Civil Writ Jurisdiction Case No. 9215 of 2015. Case: Kishori Das and Ors. Vs The State of Bihar and Ors.. Patna High Court

Case Number:Civil Writ Jurisdiction Case No. 9215 of 2015
Party Name:Kishori Das and Ors. Vs The State of Bihar and Ors.
Counsel:For Appellant: Basant Kumar Choudhary, Senior Advocate and Arvind Kumar, Advocate and For Respondents: Anjani Kumar, A.A.G. and Ajit Kumar Jha, AC to AAG
Judges:Hemant Gupta, Actg. C.J. and Sudhir Singh, J.
Issue:Constitution of India
Judgement Date:February 04, 2017
Court:Patna High Court
 
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Judgment:

Hemant Gupta, Actg. C.J.

1. The challenge in the present petition is to the Notification dated 22nd April, 2015, published in the Extra-ordinary official Gazette by the State Government on 28th April, 2015 whereby the Teli (Hindu and Muslim) and Tamoli castes were deleted from Schedule-II of the category of Other Backward Classes (for short, 'OBC') and included in Schedule-I of the Extremely Backward Classes (for short,?EBC) of the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1991 (for short, 'the Act').

2. It is alleged that the State has acted unjustifiably by providing a favourable, easy and convenient competition to caste Teli to compete with EBC and unprivileged Section and thereby to keep the major share of jobs. It is alleged that caste Teli is a prosperous advanced backward caste, who is suitably placed with other equal castes like Yadav, Koeri, Vaishya and Kurmi and their inclusion in Schedule-I will result in competition amongst unequal resulting in gross injustice to the members of EBC. It is alleged that the report and recommendation submitted by the Bihar State Commission for Backward Classes (for short, 'the Commission') is hurriedly and perfunctorily drawn on the dictate of the State Government and, therefore, no order of deletion or inclusion of any caste in Schedule-I can be validly passed.

3. The grievance of the petitioner is that by shifting Teli and Tamoli castes in the Schedule-I, which is the list of EBC, from Schedule-II, which is the list of Backward Classes, will affect their chances of appointment.

4. The petitioner has made reference to report of Mungeri Lal Commission submitted on 16.02.1976 which recommended for bifurcation of other Backward Classes into two perceptible distinct groups known as 'Extremely Backward Classes and Other Backward Classes'. It appears that the said report was the basis of Schedule-I and Schedule-II of the Act.

5. It was in pursuance of a petition filed by the persons belonging to caste Teli for inclusion of caste Teli in Schedule-I after deletion from Schedule-II in the year 2009, the State Government directed the Commission to survey and investigate the matter and submit a report. The petitioners assert that the report was not made public; nor the petitioners have been able to get copy of the said report under the Right to Information Act, but later on 7th February, 2014, another petition was filed by the persons belonging to caste Teli. The State Government sought opinion of the Commission and on the basis of report dated 13th April, 2015 and recommendation dated 17th April, 2015, the caste Teli was ordered to be deleted from Schedule-II and added in Schedule-I.

6. The petitioners relied upon the Book "The Tribes and Castes of Bengal" published in 1881 by an eminent social scientist H.S. Risley wherein caste Teli was mentioned as a developed caste who have abandoned the traditional oil trade and have become bankers and money lenders. The Book has been attached with the petition as Annexure-8.

7. The petitioners assert that total population of the caste Teli is around fifty lakhs in the State and they are spread all over of Bihar in almost all Districts. The facts to be gathered for determination of extremely social and educational backwardness are population, condition of houses, proximity from road, availability of water to households; number of students in school, college and technical institutions; social status, number of rich people in the caste, but the Commission without examining the factors, by cryptic remarks and observations submitted a report. It is, thus, the petitioners have invoked the writ jurisdiction of this Court.

8. The Act was published in the Bihar Gazette on 7th January, 1992 replacing the ordinance issued for reservation of OBC and EBC. The relevant extract read as under:-

2(i) "Other Backward Classes", shall have reference to extremely Backward, Backward Class and Women of Backward Classes;

2(j) "Extremely Backward and Backward Classes" mean and include those classes which have been specified in Schedules I and II of the Act.

Explanation.- If any of the classes enumerated in Schedule I and Schedule II appended to the Act, is notified under any Presidential Order as Scheduled Caste or as Scheduled Tribe, such class shall be deemed to have been deleted from the said Schedules.

4(2) The vacancies from different categories of reserved candidates from amongst the 50% reserved categories shall, subject to other provisions of the Act, be as follows:-

Provided that the State Government may by notification in the Official Gazette, fix different percentage for different districts in accordance with the percentage of population of Scheduled Castes/Scheduled Tribes and other Backward Classes in such districts:

Provided further that case of promotion, reservation shall be made only for Scheduled Caste/Scheduled Tribes in the same proportion as provided in this section.

5. Review of Reservation Policy.-(1) It shall be the duty of the State Government to strive to achieve the representation of the Schedule Castes/Scheduled Tribes and other Backward Classes in the Various services or posts of all the establishments of the State as defined in clauses (c) and (d) of Section 2 in the proportion fixed for various reserved categories under Section 4.

(2) The State Government shall review its reservation policy after every ten years:

Provided that every order made under sub-section (2) shall be laid as soon as may be after it is made, before the State Legislature while it is in session for a total period of fourteen days which may be comprised in one or in two successive sessions."

9. In terms of Section 4(2), 16% of the posts are reserved for Scheduled Castes; 01% for Scheduled Tribes; 18% for EBC; 12% for Backward Classes and 3% for Woman of Backward Classes. Schedule I is in respect of EBC whereas Schedule II is in respect of OBC. The castes Teli and Tamoli were originally part of Schedule II, which is the list of Backward Classes, which carries reservation of 12%, whereas by the impugned Notification, such castes have been clubbed with EBC where there is 18% reservation.

10. The State also enacted The Bihar State Commission for Backward Classes Act, 1993 in pursuance of the direction of the Hon'ble Supreme Court in the case of Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217. The function of the Commission is to examine the request for inclusion of any class of citizens as a Backward Class in the lists and hear complaints of over inclusion or under inclusion. The advice of the Commission shall ordinarily be binding upon the State Government. The relevant Sections 9 and 11 read as under:-

Section 9 - Functions of the Commission:-(1) (a) The Commission shall examine request for inclusion of any class of citizens as a Backward Class in the list and hear complaints of over inclusion or under inclusion of any Backward Class in such lists and tender such advice to the State Government as it deems appropriate.

(2) The advice of the Commission shall ordinarily be binding upon the State Government.

Section 11 - Periodic revision of lists by the State Government:-

(1) The State Government, may, at any time and shall at the expiration of ten years from the coming into force of this Act and every succeeding period of ten years thereafter, undertake revision of the lists with a view to excluding from such lists those classes who have ceased to be...

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