M. Sundarraj vs The Government of Tamil Nadu and The Tamil Nadu Backward Classes Commission

K.G. Balakrishnan, C.J.—In the State of Tamil Nadu for the purpose of reservation under Article 16 of the Constitution, 143 castes are

included in the Backward classes, another 41 castes are classified as Most Backward Classes and 67 castes are classified as denotified

communities, and several other castes are included in this list of Scheduled Castes and scheduled Tribes. For the purpose of education, admission

to educational institutions and admission to service 30% is given to the Backward Classes, 20% is given to Most Backward Classes and

Denotified communities, and 19% are earmarked for scheduled castes and scheduled Tribes. The Government has appointed a Commission to go

into the question as to what castes and what communities are to be classified as Backward Classes or Most Backward Classes and based on the

recommendations of the Commission, G.O. Ms. No. 242, Backward Classes Welfare, Nutritious Meal Programme and Social Welfare was

issued on 28.3.1989 and the same was published in the Government Gazette on 29.4.1989.

Petitioner who is the President of Tamil Nadu Yadavar Sangam represents the caste by name ''Yadava'' which is one of the castes included in

the list of Backward Classes. This caste is included in the notification issued by the Union of India in the Backward Classes. The grievance of the

Petitioner is that the Government by the impugned order has classified the Backward Classes into two categories viz. Backward Classes and Most

Backward Classes and assigned separate reservation of 30% and 20% respectively; according to the Petitioner this is illegal and violative of

Articles 14 and 16 of the Constitution. Petitioner has alleged that the castes included in the list of Backward Classes and Most Backward Classes

should have been classified into one group as Backward Classes. The further grievance of the Petitioner is that 20% of reservation to the castes

included in the list of Most Backward Classes is also illegal. Petitioner has also alleged that while including the various castes in the list of

Backward Classes, the economic Backwardness and other relevant factors are not being considered and inclusion is being done on the extraneous

consideration. It is also alleged that since 1993 no further steps have been taken by the Committee and there is total inaction on the part of the

Commission. Therefore it is prayed that the Government Notification dated 28.3.1989 and the classification of the Backward Classes into two

Sections viz. Backward Class and Most Backward Classes and Denotified communities be declared as illegal.

We heard the counsel for the Petitioner in detail.

Counsel for the Petitioner made reference to various observations made by the Supreme Court in Indra Sawhney etc. etc Vs. Union of India

and others, etc. etc., for the proposition that the Supreme Court has held that Creamy Layer has to be excluded from the purview of reservation

and those who are economically forward shall not be given the reservation by including them under the category of Backward classes. Reference

was also made to the recent decision of the Supreme Court reported in Indira Sawhney Vs. Union of India and Others, The Contention of the

Petitioner is that the Backward Class shall not be divided into two categories viz., Backward Classes and Most Backward Classes and there

should not have been further classification. But this plea was raised before the Supreme Court in Indra Sawhney case and the same has been

answered by the Supreme Court and it was held so in para 92A at page 563:

We are of the opinion that there is no constitutional or legal bar to a State categorising the backward classes as backward and more backward.

We are not saying that it ought to be done. We are concerned with the question, if a State makes such a categorisation, whether it would be

invalid? We think not.

Therefore the argument advanced by the Petitioner''s counsel is not tenable. Counsel for the Petitioner contended that the inclusion of these

castes in Backward Class and Most Backward Class are without following any norms and there must have been recommendations of the

commission and the decision making authorities must have applied its mind while including the castes in these lists. It may also be noted that the

Petitioner Association itself wanted the ''Yadava caste'' to be included in the Most Backward classes. Even now Yadava community continues to

be in the Backward class.. Therefore, the Government Order dated 28.3.1989 cannot be challenged in this distance of time. According to the

Petitioner, in spite of the Supreme Court''s direction, the Commission is not taking effective steps to identify the creamy layer. It is for the Petitioner

to approach the Commission or the State Government to seek appropriate remedies. Without prejudice to such right, the writ petition is disposed

of. No costs Consequently, W.M.P. Nos. 9267 and 9268/2000 are closed. (CH/VCJ/VC Si