Jagdish Negi, President, Utiarakhand Jan Morcha and Anr. v. State of U.P. and Anr.

Shri Satish Chandra. B Contention No. 1 As we have noticed earlier during the pendency of this writ petition it has transpired that the first respondent has not only continued the c statutory scheme of reservation of 27 per cent for educationally and socially backward class of citizens of U .P. as per the Reservation Act, but Govern· ment Orders have also been issued from time to time from 1995 to 1997 clearly indicating that residents of U ttarakhand region are being treated as socially and educationally backward class of citizen presumably in the light of two decisions of this Court to which we will make a reference shortly. D Secretary, Government of U.P., Ramesh Yadav, by communication dated • 6th November, 1995 addressed to Vice Chancellor, G.B. Pant Agricultural & Technological University, Pant Nagar, has observed that 'the Hon'ble High Court on the basis of State of U.P. v. Pradip Tandon, AIR (1975) SC 563 has held that the residents of Uttarakhand be treated as socially and E educationally backward classes of citizens and in the background of the abovementioned judgments of the Hon'ble Supreme Court and High Court the Government of U .P. after proper and due consideration, has decided that all residents of U ttarakhand exciuding scheduled caste and scheduled tribe who are already covered by reserve quota; will be added to the list of other backward classes for the purpose of reservation. Accordingly in F view of the all India status of your university you are directed to admit ail non-scheduled caste and non-schedule tribe candidates of Uttarakhand, within the quota fixed for backward classes on merit, alongwith the can- didates of other dis~ricts which will not exceed 27 per cent'. As the aforesaid policy decision of the first respondent-State com- G municated to the Vice Chancellor was based on the decision of this Court rendered almost two decades back in State of U.P. v. Prridip Tandon & Ors. (supra) it will be profitable at this stage to refer to that decision. In the said case a Bench of three learned Judges of this Court had to consider whether the scheme of reservation of seats in medical colleges in favour of H A hill and Uttarakhand areas of State of U.P. was sustainable as per Article 15(1)(4) and Article 29(2) of the Constitution of India. Upholding the said scheme on 19th November 1974 this Court speaking through Chief Justice Ray observed as under : · "The hill and Uttarakhand areas in Uttar Pradesh are instance of socially and educationally backward classes of citizens for these reasons. Backwardness is judged by economic basis that each region has its own measurable possibilities for the maintenance of human numbers, standards of living and fixed property. From an economic point of view the classes of citizens are backward when they do not make effective use of resources. When large areas of land maintain a sparse, disorderly and illiterate population whose property is small and negligible the element of special backward­ ness is observed. When effective territorial specialisation is not possible in the absence of means of communication and technical processes as in the hill and Uttarakhand areas the people (residing there sic) are socially backward classes of citizens. Neglected opportunities and people in remote places raise walls of social backwardness of people. Educational backwardness is ascertained with reference to these factors. Where people have traditional apathy for education on account of social and environmental conditions or occupational handicaps, it is an illustration of educational backwardness. The hill and Uttrakhand areas are inaccessible. There is lack of educa­ tional institutions and educational aids. People in the hill and Uttarakhand areas illustrate the educationally backward classes of citizens because lack of educational facilities keep them stagnant and they have neither meaning and values nor awareness for education." It is, therefore, obvious that residents of hills and Uttarakhand areas were treated as socially and educationally backward classes of citizens G entitled to benefit under Articles 15(1), 15(4) and 29(2) of the Constitu­ tion in the year 1974 when this Court decided that case. But simply on this basis it cannot be urged that this class of citizens could be condemned as socially and educationally backward class of citizens till eternity, however, much they may like to be stigmatized as educationally and socially back- H ward class of citizens. This class is always required to be judged in the light JAG DISH NEG!, PRES!DENf, UTIARAKHAND JANMORCHA v. STAIB [ S.B. MAJMUDAR, J. I 487 of the existing-fact situation at a given point of time. There cannot be a A class of citizens which can be treated perpetually to be a socially and educationally backward class of citizens Every citizen has right to develop socially and educationally. We must, therefore, hold that the aforesaid decision of this Court ruled that residents of Uttarakhand and hill areas .of State of U.P. in 1974, when the matter was decided, formed a socially and B educationally backward class of citizens. Consequently, they would be automatically entitled at that point of time to any existing scheme of reservation promulgated by the State for socially and educationally back­ ward classes of its citizens. Mr. Rohtagi, learned senior counsel for respon­ dent No. 1, was right when he contended that such backwardness cannot continue indefinitely and the State is entitled to review the situation from C time to time. ,• However, this does not advance the case of first respondent- State on the facts established on record. We have noted earlier that as late as in 1995 the first respondent-State took a policy decision in its wisdom, even D after the expiry of two decades since the decision of this Court in Pradip · Ta11do11'.i case (supra) was rendered, that the residents of Uttarakhand and hill region were still required to be treated as socially and educationally backward class of citizens as clearly reflected by the letter of Shri Ramesh Yadav, Secretary, Government of U.P. Even thereafter till 1997 that is current year the fust respondent has treated the residents of Uttarakhand E and hill region as socially and educationally backward classes of citizens. The said decision of the first respondent-State is reflected by the com­ munication dated 27th February, 1996 addressed by Secretary to the Direc- tor General, Medical Education and Training, U.P. Lucknow. The said communication relied upon the judgment of this Court rendered in the case F of A11il Kumar Gupta v. Government of U.P. (supra). As we will see hereinafter, in the said decision this Court endorsed the earlier view of this Court in Pradip Ta11do11's case (supra) that Uttarakhand residents were socially and educationally backward class of citizens. The relevant recitals in the said communication read as under : "2. I am also directed to state that Hon'ble Supreme Court in their observation made in writ No. Civil 276/1995 (copy attached), Civil No. 326/95 Anil Kumar Gupta etc. v. Govemment of U.P. etc., has directed that the Horizontal Reservation be compartmentalised i.e. number of reserved seats for the Test for each reserved category H 488 SUPREME COURT REPORTS (1997) SUPP. 3 S.C.R. of SC/ST/BC General be mentioned in the Brochure. 3. The Government has also decided that for the Horizontal Reservation of each category, the nupiber of seats be compartmen­ talised as under : Scheduled Caste - 21 percent Scheduled Tribe - 02 percent Other Backward Classes - 27 Percent General Category - 50 percent. The total seats be divided and mentioned as above for CPMT 1996 Brochure for the necessary action." The very same Secretary to Government of U.P. has reiterated the D same policy being continued for the year 1997 as per the communication dated 8.1.97 addressed to Director General of Medical Education and Training, U.P. Lucknow. The pertinent recitals read as under : "In continuation to G.O. No. 5198 Sec. 14-/Five- 96-26/96 dated 19.12.96, I am directed to state that order was issued regarding providing reservation to various categories for C.P.M.T. 1996 vide G.O. No. 1067/Sec.-14/Five-96-111/93 T.C. dated 27.2.96. The Govt. has after due consideration, decided to enforce the above provision in CPMT 1997 also." F It becomes obvious that the aforesaid recitals found in the letters dated 27.2.96 and 8.1.97 clearly indicate that the first respondent-State relying on the decision of this Court in A.K. Gupta's case (supra) has continued reservation of 27 per cent for Other Backward Classes including residents of hill and Uttarakhand areas, for the years 1996 and 1997 so far G as admissions to medical courses were concerned. It is useful at this stage to refer to the decision of this Court in Anil Kumar Gupta's case (supra). In the said decision a Bench of two learned Judges of this Court speaking through B.P. Jeevan Reddy, J., relying upon the decision of this Court in State of U.P. v. Pradip Tandon (supra) as well H as Constitution Bench decision in Indra Sawhney and Others (supra) reaf- JAGDISH NEG!, PRESIDENT, lJITARAKHANDJANMORCHA '·STATE[ S.B. MAJMUDAR, J.) 489 firmed the position in para 9 of the report to the effect that residents of A hill areas aud Uttranchal in State of U.P. were covered by the scheme of reservation as per Article 15( 4) of Constitution of India, that is, they were entitled to the reservation as socially and educationally backward classes of citizens. But this reservation available to them would be under the quota of 27 per cent reservation for socially and educationally backward classes B of citizens and they could not get additional benefit of reservation under Article 15(1) as wrongly assumed by the State in their favour. A conjoint reading of the decision in A.K Gupta (supra) and the letters dated 27 .2.96 and 8.1.97 of Secretary as noted earlier leaves no room for doubt that according to the first respondent-State the residents of hill C areas arid Uttarakhand in State of U.P. were entitled to be treated as socially and educationally backward class of citizens and were accordingly entitled to be considered for reservation of seats in medical colleges against 27 per cent reservation quota available to that class of citizens. Once that conclusion is reached the first contention of learned senior counsel for the D petitioners loses much of its efficacy as till the current year, according to the first respondent-state, residents of Uttarakhand region and hill areas are being treated as socially and educationally backward classes of citizens who would obviously be entitled to be considered along with other citizens falling in this class towards grant of 27 per cent reservation in medical E colleges. It is, however not possible to agree with the contention of learned senior counsel for the petitioners that such reservation should continue without any limitation or there cannot be periodical review about the said reservation policy. It is true as per the statutory scheme of reservation as envisaged by the Reservation Act, 27 per cent reservation for educationally and socially backward classes of citizens in the State of U.P. in all Government services and educational institutions has to be continued so long as this statutory scheme of reservation continues in the State. But that does not solve the problem for the petitioners for ail times to come. It is G true that from 1974 onward till today residents of Uttarakhand hills region are being treated by the State of U.P. as socially and educationally backward class of citizens for the purpose of being considered eligt'ble for consideration towards 27 per cent reservation. But only on that score, it cannot be predicated that in future they may not cease to be socially and H A educationally backward. Once at any further point of time they cease to be so they will obviously go out of the umbrella of 27% reservation available to the remaining socially and educationally backward classes of citizens in the State of U.P. Therefore, even though the statutory scheme for 27% reservation envisaged by the Reservation Act may continue to cover B socially and educationally backward category of citizens in State of U .P ., Uttarakhand residents may cease to be treated as socially and educationally backward classes of citizens in future, if relevant data is available in that connection by that time. We, therefore, cannot bind down the first respondent-State to treat Uttarakhand residents as socially and C educationally backward classes of citizens for all times to come. Even learned senior counsel Shri Satish Chanqra also agreed that such a situation cannot be countenanced. But in his submission once the statutory scheme of 27 per cent reservation for socially and educationally backward classes of citizens continues, Uttarakhand residents must be made available D the umbrella of that reservation which sh01,ild run parallel to and be coterminous with the reservation scheme available under the Reservation Act to the extent of 27 per cent reservation for socially and educationally backward classes of citizens. It is not possible to agree with this contention. Reason is obvious. The statutory scheme of reservation of 27 per cent for socially and educationally backward classes of citizens may continue E indefinitely till the Reservation Act continues to operate. Still a given category of citizens which may form a part and parcel of that class of citizens, namely, socially and educationally backward classes of citizens as on date may in future cease to belong to that class. Consequently the question whether a given category of citizens continues to be socially and F educationally backward class of citizens at a given point of time or not has to be left to the State concerned for its objective decision from time to time. The State cannot be bound in perpetuity to treat such classes of citizens for all times as socially and educationally backward classes of citizens. The principle of 'once a mortgage always a mortgage' cannot be G pressed in service for submitting that once a backward class of citizens, always such a backward class. In other words it is open to the State to review the situation from time to time and to decide whether a given class of citizens that has earned the benefit of 27 per cent reservation as socially · and educationally backward class of citizens has continued to form as part H of that category or has ceased to fall in that category. Thereby it cannot be JAGD!SH NEG!, PRESIDENT, UTIARAKHANDJANMORCHA '·STAIB ( S.B. MAJMUDAR, J.) 491 said that the first respondent is adopting a policy which is contrary to the A constitutional scheme of reservation. Within four corners of Article 15( 4) or 16( 4) such an exercise cannot said to be unauthorised. Such an exercise has been upheld by the Constitution Bench of this Court in Indra Sawhney and Others v. Union of India and Others (supra). In the said decision at page 559 in concurring judgment Sawant, J. in para 531 observed as under: B "The validity of the percentage of reservation for backward classes would depend upon the size of the backward classes in question. So long as it is not so excessive as to virtually obliterate the claims of others under Clau&e 16(1), it is not open to challenge. However, it is not necessary, and Article '16( 4) does not suggest, that the C percentage of reservation should be in proportion to the percent- age of the population of the backward classes to the total popula­ tion. The only guideline laid down by Article 16(4), as pointed out elsewhere, is the adequacy of representation in the services. Within the said limits, it is in the discretion of the State to keep the D reservations at reasonable level by taking into consideration all legitimate claims and the relevant factors. In this connection, the law laid down directly on the subject in the following decisions is worth recounting." At para 814 at page 736-737 in the main majority decisicn B.P. Jeevan Reddy, J., indicated the legal position as under : " .... It must be remembered that the equality of opportunity guaran­ teed by clause (1) is to each individual citizen of the country while F clause ( 4) contemplates special provisions being made in favour of socially disadvantaged classes. Both must be balanced against each other. Neither should be allowed to eclipse the other. For the above reason, we hold that for the purpose of applying the rule of 50% a year should be taken as the unit and not the entire strength G of the cadre, service or the unit, as the case may be." The first respondent is, therefore, bound to act and is entitled to act as per the modalities for the scheme of reservation as envisaged by the Constitu- tion Bench judgment of this Court. The first contention of learned senior counsel for the petitioners, therefore, has to be decided by holding that the H 492 SUPREME COURT REPORTS (1997) SUPP. 3 S.C.R. A first respondent is bound to treat the residents of U ttarakhand and hill areas as socially and educationally backward class of citizens all throughout from 1974 till date, in the light of its own policy decision reflected by the above referred communications issued by the Secretary of the U .P. State from time to time. However it is open to the first respondent to review the B situation from time to time and to take its own policy decision in the light of relevant material available to it in future as to whether residents of Uttarakhand and hill region have continued to remain socially and educa­ tionally backward class of citizens for earning the statutory benefit of 27% reservation envisaged by the Reservation Act or have ceased to belong to that reserved category of citizens. Such an exercise is perfectly legitimate C and permissible to the first respt!ltdent and hence it is not possible to agree with the learned senior counsel for the petitioners that reservation for citizens of hill regions must be made available to them without any limita­ tion of time so long as Reservation Act remains on the Statute Book. The first contention is decided accordingly. D Contention No. 2 So far as this contention is concerned, learned senior counsel for the petitioners was right when he submitted that when the first respondent itself decided that for the year 1997 the residents of hills and Uttarakhand E areas were to be considered as socially and educationally backward class of citizens and, therefore, they were to be considered towards 27 per cent reservation available to such class of citizens, while considering their claim for admissions to medical colleges in the State, it is difficult to appreciate how for the very same class of citizens this benefit of reservation was no\ F made available when students coming from that regions were to be con­ sidered for admission to agricultural colleges. Learned senior counsel for the State could not successfully controvert this contention. It is obvious that when the State itself in its wisdom has considered residents of the aforesaid areas as socially and educationally backward for being included for con­ sideration towards 27 per cent reservation available to that class for admis- G sion in medical college, afortiori they have to be considered eligible for being included in this said quota of reservation of 27 per cent, while . considering their claims for admission to agricultural colleges. The stand of the respondent- State that it is still considermg their claims for such reservation to agricultural college for the year 1997, to say the least, is H totally inconsistent and nothing short of being treated as arbitrary and JAGDISH NEG!, PRESIDENT, UTIARAKHANDJANMORCHA '·STATE [ S.8. MAJMUDAR,J.J 493 illegal. However, this conclusion of ours cannot give any substantial benefit A to the petitioners as the admissions to agricultural colleges for current year are already finalised. All that we can direct is to the effect that if in future for the year 1998 onwards, State takes a decision that residents of Uttarak­ hand and hill regions of the State are to be still considered as socially and educationally backward class of citizens for these relevant years, then for B the. academic year concerned the State must take a prompt decision in this connection at least three months prior to starting of academic terms for medical and other educational courses including agricultural education to be imparted in the Government institutions in the State and such decision should be properly published in newspapers having wide circulation in the C concerned regions of the State so that residents staying in those regions can know well in advance about the approved policy of the State in this connection. It is obvious that such a decision has also to be properly and promptly conveyed to all authorities, concerned with the imparting of education in different colleges situated in the State and who are required to follow the Policy of reservation as envisaged by the State. Such a decision D to be taken by the State in fu~ure years should be uniformly applied to all types of academic education courses not merely confined to medical cour- ses conducted at Government colleges and other institutions covered by the reservation scheme for admissions. Under these circumstances no useful purpose can now be served in voiding the decision reflected in the E letter dated 24th July, 1997 of Shri Jagan Nath Tewari, Under Secretary, Government of U.P. addressed to Shri R.B. Mishra, Advocate-on-Record, Supreme Court of India, to the effect that the matter is still under consideration and no final decision has yet been taken in connection with reservation facilities to be provided to residents of Uttarakhand in various F educational courses of Pant Nagar Agriculture University to be extended for the year 1996-1997. We, however, hold that the aforesaid stand taken in this letter was clearly unjustified once the State decided to treat residents of Uttarakhand and hill"region as socially and educationally backward class of citizens for getting the benefit of being included in quota of 27 per cent reservation in medical colleges for the year 1997. The second contention, G therefore, is found to be well sustained, though it cannot result in further directions to the State for the current year 1996-97. It stands accepted to the limited extend, by directing the first respondent-State to regulate its future course of action for years 1997-98 onwards as indicated hereinabove. H A Before parting with the discussion on this contention we may refer to decisions of this Court to which our attention was invited by the learned senior counsel for the petitioners. D.S. Nakara & Others v. Union of India, [1983] 2 SCR 165; Superintending Engineer, Public Health, U. T. Chandigarh & Ors. v. Ku/deep Singh & Ors., JT (1997) 2 SC 509 and Panchayat V12J8a B Sharmajivi Samudaik Sahakari Khedut Coop. Society and Others v. Haribhai Mevabhai and Others, [1996] 10 SCC 320 were pressed in service by Shri Satish Chandra, learned senior counsel, for submitting that grant of reservation under Article 15( 4) and 16( 4) was a constitutional obligation of the State and it was a power coupled with duty. Reference made by him C to these judgment is not strictly relevant in the present context as the first respondent-State itself has already discharged its constitutional obligation by enacting the Reservation Act and by promulgating the policy of reservation for socially and educationally backward citizens of Uttarakhand by affording them the right of inclusion towards 27 per cent reservation quota upto 1997. Consequently, it is not necessary for us to examine the D wider question as to whether the State will be bound to follow any policy of reservation if it finds that it is not necessary to follow the' same in a given set of circumstances and whether such a policy cannot be enforced against the State by a court or law. E Contention No. 3 So far as this contention is concerned learned senior counsel for the first respondent-State made it clear to us that the State of U.P. has sonsidered the claim of residents of Uttarakhand for being included in the F category of socially and educationally backward class of citizen while computing 27 per cent reservation for such class of citizens even in Government services. He has invited our attention in this connection to paragraph 11 of the counter affidavit of behalf of the State of U.P. filed by Shri C.K. Tewary, Special Secretary, Uttarakhand Vikas Vibhag, U.P. It has been recited therein that 'it is noteworthy that the population of G hill/Uttarakhand area is approximately 4% of the total population of Uttar Pradesh. As against this, the representation of residents of hill/Uttarakhand area in various important service is mentioned in sub-para (a) to (i) of the said paragraph'. He further stated that 'it is noteworthy that the Hon'ble Supreme Court in its landmark judgment in the Indra H Sawhney case has stipulated 27% reservation as adequate representation JAGDISH NEGI, PRESIDENT, lTIT ARAKHAND JANMORCHA v. Sf A TE [ S.B. MAJMUDAR, J.) 495 for other backward classes, which constitutes 52% of the total population A of the Country. Thus, using the same logic around 2% representation in the State services would be adequate representation for people belonging to hill/Uttarakhand area, since the population for this area is 4% of the total population of the State. It can be seen from the details given above that in all services mentioned above, the representation of people from B hill/Uttarakhand area is more than 2% and in most cases is much above 4%. In some services, in fact, the representation of hill/Uttarakhand area is more than double the percentage of their population to the total population of the State'. Relying on the aforesaid assertion it was submitted by learned senior C counsel for the first respondent-State that towards the 27 per cent reser­ vation in Government services available to socially and educationally back­ ward classes of citizens in State of U.P., the resident of hill and Uttarak­ hand region also are included. The whole State has been taken as a unit and on the basis of the comparative density of population in the hill D regions vis-a-vis remaining parts of the appropriate and proportionate reservation out of 27 per ce"nt quota is made available to socially and educationally backward residents of hill areas and Uttarakhand areas. Therefore, the policy of the reservation even so far as Government services are concerned is also made available to the residents of this area by treating E them as socially and educationally backward classes of citizens. In view of aforesaid stand taken by the learned senior counsel for the respondent, which could not be factually controverted by the petitioners, it becomes obvious that the policy of reservation of 27 per cent for socially and educationally backward classes .of citizens as envisaged by the Reservation Act has enured for the benefit of the residents of Uttarakhand and hill F regions also. Therefore, it cannot be said that the said benefit is not available to the residents . of this region as erroneously assumed by the learned senior counsel for the petitioners. The third contention is not well sustained factually and, therefore, has to be rejected. As a result of the aforesaid discussion it must be held that except G contention No. 2, learned senior counsel for the petitioners has not been able to sustain any of the other contentions raised in support of the petition and so far as Contention No. 2 is concerned, as discussed earlier, the only limited relief which could be given to the petitioners is as indicated while considering the said contention. H 496 SUPREME COURT REPORTS (1997] SUPP. 3 S.C.R. In the result this petition stands partly allowed in aforesaid terms, namely, that if the residents of Uttarakhand and hill region are to be treated as a socially and educationally backward class of citizens for a given year, in future, such decision should be taken by the State well in advance and should be published at appropriate time as indicated by us while B deciding Contention No. 2, hereinabove. There will be no orders as to costs. V.M. Petition partly allowed.