By Brahmananda Reddy
Five judges of the Andhra Pradesh High Court comprising a special bench, recently declared that the government order on minorities which created 5 per cent reservation for the Muslim community in the field of education and public employment is ultra vires and gave a series of directions to the state government regarding the reconstitution of the Backward Classes Commission, identifica-tion of the backward classes and the creamy layer of the society.
It may be recalled that the state government had issued the order on July 12 declaring the Muslim community as ?E? category among the Backward Classes and granted 5 per cent reservation in educational institutions and employment. The report of the Commissioner of Minority Welfare was relied upon by the state government to issue the order. Shri Muralidhar Rao filed a public interest writ petition challenging the order. Shri Srikanth and three other students filed writ petitions complaining that due to the order they would lose seats in professional courses. Initially a division bench admitted these writ petitions, suspended the operation of the order and made clear that 5 per cent seats kept apart had to be filled as per the outcome of the case and then the case would be referred to a larger bench of five judges. Several Muslim leaders and institutions filed impleading petitions and defended the order. Eighteen advocates argued before the bench comprising Justice B. Sudarshan Reddy, Justice J. Chalameshwar, Justice A. Gopala Reddy, Justice Ghulam Mohammed and Justice K.C.Bhanu for fifteen days.
The petitioners contended that the government could not issue such reservations without consulting the Andhra Pradesh Commission for the Backward Classes constituted under the Act 20 of 1993. The petitioners further said that without identifying the creamy layer of the society, such reservation cannot be conferred. It was further contended that the material relied upon by the government was not enough to conclusively come to a conclusion regarding the social backwardness of the Muslim community that reservation cannot go beyond the 50 per cent ceiling. The bench asked for the records and directed the government to make available the report prepared by the Commissionerate of Minority Welfare. Justice B. Sudarshan Reddy delivered the judgement on his own behalf as well as for Justice A. Gopala Reddy. Justice K.C. Bhanu, Justice J. Chalameshwar and Justice Gulam Mohammed gave separate judgements concurring with the findings of the judgement delivered on behalf of the three judges.
Justice B. Sudarshan Reddy who analysed the Article 15(4), and 16(4) gave the judgement while keeping in view the provision of the Andhra Pradesh Commission for Backward Classes Act, 1993. It was declared that Sec. 11(2) of the Act is mandatory and the state governament was bound to consult the Commission before undertaking any revision of the Backward Classes list. It was categorically declared that ?in the absence of such consultation, the state government in issuing the impugned order acted in contravention of the mandatory provisions of the law. The order is therefore, ultra vires.?
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The bench dismissed the writ petition, challenging the constitutional validity of Section 11(2) of the Andhra Pradesh Commission for Backward Classes Act, 1993 which mandates that the Commission shall be consulted on the revision of the list of Backward Classes. Justice Reddy reminded, ?The problem of determining who are socially backward is a very complex one.?
The government was asked to complete the process of reconstitution of the Andhra Pradesh Commission for the Backward Classes within three months and initiate the process of consultation.
Dealing with the argument that the government had enough power to give reservation at its discretion was not appreciated by the bench. It was made clear that the exercise of determination of the backwardness and process of identification was an objective exercise. The inclusion for collateral reasons without specifying the criterion for a backward class was declared as ?clear case of fraud on power?.
After setting aside the order, the bench gave a series of directions to the state government. The government was asked to complete the process of reconstitution of the Andhra Pradesh Commission for the Backward Classes within three months and declared that the governament would have to initiate the process of consultation and seek the opinion of the Commission for the inclusion of the Muslim community into the list of Backward Classes. The Commission has to examine the request of the government and decide the issue referred to it by giving opinion within six months from the date of request being made. The government was given the liberty of forwarding the entire material including the material collected by the Commissionerate of Minority Welfare to the Commission. A direction far reaching the consequences was given regarding the creamy layer.
The state government was directed to lay down the criterion for identification of the creamy layer so that it could be applied by the concerned in the case of the Muslim community. The criterion for identifying the creamy layer is to be laid down by the state government within a period of three months or as an alternative, it has to follow the criterion laid down by the Union of India duly and approved by the Supreme Court.
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