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CASE NO.: Appeal (civil)  3361 of 2002

PETITIONER: President, SIUC

RESPONDENT: State of Kerala & Ors

DATE OF JUDGMENT: 28/03/2006

BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT: J U D G M E N T

[WITH CIVIL APPEAL NO.3362/2002  & WRIT PETITION (C) NO.322/2001]

S.B. Sinha, J  :

       Identical questions of fact and law being involved in these appeals and  the writ petition, they were taken up for hearing together and are being  disposed of by this common judgment. Hindu Nadars, represented by the  Hindu Nadar Corporation, a society registered under the Societies  Registration Act, 1860, are admittedly educationally and socially backward.   The question as regards the extent of reservation between Hindu Nadars and  those who were converted into Christianity (Christian Nadars \026 SIUC  Nadars) had been the subject matter of dispute for a long time. They have all  along been treated as belonging to separate and distinct class. According to  the Hindu Nadars they have all along been more socially and educationally  backward than the SIUC Nadars. Both the said categories of Nadars,  however, admittedly come within the purview of Other Backward Classes.   40% reservation was allowed to the Other Backward Classes by a  Notification dated 17.12.1958, by the State of Kerala, the division whereof is  as under:   

14 to Ezhavas & Thiyyas 10 to Muslims 5 to Latin Catholics, SIUC & Anglo Indians 1 to Backward Christians (Other Christians) 10 to Other Backward Classes ("remaining OBCs")         put together.

Hindu Nadars fell in the category of Other Backward Classes and thus  they were entitled to reservation from amongst the 10 seats reserved for the  remaining "Other Backward Classes" whereas the Christian Nadars fell in  the category of Southern India Undivided Church (’SIUC’). In the said  notification, backward communities in the State of Kerala were shown as  under: 1.Agasa 2.Ambalakaran 3.Anglo Indian ........... 15.Ezhava 16.Eshavath ............. 22.Hindu Nadar 49.Other Christians-Pulayas, Parayas, and other SC or BC  members converted to Christianity. .............

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59. SIUC                                 (Emphasis supplied)

However, in the year 1963, 5% reservation which was earlier  prescribed for the Latin Catholics SIUC and Anglo-Indians taken together  was broken up into: (i) 4% of Latin Catholics, (ii) 1% for SIUC and Anglo  Indians together, whereas Hindu Nadars continued to be a part of the  remaining Other Backward Classes (’OBC’) group. Pursuant to or in  furtherance of a Government order issued on 13th December, 1978, an  amendment was made in the Kerala State & Subordinate Services Rules,  1958, stating:

"Government, however, consider that some  changes to the existing percentage of  reservations are necessary in the light of the  data collected by them subsequent to the receipt  of the Nettur Commission’s Report, and are  pelased to issue the following orders: ......................................... Latin Catholics and Anglo Indians will form one  group and will have a reservation of 4 per cent.  Government consider that the Nadar  Community (both Nadars presently included in  SIUC and Hindu Nadars) deserve to be treated  separately in the matter of reservation and hence  they will be allowed a reservation of 1 per  cent.".......  

"(ii) For all direct recruitment other than to  Class IV posts - The percentage of reservation  will be 14 per cent Ezhavas (existing), 12  percent to Muslims (an increase of 2 percent is  fully justified in view of their inadequate  representation), 4 per cent of Latin Catholics  and Anglo Indians, 1 per cent of Nadars (Hindu  Nadars and Nadars presently included in SIUC),  1 per cent for Scheduled Caste converts to  Chistianity (existing), 3 per cent to the group  consisting of Asari, Kammala Viswakarma, etc.,  listed in the Annexure to this G.O., 1 per cent of  Dheevara and 4 per cent for Other Backward  Classes, Other than those specifically mentioned  above."

Yet again on 6.9.1967, a revised list of OBC was published wherein  Hindu Nadars were placed at Serial No.23 and SIUC, including Christian  Nadars, were placed at Serial No.64.

By a Government order dated 13.12.1978, both the Nadar  communities were directed to form  separate groups for the purpose of  reservation and were to be given 1% reservation together for all posts in the  following terms:       "..... Latin Catholics and Anglo Indians will  from one group and will have a reservation of  4 per cent. Government consider that the  Nadar Community (both Nadars presently  included in SIUC and Hindu Nadars) deserve  to be treated separately in the matter of  reservation and hence they will be allowed a  reservation of 1 per cent. The 22 communities  like Asari, Kammalas, Viswakarma, et., given  in the Annexure to this order will be grouped  together and they will be treated as one group,  and given separate reservation. Their

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reservation will be 2 per cent. The Dheevara  Community will have a separate reservation of  2 per cent. All other backward classes as  notified ..........

For all direct recruitment other than to Class  IV posts - The percentage of reservation will  be 14 per cent Ezhavas (existing), 12 percent  to Muslims (an increase of 2 percent is fully  justified in view of their inadequate  representation), 4 per cent of Latin Catholics  and Anglo Indians, 1 per cent of Nadars  (Hindu Nadars and Nadars presently included  in SIUC), 1 per cent for Scheduled Caste  converts to Chistianity (existing), 3 per cent to  the group consisting of Asari, Kammala  Viswakarma, etc., listed in the Annexure to  this G.O., 1 per cent of Dheevara and 4 per  cent for Other Backward Classes, Other than  those specifically mentioned above."

Pursuant to or in furtherance of the said Government order, Kerala  State & Subordinate Services Rules were also amended in the year 1979, in  terms whereof Rule 2, 3 & 17 stood amended and a Schedule was appended  to the Act, in the following terms :             

"2. Amendment of Schedule to Part I-- In the  Kerala State Subordinate Services Rules, 1958,  (hereinafter referred to as the said rules), on Part  I, in List III of the Schedule, under the sub- heading "1. Throughout the State"- ......................................... 3. after the item ’48, Muslim’, the following item  shall be inserted, namely:-  

"49. Nadars (Hindu Nadars and Nadars included  in SIUC)"  

(4) for item 64, the following item shall be  substituted, namely:-

"64. SIUC. (excluding Nadars specified in item  49)"

3. Amendment of rule 17,-- In part II of the said  rule 17, the following rule shall be substituted,  namely:-

"17(1) The grouping of Other Backward Classes  for the above purpose shall be as indicated  below:-

1. Ezhavas, Thiyyas and Billavas  2. Muslims  3. Latin Catholics and Anglo Indians

..................................................."

Serial No.64 which earlier read as only SIUC thereby including  Christian Nadars as well, were amended to read as SIUC (excluding the  Nadars specified in Item No.49).  

Thus, by  reason of the said notification the ’Nadars’ irrespective of  their religion were given 1% reservation under the Rules. By reason of a

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Notification dated 13.12.1982, however, the rules were further amended  modifying the extent of reservation given to Nadars as a group from 1% for  all posts to 3% for posts included in the Kerala Last Grade Service and 2%  for other posts.  

Aggrieved by and dissatisfied with the said notifications, the Hindu  Nadar Corporation filed a writ petition before the Kerala High Court.  The  High Court by reason of the impugned judgment dated 28.08.2000, allowed  the said writ petition stating:  

"In view of the above mentioned facts and  circumstances we find it difficult to sustain  Government order, Ext. R4(m) as well as Exts.  P.2 and P.3 notifications, diluting the  percentage of reservation for Hindu Nadars.   We make it clear that Hindu Nadars should  continue to be treated as a separate class for  the purpose of Article 16(4) of the  Constitution. So also, Nadars converted to  SIUC should form another category. Under  such circumstances, Hindu Nadars would  remain as a separate class by themselves in  item No.49 and Nadars converted to SIUC  would come within item No.64 of the Kerala  State and Subordinate Services Rules, 1958.  We make it clear that the above declaration  would operate only prospectively. All  appointments hitherto made on the basis of  impugned orders would not be disturbed.   However, for the purpose of future  appointments, Hindu Nadars will have to be  treated as a separate class.  It is so declared.  Order, Ext. R4(m), and Exts. P.2 and P.3  notifications to the extent indicated above  would stand quashed. Original petition is allowed as above."

       The President, SIUC as well as the State of Kerala, aggrieved by and  dissatisfied with the said judgment and order of the High Court, are  before  us.   

        Writ Petition (C) No.322 of 20011 has been filed by the President,  SIUC praying inter alia for the following reliefs:

"(i) To issue an appropriate writ or order  u/Art.32 of the Constitution of India  declaring that the reservation provided to  the petitioner community i.e. SIUC Nadars  by Rule 17 r.w. Sec.1 of Keala State and  Subordinate Rules, 1958, along with other  clalsses mentioned in Rule 17(1) would  govern the recruitment rules & conditions  of Service in Public Service governed by  Kerala Public Service Act, 1968.

(a) Notification S.R.O. No.497/74 dt.  4.6.1974-Annex-P6     

(b) Notification S.R.O. No.695/79 dt.  20.6.1979-Annex-P8     

(c) Notification S.R.O. No.1533/82 dt.  13.12.1982-Annex-P9              are in the absence of legislative approval

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referred to in Sec.2(2) of Kerala Public  Service Act, 1968, not competent to amend  either Sch.1 or the provisions in the said  Rules.

(ii) to quash the inclusion of Hindu Nadars  who belongs to Kshatriya Caste from the  list of Backward Classes in Sch.1 of the  KSSS Rules, 1958.

(iii) to  pass such other or further orders as it  deemed fit and proper."

The civil appeals and the writ petition came up for hearing before a  Bench presided over by Y.K. Sabharwal, J (as the learned Chief Justice then  was) and this Court by an order dated 24.2.2005 directed:

"After hearing the learned counsel for the  parties, it seems that there has been some  confusion in the proper understanding of the  directions issued by the High Court as to the  category in which the two groups, aforesaid  would fall. Tentatively, it is agreed subject to  the learned counsel taking specific instructions  from their respective clients, that the two groups  shall remain as a separate class. The matter as to  the extent of reservation would be  determined  by the Kerala State Commission for Backward  Classes (for short, ’the Commission’) under the  provisions of the Kerala State Commission for  Backward Classes Act, 1993 and orders passed  on receipt of the Report from the Commission  by the Sate Government.  In the interregnum,  the SIUC Nadars, as before, would continue to  have reservation of 1 per cent with Anglo- Indians and Hindu Nadars would continue to be  part of residuary category, afore-noted, and  would be part of Other Backward Classes  entitled to ten per cent reservation along with  other castes. It is further agreed, tentatively, that  if the parties finally agree on the aforesaid  issues, consequential directions may also be  made protecting the interest of those who may  have been appointed after the pronouncement of  the impugned judgment and order but, may be,  not  on the complete understanding of the  directions given by the High Court.  The  question of the extent of reservation would be  examined by the Commission  as also the  question whether the Hindu Nadars and SIUC  Nadars deserve to be clubbed with any other  class or not.  It is, however, agreed that the  Hindu Nadars and SIUC Nadars would remain  as separate class and both these groups would  not be clubbed together.  This aspect would not  be open to be examined by the Commission."

It is not in dispute that in the meantime, Kerala Public Service  Commission had made recommendations on 12.4.2005. Aggrieved by and  dissatisfied with those recommendations, an interlocutory application was  filed by the Hindu Nadar Corporation seeking stay thereof. The State of  Kerala also filed an application for extension of time granted by this Court  on 24.2.2005.  On 2.5.2005, this Court directed:

"We have further heard the learned counsel

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for the parties and are of the view that the  Kerala State Commission for Backward  Classes shall decide the issue between the  parties expeditiously and, in any case, not  later than the end of July, 2005. We direct  accordingly. All the parties including the  State Government, shall render full  cooperation to ensure that the matter is not  further delayed. In the meanwhile, the appointments made, if  any, would be subject to the further orders  that may be passed by this Court."     Indisputably pursuant to and in furtherance of the interim order of this  Court dated 24.2.2005, the Kerala Public Service Commission, not noticing  the relevant facts in that behalf, including the fact that the Government of  Kerala had implemented the impugned judgment of the High Court,  directed:

"In the light of the orders of the Supreme  Court following instructions are issued for  working out rotation.

(1)The candidates belonging to Hindu  Nadar community will be included in  OBC category and 1% more  reservation will be given to that  category.

(2) Nadars converted to SIUC and Anglo  Indian Community will be clubbed  together with 1% reservation detaching  Anglo Indian from Latin Catholic  Community.

The turn of reservation to both  communities will be follows: (a) For posts included in the LGS     (1) The turn 38 N will be allotted to  SIUC/AI. (2) The turn 60 N and 80 N will be  allotted to OBC.       (b) For posts other than those included             in LGS 1. The turn 38 N will be allotted to  SIUC/A1. 2. The turn 60 N will be allotted to  OBC.

It has been ordered that this allocation is  purely provisional, subject to final orders of  the Supreme Court.

The turn will be worked out as above, but the  advice shall not be released in respect of AI,  SIUC and Hindu Nadar. Such advices will be  released only after the issuance of necessary  Government order in this regard. The  procedure laid down will be subject to the  final orders of the Hon’ble Supreme Court.  This decision of the Commission shall take  with effect from 06.04.2005.  All  Sections/Officers are directed to follow the  aforesaid procedure.  Doubtful cases will be  brought to the notice of the Commission."

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The appellant SIUC, however, filed a writ petition before the Kerala  High Court for implementation of the said directions issued by the Kerala  Public Service Commission although it is now stated before us that the same  was wholly unnecessary. In the said writ petition the Kerala High Court on  13.10.2005 passed an interim order to the following effect:

"Heard both sides.         Ext.P7 order was issued by the Public Service  Commission taking note of Ext. P.6(a) order  passed by the Hon’ble Supreme Court on  24.2.2005. The grievance of the petitioners is  that Ext.P.4, which stands modified pursuant to  the orders issued by the Hon’ble Supreme Court  in Ext.P.6(a) and the subsequent order passed  by the  Public Service Commission, in  accordance with the directions issued by the  Hon’ble Supreme Court, is being enforced by  the respondents. It is submitted that Ext.P.7  shall remain in force unless and until otherwise  directed by the Apex Court in the Civil Appeals  referred to in Ext.P.6(b). I find, prima facie,  merit in the above submission. It is, therefore,  made clear that in the matter of advice of  candidates from the ranked lists, KPSC shall  follow the orders passed in Ext.P7. To that  extent, Ext.P4 shall stand stayed."

Aggrieved by and dissatisfied therewith, one Akhiledia Nadar  Association filed special leave petition before this Court, which was  numbered as SLP(C) No....CC 11611/2005, wherein the operation of the said  order was directed to be stayed.  In the meantime, however, the writ petition  filed before the Kerala High Court (being WP(C) No.28027/2005) was  withdrawn by the writ petitioner thereof on 10.3.2006.  

It is not in dispute that the Backward Classes Commission constituted  by the State of Kerala in the meantime have since made its  recommendations. In the said recommendations, indisputably it was opined  that the Hindu Nadar Community and the Christian Nadar Community  should be treated as separate and distinct classes. We are not concerned  herein with any recommendation which might have been made as regards  the percentage of reservation for Hindu Nadar Community and Christian  Nadar Community separately.

       It is stated at the Bar that objections to the said report have been filed  and a writ petition in this behalf is pending before the Kerala High Court. It  is furthermore not in dispute that the report of the Commission is pending  consideration before the Government of Kerala for a long time and no  decision thereon has been taken as yet.  

We have noticed hereinbefore that by an order dated 24.2.2005, the  Kerala State Commission for Backward Classes was to decide the issue  between the parties.   

We have heard the learned counsel for the parties at some length.

In these appeals and the writ petition, we are required to determine the  question as to whether inter alia the notifications issued by the State of  Kerala treating the Hindu Nadars and Christian Nadars as one group, were  valid in law. The High Court by reason of the impugned judgment held the  said notifications to be illegal having regard to the history of the said  communities as also the legislations and the Government orders operating in  the field.  The State of Kerala has already implemented the said judgment,  meaning thereby that the Nadars of both the religions have been directed to  be treated differently. Before this Court, although tentatively, the parties

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have also agreed that they may be treated as belonging to different classes,  but as the State has already implemented the judgment of the Kerala High  Court, it may be presumed by us that the State has no serious objection as  regards thereto.  The other appellants as also the writ petitioner before us,  represented by learned senior counsel Mr. K.K. Venugopal, accept the said  position and also unequivocally accept that Hindu Nadars and Christian  Nadars be treated as forming different classes. In this view of the matter,  challenge to the impugned judgment of  the High Court has taken a back- seat.

It has also not been disputed, as is stated hereinbefore, that the Kerala  Public Service Commission has also implemented the said interim orders  passed by this Court, subject to the final decision which may be taken in this  behalf.  Such a final decision again indisputably is required to be taken by  the State on the recommendations made by the State Commission for  Backward Classes constituted by it.  It will bear repetition to state that even  the Commission, in terms of its recommendations, now accepts that Hindu  Nadars and Christian Nadars ought to be treated as different classes. In this  view of the matter, we are of the opinion that there does not exist any  dispute amongst the parties as regards the correctness or otherwise of the  impugned judgment of the Kerala High Court.  

Subsequent events have taken place, namely, the Backward Classes  Commission has made recommendations. Pursuant to this Court’s order  dated 2.05.2005, it has also gone into the issue as to whether the Nadars  belonging to the Hindu community and the Christian community should be  treated separately or as a group.

The State may or may not accept the recommendations of the  Commission. It may accept the same in its entirety or in part.  It may also  accept the recommendations of the Commission with certain modification.  This Court at this juncture is not concerned therewith.  Although permission  has been granted by this Court to the parties to raise objections to the said  report, we are of the opinion that having regard to the limited scope of the  Civil Appeals and the Writ Petition, it would not be proper to widen their  scope.  If any such objection to the said report is to be considered  independently, this Court would be entering upon disputes which strictly do  not form part of the subject matter of these appeals or the writ petition.

We are, therefore, of the opinion that these appeals and the writ  petition have become infructuous. Keeping in view the fact that the writ  petition filed before the Kerala High Court has since been withdrawn, the  interim order passed by this Court on 2,1,2006 (by a Bench of Arun Kumar  and G.P. Mathur, JJ) has lost its force.  

The Public Service Commission, therefore, may now implement its  order dated 12.04.2005 albeit  provisionally till a decision is taken by the  State Government on the recommendations made by the Backward Class  Commission. Appointments made in respect of both ’Hindu Nadars’ and  ’SIUC Nadars’ pursuant to the order of the Public Service Commission  dated 12.04.2005 may now be given effect to.  It is, however, made clear  that if any party is aggrieved by any action which the State may take  pursuant to or in furtherance of the report of the Backward Class  Commission or otherwise, he may seek his remedies before an appropriate  forum.      

As we have noticed hereinbefore that a writ petition in this behalf is  pending in the High Court, the parties therein also  may  agitate their  grievance in the said pending writ petition also.

In the peculiar facts and circumstances of this case, however, we  would request the High Court to consider the desirability to dispose of the  pending writ petitions raising objections to the report of the Kerala  Backward Class Commission as expeditiously as possible and preferably  within a period of three months from the date of communication of this

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order.   

These appeals and the writ petition are disposed of with the  aforementioned directions.

In view of the directions made above, no orders need be passed on the  applications for impleadment/ intervention.