LexNAIR SERVICE SOCIETY versus STATE OF KERALA
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" ., NAIR SERVICE SOCIETY A STATE OF KERALA FEBRUARY 23, 2007 [S.B. SINHA AND P.P. NAOLEKAR, JJ.) B Consitution of India, 1950. Articles 14, 15, & 16-Mandal Commission Report- 'Creamy layer'- Guide/ines issued in Indra Sawhney-1 directing States to identify 'Creamy C layer' amongst backward classes to exclude them from purview of reservation-State of Kera/a not complying with the said directions- Committee constituted by Chief Justice of Kera/a High Court at the request of Supreme Court-Report of Committee accepted in Indra Sawhney-11 and State directed to implement recommendations of Committee till State D determines its own criteria for determining 'creamy layer-State not complying with the said directions and appointing another committee- Terms of reference of committee providing that maximum protection be granted to backward classes-Committee submitting report-Notification accepting report challenged-Held, terms of reference while appointing commission is E subject to judicial report-Maximum protection to backward classes not contemplated in Indra Sawhney-1-Determination of creamy layer is part of constillltional scheme-Terms. of reference of subsequent committee held bad in law-Subsequent committee raising annual income to Rs. 3 lakhs from Rs. 1.5 lakhs by earlier committee-Subsequent committee not proceeding scientifically in fixing annual income-Unwarranted criticism of report of F earlier committee by subsequent committee-Jn the facts and circumstances, report of subsequent committee set aside and State directed to appoint fresh commission. Manda! Commission Report was accepted by Union oflndia. Writ petition was filed in Supreme Court questioning the said action on the part of the G Union of India. The Supreme Court in Indra Sawhney & Ors. v. Union of India & Ors., (1992) Supp. 3 SCC 217 (Indra Sawhney-1) inter alia directed the States to identify 'creamy layer' amongst the backward classes and exclude them from the purview of reservation. 149 H A B ISO SUPREME COURT REPORTS [2007] 3 S.C.R. The State of Kera la did not comply with the said directions of the Supreme Court. The Supreme Court by order dated 10.7.1995 in Indra Sawhney v. Union of India & Ors., reported in 119951 5 SCC 429 while holding the State of Kerala to be guilty of contempt of this Court, gave it two month's time to purge the same and report its compliance. The legislature of the State of Kerala thereafter enacted the Kerala State Backward Classes (Reservation of Appointments or Posts in the Services Under the State) Act, 1995 in terms whereof it was declared that there was no socially advanced section in the State and that reservation, which had been in operation since 1958, shall continue to operate. Petitioner Society filed writ petition before Kerala High Court questioning the validity of the State Act. The Supreme C Court passed an Order dated 4.11.1996 requesting the Chief Justice of the Kerala High Court to appoint a High Powered Committee to determine the criteria for identification of 'creamy layer' and accordingly, 'the Joseph Committee' headed by Justice K.J. Joseph was constituted which submitted its report on 4.8.1997. The Supreme Court in Indra Sawhney v. Union of India D & Ors., (2000) I SCC 168 (Indra Sawhney-11) while holding Sections 3, 4 and 6 of the 1995 State Act to be unconstitutional accepted the report of the Joseph Committee in toto subject to certain additions of communities and sub-castes and passed strictures against the State Government for contemptuous acts in deliberately violating the orders of the Court, It was directed that the recommendations of the Joseph Committee Should be implemented forthwith E until such time the State comes up with its own criteria for determining 'creamy layer'. It was further directed that the suo motu contempt previously initiated by the Court be kept pending and the State should purge its contempt only by complying with the directions contained in Indra Sawhney-11. The recommendations made by the Joseph Committee in its report, however, were F not implemented forthwith in terms of the directions of the Supreme Court in Indra Sawhney-11. The State, on the other hand, appointed another Commission headed by Justice K.K. Narendran and issued Notification dated 27.5.2000 accepting the report of the Narendran Commission with certain modifications. The Narendran Commission report inter alia provided that income li
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