State of Kerala and Kerala State Backward Classes Development (A) Department vs S. Kutappan Chettiar, Akshay S. Chandran & The Kerala State Commission for Backward Classes

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 25[TH] DAY OF AUGUST 2021 / 3RD BHADRA, 1943 WA NO. 1009 OF 2021** **AGAINST THE ORDER IN WP(C) 12575/2021 OF HIGH COURT OF** **KERALA, ERNAKULAM** ## **APPELLANTS/RESPONDENTS 1& 2 IN WP(C):** **1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, PERSONNEL AND ADMINISTRATIVE REFORMS (RULES) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2 THE PRINCIPAL SECRETARY TO GOVERNMENT KERALA STATE BACKWARD CLASSES DEVELOPMENT (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA -695 001.** **SRI.K.GOPALAKRISHNA KURUP, ADVOCATE GENERAL** **BY ADVS. SHRI.T.B.HOOD, SPL.GOVERNMENT PLEADER SRI.V.MANU, SENIOR GOVT. PLEADER** ## **RESPONDENTS/PETITIONER & 3RD RESPONDENT IN WP(C):** **1 S.KUTTAPPAN CHETTIAR S/O.LATE V.SUBRAMANIAN CHETTIAR, KRIPA, T.C.36/445, KOOTTAMVIL, VATTIYOORKAVU P.O., THIRUVANANTHAPURAM - 695 013.** _**W.A.1009/2021**_ 2 **2 AKSHAY S.CHANDRAN S/O.SUDHEESH CHANDRAN, CHETHIMATTATHIL, PEROOR P.O., KOTTAYAM - 686 637.** - **3 THE KERALA STATE COMMISSION FOR BACKWARD CLASSES REPRESENTED BY ITS REGISTRAR, AYYANKALI BHAVAN, KANAKANAGAR, VELLAYAMBALAM, KAWDIAR P.O., THIRUVANANTHAPURAM - 695 003.** **BY ADV T.R.RAJESH** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _**W.A.1009/2021**_ 3 ## J U D G M E N T Dated this the 25[th] day of August, 2021 ## S. Manikumar, CJ. Being aggrieved by the interim order dated 29.7.2021 passed by the writ court, granting interim stay of Exhibit P9 order, instant writ appeal is filed. Exhibit P9 order reads thus: “Government of Kerala ## Abstract Backward Classes Development Department order issued by the State Government including the Christian Nadar (expect SIUC) Community in the OBC List ============================================= BACKWARD CLASSES DEVELOPMENT(A) DEPARTMENT G.0.(MS) No. 2/2021/BCDD dated 6.2.2021, Thiruvananthapuram ============================================= Reference: Report dated 28.01.2021of the Kerala State Commission for Backward Classes. ## ORDER As of now, only Hindu Nadars and SIUC Nadar categories in Nadar Community are provided with reservation benefits for education and employment purposes. Government has received representation seeking inclusion of "all Nadar Christians other than those under SIUC" in the list of Other Backward Classes in the State. 2) As per reference cited, the Kerala State Commission for Backward Classes had submitted report regarding the matter, after detailed study, to the Government. In the State _**W.A.1009/2021**_ 4 OBC List, Hindu Nadar Community has been included as item 49 and SIUC Nadar as Item No. 49A. In the Central OBC list, Nadar (Hindu Nadar, SlCU Nadar and Nadar belonging to Christian religious denominations other than SIUC) have been included as item No. 42. However, Nadars belonging to Christian religious denominations have not been included in the State OBC List. 3) In the circumstances, the Commission has recommended the inclusion of Nadars belonging to Christian religious denominations other than SIUC as item No. 49C in List lll of schedule to Part I of the Kerala State and Subordinate Service Rules. 4) The Government have examined the matter in detail, accepts the Recommendation of the Kerala State Commission for Backward Classes and hereby orders to include Nadars belonging to Christian religious denominations other than SIUC in the State OBC List as item No. 49C in List lll of schedule to Part I of the Kerala State and Subordinate service Rules for the purpose of providing reservation. A separate notification will be issued in this regard. (By order of the Governor) Puneet Kumar Principal Secretary” ## 2. On 10.8.2021, after hearing the learned Advocate General, Government of Kerala, we passed the following order : “Though the impugned order in W.P.(C) No.12575 of 2021 dated 29[th] July, 2021 is challenged on various grounds, Mr.K.Gopalakrishna Kurup learned Advocate General, submitted that the Central Government is proposing an amendment to the 102[nd] Amendment, in the Parliament. _**W.A.1009/2021**_ 5 2. Mr.K.Gopalakrishna Kurup, learned Advocate General, placed reliance to paragraph No. 670 of the judgment in Jaishri Laxmanrao Patil v. The Chief Minister , reported in 2021 SCC Online SC 362, known as Marathas Reservation case to justify Exhibit P9 – G.O.(MS) No.2/2021/BCDD dated 6.2.2021, whereas Mr.T.R.Rajesh, learned counsel for writ petitioner, submitted that after the issuance of the aforesaid Government Order, there is no consequential amendment in the Kerala State and Subordinate Service Rules, 1958 for including Christian Nadar (except SIUC) community in the OBC list. 3. It is the further contention that in Jaishri Laxmanrao Patil, the Hon'ble Supreme Court referred only to the list of socially and educationally backward classes operating in the States to continue to hold the field and that Christian Nadar (except SIUC community) was not in the existing list, but then included in the OBC list as per Exhibit P9. According to him, the judgment in Jaishri Laxmanrao Patil case would only protect the existing list and doesn't permit inclusions of any community in the OBC list. 4. However, Mr.K.Gopalakrishna Kurup, learned Advocate General, submitted that this Court in Hindu Seva Kendram, represented by its Treasurer, Sreekumar Mankuzhy v. Union of India, represented by its Secretary to Government, Human Resource Development and Others, reported in 2021 SCC Online Ker 2950, has considered the inclusion of certain communities in OBC list. 5. The issue to be decided by this Court is, what is the _**W.A.1009/2021**_ 6 list, which is referred to in Marathas Reservation Case and Communities, to be protected till a revised list is specifically made by the President of India. The 102nd amendment to the Constitution was made with effect from 15th August, 2018. Admittedly, vide Government Order dated 6.2.2021, Christian Nadar (except SIUC) community has been included in the OBC list, after the 102nd amendment to the Constitution and in the abovesaid circumstances, the writ court has prima facie found that the State is not empowered to add a community to the list, which is already in existence as on the date of the amendment to the Constitution. The issues raised in the writ petition requires to be adjudicated. That apart, it appears that steps are also taken to make an amendment to the 102nd amendment of the Constitution. Having regard to the above, we direct the Registry to post the instant writ appeal for hearing on 25th August, 2021.” 3. On this day, when the matter came up for further hearing, inviting attention of this Court to the Constitution (One Hundred and Fifth Amendment) Act, 2021 dated 18.8.2021, Mr. K. Gopalakrishna Kurup, learned Advocate General submitted that amendments have been made to Articles 338B, 342 A and 366 of the Constitution, which reads thus: “2. In article 338B of the Constitution, in clause (9), the following proviso shall be inserted, namely:- “Provided that nothing in this clause shall apply for the purposes of clause (3) of article 342A.” 3. In article 342A of the Constitution,- _**W.A.1009/2021**_ 7 (a) in clause (1), for the words “the socially and educationally backward classes which shall for the purposes of this Constitution”, the words “the socially and educationally backward classes in the Central List which shall for the purposes of the Central Government” shall be substituted; (b) after clause (2), the following shall be inserted, namely:- ‘Explanation.- For the purposes of clauses (1) and (2), the expression “Central List” means the list of socially and educationally backward classes prepared and maintained by and for the Central Government. (3) Notwithstanding anything contained in clauses (1) and (2), every State or Union territory may, by law, prepare and maintain, for its own purposes, a list of socially and educationally backward classes, entries in which may be different from the Central List’. 4. In article 366 of the Constitution, for clause (26C), the following clause shall be substituted, namely:- ‘(26C) “socially and educationally backward classes” means such backward classes as are so deemed under article 342A for the purposes of the Central Government or the State or Union territory, as the case may be.’” 4. Inviting attention of this Court to the statement of objects and reasons, dated 4[th] August 2021, in particular to paragraph 4, learned Advocate General, Government of Kerala submitted that object of the amendment is to clarify that the State Government and the Union territories are empowered to prepare and maintain their own State/Union Territory List of SEBCs. For brevity, Statement of objects _**W.A.1009/2021**_ 8 ## and reasons are extracted: ## “STATEMENT OF OBJECTS AND REASONS The Constitution (One Hundred and Second Amendment) Act, 2018 has inserted three new articles, that is, 342A, 366(26C) and 338B in the Constitution. Whereas article 338B has constituted the National Commission for Backward Classes, article 342A has dealt with the Central List of the socially and educationally backward classes (commonly known as the Other Backward Classes) and article 366 (26C) has defined the socially and educationally backward classes. 2. The legislative intent at the time of passing of the Constitution (One Hundred and Second Amendment) Act, 2018 was that it deals with the Central List of the socially and educationally backward classes (SEBCs). It recognises the fact that even prior to the declaration of the Central List of SEBCs in 1993, many Sates/ Union territories are having their own State List/Union territory List of OBCs. The same was clarified in Parliament that the States and Union territories may continue to have their separate State List/Union territory List of SEBCs. The castes or communities included in such State List or Union List of Backward Classes may differ from the castes or communities included in the Central List of SEBCs. empowered to prepare and maintain their own State List/ Union territory List of SEBCs and With a view to maintain the federal structure of this country, there is a need to nend tion3. Although since 1993, there always existed separate lists of the Central Government and that of the State Governments and Union territories, a question has arisen after enactment of the Constitution (One Hundred and _**W.A.1009/2021**_ 9 Second Amendment) Act, 2018 as to whether the said amendments to the Constitution mandated for a single Central List of SEBCs specifying the SEBCs for each State, thereby taking away the powers of the State to prepare and maintain a separate State List of SEBCs. 4. In order to adequately clarify that the State Government and Union territories are empowered to prepare and maintain their own State List/ Union territory List of SEBCs and with a view to maintain the federal structure of this country, there is a need to amend article 342A and make consequential amendments in articles 338B and 366 of the Constitution. 5. The Bill seeks to achieve the above objectives.” 5. However, we find as per Section 1(2) of the amended Act, 2021 so far, the Central Government have not issued any notification in the official Gazette, as to when the above said Act would come into force. 6. Notwithstanding the above, Mr. T.R. Rajesh, learned counsel for the writ petitioner submitted that the amended Act would not in any way assist the case of the State in issuing Exhibit P9 Government Order, including certain communities in the State OBC list. 7. So far, the Central Government have not issued any notification. The question as to whether the amended Act would help the Government in sustaining Exhibit P9, is a matter to be considered by the writ court. As of now, the judgment in Jaishri Laxmanrao Patil v. _**W.A.1009/2021**_ 10 The Chief Minister , reported in 2021 SCC Online SC 362, known as Marathas Reservation case holds the field. 8. In the light of the above, we are not inclined to interfere with the impugned order. Writ appeal is dismissed. However, it is open to the State of Kerala to bring it to the notice of the writ court any subsequent development such as issuance of notification by the Central Government and place all relevant materials. Though Mr. K. Gopalakrishna Kurup, learned Advocate General requested this Court for early hearing of the writ petition, we only permit State of Kerala to file necessary application before the writ court for consideration. Sd/S. Manikumar, Chief Justice Sd/Shaji P. Chaly, Judge sou.