T.S.MISRA,J. - (1.)T.S.MISRA,J. 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 1/2% 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.

(3.)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.