Extend Reservation Benefit To Kodava Community: Karnataka High Court Directs Government To Accept Recommendation Of Backward Classes Commission

A single judge bench of Justice Krishna S Dixit said that,"The above advice of the Commission being as clear as Gangetic waters. This recommendation was made after thoroughly examining the representation of the petitioner –Association and the inputs received from all the relevant quarters; that being the position, the Government could not have declined to accept the advice of the Commission on the sole ground that someone called "Competent Authority" has not approved the same."

The Commission had in 2010 recommended that in the OBC Lists published vide Govt. Order dated 30.3.2002, the word 'Kodagaru' both in Kannada and English employed therein to denote the community needs to be deleted and in its stead, the words 'Kodava', 'Kodavaru', in Kannada and 'Codava', 'Codavaru' in English have to be introduced. This recommendation was made after thorough investigation by the expert statutory body twice i.e., first time in 2005 (Chairman of the Commission Mr.Siddalingaiah) and second time in 2010 (Chairman of the Commission Dr.C.S.Dwarakanath).

The petitioners Codava National Council, had approached the court challenging the government orders dated 14.10.2015 by which the recommendations were rejected. A coordinate bench of the court vide interim order dated 18.08.2021, having found the impugned order of 2015 being prima facie unsustainable, had directed the Government to reconsider the recommendation of the Commission. Accordingly the recommendation having been "reconsidered", the Government has passed the second order on 30.09.2021 reiterating the earlier one.

The state government opposed the petition.

The AGA submitted that,"Although the Commission is a statutory body, its recommendations proprio vigor do not bind the Government; the very essence of "recommendation" or "advice" involves 'discretion to disagree' with the same. Relying on Sec.9(2) of Karnataka State Commission for Backward Classes Act, it was said that, "The Government being a constitutional functionary, has to be given due credence for its decisions, whether elaborately reasoned or not; which community should be treated in what manner for the purpose of benefits of grant of reservation or the like, is a matter left to the wisdom of the Government and Writ Courts should ordinarily keep away from matters of this kind."

Court findings:

Firstly, the court noted that the Karnataka State Commission for Backward Classes is a statutory body established by the State Government in terms of Section 3 of the 1995 Act. Referring to section 9(1) of the 1995 Act, which assigns functions to the Commission. The court said, "It has to examine requests for inclusion of any class of citizens as a backward class in the lists and tender "advice" to the State Government. It has a duty to supervise the implementation of various welfare schemes meant for these classes." It added that, "Section 9(2) of the Act makes the advice of the Commission ordinarily binding on the Government."

Remarking on the delay in considering the recommendation by the state government the court said,

"Years have rolled not even a leaf being turned. Functionaries of the organs of State have to be prompt at least as a concession to the shortness of human life if not as a constitutional imperative."

Considering the contention that section 9 (2) employs the word "ordinarily" and therefore it is always open to the Government to accept the advice or not to the court said that, "The said proposition if accepted may carry one far toward the end of legislative policy. The word "ordinarily" does not have fixed contours of meaning; the meaning of words varies depending upon the text & context of the provision in which they are employed, consistent with the legal maxim nositur a sociis."

Further it observed that,

"This is not to say that the advice of the Commission would be absolutely binding, invariably; in justifiable cases, the Government may not accept the advice, is also true. However, for not accepting, it has to offer cogent & compelling reasons; otherwise, as a norm advice has to be accepted; an argument to the contrary cannot be sustained without doing violence to the policy content & principal object of the Act."

The bench also questioned the state government rejecting the recommendation solely on the suggestion of the Competent authority. It said,

"How could a high constitutional functionary like the State Government be swayed away by the view of some so-called "Competent Authority" remains to be a riddle wrapped in an enigma. In good governance and more particularly when one is dealing with the matter relating to Backward Classes."

The court held that, "Even in the order of September 2021, the so-called "Competent Authority" remains equally unseen and unseeable; no fresh views were sought for from it; what the said Authority, has stated, and how the Government approached the matter afresh, are militantly lacking; there is no due consideration of the advice tendered by the Commission. Thus, the legal malafide is writ large, as rightly submitted by learned counsel for the petitioner."

The court opined "Ours is a "Welfare State" and not the East India Company of the bygone era. The public functions of a Welfare Government, should generate confidence in the mind of right thinking members of the citizenry, what bewilders this Court is the reiteration of the same stand with the duplication of the text of the order, despite a direction issued by a Co-ordinate Bench."

The court also junked the contention of the government that since the impugned orders are now being set at naught, matter may be remanded to the Government, for a fresh consideration. The court said, "The scope for such an argument is completely depleted by what the Government did pursuant to the interim direction of the Co-ordinate Bench. The conduct of the Government does not generate confidence in the mind of this court that petitioner shall not be avoidably driven to one more legal battle, which after being dragged on for years would meet the same fate again."

It added that, "Citizens knock at the doors of Writ Court seeking concrete relief; their demand is not for the remand; they are here claiming justice; years have rolled and much water has flowed under the bridges; the request of the AGA if, at this length of time acceded to, the Writ Courts run the risk of a mass ridicule."

The court concluded by saying, "The traditional view that judiciary should not undertake something which falls within the domain of the Executive, is founded on the 'doctrine of separation of powers', is true; however, such a constitutional theory is founded on a presumption that the Executive would discharge its duties promptly as ordained by law."

Case Title: Codava National Council v. The Chief Secretary

Case No: Writ Petition No.48624 of 2016

Date of Order: 8th Day of December, 2021

Appearance: Advocate B A Belliappa, for Petitioner; Advocate B V Krishna, for Respondents

Click Here To Read/Download Order