Parents Association And Anr. vs Union Of India And Ors

____________________________________________________________________________

Category Criteria Criteria Criteria Criteria Criteria Criteria of approved approved as per as per as per fixed by residents by MHA by MHA Supreme order of orders of MHA on on 7.3.81 on 4.9.91 Court's A&N admn. A&N Admn. 30.5.96 order dt. dated dated 6.8.93 25.4.94 6.8.94 ___________________________________________________________________________ 1 2 3 4 5 6 ___________________________________________________________________________

I. Tribals 20% 20% 20% 20% 20% 20%

II. Deputation ists and Central 10% 10% 50% 50% 10% 10% Govt. (For (For Employees category category II II

III. Pre 1942 50% 50% III III 17.50% 50% settlers (For (For (For (For category category IV IV category category III III and and III) III and and and IV) IV) V) V) IV) IV. Settlers 17.50% in re- (For settlement category schemes IV) after 1942

V. Other 20% 20% 35% 20% locals for for for for with 10 category category category category yrs. V V V V education in Islands

VI. Merit - - 30% 30% - -

______________________________________________________________________ Total 100% 100% 100% 100% 100% 100% ______________________________________________________________________

* The definition of Central Government Employees changed to include only Central Government employees with transfer liability to serve outside the UT Administration. The Central Government employees having no transfer liability to serve outside the UT Admn. were included in Category V.

** The Supreme Court's order stated that "50% shall be distributed proportionately in accordance with the break-up indicated in categories 2, 3 and 4 in the order dated 4th September, 1991".

*** Included deputationists, Central Government Employees and others who were not in any other category.

It will be seen from the above tabular statement

that in various proceedings, the local Tribals of the

Islands (Category I) have been given a quota of 20%

seats. In the proceedings dated 7.3.81, 4.9.96 of the

Central Government and the proceedings of the Lt.

Governor dated 6.8.94 and in the impugned order of the

Central Government dated 30.5.96, 10% seats are reserved

for the deputationists and Central Government Employees.

There is no dispute before us regarding these quotas.

The writ petitioners are, as already stated, the

"other locals with 10 years education in the Island"

(category V). In the earlier orders of the Central

Government dated 7.3.81 and 4.9.91, this category was

given a quota of 20% of the seats but the said

percentage was increased to 35% and the quota for the

pre-1942 and post 1942 settlers was reduced by the Lt.

Governor in his orders dated 6.8.94. That was quashed

by the Calcutta High Court. After a fresh survey, the

Central Government has now passed the impugned order on

30.5.96 and reduced the 35% quota of the petitioners'

category to 20% and brought back the 50% quota for the

pre-1942 and post 1942 settlers. This is the cause of

action for the writ petition.

The learned senior counsel for the petitioners Sri

K.Sukumaran contended that the reduction of the quota

for the petitioners category from 35% to 20% was

violative of Articles 14 and 15 of the Constitution of

India, that the pre and post 1942 settlers could not

have been given 50% quota and that in the impugned order

of the Central Government dated 30.5.96, no provision

was made for merit quota and this was not permissible.

On the other hand, learned senior counsel for the

Central Government Sri P.P.Malhotra and the other

learned senior counsel Sri S.B.Sanyal and Sri

M.C.Bhandare supported the above order of the Central

Government.

The following points arise for consideration:

(1) Whether the reduction of quota for the "locals

with 10 years education" from 35% to 20% is illegal or

otherwise vitiated?

(2) Whether the provision for 50% quota for the pre

and post 1942 settlers suffers from any legal infirmity?

(3) Whether the impugned order has not made any

provision for merit candidates?

Point 1 and 2:

We shall initially refer to the various orders

passed by the Central Government from time to time and

to the various orders of the Calcutta High court passed

earlier.

On 7.3.81, the Central Government made certain

categorisation and fixed certain quotas as shown in the

Table. The same were revised again on 29.2.88 by the

Central Government ( not shown in the Table). The said

order dated 29.2.88 of the Central Government was

challenged in CR No.5321(W)/1988 in the Calcutta High

Court. M.K.Mukherjee, J. (as he then was) in his

judgment dated 18.7.90 while upholding the policy of the

Central Government in fixing quotas for students of

different categories including the `local born' in view

of their economic and educational backwardness, however

observed that "while considering the case of those with

10 years education in the Islands, there was no

justification in excluding their students who may have

also a minimum of 10 years continuous education in the

Island and passed the school examination". It was

observed that the definition of `local candidate'

contained in the order dated 14.2.84 should be amended

so as to include such students.

Thereafter, Ms. Ruma Pal, J. in C.O.9115(W) of

1991 passed certain orders on 11.6.91 but recalled the

same on 9.8.91. The learned Judge observed that it was

not clear whether the Central Government had passed

fresh orders in the light of the judgment of

M.K.Mukherjee, J.(as he then was).

It was at that stage that the Central Government

passed orders dated 4.9.91 fixing various quotas

(referred to in the Tabular Statement). These quotas

were modified by the Lt. Governor on 25.4.84 by reducing

the percentage fixed for the pre-1942 settlers and post-

1942 settlers (under schemes). This order dated 25.4.84

was quashed by Tarun Chatterjee,J. in C.O.78(w) of 1994

dated 27.7.94 on the ground of violation of principles

of natural justice, inasmuch as the pre and post 1942

settlers were not heard before reducing their quota.

Thereafter the Lt. Governor passed a fresh order dated

6.8.94 after hearing the affected parties. The said

order was again challenged in CO 11514(W) of 1995 by the

`Local Born Association'. Samaresh Banerjee, J. in an

elaborate judgment dated 31.1.96 after referring to the

history of the litigation, quashed the said order of the

Lt. Governor dated 6.8.94, giving various reasons. It

will be necessary to briefly refer to the said reasons.

The learned Judge while stating that there was no

need to go into the question of the jurisdiction of the

Lt. Governor to modify the orders of the Central

Government dated 4.9.91, observed that it was obvious

that Lt.Governor's orders dated 6.8.94 were `adhoc' or

tentative and were meant only for the then "current"

academic year. It was held that the Lt. Governor's

orders making a tentative decision was contrary to the

direction of Tarun Chatterjee, J. that a final order was

to be passed. It was also observed that "even the

interim arrangement has been made on incomplete data".

This was clear from the fact that the Lt. Governor had

himself held that there was no upto date data and that

data had to be gathered by a fresh survey. If that was

so, the Lt. Governor had no material even to make a

tentative decision. The Lt. Governor had "not come to

any finding in the order as to how the quota or

percentage of reservation - which was lastly revised in

the year 1991 - cannot be said to be equitable". The

Lt. Governor had not stated why the earlier order of the

Central Government of the year 1991 was inequitable.

The Lt. Governor "has not at all applied his mind to the

representatives of the present petitioners against the

reduction of their quota". The "entire exercise which

has been made by the Lt. Governor by giving hearing to

different parties pursuant to the direction of Tarun

Chatterjee, J. was a futility as no final decision has

at all been taken based on relevant materials". On the

above grounds, Samaresh Banerjee, J. quashed the Lt.

Governor's orders dated 6.8.94 and remitted the matter

to the Central Government. Thereafter, the present

order dated 30.5.96 was passed.

We shall now refer to the reasons upon which the

present decision of the Central Government dated 30.5.96

is based.

The present order takes into account the findings

of the survey regarding `student population', a factor

which was treated as relevant in the judgments of the

Calcutta High Court rendered by M.K.Mukherjee, J. (as he

then was) and by Tarun Chatterjee, J. as stated earlier.

The facts revealed from the survey of student were set

out in the order as follows:

_______________________________________________________ Category No.of Percentage of students total no. of __________________________________________students_

I. Tribals 5850 7.61

II. Central Government Employees, deputationists and others not covered in any category but completed two years of education from schools in the territory 4257 5.54

III. Pre 1942 settlers 7408 9.64

IV. Settlers in re-settle- ment schemes after 1942 14796 19.25

V. Other locals with 10 years education in islands 43931 57.15

VI. Others having education in islands for less than two year 628 0.82 _______________________________________________________

The Central Government then observed that there

was no dispute between the parties in regard to the 20%

quota for tribals. The Central Government then referred

to the contentions of (i) The Andaman and Nicobar

Administration (ii) Local Born Associations (iii) the

Bengal Association (iv) Parent Association, 10 years

category (writ petitioners) and (v) the Harbour Workers

Engineers Association. The Central Government observed:

"From the above averments, the following points emerge: A & N Islands are an extremely backward area because of there remoteness and under development. This is a total lack of higher education facilities in the Islands and hence the students from there have to depend on the reservations provided in the mainland. Therefore, the system of reservations has to continues for all permanent residents of the Islands."

Then the Central Government observed that, no

doubt, no investigation had been carried out under

Article 340 by appointing a Commission to investigate

into the conditions of backward classes in the island,

socially and educationally but the fact remained that

there was much backwardness among the permanent

residents of the Island. The order then stated:

"As a Welfare State, we must ensure that orders issued in regard to reservation cover the entire population of the island territory which does not have the requisite facilities for higher education."

It then referred to the contention of the A & N

Administration pleading for a specific reservation of

30% for general merit, then to the contention of the

Local Born Association that 20% be reserved for tribals

and 50% for the pre & post 1942 settlers and 30% for

merit. It also referred to the plea of (writ

petitioners), the "Parents Association of Ten years

Students" that except reservation for tribals other

reservations would be bad and also to the fact that in

the interim order of the Supreme Court dated 6.8.93, 30%

were reserved for merit. After confirming 20% quota for

tribals, the Central Government stated that though 20%

of seats were earmarked for tribals as per the 1981 and

1991 orders, the actual utilisation of the said quota

was low. For example, the student population of tribals

was 7.61% (Class I to XI) but their representation in

class XII was only 2.77%. The position during 1992 to

1996 was no different for which the figures were as

follows:

________________________________________________________ Year Total No.of No.of seats Percentage seats available actually of seats from A&N Admn. utilised by utilised by tribals Tribals

________________________________________________________ 1 2 3 4 ________________________________________________________

1992-93 196 7 3.5

1993-94 190 5 2.63

1995-95 209 8 3.82

1995-96 188 8 4.25

(Col. 4 shows that the 20% quota was never utilised by the tribals) ________________________________________________________

The Central Government stated that though "60 B.E.

seats in 1993-94 and 52 B.E.seats in 1995-95 were

available, no tribal candidate was actually awarded any

B.E. seat. But, even so, the Government of India now

thought it fit to maintain 20% quota for tribals, and

directed that the unfilled quota may go to the merit

candidates. The order stated as follows:

"subject to the condition that the seats which are not actually utilised by Tribals will be diverted to general category open to all the residents of the A&N Islands, irrespective of any classification and will be filled up purely on basis of merit."

The Central Government then observed that the pre-1942

settlers and the post 1942 settlers who were "brought"

to the islands under various colonisation and

rehabilitation schemes had a special case, as they

passed through times when the territory was extremely

backward, undeveloped and inhospitable and, as such,

they deserved a different treatment more favourable than

others who had migrated to the island much later and of

their own accord. On that basis, the Central Government

restored the 50% quota for pre 1942 and post 1942

settlers above mentioned. However, in order to ensure

that benefits do accrue to the targeted population, the

Central Government directed further sub-quotas as

follows:

(1) pre 1942 settlers .... 1/3rd (2) other settlers ...... 1/3rd

The remaining 1/3 was to go to the two groups but on

`combined merit', with a condition that

"unutilised seats,if any, in this category, will go to the general merit quota."

The Central government retained the 10% quota for

Government servants and deputationists, subject to the

condition that

"the candidates in this category should have studied the last two years in the islands and passed the qualifying examination, from a school in the islands." and "unutilised seats, if any, in this category will go to the general merit quota."

After thus ensuring the 20% quota for tribals, and

50% for the pre and post 1942 settlers and 10%

government employees (deputationists and the unutilised

seats for `merit'), the Central Government dealt with

the petitioner's category i.e. Locals with 10 years

education and said that their quota should not be

abolished as contended by the other groups nor increased

from 20% and that it should remain at 20%. It was also

stated that:

"unutilised seats in this category will be diverted to the general merit quota."

The Government did not find it appropriate to club any

section of the Central Government employees with

transfer liability with this category of `other locals'.

Then the Government of India concluded as follows:

"In short, the allocation of seats to various categories with effect from the 1996 academic sessions will be as under:

Category I:

Tribals 20%

Category II:

Deputationists and Central Govt.employees with transfer liability to serve outside the Union Territory, provided the candidates in this category have studied the last two years in the islands and passed the qualifying examination from a school in the islands. 10%

Category III:

Settlers who were settled prior to 1942 and those who were settled under various rehabilitation schemes introduced after reoccupation of the Islands. 50%

The seats in this category will be allocated as under:

(a) Pre-1942 Settlers 1/3rd (b) Other settlers 1/3rd

(c) Seats to be allocated on the basis of combined merit of

(a) & (b) above 1/3rd

Category IV:

Other locals who do not fall under Category I, II or III above and such Central government Employees having no transfer liability to serve outside the Union territory, provided all have had 10 years education in the islands 20%

Category V: General merit quota open to all the [Un residents of the A&N Islands irrespective utilised of any classification. This will be seats of subject to the condition that the categor- candidates in this category have studied ies I, the last two years in the islands and II, III, passed the qualifying examination from a and IV school in the Islands. above].

We shall now refer to the facts mentioned in the

counter affidavits to justify the restoration of 50%

quota for the pre-1942 and post 1942 settlers and the

reduction of the quota for the petitioners' category.

In the counter affidavit filed on behalf of the

Central Government in this Court, it was stated that no

other category had raised any objection against the

quotas fixed in the order dated 30.5.96 except the

petitioner's category. In fact, the other categories for

whom quotas were fixed were not even impleaded by the

petitioners in this writ petition. (The "natural born"

category got impleaded as respondent No.5 on their own).

The categories referred to in the impugned order dated

30.5.96 are, it is stated, identifiable in the islands

and are not the creation of the government's

instructions. No provision of the Constitution has been

violated. The reservation is based on the policy of the

Government of India. The Government "may from time to

time modify or vary the conditions regarding selection

for admission if such modifications or variations become

necessary to achieve the purpose of uplifting the

socially and educationally backward candidates". Quotas

can be fixed by executive instructions also. It is not

correct to state that 100% seats have been reserved and

nothing is left for merit. The pre 1942 settlers and

the settlers brought to the island under various

colonisation and rehabilitation schemes have a special

case as they have passed through difficult times when

the territory was extremely backward, undeveloped and

inhospitable. They are entitled to more favourable

treatment. The decision is based on `historical

background' and a distinction based on 'historical

background' is valid. The petitioners' category is

different as it consists of those who "subsequently

migrated to islands on their own volition and sweet

will, finding migration more beneficial and lucrative".

The quotas are fixed for the `students' in view of the

express directions of the Calcutta High Court. There is

no comparison between the pre-1942 and post 1942

settlers on the one hand and the petitioners on the

other hand. The 10% quota for Deputationists and Central

Government employees with transfer liability is also

valid as it encourages people to serve in the islands.

The pre 1942 settlers suffered during the 2nd World War

due to Japanese occupation while the post 1942 settlers

were settled by government under schemes and they faced

tremendous hardships. The petitioners have migrated

much later on their own volition and are "socially,

educationally and economically more advanced and do not

share the same past which the pre -1942 settlers had

faced. In fact, most of the petitioners'category have

an undisturbed and settled establishment at various

places in the mainland. The petitioners represent the

affluent classes who migrated at their sweet-will for

exploring lucrative business opportunities. They cannot

be equated with pre or post 1942 settlers".

In the counter affidavit filed by the `Local-Born

Association', a brief history of the islands is given.

Reference is made to the penal settlement of Indians in

1825 and in 1832 upto 1930 and to the criminal convicts

settled there by the Britishers. Several sepoys who

participated in the 1857 rebellion were also sent to

Andamans. Other freedom fighters were sent in 1905 and

1920. These persons were forced to do labour for making

roads, buildings, removing forests etc. and to make the

island habitable. Those who were released were not

allowed to go back to the mainland but were allowed to

bring their families or marry female ex-convicts. The

Japanese occupied the islands on 2.3.43 and were there

upto 18.10.45. These Indians were tortured by the

Japanese. The language, culture, life style, economic

strength and education of these were different. These

are the `local borns'. Then there were the post 1942

settlers brought under special schemes. On the other

hand, those who migrated in 1950 or thereafter

maintained their contact with the mainland. The members

of the 1st petitioner's association who are central

government employees and are parties of the 10 years

educated category - have claimed their `Home Town' in

the main island and are permitted to visit the mainland

every year at government expense. It was further

averred that, under this quota, the ten year educated

group who get higher education in the mainland, do not

come back to work in the Islands. It is stated:

"...the children of the writ petitioner no.1 after availing the benefit of reserved seats meant for this backward area, upon completing their education, do not comeback for serving the island, instead and settle down in the mainland. They never come back even though they sign the bonds to serve the islands for a period of 3 years."

The claim of the writ petitioners that the 10 year

category students population constituted 58% of the

total student population is denied as no authentic

census has been conducted. In any event, population is

not the criteria for allotment of seats by way of

special provision. The existing definition of 'locals'

is to the detriment of the tribals and to the pre-1942

settlers and any further dilution thereof is not

permissible. Further, the said definition concerns

employment and not education.

A rejoinder has been filed contending that the pre

and post 1942 settlers do not stand on a separate

footing and that 57% of student population belonging to

the petitioner's category cannot have only 20% quota.

From the above facts as stated in the affidavits

filed by the parties, it is clear that the pre-1942

settlers and the post 1942 settlers who were settled in

the Islands belong to a separate category and have to

be considered as backward, socially and educationally,

next only in degree to the Tribals. These categories

were compulsorily inducted in the Island and struggled

hard over several decades to make the Islands habitable.

They had no educational opportunities over a long period

and were forced to do hard labour for laying roads,

constructing buildings, removing forests etc. These

included penal settlers, sepoys of 1857 movement, later

freedom fighters etc. They were not allowed to go to the

mainland. The 1942 settlers suffered torture during the

Japanese occupation in 1942-43. The post 1942 settlers

were brought to the Island under specific schemes of

rehabilitation etc. These two categories, by no stretch

of imagination, can be equated with the petitioner's

category which consists of those who voluntarily

migrated to the island for business or other careers.

These persons were definitely more advanced socially and

educationally. In fact, it is the respondent's

contention that some of them show their 'home-town' in

the mainland and their children, once they get into the

reservation quota, do not come back to the island for

settling there.

We, therefore, agree that in view of the

historical background there was ample justification for

the Central Government, in their orders dated 30.5.96,

to restore the 50% quota for the pre and post 1942

settlers and in not reducing the same to 17.50% plus

17.50% as done by the Lt. Governor in his order dated

6.8.94.

A question has been raised by the petitioners that

according to the survey, more than 50% of the students

belong to the 10 year educated category and that

therefore the fixation of a quota of 20% to the

petitioners as against a student population over 50% was

bad.

In our view, this contention is not legally

tenable. It was pointed out in Indira Sawhney Vs. Union

of India ( 1992 Suppl (3) SCC 217) that reservations are

not to be made on the basis of population of a

particular category. Reservation for education is to be

made under Article 15(4) keeping in view the social and

educational backwardness and the need to provide

adequate educational opportunities. Merely because, the

'ten year education category' like the petitioners are

more in number, they cannot claim a larger percentage of

reservation on that basis. Jeevan Reddy, J. pointed out

(see p. 734 SCC, para 807), that the principle of

'proportionate representation' was accepted in the

Constitution only for purposes of Articles 330 and 332

and that too for a limited period. Those articles spoke

of reservation in the Lok Sabha and State Legislatures.

No such reservation based on population can, therefore,

be carved out for the petitioners.

Even if the petitioner's category of 10 year

educated persons consist of 57% of the student

population, it is not possible to give them a higher

quota as compared to the pre-1942 and post 1942 settlers

who were identified as backward, both socially and

economically.

Further, it is clear that the Central Government

in its orders has considered the facts revealed in the

survey, it has considered the submissions of all the

groups and the historical basis of the reservation of

50% in favour of the pre-1942 and post 1942 settlers. It

has kept in mind that the petitioners are affluent and

are more advanced educationally and socially. In our

view, the impugned order does not suffer from any

irrationality. It cannot be said that any relevant facts

were not considered or any irrelevant facts were taken

into consideration. For the aforesaid reasons, we hold

on Point 1 that the reduction of the quota for the

petitioners from 35% to 20% was perfectly justified and

on Point 2 that the prescription of 50% for the pre and

post 1942 settlers was equally justified. There was no

violation of Articles 14 or Article 15(4) or any other

provision of the Constitution. Points 1 and 2 are

decided accordingly against the petitioners.

Point 3:

This point relates to the contention that no

specific quota has been fixed for candidates competing

on merit basis.

It is true that normally it is expected that

reserved categories cannot exceed 50% of the quota as

decided in various decisions of this Court and the rest

must go to merit candidates. But on the peculiar facts

of the case relating to the Andaman and Nicobar Islands,

the present classification and quota cannot be said to

be offending the said principle. The impugned order

dated 30.5.96 refers to the statistics from 1992-93 and

shows that though 20% quota was reserved for the

Tribals, the said quota was never fully utilised.

Therefore, it was specifically provided that the

unutilised quota of the 20% for tribals would go to

merit candidates. A provision was made in respect of

the merit candidates amongst the pre-1942 and post 1942

categories by providing a sub-classification in which

1/3 of 50% would go to such merit candidates and

unutilised quota was to go to the general merit

candidates. Even in respect of the 10% quota for Central

Government employees and deputationists and the 20%

quota for the Ten year education group, it was directed

that the unutilised quota would go to the merit

candidates. Having regard to rather special facts

obtaining in the Islands, we are of the view that it

cannot be said that adequate provision has not been made

in favour of merit candidates.

The learned senior counsel for the petitioners

sought to contend, on the basis of certain figures which

were not brought on record, that in recent years the

special quotas were not left unutilised. This contention

was countered by Sri S.B. Sanyal, learned senior counsel

for some of the respondents stating that the seats of

the reserved categories remain unutilised even now. As

there is no authentic data before us on the question, we

cannot accept the data put forward by the learned senior

counsel for the petitioners. We, therefore, hold that it

cannot be said that adequate provision has not been made

to the merit candidates. Point 3 is decided against the

petitioners.

But, before parting with the case, we may state

that the Government of India has to review the position

periodically to find out if the members of the reserved

categories are able to get selection in sufficient

numbers and also whether a reasonable percentage is

going to merit candidates. It may be that in the

peculiar facts governing the Andaman and Nicobar Islands

the quota for merit candidates may not necessarily go

upto 50%. Such exceptional situations have been pointed

out even in Indira Sawhney's case (see p.735 of SCC,

para 810). It was there observed:

"While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas, the population inhabiting those areas might, on account of their bring out of the mainstream of national life and in view of conditions peculiar to and characteristic to them need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out."

The last review having been made in 1996, the

Central Government may consider a review atleast by

2006. Any review has to be made after obtaining

authentic data in regard to the extent of utilisation of

the quotas fixed under the 30.5.95 order for the Tribals

and for the pre-1942 and post 1942 settlers.

Subject to the above observations, the writ

petition is dismissed. There will be no order as to

costs.