T. S. MISRA, J. - (1.) THIS petition under Art.226 of the Constitution challenging the reservation of posts in the State Judicial Service for Backward Classes and the dependants of freedom-fighters, the ex-detenus under MISA and DISIR and their dependants raise issues which are complex and indeed of far reaching consequences.
(2.) THE petitioners are Advocates and had appeared at the State Judicial Service Examination held in April, 1978 at Allahabad. THE examination was conducted to fill 150 temporary posts of which 27 posts are reserved for Scheduled Castes, three posts are reserved for Scheduled Tribes, eight posts are reserved for the dependants of the freedom-fighters domiciled in Uttar Pradesh, twelve posts are reserved for disabled Officers of Military services and 23 posts are reserved for backward classes. THE advertisement issued by the Public Service Commission also mentioned that the benefit of reservation of posts meant for the dependants of freedom-fighters would also be available to those persons who were actually detained under MISA or DISIR for six months and their dependants but this benefit shall not be available to those anti-social elements who were detained under MISA or DISIR or their dependants. Further, only those persons would be considered as freedom-fighters who had actually undergone imprisonment of six months or more. THE petitioners have contended that the reservation for ex-MISA and DISIR detenus and their dependants as well as the dependants of freedom-fighters is wholly unconstitutional and arbitrary. According to the petitioners, some of the MISA detenus were in fact anti-social elements (although others were detained on political grounds) and, in any case, there is no rational basis for creating a reservation for them and their dependants. It is also stated that while under detention, the MISA detenus were being paid allowance under the MISA rule and, as such, they were getting economic support from the State. With regard to the dependants of the freedom-fighters it is stated that the reservation for them is also discriminatory since many of the freedom-fighters are today in a well placed position both socially and economically. Even those who are not well off economically are being paid allowance of Rs. 300/- per month by the State apart from what they earn on their own. Moreover, the relaxation in age with regard to the ex-MISA and DISIR detenus and their dependants as well as of the freedom-fighters is discriminatory. THE petitioners also attack the reservation of posts for so-called "backward classes". According to a Government Order of the Government of Uttar Pradesh (Annexure-3 to the writ petition), "backward classes" comprises Ahirs, Kurmis and other castes mentioned therein. THE petitioners allege that many of the so-called backward castes like Ahirs and Kurmis are not economically and socially backward. Many Ahirs, Kurmis and other castes mentioned in the G.O. are big farmers and are prosperous. Many are highly educated and are occupying high offices. Others are doing well in professions such as lawyers, doctors etc.; hence it cannot be said that the entire Ahir, Kurmi or other castes mentioned in the G.O. are a 'backward Class' within the meaning of Art.16(4). THEre is no economic homogeneity in these castes. As such, the argument goes on, there is no rational basis for creating reservation for them which has only been done for political motives. A counter-affidavit of Prem Ram Silpkar, Assistant Commissioner, Minorities, National Integration Department, U.P. Civil Secretariat, Lucknow has been filed on behalf of the State. It is stated that the benefits of the Government Order No. 2003/40-National Integration - 6-11-77 dated 20th Aug., 1977 meant for the freedom-fighters are not available to those ex-detenus under MISA who were detained for reasons other than political and that the said G.O. in express terms excludes the anti-social elements from its scope. So far as the question of reservation for backward classes is concerned, para 7(a) of the counter-affidavit denies that the reservation has been made to favour any particular caste. The reservation is for backward classes of citizens. The caste is only a consideration for determining the social and educational backwardness of such classes of persons. The homogeneity which makes them backward class of citizens within the meaning of Article 16(4) is their social and educational backwardness. The castes enumerated in the schedule to the G.O. impugned in this writ petition form a class of citizens which, considered as a whole, is socially and educationally backward in the opinion of the State Government within the meaning of Article 16(4) of the Constitution. The State Govt. is also of the opinion that the said class of citizens is not adequately represented in various services under the State. The counter-affidavit then proceeds to state that as early as in the year 1945 the Education Department of the Provincial Government had prepared a list of 59 communities that consisted of 38 castes belonging to Hindu community and 21 castes belonging to Muslim community for providing educational facilities treating them as backward classes. This list of backward classes of citizens had later been reproduced as Annexure-'B' to the Govt. Order dated 6th Sept., 1955, a true copy of which is Annexure-A1 to the counter-affidavit. After independence, the Government of India in the year 1950 had asked for a list of backward classes, in the light of the provisions of the Constitution from the State Government. The question was examined at that time by the State Government of Uttar Pradesh. The preparation of the list was entrusted to a Sub-Committee of the Cabinet and a list of 15 communities described as backward classes for the purposes of be considered for recruitment to the public services was drawn. This list has been reproduced as Annexure-'A' to the Govt. Order dated 6th Sept., 1955 (Annexure-A-1 to the counter- affidavit). Again, in or about the year 1958 the question of amalgamation of the aforesaid two lists was considered by the State Govt. of Uttar Pradesh. The decision arrived at was that the list which has been attached as Annexure-'B' to Annex.-A-1 to the counter-affidavit be retained as a list of backward classes of citizens for all purposes, namely, preferential treatment in the matter of recruitment in the public services and grant of educational and other facilities. This combined list replaced the two lists mentioned in the G.O. dated 6th Sept., 1955 (Annexure-A-1 to the counter-affidavit), vide Government Order dated 17th September, 1958, a true copy of which is Annexure-A-2 to the counter-affidavit. The list drawn up and incorporated in G.O. dated 17th September, 1958 has been taken over in the Government Order dated 20th Aug., 1977 under which reservation has been made for them in direct recruitment to the extent of 15% in Class I, II and III services and only 10% for class IV services. The counter-affidavit also refers to the Kaka Kalelkar Commission which gave its report in the year 1955. It also refers to the State Government notification dated 12th December, 1975 whereby Chhedi Lal Sathi Commission was appointed to consider the conditions of "the most backward classes of citizens" and to suggest means to improve their lot. It is contended that the said Commission collected data from various districts and other information relevant in the matter and drew up three lists, A, B and C appended to its report dated 17th May, 1977. The report of the Commission shows that, according to its calculations, "the most backward classes" were nearly 21.36%, the other backward classes among Hindus were 20.22% while among the Muslims they were 5.82% out of the total population of the State in the year 1976. In all, thus, according to the report, the backward classes (apart from Scheduled Castes and Scheduled Tribes) were found to comprise nearly 51.40% of the total population of the State in the year 1976. The Commission, therefore, recommended reservation to the extent of 29.5% for these classes in all out of which according to it, 17% should go to the most backward classes specified in list 'A', 10% to those in list 'B' and 2% to those in list 'C'. It is also mentioned in para. 7(d) of the counter- affidavit that the specifications given in the Schedule appended to the Government Order dated 20th August, 1977 have much in common with the three lists drawn by the Sathi Commission aforesaid. In paragraph 7(e) it is stated that the castes enumerated in the impugned Government Order considered as a whole or at least the bulk thereof were found to be socially or educationally backward by the State Government; hence reservation in their favour vide Government Order dated 20th August, 1977 was fully justified. In the first instance, the petitioners have alleged that in the said competitive examination bare Acts were to be supplied for the use of the candidates. They had come to know that some of the copies of Acts which were to be supplied to the candidates were Govt. publications which gave references to no rulings while some other copies would be of private publications which were annotated with citation of rulings. The petitioners, therefore, apprehended that those candidates who would be supplied copies of Govt. publications would be placed in a disadvantageous position as compared to those candidates who would be supplied privately published copies. They also stated that, according to the information rendered by the Joint Secretary to the U.P. Public Service Commission, no bare Acts would be supplied in Hindi. The petitioners alleged that they had throughout studied in Hindi medium in school, college and University and they would be discriminated against, along with other candidates like them, as against those candidates who had studied in English medium. A counter-affidavit on behalf of the Public Service Commission has been filed in the case denying that the copies of bare Acts published and printed by the private publishers contained citation of rulings and asserting that other private publications which were purchased by the Commission for being supplied to the candidates to the Munsifs' examination did not contain any rulings. We find no reason to doubt the correctness of this averment made on behalf of the commission. So far as the contention regarding the supply of bare Acts in Hindi was concerned, it is to be noted that all the candidates are permitted to answer either in Hindi or in English and they have been given the liberty to answer the questions in Hindi or English. Moreover the petitioners who were the candidates for the State Judicial Service are expected to have the basic knowledge of English language. Most of the law reports are in English. Most of the legal literature is also in English. The petitioners were, therefore, expected to understand the bare Acts in English also. There was thus no discrimination in not supplying the Hindi version of the bare Acts to the petitioners. We therefore, find no force in the said contention of the petitioners and reject the same.
(3.) THE petitioners also alleged that one of the compulsory papers is Urdu. THE petitioners had never been taught in Urdu and they would be in a disadvantageous position as compared to those candidates who know Urdu. With regard to this contention, it is stated in the counter-affidavit filed on behalf of the Public Service Commission that the candidates for the U.P. State Judicial Service are required to possess working knowledge of Hindi as well as Urdu. In accordance with Rule 18 read with paragraph 2 of Appendix "E" of the U.P. State Judicial Service Rules they have, inter alia, to appear in a language paper which will be of two parts. In the second part a passage in Hindi will be chosen or prepared by the Commission and after transliteration into both Persian and Devnagri Script, will be lithographed. Each candidate is required to transliterate the passage into the opposite script, taking as original whichever script he prefers. THE candidate has to specify his choice of the original script in the necessary column of the application form supplied by the Commission. This information is contained in para 2 of Appendix 'A' of the Information leaflet. In view of this position the contention of the petitioners that they will be discriminated against is without any merit. The petitioners have challenged the reservation made in favour of the dependants of freedom- fighters as well as ex-MISA and DISIR detenus and their dependants. So far as the reservation made in favour of the dependants of freedom-fighters is concerned, a Division Bench of this Court in Kumari Asha Rani Bhadoria v. The State of Uttar Pradesh (Civil Misc. Writ No. 7017 of 1974 decided on 26-3- 1976) has upheld the reservation made in favour of freedom-fighters and their dependants. The question relating to the admission of the children of political sufferers also came to be considered in D.N. Chanchala v. State of Mysore (AIR 1971 SC 1762). The petitioner in Writ Petition No. 621 of 1970 which was decided along with Writ Petn No. 619 of 1970 (D.N. Chanchala's case supra) by the Supreme Court had challenged the validity of Rule 4(h) of the rules for selection of candidates for admission. Rule 4 in question provided for reservation of seats for different categories of candidates applying for selection and clause (h) thereof provided for reservation of four seats each in the Medical Colleges at Bangalore, Mysore and Hubli, and three seats in the Medical College at Bellary, in all 15 seats for the "Children of Political Sufferers". The challenge to the validity of the said Clause (h) was twofold. It was firstly, said that the expressions "political sufferer" and "the national movement for the emancipation of India" in the definition of "political sufferer" were so vague and ambiguous that it would be impossible to identify the category of persons for whose benefit Clause (h) was framed, and consequently, there would be ample room for those administering these rules to resort to partiality, discrimination and favouritism. The second objection was that the category of children of political sufferers was merely fanciful, politically oriented and without any intelligible differentia, and as such the classification had no reasonable nexus with the object of these rules. The court repelled the first ground holding that it was difficult to envisage the danger apprehended by counsel or to see the kind of vagueness or ambiguity complained of by him. The rule contained the definition of a "political sufferer" as meaning a person who on account of participation in the "national movement for the emancipation of India" had suffered imprisonment or detention for a period of at least six months, or had been awarded capital punishment, or had died while undergoing imprisonment or detention or was killed or became permanently incapacitated by police or military firing or lathi charge, or lost his "job, property or other means of livelihood." This definition was held to be couched in clear and unambiguous language, besides containing sufficient details, so as to distinctively identify the persons who would fall within it. It was observed that the "national movement" must obviously mean the late struggle for the freedom of the country from the alien British rule. It was held that there were ample details in the definition not to leave any scope for arbitrariness or discrimination in its application to a candidate who claimed to be a child of the political sufferer envisaged by Clause (h) of the rule. While considering the second ground aforesaid, the Supreme Court referred to its earlier decision in P. Rajendran v. State of Madras (AIR 1968 SC 1012) in which the court had impliedly accepted two sources of recruitment made under the rules there challenged, namely, (1) those competing for seats in the general pool and (2) those from the socially and educationally backward classes for whom reservation permitted under Art.15(4) was made. What was struck down there was the districtwise distribution based on sheer residence as that would defeat the very object of the rules, namely, the selection of the best and the most meritorious from the two sources of recruitment. The Supreme Court in D.N. Chanchala's case also noted that the power to lay down sources from which selection would be made was expressly conceded to the Government in Chitra Ghosh v. Union of India (AIR 1970 SC 35) wherein it was emphasised that if the sources were properly classified, whether on territorial, geographical or other reasonable basis, the court would refuse to interfere with the manner and method of making the classification. The court also referred with approval to the decision of the Mysore High Court in Subhashini v. State of Mysore (AIR 1966 Mys 40) wherein it was held that there could be valid reservations, apart from those permissible under Article 15(4), that such reservations did not necessarily infringe the equality protection under Art.14 and that classification based on a lawful State policy was not violative of that Article. Having held that the State had power to lay down classifications or categories of persons from whom admission is to be given, the Supreme Court proceeded to examine the further question as to whether such categorisation had an intelligible criteria and whether it had a reasonable relation with the object for which the rules for admission were made. Answering that question the Supreme Court observed in para 43 of the judgement :- "The definition of a "political sufferer" being a detailed one and in certain terms, it would be easily possible to distinguish children of such political sufferers from the rest as possessing the criteria laid down by the definition. The object of the rules for admission can obviously be to secure a fair and equitable distribution of seats amongst those seeking admission and who are eligible under the University Regulations. Such distribution can be on the principle that admission should be available to the best and the most meritorious. But an equally fair and equitable principle would also be that which secures admission in a just proportion to those who are handicapped and who, but for the preferential treatment given to them, would not stand a chance against those who are not so handicapped and are, therefore, in a superior position. The principle underlying Art.15(4) is that a preferential treatment can validly be given because the socially and educationally backward classes need it, so that in course of time they stand in equal position with the more advanced Sections of the society. It would not in any way be improper if that principle were also to be applied to those who are handicapped but do not fall under Art.15(4). It is on such a principle that reservation for children of Defence personnel and Ex- defence personnel appears to have been upheld. The criteria for such reservation is that those serving in the Defence forces or those who had so served are and were at a disadvantage in giving education to their children since they had to live, while discharging their duties, in difficult places where normal facilities available elsewhere are and were not available. In our view it is not unreasonable to extend that principle to the children of political sufferers who in consequence of their participation in the emancipation struggle became unsettled in life, in some cases economically ruined, and were therefore, not in a position to make available to their children that class of education which would place them in fair competition with the children of those who did not suffer from that disadvantage. If that be so, it must follow that the definition of 'political sufferer' not only makes the children of such sufferers distinguishable from the rest but such a classification has a reasonable nexus with the object of the rules which can be nothing else than a fair and just distribution of seats. In our view, neither of the two contentions raised by counsel for the petitioner can be accepted, with the result, that the writ petition fails and is dismissed.";