Karala Muslim Jama-ath Council Vs. the State of Kerala, - Court Judgment

Excerpt:
- a.k. basheer, j.1. is ext.p5 order issued by the government reserving a few seats to students belonging to economically backward sections of the forward communities, in government colleges and departments under the universities at the graduate and post graduate level, illegal and ultra vires the constitution?2. the above question has been raised by the petitioner who claims to be the state general secretary of kerala muslim jama-ath council representing the muslim community in the state of kerala, 'irrespective of politics and school of thought'.3. it is contended by the petitioner that muslim community, which is treated as a 'socially and educationally backward community' in the state of kerala has not been getting its due share of representation in the educational institutions in the state, even though some benefits by way of reservation of certain percentage of seats have been provided to them along with some other communities. the government had appointed a commission under the chairmanship of hon'ble mr. justice k.k. narendran, a former judge of this court, to conduct a study regarding adequacy of representation to members of backward communities in services under the government, public sector undertakings, universities etc. after receipt of the report, the government issued ext.p5 order superseding its earlier orders issued on the subject.4. in ext.p5 order the government directed that 10% of the seats in all courses, at the graduate and post graduate level in government colleges, and 7.5% of the seats in departments under the universities shall be reserved for the students belonging to economically backward sections of the 'forward communities below the poverty line'.5. the above clause in ext.p5 is assailed by the petitioner contending, inter alia, that reservation of seats or doling out such benefits in the form of reservation to members of the forward community, albeit they are below the poverty line, is totally unconstitutional and illegal.6. petitioner seeks the aid of article 15(4) of the constitution of india in this context and contends that what is envisaged under the above clause is only making of special provision by the state for the advancement of any 'socially and economically backward classes of citizen or scheduled castes and scheduled tribes'. petitioner contends that the government is not justified in issuing ext.p5 order making provision for reservation of seats to students belonging to forward communities under the guise of constitutional sanction. the constitution does not empower or enable the governments to take away the benefits which would otherwise be available for socially and educationally backward classes and dole them out to the members of the forward communities. this is nothing but appeasement of the forward communities which constitute majority of the population. majority of the aided and unaided educational institutions in the state are under the control of the forward communities and christians. students belonging to muslim community, (which is admittedly a socially and educationally backward segment) are unable to get admission in those institutions. therefore the decision of the government to reserve 10% of the seats at the graduate and post graduate level in government colleges and 7.5% of seats in the various departments under the universities will amount to violation of the constitutional obligation cast on the government to give adequate protection to the under privileged communities in the state. it is further contended by the petitioner that if ext.p5 order is implemented or enforced, it will perpetuate the existing imbalance in representation of the socially and economically backward communities in educational institutions.7. the above contentions, in our view, are totally misconceived and untenable. a perusal of ext.p5 will show that the object that is sought to be achieved by the government is to address the issue that is being faced by students belonging to forward communities below the poverty line. while students belonging to socially and educationally backward communities and scheduled castes and scheduled tribes enjoy the benefit of reservation in the matter of admission to educational institutions, many of those who belong to forward communities most often fail to get admission only because they do not enjoy any benefit of reservation. these students are considered for admission only on the basis of merit. number of seats available under merit quota will be comparatively less after allocation of seats under the reserved quota to various categories. many of those students, especially those who are not economically affluent and who fall under the so called below poverty line are faced with the gloomy prospect of discontinuing their studies since they cannot afford to go to private institutions which demand heavy tuition fees. the attempt of the government appears to be only to ameliorate the grievance of this class of students who, fortunately or unfortunately, belong to forward communities. in that view of the matter, ext.p5 order cannot be faulted or declared as illegal or ultra vires the constitution.8. there is yet another aspect of the matter, which will justify the action of the government. in ext.p5 it has been made clear that the government intends to increase the number of seats in government colleges as well as in departments in the universities proportionately, so that reservation of 10% seats in government colleges at the graduate and post graduate level, and 7.5 % in the departments in universities can be ear marked for students belonging to forward communities below the poverty line. in other words, the government wants to ensure that the seats now available to backward communities are not in any way reduced. therefore the contention of the petitioner that reservation of a few more seats in favour of the students belonging to forward communities will eat away the benefits available to the socially and educationally backward communities, is wholly misconceived and untenable.9. backwardness, be it social, educational, economic etc. is a malady that our republic inherited from the british colonial rule. there is no denying the fact that the overall socio economic scenario in the country has improved after independence, quite drastically. the yeomen services rendered by our social reformers of the yester years have yielded dramatic results, though it has been a slow process. this does not mean that the social evils that beset the less fortunate segments of the society have been eradicated. but still, the general standards of living of the down trodden communities have improved by leaps and bounds. the castes and communities which suffered oppression and discriminatory treatment of despicable proportions, in the yester years have now started to enjoy almost equal status in all walks of life, though some communities in some parts of the country, are still being treated shabbily.10. communal reservation is a sweet phraseology which has come to stay in the country ever since independence. the backward communities, scheduled castes, scheduled tribes etc. have enjoyed this benefit for the last more than six decades. it is true that the benefits extended by the union and the states in the form of reservation, not only in education but in employment as well, has helped the less fortunate communities to a great extent to come up the social and economic ladder.11. as mentioned earlier, the socio economic conditions of the scheduled castes and scheduled tribes and educationally and socially backward classes have undergone a revolutionary change. undoubtedly the above policy that is being followed, not only by the union government but by all the states in the republic, is quite exemplary and laudable. but, in our view, time has now come to awaken these communities from the slumber of satiated insouciance. these communities must start to realise that over indulgence of the government in extending these benefits will only stunt their growth.12. excellence in education and in professional fields can be achieved if only there is an element of competitiveness. it must be ensured by all concerned that members of these communities are made to compete with the best in the country. they must earn their admissions in educational institutions at least at the higher/post graduate level, after competing with meritorious students. in the matter of employment also it is high time that the quota of reservation is gradually brought down so that there is an element of competition in gaining employment. the higher the competition level, be it in education or employment, the greater will be the advantage to the people belonging to such backward communities.13. as regards the contention raised by the petitioner that the muslim community, which he allegedly 'represents', would be deprived of the benefit that they have been enjoying over the years, it has to be noticed that the overall situation as far as the muslim community in the state of kerala is concerned has undergone tremendous change for the better, especially over the last few years. it is high time that the community leaders must now think of shedding this backward tag and getting prepared to compete with others for a slot in the general merit category. at any rate, the contention raised by the petitioner that the poor segment of people belonging to forward communities should not be given some solace, be it in the form of reservation of a few seats in government colleges or otherwise, is totally uncharitable, to say the least. poverty or economic backwardness is the worst form of social evil. in the prevailing scenario social and economic backwardness among forward castes in kerala has created a social havoc especially after the enactment of the land reforms legislation. though the issue may not be of ominous proportions, the government thought it fit to tackle the problem by issuing ext.p5 order making it sure that the benefits that are being enjoyed by the other eligible communities are not in any way denied to them.14. sri. siraj karoly, learned counsel for the petitioner has invited our attention to the decision of the apex court in indra sawhney and ors. v. union of india and ors. : 1992 supp. (3) scc 212, while addressing his arguments on the plight of the socially and educationally backward communities. he has also invited our attention to some other decisions of the apex court in m.r. balaji and ors. v. state of mysore and ors. : air 1963 sc 649, ashoka kumar thakur v. union of india and ors. : (2008) 6 scc 1 and union of india v. pushpa rani and ors. : 2008 (10) scale 567 also.15. we have carefully perused those judgments. there can be no doubt about the legal principles laid down in the above decisions. but in our view, we need not labour much by referring to the settled position of law as far as the issue raised in this case is concerned. we have no hesitation to hold that ext.p5 order will not in any way cause any dent on the rights of the socially and economically backward communities or the benefits that are being enjoyed by them. there can also be no doubt that the government is vested with the power to issue a notification like ext.p5. the said order does not in any way violate any of the statutory or constitutional mandates, nor does it result in any hostile discrimination to the petitioner's community as alleged.we do not find any merit in any of the contentions raised by the petitioner. the writ petition fails and it is accordingly dismissed.