Kerala High Court: P. B. Suresh Kumar, J., held that the State Government has no power to specify any class of persons as socially and educationally backward for the purposes of the Constitution since only the President is entitled to specify the socially and educationally backward classes in relation to a State after due consultation with the Commission set up under Article 338-B of the Constitution.
Petitioner 1, a General Secretary of an organisation engaged in the upliftment of socially and educationally backward classes and petitioner 2, a person belonging to Ganaka community which is one of the communities specified by the State as a socially and educationally backward class had filed the instant petitioner together to assail the order dated 06-02-2021 issued by the State Government in terms of which Nadars in the State of Kerala belonging to Christian religious denominations other than SIUC (South Indian United Church) were included in the list of socially and educationally backward classes for the purpose of providing employment and educational benefits.
The case set out by the petitioners that in the light of the provision contained in Article 342-A introduced to the Constitution in terms of the 102nd Amendment with effect from 15-08-2018, the State Government is denuded of the power to specify any class of persons as socially and educationally backward for the purposes of the Constitution. According to them, in the light of the said constitutional amendment, it is for the President to make such specifications, and the impugned order was, therefore, unconstitutional, being violative of Article 342-A.
Relying on the decision of the Supreme Court in Jaishri Laxmanrao Patil v. Chief Minister, 2021 SCC Online SC 362, the petitioners contended that the Supreme Court had clarified that till the President specifies the socially and educationally backward classes in relation to the States in terms of the provision contained in Article 342-A, the lists of socially and educationally backward classes operating in the States would continue to hold the field.
In Jaishri Laxmanrao Patil v. The Chief Minister, 2021 SCC Online SC 362, the Supreme Court had held:
“670. In view of the categorical mandate of Article 342A – which has to be necessarily read along with Article 366(26C), on and from the date of coming into force of the 102nd Amendment Act, only the President, i.e. the Central Government has the power of ultimately identifying the classes and castes as SEBCs. This court is conscious that though the amendment came into force more than two years ago, as yet no list has been notified under Article 342A. It is also noteworthy that the NCBC Act has been repealed. In these circumstances, the Court holds that the President should after due consultation with the Commission set up under Article 338B expeditiously, publish a comprehensive list under 342A(1). This exercise should preferably be completed with utmost expedition given the public importance of the matter. Till such time, the SEBC lists prepared by the states would continue to hold the field. These directions are given under Article 142, having regard to the drastic consequences which would flow if it is held that all State lists would cease to operate. The consequences of Article 342A would then be so severe as to leave a vacuum with respect to SEBCs’ entitlement to claim benefits under Articles 15 and 16 of the Constitution.”
Further in Clauses 5(vi) and 5(vii) of the concluding paragraph of the majority judgment, the Supreme Court had stated,
“(vi)The Commission set up under Article 338B shall conclude its task expeditiously, and make its recommendations after considering which, the President shall expeditiously publish the notification containing the list of SEBCs in relation to states and union territories, for the purpose of the Constitution.
(vii) Till the publication of the notification mentioned in direction (vi), the existing lists operating in all states and union territories, and for the purposes of the Central Government and central institutions, continue to operate. This direction is issued under Article 142 of the Constitution of India.”
Hence, according to the above pronouncement, it is for the President to specify the socially and educationally backward classes in relation to a State after due consultation with the Commission set up under Article 338-B of the Constitution.
Noticing the fact that the impugned order was issued after the 102nd Amendment to the Constitution, the Bench held that the inclusion of Nadars in the State belonging to Christian religious denominations other than SIUC in the list of socially and educationally backward classes was otherwise than in accordance with Article 342-A of the Constitution. In such circumstances the Court was to determine whether the Supreme Court had saved the additions made to the lists of socially and educationally backward classes operating in the States after the 102nd amendment to the Constitution and before the judgment in Jaishri Laxmanrao Patil’s case till the President specifies the socially and educationally backward classes in relation to the States.
The Bench opined that it was evident from paragraph 670 of the judgment that the lists of socially and educationally backward classes operating in the States would continue to hold the field till the President publishes the comprehensive list. In other words, the direction had been issued by the Supreme Court with a view to ensure that Article 342-A does not leave a vacuum with respect to the entitlement of socially and educationally backward classes to claim benefits under Articles 15 and 16 of the Constitution till the President specifies the socially and educationally backward classes.
In the light of the above, the Bench was of the view that the Supreme Court’s decision in Jaishri Laxmanrao Patil’s case did not intended to save the additions made to the lists of socially and educationally backward classes operating in the States after the 102nd amendment of the Constitution till the President specifies the socially and educationally backward classes. Accordingly, the petition was allowed and the impugned order was stayed.[S.Kuttappan Chettiar v. State of Kerala, WP(C) No. 12575 of 2021, decided on 29-07-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
Appearance by:
Counsels for the Petitioners: T.R. Rajesh, P.V. Shaji, Augustus Binu and Abhijith K. Anirudhan
