on behalf of respondent Nos. 1 to 5, Sri K. Ravinder Reddy, learned Standing Counsel for GHMC, appearing on behalf of respondent No.6 and Sri P. Sudheer Rao, learned counsel appearing on behalf of respondent No.7.

The I.A. No.1 of 2024 in W.P. No. 30381 of 2024 is filed seeking a direction as under:-

"....to forthwith constitute a Dedicated commission for conducting the rigorous empirical data for the purpose of providing reservations for the Other Backward Classes in the ensuing local body elections in the State of Telangana in place of B.C. Commission and pass such other order orders..."

The Division Bench of this Court by common order dated 10.09.2024 in W.P. Nos. 7991, 8073 of 2019 and 20505 of 2020 observed as under:

"ln compliance with the orders dated 06.08.2024 and 27.08.2024, the learned Advocate General, on instructions, submits that the instructions contained in paragraph 13 of the judgment of the Supreme Court in Vikas Kishanrao Gawali v. State 4 of Maharashtra (2021) 6 SCC 73) shall be implemented within a period of three (3) months.

In view of aforesaid submission, the respondents are directed to implement the directions contained in para 13 of the judgment of the Supreme Court in Vikas Kishanrao Gawali (supra) within a period of three (3) months from today and to submit a compliance report to this Court".

Para No.13 of the Judgment of the Apex Court in Vikas Kishanrao Gawali reported in 2021 (6) SCC Page 73 (supra) is extracted hereunder:

"13. Be that as it may, it is indisputable that the triple test/conditions required to be complied with by the State before reserving seats in the local bodies for OBCs has not been done so far. To wit, (1) to set up a dedicated Commission to conduct contemporaneous rigorous empirical inquiry into the nature and implications of the backwardness qua local bodies, within the State; (2) to specify the proportion of reservation required to be provisioned local body-wise in light of recommendations of the Commission, so as not to fall foul of over breadth; and (3) in any case such reservation shall not exceed aggregate of 50 per cent of the total seats reserved in favour of SCs/STs/OBCs taken together. In a given local body, the space for 5 providing such reservation in favour of OBCs may be available at the time of issuing election programme (notifications). However, that could be notified only upon fulfilling the aforementioned preconditions. Admittedly, the first step of establishing dedicated Commission to undertake rigorous empirical inquiry itself remains a mirage. To put it differently, it will not be open to respondents to justify the reservation for OBCs without fulfilling the triple test, referred to above.

Para No.60 of the judgment of Five-Judge Bench of the Hon'ble Apex Court in K. Krishna Murthy (Dr.) and Others Vs. Union of India and Another (2010) 7 SCC 202 is extracted hereunder:

"60. There is no doubt in our minds that excessive and disproportionate reservations provided by State legislations can indeed be the subject-matter of specific challenges before the Courts. However, the same does not justify the striking down of Art. 243- D(6) and 243-T(6) which are constitutional provisions that enable reservations in favour of backward classes in the first place. As far as the challenge against the various State legislations is concerned, we were not provided with adequate materials or argumentation that could help us to make a decision about the same. The 6 identification of backward classes for the purpose of reservations is an executive function and as per the mandate of Art. 340, dedicated commissions need to be appointed to conduct a rigorous empirical inquiry into the nature and implications of backwardness".

The learned senior designated counsel appearing on behalf of the petitioner contends that as per orders of the Apex Court in K. Krishna Murthy (Dr.) and Others reported in 2010 (7) SCC 202 and as per para No.13 of the judgment of the Apex Court in Vikas Kishanrao Gawali v. State of Maharashtra (2021) 6 SCC 73 and the Division Bench order of this Court, dated 10.09.2024 in W.P.Nos. 7991, 8073 of 2019 and 20505 of 2020 (referred to and extracted above), the respondents instead of setting up a dedicated Commission, issued G.O.Ms. No.47, dated 09.10.2024 and the same is illegal.

Sri A.Sudharshan Reddy, learned Advocate General appearing on behalf of the respondent Nos.1 to 5 on the other hand contends that the Government has issued G.O.Ms.47, dated 09.10.2024 incompliance with the directions of the Apex Court, dated 04.03.2024 passed in W.P.(Civil) No.980 of 7 2019 in Vikas Kishanrao Gawali v. State of Maharashtra and the petitioner had not challenged the said G.O.Ms.No.47, dated 09.10.2024 and the plea of the petitioner that the dedicated Commission has not been constituted as per the Apex Court judgment is incorrect.

PERUSED THE RECORD:-

DISCUSSION AND CONCLUSION:-

The relevant portion of the said G.O.Ms.No.47, dated 09.10.2024 in particular para Nos. 1 and 6 are extracted hereunder:-

1. In the G.O. 1st read above ( G.O.Ms.No.199, General Administration (Cabinet) Department, dt:06.09.2024) Government have constituted the Telangana State Commission for BCs with the following Chairman and Members:-

1 Sri Niranjan Chairman 2 Sri Rapolu Member Jayaprakash 3 Sri Tirumalgiri Member Surender 4 Smt.Balalakshmi Member 5 Commissioner, BC Member Welfare Secretary

6. Government, hereby order the following:-

1. The present Commission shall act as a dedicated Commission which will conduct contemporaneous, rigorous, empirical enquiry into the nature and implications of the backwardness qua local bodies, within the State in order to specify the proportion of reservation required to be provisioned local body-wise, in light of recommendations of the Commission, as contemplated under the Constitution of India and the law laid down by the Supreme Court in this regard.

This Court opines that the Hon'ble Apex Court in the judgment at para No.13 of Vikas Kishanrao Gawali v. State of Maharashtra (supra) enunciated the setting up of a dedicated Commission, the respondents herein instead of setting up a dedicated Commission vide G.O.Ms.No.47, dated 09.10.2024 (referred to and extracted above), ordered the Telangana State Commission for BC's constituted vide G.O.Ms.No.199, General Administration (Cabinet) Department, dated 06.09.2024 to act as a dedicated Commission to conduct contemporaneous, rigorous, empirical enquiry into the nature and implications of the backwardness qua local bodies, within the State in order to specify the proportion of reservation required to be provisioned local body-wise, in light of recommendations of the Commission, as 9 contemplated under the Constitution of India and the law laid down by the Supreme Court in this regard.

This Court opines that Telangana State Commission for BC's being ordered to act as a dedicated Commission vide GO.Ms.No.47, dated 09.10.2024 by virtue of the functions entrusted to it under Article 15 (4) and 16(4) of the constitution and the Backward Commission Act, 1993 cannot be considered as a dedicated Commission for the purpose of determination of political backwardness since admittedly as borne on record it is not an independent body nor it can discharge the role of a dedicated Commission since the determination of political backwardness is an independent and a distinct exercise, which in fact involves identification of backward classes for the purpose of reservations in local body elections.

This Court opines that the respondents are bound to constitute an independent dedicated Commission as per the mandate of Article 340 since it has been held by the Apex Court that the identification of Backward Classes for the purpose of reservation is an executive function.

Taking into consideration:

i) The aforesaid facts and circumstances of the case

ii) The submissions of the learned senior designate counsel Sri B.S.Prasad appearing on behalf of the petitioner and Sri A.Sudharshan Reddy, learned Advocate General appearing on behalf of the respondents.

iii) The judgments of the Apex Court (referred to and extracted above)

a) The judgment of Five-Judge Bench of the Hon'ble Apex Court in K. Krishna Murthy (Dr.) and Others Vs. Union of India and Another (2010) 7 SCC 202)

b) The judgment of the Supreme Court in Vikas Kishanrao Gawali v. State of Maharashtra (2021) 6 SCC 73).

iv) The Division Bench order of this Court dated

10.09.2024 in W.P. Nos. 7991, 8073 of 2019 and 20505 of 2020.

v) The G.O.Ms.No.47 dated 09.10.2024.

vi) The respondents are directed to consider the request of the petitioner to forthwith constitute a dedicated Commission to entrust the enumerated Triple Test task for orderly implementation of the constitutional mandate and also for the 11 implementation of the orders of the Apex Court in case of K. Krishna Murthy (Dr.) and Others Vs. Union of India and Another reported in (2010) 7 SCC 202 and Vikas Kishanrao Gawali v. State of Maharashtra reported in (2021) 6 SCC 73 for the purpose of providing reservations for the other Backward Classes in the ensuing local body elections in the State of Telangana in the place of the BC Commission, duly considering the true spirit of the orders of the Apex Court in the judgments (referred to and extracted above) and the orders of this Court, dated 10.09.2024 passed in W.P.Nos. 7991, 8073 of 2019 and 2055 of 2020 and the observations of this Court in the present order within one (01) week from the date of receipt of the copy of this order List on 21.11.2024 for the counter of the respondents."

4. It is represented by Sri B. S. Prasad, learned Senior Designated Counsel appearing on behalf of the petitioner that by virtue of interim orders dated 30.10.2024 passed in I.A.No.1 of 2024 in W.P.No.30381 of 2024 (referred to and extracted above), no further orders are necessary since the State Government had constituted a dedicated Commission to entrust the enumerated Triple Test task for orderly implementation of the constitutional mandate for the purpose 12 of providing reservation for the other Backward Classes in the ensuing local body elections in the State of Telangana in the place of B.C.Commission.

5. Bringing the said submission of the learned senior designated counsel appearing on behalf of the petitioner on record, the writ petition is closed.

However, there shall be no order as to costs.

Miscellaneous petitions, if any, pending shall stand closed.

__________________________ MRS JUSTICE SUREPALLI NANDA Date: 21.11.2024 Dsu

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