ORDER Ravi S. Dhavan, J.
1. This case is about a dichotomy between the law in its administration as opposed to a unanimous intention of the legislature of Ultra Pradesh in the applicability of that very law. If either of the factors were absent, there would be no occasion for the High Court to examine the issue before it.
2. The issue has been raised in more than one writ petition before this Court. The present one is the leading case. The prayers of a like nature in other cases will be met by this judgment.
3. The matter relates to the divisions of Kumaun and Garhwal within Uttar Pradesh. The Legislature of Uttar Pradesh has resolved that this region be known as Uttarakhand.
4. Whatever be the course of politics which occasioned the situation, the High Court is not concerned with it. The two Houses of the Legislature in Uttar Pradesh on two occasions passed unanimous resolutions, to the effect that the regions of Kumaun and Garhwal be identified as distinct from the rest of the State and considered to receive autonomy as a State to be known as Uttarakhand. One resolution was passed by the Houses of the State Legislature in 1991 and another in 1994.
5. On the resolutions of the Houses of the Legislature, there is no issue. The petitioner, relies on it. The State Government does not deny it.
6. This judgment would be incomplete without noticing the two resolutions of the Houses of Legislature in accepting the region of Kumaun and Garhwal as distinct in its identity from the rest of the State of Uttar Pradesh/Thus, the resolutions are :
"12-8-1991 "Motion for establishment of a separate State named Uttaranchal"
Minister for Finance & Parliamentary Affairs (Sri Rajendra Kumar Gupta) -
Sir, Will your permission I beg to move the following resolution.
"This house recommends to the Central Government that a separate State, to be named Uttaranchal; be established including the districts of Nainital, Almora, Pithora-garh, Pauri Garhwal, Chamoli, Tehri Garhwal, Uttar Kashi and Dehradun of the Kumaon and Garhwal divisions of the State of Uttar Pradesh."
Speaker -
The question is whether the house agrees that "This house recommends to the Central Government that a separate State, to be named as Uttaranchal, be established including the district of Nainital, Almora, Pithora-garh, Pauri Garhwal, Chamoli, Tehri Garhwal, Uttar Kashi and Dehradun of the Kumaon and Garhwal Divisions of the State of Uttar Pradesh." (Question put to vote and accepted)."
"Resolution passed by Legislative Assembly on 24-8-1994 and by Legislative Council on 25-8-1994."
"This house, keeping in view of topographical conditions of hill areas of Uttar Pradesh and special economic and administrative compulsions of that area, is of the definite opinion that a separate State for that area be established. Therefore, this house recommends to the Central Government that "Separate State consisting of districts of Nainital, Almora, Pithoragarh, Pauri Garh-wal, Chamoli, Tehri Garhwal, Uttar Kashi and Dehradun of the Kumaon and Garhwal Divisions of the State of Uttar Pradesh be formed by the Parliament by enacting a law under Article 3 of the Constitution."
7. The resolutions of the Houses of Legislature were accepting the reality of an identity in the regions of Kumaon and Garhwal. Easier said than done, the buck was then passed on to the federal government to fend with the norms of the constitution to accept the regions and the peoples of Kumaon and Garhwal as a distinct identity for statehood.
8. After the resolution of the Legislative Assembly in 1991 the State Governrnent wrote and apprised the federal government that the Legislature of Uttar Pradesh have resolved to recognise the claim of statehood to the peoples of Kumaon and Garhwal. It was suggested that the federal government hereinafter act and take appropriate steps to formalise the grant of State autonomy to these regions. The text of this letter, from the Chief Secretary, Uttar Pradesh to the Secre-tary. Government of India, New Delhi is very important and relevant for the purposes of this case. The text is reproduced.
"From Dr. V. K. Saxena Chief Secretary U.
P. Government To The Secretary Government of India Ministry for Home New Delhi Subject :-- The resolution passed by U. P. Legislature Assembly for formation of separate State by name Uttaranchal in Uttar Pradesh.
General Administrative Section Sir, I, hereby have the honour to forward to you the resolution on aforementioned subject for formation of separate State Uttaranchal passed by Uttar Pradesh Legislative Assembly in the first session 1991 namely on 12 August 1991, that the districts of Nainital, Almora, Pithoragarh, Pauri Garhwal, Chamoli, Tehri Garhwal, Uttar Kashi, and Dehradun of Kumaon and Garhwal Division be combined together to form a separate State by name Uttaranchal.
Yours faithfully Sd/-Illegible Dr. V. K. Saxena Chief Secretary Details/Comments on the requisite points by the Home Ministry, Government of India on the subject of formation of separate State of Uttaranchal.
Requisite Points :
1. The relative comparison of districtwise area and population between Uttar Pradesh and proposed State according to the latest census.
Details/Comments :
According to the final census estimates of 1991 census, the total population was 1388 lakhs and total population of eight districts of Uttaranchal is about 59 lakhs. The details of the districtwise population is given in Annexure--1.
Requisite Points :
The standard on the basis of which separate State is proposed.
Details/Comments :
2. The standard on the basis of which the formation of separate Uttaranchal is proposed is in short detailed hereinbelow :--
(1A) Uttaranchal region of this State is that part of the northern belt of the Himalayan range which is very sensitive and which is of great importance as it adjoins the boundaries of China/Tibet and Nepal. The topography, climate, social, economic and cultural basis and form of this region is entirely different than the plains. Due to difficult site and terrain there is difference in economic and social structure. The problems of development of this region are also different.
(1B) There is shortage of basic, social and economic community facilities for sparse and scattered population on the one hand and on the other hand the cost of making these facilities available is much more than the plain region and gestation period of plans and projects is also normally very high. Multitude, persistent and frequent natural calamities, the loss of built-in properties, landslide are large scale problem. The cost of maintenance and running of already built-in properties is comparatively much more.
(1C) The living and life style of people residing in this region is different from those of other regions of Uttar Pradesh. Being 3 border, hilly and difficult area, there are special problems of development of this region. There is abnormal rise in the number of educated unemployed and the employment avenues for them are negligible. About 70 per cent of the population even today live below the poverty line.
(2A) There is a public demand, in accordance with aspirations of the people of this region, that a separate Uttaranchal State be formed, as all other regions which touch the northern boundaries in the Himalayas, namely, Jammu & Kashmir, Himachal Pradesh, Assam, Nagaland, Arunachal Pradesh, Mizoram, Meghalay, Sikkim etc. are separate States and Darzeeling region of West Bengal is also a local self-governing region. In this way all the units of the northern region of the nation have separate entities. Only the eight districts of Uttar Pradesh have not been given the status of the State.
(2B) The Tarai region of the foot hills is also attached and goes with the Uttaranchal. Lines of communication and commercial routes of this place instead of being east west are south north. Therefore, the hills and terrain of Uttaranchal are complementary to each other and there is full justification for roughly making the whole Shivalik plateau being made a separate part of Uttaranchal State.
(3) When all the hill State of Himalayas namely Himachal Pradesh and other Northeastern Small States can be viable, there is no reason why the Uttaranchal with its area, population and resources be not considered more viable, specially when the capacity for production of foodgrains and the trading market of this terrain and the fertile area of Tarai have their own importance, which is sufficient to meet the needs of the region.
(4) The local public of the region carries a deep conviction that the other separate hill States, the Himalayas have progressed much more because of their existence as a separate State. On the one hand these States, because of being accorded the status of special category have been provided with plan expenditure, filling of the non-plan gap, special State aid and economic protection, offered to them; on the other hand Uttaranchal is not being supplied with these facilities, plan expenditure and non-plan expenditure requirements etc. (5A) The management and administrative framework of this region is not effective in a practical way as it is not in the shape of separate State. It is essential for a firm administration and development in this hilly region that there should be an administrative organisation of higher posts of governmental services and other posts so that the different officers/employees of this region may work from the lower posts to the higher posts ensuring the continuity and competitiveness and the knowledge and experience gained in this region may not be wasted. It is not possible if Uttaranchal continues to be a part of this vast State of Uttar Pradesh. Because of paucity of resources, the people from the plains do not wish to go to the hills leaving many posts always vacant. As a result, the various developmental projects are not carried out properly.
(5B) This region is of great significance for the security of the nation as it is linked with the international boundaries of Nepal and China and is affected by administrative inconveniences.
(5C) Different regimes have different problems on a big scale; in the vast area like Uttar Pradesh; their solution and redress is not possible in the absence of a strong administrative and economic framework. A single line administration is an absolute necessity for this region of military importance so that administrative convenience, control and management organisation may be strengthened. In its absence, the greatest difficulty on one side is the posting of officers and other employees and on the other hand there is absence of dedication and commitment.
(5D) In this area from a political point separate leadership, participation and contribution of the local people, and practical, effective and harmonious, political and administrative leadership can only be achieved by establishment of a separate State for the Uttaranchal. For this purpose it is essential that keeping in view of the heterogeneous tracts inaccessible mountains and the separate problems of the fat flung areas that the units for peoples representation should be comparatively smaller than plains; for examples although the population of Himachal Pradesh is less than that of the Uttaranchal, Himachal Pradesh has 68 assembly constituencies while eight districts of Uttaranchai have only 19 assembly constituencies. So in case status of a separate State is conferred then according to the demand of districts, tehsils and development blocks from administrative and economic point of view on the pattern of other separate States and the number of these units will necessarily have to ire increased.
(6) In this respect, it may be mentioned that youths are continuously migrating from Uttaranchal region as there is paucity of industries and employment avenues are not augmented to the required extent. One of the evil result of this migration, which may be of special concern is that this sensitive area and area of the military importance for the country may become weak in future from the point of view of national security, because in case the requisite number of males do not reside in this area then from the point of view of the security it will be impossible to face each and every situation without appropriate local residents. This lesson can also be learnt from Jammu & Kashmir where the population which was permeated with national feelings was forced to migrate and that area has been continuously becoming a victim of terrorism since independence till the present day. This problem has created a great challenge for the State of Jammu & Kashmir as well as for the Central Government. In national interest, looking into all the aspects of the problem the whole responsibility for security of the northern boundaries also rest with the Central Government and if a separate State is not established for Uttaranchal then in future this region will become a challenge to the security of the country, unity and integrity of the country in future.
(7) From the economic point of view this area has its own separate importance, specially the nation's main sacred places of pilgrimage, Badri Nath, Kedar Nath Dham, Gangotri, Jamunotri, Neel Kanth, etc. are holy places of Hindu religion and are main centres of religious tourism. Besides, religious pilgrimage and tours, this area has capabilities in the field of other tourist spots, wildlife, medicinal herbs and plants, tourism, gardens and hydro electricity development. The main historical and religious rivers have their source and origin in this region as Ganga, Yamuna etc.
8. In this manner this region has a totally different geographical, economic, social, cultural and military setup and entity. In accordance with the aspiration of the people, the development of this separate unit can be empowered with dynamism, reforms in the standards of public life, made economically and socially capable only by carving out a separate State and it is only then with full administrative control and full responsibility for national security can be undertaken. Because without it practical difficulty is being realised in administrative and management control and cleaning the way for develop-
ment.
9. The difficulties in the rural life have abnormally increased because of the restrictions imposed by Forest Conservation Act and restrictions relating to environment. The development programmes providing the basic facilities have stopped. For solution of the problems of unemployment, the legal bar for the establishment of any industry based upon the mineral wealth of the area, the absence of any provision for the maintenance of those developmental projects which have been completed, per person average expenditure being half of the North-east hill State of the India under the consecutive five year plans. Annexure Ka gives the comparative table of the amount spent on per person in Uttaran-chal and in Himachal Pradesh.
III. Requisite points :
The actual achievements in the remaining Uttar Pradesh and the financial and actual achievements of main areas of the aforementioned eight districts.
Details/ Comments :
The details of the financial and material achievements under the 7th plan of eight districts of Uttaranchal are given in Annexure 2, along with the financial and material achievements of the whole of Uttar Pradesh.
(IV) Requisite point :
Financial structure of 8 districts, details of revenue and expenditure under development and maintenance.
Details/Comments :
There are two divisions namely Garhwal and Kumaun in regard to development structure. Commissioners are posted there in the same manner as in other divisions of the State. Along with it in the eight districts, the administrative structure of Collectors and Tehsil 89 development blocks are in accordance with State's other developmental structure. As far as details of estimates of other financial expenditure is concerned its information at present is not available.
(V) Requisite Point :
Justification for formation of separate state :
Details/Comments :
Pointwise details for justification for separate State has already been mentioned at point No. (II). In short it is being repeated herein-
below :--
(1) Sensitive as it is linked with the boundaries of Tibet, China and Nepal. Special and separate importance due to military point of view.
(2) Different position, topography, climate, terrain, and different social, economic and cultural basis from rest of the State.
(3) Different problems and different solutions from the plain region.
(4) In the entire Himalayan belt Uttaranchal being the only region which is not a separate State.
(5) Similarities of this region with the problems and capabilities of Himachal Pradesh. The area and population of Uttaranchal is more than any Hill State except Jammu and Kashmir and Assam.
(6) Capabilities and viability of Uttaranchal is more than any other small hill state. Trading markets in the foothills and fertile area of Tarai is capable of fulfilling the needs of the area.
(7) Non-strengthening of administrative and managerial organisation due to its being a small part of 8 districts in the large state of 63 districts.
(8) Non-fulfilment of people's aspiration from political point of view and absence of separate leadership and direction.
(9) Migration of youths from Uttaranchal due to economic backwardness. This is a challenge for region's development and areas' security in future.
(10) There is no shortage natural and human resources in Uttaranchal. 66% of Uttaranchal is forest. There are development capabilities in the areas of wild life, medicinal herbs and plants, tourism, horticulture, and Hydro electricity. If migration can be stopped then human resources are also important tor the region's prospeTity and security."
9. Not an issue before the High Court is an aspect to which attention was drawn by the Court to both counsel for the petitioner and the State respondent. Both sides were uncomfortable in answering the constitutional academics by accepting that the matter had not been anticipated for examination as put by the Court. Suffice it to say that the situation suits both the sides at the Bar of this Court. The State Government acknowledges the demand for Statehood of its peoples from the bill regions and, as far as these peoples are concerned, given an occasion they would like their political aspiration conceded. But, could the High Court issue a mandamus on this for the creation of a State out of the State? The aspects noticed in this paragraph do need to be noticed as the main issue is not alien to the demand or the grant of Statehood.
10. New States cannot be created by the State as opposed to the Union. Thus, whatever has been done is good for politics, but not exactly an exercise which the Constitution of India encourages. In Uttar Pradesh, politics has, thus, put the cart before the horse. Statehood or the birth of it is dealt with in Part I of the Constitution. The title of the Chapter is, 'THE UNION AND ITS TERRITORY' and not the States and the Union. The formation of new States and altering the areas, boundaries or names of existing States can be initiated either by Parliament or the President of India. In this regard Article 3 is relevant. It reads :
3. Formation of new States and alteration of areas, boundaries or names of existing States -
Parliament may by law -
(a) form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State;
(b) increase the area of any State;
(c) diminish the area of any State;
(d) alter the boundaries of any State;
(e) alter the name of any State :
Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired.
Explanation I.-- In this article, in clauses (a) to (e), "State" includes a Union territory, but in the proviso, "State" does not include a Union territory.
Explanation II.-- The power conferred on Parliament by clause (a) includes the power to form a new State or Union territory by uniting a part of any State or Union territory to any other State or Union territory.
Nothing was shown to the Court that in the matter of formulating a new State known as Uttarakhand, strictly in accordance with the Constitution of India, initiative had been taken either by the Federal Parliament or by (he President of India. The Parliament or the President of India, thus, are not in issue. After the republic came into being, the formation of a State or the alteration of its boundaries was the result of an act of Parliament by virtue of Articles 2 and 3 of the Constitution. This is amply and clearly demonstrated from the text of First Schedule, which incorporates the legend on the formation of the States within the Union.
11. It was necessary for the Court to notice these provisions of the Constitution of India for the purpose of record lest it be misunderstood that, if the parties had not, the Court was not conscious of the constitutional mechanics on the formation of a new State. All things considered, as readily as the demand for the creation of a separate State known as Uttarakhand is not disputed, the thesis of conceding Statehood to the peoples of Kumaun and Garhwal by the State Legislature is at issues with the State Gov-
ernment which has given form to an antithesis, implying thereby that no. one has created an issue for adjudication by the High Court but the State Government itself. This is best borne from the record from the counter-affidavit of the State of Uttar Pradesh.
"14. ..... ........
(c) It is further noteworthy that even the present Government vide its letter dated 7th Sept., 1994 (Annexure 'I') sent to Home Secretary, Govt. of India has only communicated the resolution passed by the two Houses of State Legislature on 24th and 25th August, 1994 recommending that in view jf the geographical conditions as well as specific, economic and administrative compulsions of the hill area of U. P. a bill should be placed in the Parliament under-Article 3 of the Constitution of India for creation of a separate Slate of "Utlarakhand" comprising of the two divisions of Garhwal and Kumaun. The aforesaid recommendation does not violate the spirit of Article 3 of the Constitution of India nor does it usurp the power of Parlia-ment in any manner whatsoever. The extreme reliance placed by the petitioner upon the aforesaid documents is only an outcome of the contention of the petitioiner to distort and confuse the issue. However, it may be stated that neither the resolution of 1991 nor that of 1994 has got any bearing or relevance in respect of the policy of reservation which is the subject matter of dispute before this Hon'ble Court.
15. Insofar as the question of validity of the impugned ordinance with reference to its promulgation is concerned, it is noteworthy that the competence of the Governor in having promulgated the Ordinance cannot be challenged by way of writ petition under Article 226. More so the order of 20th July, 1994 stemming out of the impugned Ordinance was directly linked with the concept of admission of the students in Universities and Colleges. Admissions in Universities and Colleges normally take place in the month of July, and therefore, promulgation of the Ordinance was necessitated because the House was not in session at that time. It is, however, noteworthy that the impugned Ordinance has since been approved by the House in the form of UP State Universitie.5 (First Amendment) Act, 1994 (Act 20 of 1994) and the same has been notified on 31-8-94, of which photocopy is annexed at Annexure II. In view of the aforesaid enactment the entire argument of the petitioner on the aforesaid score falls flat."
12. Before crystallising the issues before the High Court, one decision of the Supreme Court : re State of Uttar Pradesh v. Pradeep Tandon, AIR 1975 SC 563 is relevant. This decision is on the same theme on the char acteristics of the region that is Kumaun and Garhwal and its peoples. The Supreme Court observed :
"18. The traits of social backwardness are these. There is no social structure. There is no social hierarchy. There are no means of controlling the environment through technology. There is no organization of the society to create inducements for uplift of the people and improvement of economy. Building of towns and industries, growth of cash economy which are responsible for greater social wealth are absent amongst such classes. Social growth and well being can be satisfied by massive change in resource conditions. High lands and hills are to be developed in fiscal values and natural resources. Nature isa treasury. Forests, mountains, rivers can yield an advanced society with the aid of education and technology.
19. The hill of Uttarakhand areas in Uttar Pradesh are instances of socially and educationally backward classes of citizens for these reasons. Backwardness is judged by economic basis that each region has its own measureable possibilities for the maintenance of human numbers, standards of living and fixed property. From an economic point of view the classes of citizens are backward when they do not make effective use of resources. When large areas of land maintain a sparse, disorderly and illiterate population whose property is small and negligible and element of social backwardness is observed. When effective territorial specialisation is not possi-ble in the absence of means of communication and technical process as in the hills and Uttarakhand areas the people are socially backward classes of citizens. Neglected opportunities and people in remote places raise walls of social backwardness of people.
20. Educational backwardness is ascer-tained with reference to these factors. Where people have traditional apathy for education on account of social environmental condition or occupational handicaps, it is an illustration of educational backwardness. The hill and Uttaraljamd areas are inaccessible. There is lack of educational institutions and educa-tion aids. People in the hill and Uttarakhand areas illustrate the educationally backward classes of citizens because lack of educational facilities keep them stagnant and they have neither meaningand values nor awareness for education."
13. In Pradeep Tandon's case, AIR 1975 SC 563 (supra), a reservation had been made in favour "for the hill and Ultarakhand areas" and held as valid, as these areas needed special treatment.
14. The issues or call them facts, for the purpose of this case are not complicated but simple. The State Government issued a Government Order dated 10-7-1994, under Section 28(5) of the U. P. State Universities Act. amended by U. P. Ordinance No. 12 of 1994 for the Universities. The U. P. Educational Manual for Schools and Colleges was 'amended by a Circular dated 17-6-1994. The Ordinance, aforesaid was replaced by U. P. Act No. 4 of 1994. The Ordinance came to be an Act, known as the Uttar Pradesh State Universities (Reservation in Admission for Scheduled Castes. Scheduled Tribes and Other Backward Classes) Act, 1994, Section 2 of this Act, in its applicability, for admission to a University, Institute, Constituent College, affiliated College or associated College, governed by the Uttar Pradesh Universities Act, 1973, the quota for reservations would be as below :
16. All was now quiet in the regions of Kumaun and Garhwal until the apple-cart tilted, in the special and peculiar circumstances of these regions, with the order or policy of the State Government to insert 27% reservation for Backward Classes in admission to schools, colleges and Universities in the hill regions of Uttar Pradesh. Like the shot at the Archduke Fernandes of Austria-Hungary which became the catalyst for the First World War, this reservation policy was the shot which fired the agitations and the turmoil in the hill regions of this State, that is, Kumaun and Garhwal. Thus, this writ petition by Mr. Manvendra Shah, Member of Parliament. Otherwise, he is the erstwhile Maharaja of Tehri Garhwal.
17. But, why should this action of the State Government evoke such violent and sharp reaction, after all logically and by law the policy of the State Government has to be applicable uniform throughout the State? In simple terms, and without any extenuating circumstances, logically, the answer is yes. But, no more beautifully put than the great judge and jurist in the last two decades of the last century; "Life of the law is not logic but experience".
18. In fact the main thrust of the argument on behalf of the State Government and the State respondents proceeds only on the premises that the law or the policy, in its applicability and implementation, cannot but be uniform. Seen for isolation, the psyco-logistic reasoning cannot be faulted. But, this is not a matter which can be seen in isolation nor it is a matter which is without extenuating circumstances. To build up its case in isolation, the State Government contradicted its stand with double standards. In the counter-affidavit, there is an escapism from the reality, and it is this reality which is, in fact, relevant, and the real extenuating and circumstances of the case.
19. Statistics have been placed before the Court by the State of U. P. to show that compared to the plains, ratiowise the hill region of Kumaun and Garhwal has more schools than the plains areawise; that, there is more literacy in that region and the area is not educationally backward and, thus, the reservation for backward classes to the extent of 27%.
20. The argument on this aspect is equally matched by the petitioner, when his learned counsel, Mr. Yatindra Singh, reflects the statistics as given by the State Government, to accept that statics, like the dead do not lie, but it takes two people to play the same game. All ratios in statistics are based only on a set of given circumstances, and figures change with changed factors which make the circumstances. He submits that with sparesly popu,-lated interiors of the hills, schools cater to a lesser population to show a high level and percentage of schools and school going children which compares favourably with high density population of the plains, being catered, compared with the hills, with fewer schools and, thus, the statistical conclusion of less opportunity. And yet, on behalf of the petitioner it is asserted this proves nothing for the hills either except one conclusion, (i) lack of planning, distancewise in the remote areas; (ii) schools were too spread apart; and (iii) Colleges and Universities are not uniformly and universably available.
21. On this aspect, as far as the Court is concerned, the heavy reliance on statistics as a defence, by the State respondents, with an added submission that statistics fault the petitioner's case, in fact is a defence which is, firstly, counter productive and, secondly, contradicts the policy of the State Government, which stands seated with legislative sanctity of the declaration of the houses of the legislature. The entire defence and the case of the State respondents as presented to the Court rests on the premises that the law has to be made applicable uniformly. Truer words were never spoken. But, generalities have exceptions. Closer home to the point, the making of reservations for the under privi-leged is itself an exception to the guarantee of the equality conferred by the Chapter on Fundamental Rights in the Constitution of India.
22. Thus, the question does arise whether the matter of reservations in educational institutions of the State as a generality required an exception for the hill areas of Kumaun and Garhwal, as the State of U. P. had itself made an exception, by an intention of the legislature; and expression of a sanction and a mandate by the peoples representatives. The conflict or the contradiction, is within the Government in its politics. Here is a situation where unanimous resolutions of the State Legislature, both Houses, on record resolve that the peoples of Kumaun and Garhwal, in effect, have nothing in common with the plains of the State and, thus, ought to have an identity of their own in a Statehood. The State to be known as Uttarakhand as the wilt of the legislature expresses it so, thus, the question of applicability negates the factors of similar circumstances. There is, in the State action belittlement of the legislatures solemn resolutions. This, then is the dichotomy of the situation of within and out of the legislature.
23. The conflict then is between executive and the legislature, not with the citizen who has brought this action to the High Court.
24. It is entirely up to the Government to remain in conflict with the legislature's intent or to use the legislative powers for general applicability, in contradiction to the legislature's resolution and the State policy to recognise a certain region as good for projection into an identity of a separate State. In fact, on this aspect, both pleadings and submissions in defence were evaded. It was accepted and acknowledged that resolutions of the Houses of the State Assembly lie as a White Paper for the State Government, to remind as an official statement of policy that the hill regions of this State in its backwardness and its diversity needs to be carved as a separate State.
26. It is thus, the petitioners seek an answer, from the State of U. P. that if the law for affirmative action will apply uniformly, then if those for whom reservation has been made in fact are not available but only negligibly represented, then how is the law to be applied in a vacuum. The answer which the petitioner then seeks, is, would there be a trans-migration of the population from the plains to the hills? The answer was avoided by the State.
27. The petitioner relied on case law in support of his arguments. The respondents relied on the same cases to refute it. All the cases cited are on accepted situations and given circumstances that in the matter of reservation there are the privileged and the under-privileged or the advantaged and the handicapped. In a given area specified for examination of reservation the society which has reservations, inequality was the accepted circumstances. The lis was with numbers. In the case before the Court in the tranquillity of the hills a conflict is being created by the State respondents which defeats logic and the dimensions of equality by law. A State cannot push affirmative action in an area of accepted ethnic diversity which is already recognised as the victim of long neglect in short, itself "backward" in its entirety.
28. In these circumstances, the cases dwelt upon and placed at the Bar are noticed by the Court.
29. Submitting on the theme that what the State of U. P. has already classified cannot be declassified by the executive, counsel for the petitioner submitted by relying on a Supreme Court decision, State of Maha-rashtra v. Kamat, AIR 1985 SC 119 (Para 23) to submit that alikeness of persons will differ from situation to situation. It was contended that classification requires division into classes which are marked by common characteristics, which must be founded upon a rational basis which must be directed in subserving the purpose of law in its implementation without confusion. In the context of the case before the Court it was submitted that residents of a particular region in their accepted economic backwardness and social and ethnic diversity must not be forced to accommodate alien backwardness almost non-existent in the hills.
30. Recognition of backwardness of a geographical area has been accepted both in administration and judicially approved. Referring to the case of State of Kerala v. R. P. Roshana, AIR 1993 SC 477 : 1993 Lab IC 129 : (1992 AIR SCW 3682), counsel for the petitioner drew the attention of the Court to submit that in matters of education the Supreme Court accepted that :
"The Malabar area has been regarded as notoriously backward from the point of view of collegiate education so much so, the number of colleges which provide pre-degree courses necessary by way of qualification for entrance into medical colleges, are relatively fewer and, on the contrary, the remaining part of the State thanks to many factors, has been on a higher level, with colleges more numerous and pre-degreed students more prolific. Geographic justice, a component of social justice, has to take note of these comparative imbalances. Rightly, therefore, the State Government, based on certain reports of Commissions, considered the two territorial divisions as separate units and regulated seat allocations to medical colleges in the State on an equitable basis. The social thrusts of the classification, based on geographical dissimilarities, was the core factor in formulation of that scheme of admissions."
On unimagmative implementation of backwardness, counsel relied on the observations of the Supreme Court in the same case pleading that the High Court remedy the situation. The passage relied upon :
"34. Nor is law unimaginative, especially in the writ jurisdiction where responsible justice is the goal. The Court cannot adopt a rigid attitude of negativity and sit back after striking down the scheme of the Government, leaving it to the helpless Government caught in a crisis to make-do as best as it may, or throwing the situation open to agitational chaos to find a solution by demonstrations in the street and worse. We are, therefore, unable to stop with merely declaring that the scheme of admission accepted by Government is ultra vires and granting the relief to the petitioner of admission to the medical college. The need for controlling its repercussions call for judicial response. After all, law is not a brooding omnipresence in the sky but an operational art in society."
and "40. Had we left the judgment of the High Court in the conventional form of merely quashing the formula of admission the remedy would have aggravated the malady - confusion, agitation, paralysis. The root of the grievance and the fruit of the writ are not individual but collective and while the 'adversary system' makes the Judge a mere umpire, traditionally speaking, the community orientation of the judicial function, so desirable in the Third World remedial jurisprudence, transforms the court's power into affirmative structuring of redress so as to make it personally meaningful and socially relevant. Frustration of invalidity is part of the judicial duty; fulfilment of legality is complementary. This principle of affirmative action is within our jurisdiction under Art. 136 and Art. 32. and we think the present cases deserve its exercise."
The reliance on certain passages of the Supreme Court decision in Indra Sawhney v. Union of India, AIR 1993 SC 474 : (1992 Lab IC 2471), by counsel for the petitioner and respondent, alike, is misplaced and out of context, important though the decision in the field in which it operates, is but not the issues of which this Court is seized of. Passages have been relied on by petitioner's counsel in one context and yet different extracts of it by the respondents, and yet none may be in context. If the Court were to notice the passages, the question would arise, to what avail? In answering the question of what to rely upon and for what purpose in the matter of procedure or stare decisis, a very recent decision of Sukhwant Singh v. State of Punjab, 1995 (3) JT (SC) 495, the Supreme Court gives ample guidance. "The observations from a judgment of this Court cannot be read in isolation and divorced from the context in which the same were made and it is improper for any Court to take out a sentence from the judgment of this Court, divorced from the context in which it was given and treat such an isolated sentence as the complete enunciation of law by this Court."
31. Indra Sawhney's case, AIR 1993 SC 474: (1992 Lab IC2471)(supra)deaIs with the matter of affirmative action in removing backwardness from the backward classes, the identification of the creamy layer and eliminating it in a sieve like action of withdrawing continued advantages from amongst those who would cease to need the benefit of an affirmative action. The essence of the issues tackled in the Indra Sawhney case can best be taken from the judgment itself when it generalises the progression of bridging backwardness in a society which caused it :
"449. This question is really in two parts and the two do not mean and refer to the same classification. The first part refers to the classification of the backward classes into the backward and most-backward classes while the second speaks of internal classification of each backward class into backward and more backward individuals or families. Both classifications are to be made on economic or other considerations. Whereas the first classification will place some backward classes in their entirety above other backward classes, the second will place some sections in each backward class internally above the other sections in the same class. The second classification aims at what has popularly come to be known as weeding out of the so-called "creamy" or "advanced sections" from the backward classes. Although it is not that clear, the second order probably seeks to do it. We may first deal with the second classification.
450. Society does not remain static. The industrialization and the urbanization which necessarily followed in its wake, the advance on political, social and economic fronts made particularly after the commencement of the Constitution, the social reform movements of the last several decades, the spread of education and the advantages of the special provisions including reservations secured so far, have all undoubtedly seen at least some individuals and families in the backward classes, however small in number, gaining sufficient means to develop their capacities compete with others in every field. That is an undeniable fact. Legally, therefore, they are not entitled to be any longer called as part of the backward classes whatever their original birth mark. It can further hardly be argued that once a backward class, always a backward class. That would defeat the very purpose of the special provisions made in the Constitution for the advancement of the backward classes, and for enabling them to come to the level and to compete with the forward classes, as equal citizens. On the other hand, to continue to confer upon such advanced sections from the backward classes the special benefits would amount to treating equals unequally violating the equality provisions of the Constitution. Secondly, to rank them with the rest of the backward classes would equally violate the right to equality of the rest in those classes, since it would amount to treating the unequals equally. What is more, it will lead to perverting the objectives of the special constitutional provisions since the forwards among the backward classes will thereby be enabled to lap up all the special benefits to the exclusion and at the cost of the rest in those classes, thus keeping the rest in perpetual backwardness. The object of the special constitutional provisions is not to uplift a few individuals and families in the backward classes but to ensure the advancement of the backward classes as a whole. Hence, taking out the forwards from among the backward classes is not only permissible but obligatory under the Constitution. However, it is necessary to add that just as the backwardness of the backward group cannot be measured in terms of the forwardness of the forward group, so also the forwardness of the forwards among the backward classes cannot be measured in terms of backwardness of the backward sections of the said classes. It has to be judged on the basis of the social capacities gained by them to compete with the forward classes. So long as the individuals belonging to the backward classes do not develop sufficient capacities of their own tc compete with others, they can hardly be classified as forward. The moment, however, they develop the requisite capacities, they would cease to be backward. It will be a contradiction in terms to call them backward and others more or most backwards. There will always be degrees of backwardness as there will be degrees of forwardness, whatever the structure of the society. It is not the degree of backwardness or forwardness which justify classification of the society into forward and backward classes. It is the capacity or the lack of it to compete with others on equal terms which merits such classification. The remedy, therefore, does not lie in classifying each backward class internally into backward and more backward, but in taking the forward from out of the backward classes altogether. Either they have acquired the capacity to compete with others or not. They cannot be both.
451. The mere fact further that some from the backward classes who are most advanced than the rest in that class or score more in competition with the rest of them and thus gain all the advantages of the special provisions such as reservations, is no ground for classifying the backward into backwards and most backwards. This phenomenon is evident among the forward classes to the more advantaged among the forwards similarly gain unfair advantage over others among the forwards and secure all the prizes. This is an inevitable consequence of the present social and economic structure. The correct criterion for judging the forwardness of the forwards among the backward classes is to measure their capacity not in terms of the capacity of others in their class, but in terms of the capacity of the members of the forward classes, as stated earlier. If they cross the Rubic on of backwardness they should be taken out from the backward classes and should be made disentitled to the provisions meant for the said classes."
32. But academically, there are certain cases and precedents which are relevant, and upon which the petitioner has relied. One such case is K. C. Vasanth Kumari v. State of Karnataka, AIR 1985 SC 1495. In the case under judgment before the High Court, the issue is not so much of a class conflict as is generally understood while securing an advantage to the handicapped in the making of a policy of reservation. There are occasions where the drawback is not the result of a socialogic class-clash but a region of peoples suffers from backwardness because of geographical necessities which would be psyche of the people of the area, where the region itself is introvert in its outlook, excessively protective of itself and its identity. In such circumstances both the region and its people are not unknown to be backward as a whole but in peace with itself and without a class conflict. In Europe, Albania is one such example, and yet its challenges and problems are different from the erstwhile Yugoslavia which is riddled with ethnic strife even today.
33. It is in this regard that the case of K. C. Vasanth Kumar, AIR 1985 SC 1495 (supra) is relevant to the issues before the Court. It was in this case that the Supreme Court dealt with the aspect of looking at backwardness. Cautioning that the problems of reservation can never be resolved through litigation, the Supreme Court reflected that reservation in its intent and process is a changing phenomenon of which a sociological and economic study must be carried out "from State to State and from region to region within a State", touching on the theme that there could be a reality in regional backwardness and the individuality of community backwardness may not be primary test of class poverty. The following observation from the Supreme Court judgment needs to be reflected upon.
"80 Class poverty, not individual poverty, is therefore the primary test. Other ancillary tests arethe way of life, the standard of living, the place in the social hierarchy the habits and customs etc. Despite individual exceptions, it may be possible, and easy to identify social backwardness with reference to caste, with reference to residence, with reference to occupation or some other dominant feature. Notwithstanding our antipathy to caste and sub-regionalism, these are facts of life which cannot be wished away. If they reflect poverty which is the primary source of social and educational backwardness, they must be recognised for what they are along with other less primary sources. There is and there can be nothing wrong in recognising poverty wherever it is reflected as an identifiable group phenomena whether you see it as a caste group, a sub-regional group, an occupational group or some other class. Once the relevant factors are taken into consideration, how and where to draw the line is a question for each State to consider since the economic and social conditions differ from area to area. Once the relevant conditions are taken into consideration and the backwardness of a class of people is determined, it will not be for the court to interfere in the matter. But, lest there be any misunderstanding, judicial review will not stand excluded."
34. In the present case, which is it to be between a class-clash or acknowledgement of the existence of backwardness in a specified region? This answer will not come from delving into precedents, as the situation is singularly peculiar that there is no clash within the peoples of the State. There is also the paradox of a State which by policy acknowledges, admits and acquiesces to the backwardness of a particular region but in the implementation of its policy attempts to enforce the strategy of law which has erupted in violence in the region. In the net result, State policy is clashing with political protocol and the legislature's guarantee and with an unimaginative implementation of law which negates, even the exceptions to the equality clauses.
35. In dealing with the region of Kumaun and Garhwal the State Government, and it does not matter who constitutes it, before having the matter for debate before the two houses of the legislature, had itself briefed, seeking advice and being instructed by a Committee, known as Recommendations of Cabinet Committee on Uttarakhand, 1994, (for the sake of brevity, and referred hereinafter as 'the Kaushik Committee, 1994"). The report has been published in two volumes. It is on record. The Committee was chaired by the Hon'ble Mr. Ramashanker Kaushik, a Hon'ble Minister with the State Government.
The other members of the Committee were :
Sri Raj Bahadur, Minister, Social Welfare.
U. P., Member Sri Bhagwati Singh, Minister, Forest Dept., U, P. Member Sri Babu Ram, Minister, Revenue Deptt., U. P. Member Sri Sri Ram Yadav, Minister, Village Development, U. P. Member Sri T.S.R. Subramaniyam, Chief Secre tary, U. P. Government Member
36. It was this report which was circulated to the Hon'ble Members of the Vidhan Pari-shad and the Vidhan Sabha. It is this report which was accepted by the two houses of the legislature of the State of Uttar Pradesh. The House, two of them, expressed their intention with formal resolutions. What is the sanctity of these resolutions of the two Houses of the State Legislatures?
37. This is the crucial question before the High Court. On this aspect a pleading on merits was avoided by the State Government in its counter-affidavit, likewise the argument.
38. On what led the legislature to pass the resolutions to accept and recognise the areas and the peoples of Kumaun and Garhwal, as a separate identity than the other regions of the State, is the exclusive preserve of the legislature. It is not for the High Court to question the proceedings of the legislature nor the resolutions which the legislature has passed.
39. The statistics which the State Government has attempted to rely on in its counter-affidavit, are apparently misplaced. It gives the impression to the Court that if the resolution of the State Legislature is taken to be the thesis of the premises that the regions of Kumaun and Garhwal, and their peoples have very little in common with those of the plains, the statistics are an antithesis of the case of the State of Uttar Pradesh.
40. What is relevant, is comparing the population or demographic pattern in the plains and the hills. Only then the issues can be clearly understood in this matter. Published figures as part of public records are available to the Court. The largest contiguous area where the growth of population has been the least in the decade of the census 1981-91, and below 20,000, are areas of Kumaun and Garhwal, the districts of Pithoragarh, A1-mora, Chamoli, Garhwal, Tehri Garhwal." The density of population is the least in the northern districts of the State, in Pithoragarh, Chamoli, Uttarkashi, followed by the other. districts of Kumaun and Garhwal. For the sex ratio, females out number or proximate the males in thee regions. In Almora and Garhwal there are 1100 and above per 1000 males. In pithoragarh, Chamoli and Tehri Garhwal there are 1010-1099 per 1000 males in Uttarkashi there arc 900-999 per 1000 males; only Azamgarh, in the plains, has the same ratio as Pithoragarh, Chamoli and Tehri Garhwal. Nainital and Dehradun assimilate part terai and plains constituents. The comparative population size of the districts is the least in the regions of Uttarkashi with 0.17%, Chamoli with 0.32%, Tehri Garhwal with 0.41%m Garhwal with O. 48% and Pithoragarh with 0.41%. These districts are below 1000,000 population.
41. The relevant issue is not to disprove the petitioner in a game of statistical outplay, but only the aspect of how different and radically alien the regions of Kumaun and Garhwal are from the rest of State of Uttar Pradesh. If this diversity is an acceptable non-issue then there are no standards nor yardsticks available to measure and compare schools and colleges here and there, nor the number of them or the teachers between the taught.
42. These regions of Kumaun and Garh-
wal speak a different language, not understood in the plains and the ethnic, social and cultural diversity of the peoples of these regions stand noticed by the two resolutions of the State legislature in August, 1994. This itself should be enough. But, if it were not , then the resolutions were based on a report sought by the cabinet through a especially constituted Committee at a Cabinet meeting on 4 January, 1994.
43. The aforesaid report, itseif relies on sources and materials from earlier official reports on the subject on why the hill areas of this State need to be identified as an independent province with the Union.
44. The report carries the record that in 1930 a report was caused to be submitted to the Government of then United Province with the subject : KUMAON -- A SEPARATE PROVINCE. In those days Kumaun Division included present day Garhwal. Certain extracts from this report :
"Our reasons for separate treatment can be roughly divided under three heads :--
(1) Religious and Cultural.
(2) Political and (3) Historical.
We now purpose to deal with each of these heads. RELIGIOUS :-- Since time immemorial Kumaon has been, and still is, a sanctuary for those who are weary of the world, for it contains within its bosom the sccred shrines of Badri and Kedar, Mansarovar and Kailas, Jamnotri and Gangotri, and all over the division are found places held in high veneration by the Hindus. In order to conserve all that is high and noble in Hindu culture, it is necessary lest other forces might undo the work, to give a political status and a name to the Kumaonese, who are the rightful custodian of these places, and to allow them to govern their territory in a manner most suited to the Hindu traditions. As the Kumaonese differ from the people of the other parts of India in manners, languages and local usages it is all the more reason why special endeavour should be made to separate their lands.
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(b) If Orissa Sindh and Karnatic can claim separate treatment solely on the ground of linguistic differences from the rest of India, and if Oudh, Berar and Andhra can press their claims for differential treatment mainly on the grounds of political expediency, there is no reason why a province which has linguistic, cultural and social differences with the other parts of India, which till one hundred years back had enjoyed complete independence, which is a Treaty Territory, should not be forged into a separate unit and given the status of a province either within the pale of Imperial India or as a constituent of Domestic India.
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(e) Another factor to which we invite attention and which is of no mean importance is that we have no communal trouble in our parts. Kumaon has been, and is receiving with open arms people who come to it; it knows no distinction of colour and prejudice and following its traditional standards of hospitality it has tried and is trying to do what it can for persons who have taken its shelter. And be it said to the eternal credit of the immigrants of all classes and creeds that they too have identified themselves with the cause of Kumaon and in aiding (sic) to get justice done to our cause, they have always stood by us. Such communal harmony existing as it does between Hindus, Muslims and Christians is rarely witnessed in any other part of India and our case for separation is all the more sound on this account. The new constitution for the governance of this country will have to specifically prove for the continuance of such harmony by properly safeguarding the interests of all classes.
(f) If nationality alone could be regarded as sufficient cause for effecting the separation of Czechoslovakia, Albania, Poland, Finland and so on from the respective empires of Austria, Hungary, Turkey, Russia after the termination of the Great War, it would be bare justice done to Kumaon, which has over and above the solid claims of nationality other claims set forth above equally important if it is separated and made into a new province.
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A close study of the foregoing paragraphs succinct though they are, would at once reveal to any dispassionate observer that our desire for separate treatment and our claims therefore are not the outcome of any prejudice or imaginary Socio-political grievances. They have spontaneously sprung up from sources that have a solid foundation in fact and are undefiled by any mercenary motives'. Language, nationality, regionalgeography, religio-cultural causes and above all the grim political and historical facts stand arrayed on our side and speaks volume in our support, Lest we be misunderstood, it is proper to set forth our views, in an unequivocal language, on our relations with the rest of India. By political separation we mean to have complete autonomy over our affairs and by pressing our claims for recognition we have, never for a moment, wished to be packed and bundled together in a mutually exclusive and politically watertight compartment. We stand for separation not isolation; we are born of Greater India and as such we are children of the soil ready to die for the cause of our dear Fether land. We Enjoy a common heritage and our common cultural ties are indissoluble. Why then, it might well be asked, are we so keen on getting ourselves separated. We would borrow a familiar illustration to explain our position. Being children of the Greater India we are. equally eager with other in claiming that we have long passed the age of adolescence and have become competent to manage our own household affairs, may, that we refuse to be a drag on the other members of the body politic any more. As a Treaty territory our relations with the Government of India and British Crown would be exactly the same as those of other Treaty territories in India.
Some politicians have of late begun to surmise that the separatist tendencies now being exhibited by many an Indian province, viz., Sindh, Andhra, Karnataka, Kumaon, Oudh, Berar, Orissa would prove detrimental to the best interests of India and would result in a complete dis-integration of the entire political fabric. Such an empirical generalisation is much to be regretted. In their zeal for criticism, people easily forget to weigh the other views and generally overlook the fact, that a separated area, relieved of its burden, can most easily devote greater attention to its domestic and local needs and do much to retrieve its position. It is an indisputable fact that smaller units can easily be managed and give more compactness and solidarity to the body politic. This salient principle has been duly recognised by the majority of the members of the First. Round Table Conference, and their speeches, delivered in support of changing the present unitary system of Government into a federal one, amply bear out this meaning. Perennial prosperity of a family, as also of a State, is only possible if all the members view with one another to advance its interests. The United States of America serve as an excellent illustration of such an order of things.
We have placed our case in your hands in the hope that you would champion our cause and see justice done to us. From across the centuries is being heard the clarion call of Duty and reverberating all round is the voice of the stages "JUSTICE AT ALL COSTS" to remind you our ancient ideas. Will you fail us at this hour and will you forget to read the message on the wall or will you give us a helping hand to recover what was ours and allow us to march shoulder to shoulder in your efforts to raise India in a position of strength, dignity and honour? The choice is yours -- we on our part have placed all our cards on the table."
45. Then, in 1940 there was a REPORT OF THE KUMAUN LAWS COMMITTEE. It was published by the State Government through the Superintendent, Printing and Stationery, United Provinces, Allahabad. An extract of this report on Civil and Judicial Administration, observes :
"The first question considered by the Committee was that of bringing civil judicial administration of Kumaun into line with the rest of the Province. The matter was discussed at length and it was realised that owing to the peculiar geographical conditions and the great difficulties of communications, no uniform rule could be evolved for the administration of Civil Justice for the whole of Kumaun Division and it was agreed that the system in vogue at present in Lohaghat and Pithoragarh Sub-divisions of Almora district and Chamoli Sub-division of Garhwal should be allowed to continue."
46. Much of the submissions made in the counter-affidavit, in playing down the resolutions of the legislatures of the State of U.P., Stand neutralised by the report. The Planning Commission, Government of India, (Environment and Forest Unit), at its IV meeting between 21-23 April, 1993 had as its Chairman Dr. S. Z. Qasim. The following paragraphs are relevant :--
"7. Unemployment was identified as one of the major problems in the region. There is a very high intensity of unreported disguised unemployment in the area. Uneducated unemployment is increasing because work opportunities are few. About 70,000 job seekers get themselves registered in the employment exchange but the average generation of employment is only 3000 in the organised sector. The industrial structure is weak and is skewed in favour of plain areas at the foothills." The women folk have to shoulder the burden of ecomonic activity besides the household chores. The depletion of natural resources has increased their woes further."
and "The backwardness of the region, it was reported, was due to the backwardness of educational facility in the region. But the State Government successfully undertook a massive programme of educational and allied activities in the hill areas and as a result of this the literacy percentage has reached 48.51% while the literacy percentage of the whole State is 41.71%. But due to shortage of available resources, such as shortage of teachers, buildings and other amenities much remains to be done."
47. Shri Tolia gave a brief overview of the Ultaranchal (U.P. hills) :
.......................................... ..............................................
(c) This area is also under critical seismic ' zone and has already suffered, heavy losses on account of recent earthquake."
The report adds :
"The U.P. Himalayas extend over Eight districts viz. Nainital, Almora and Pithoragarh in the Kumaon region and Garhwal, Chamoii, Uttarkashi, Tehri and Dehradun in the Garhwal region. The total geographical area of these eight hill districts is 51.125 square kilometers. From these mountains emerge a number of important rivers viz. Ganges, Yamuna, Kali, Dhauli, Gori, Ram-ganga, Alaknanda, Bhagirathi, Tons, etc. These major rivers have their catchments separated by secondary mountain ranges arising from the main axis and run mainly from the North-East to the South-West."
48. The defence of the State Government in its counter-affidavit to justify a reservation policy in the hills when factors on which reservations may be held are virtual nonexistent, borders on misleading the Court. To brief itself in the politics of the regions of the hills, the State Government educates itself by a select committee and meets politicians with the politics that hills are an entirely different case study. Before the High Court the State Government takes a posture of a common cause for the entire State in implementation of an affirmative action in a vacuum without the factots existing when the so-called backward groups either do not exist in some areas or are almost non-existent.
49. Further, the assessment of the select committee by its report, accepted by the legislature culminating in the resolutions of the State legislature, negates the entire counter-affidavit. The following assessment of the Committee on the State and the purpose of education in Uttarakhand is relevant :
"PROVISIONS FOR EDUCATION IN UTTARAKHAND". In Uttarakhand the establishment and number of schools and colleges have sufficiently increased. Though four universities, many degree colleges along with large number of schools and colleges have been spread out in the area, but whatever the rate at which their numbers has increased, unemployment has increased double that rate.
In Kumaun and Garhwal Universities whatever was conceived of as development and research, according to the circumstances and capabilities of the area, has not materialised.
So. in Uttarakhand State research will be undertaken, new subjects will be introduced in accordance with the circumstances and in conformity thereof on Tourism, Forestry, Horticulture etc. Pantnagar University may have given benefit of its studies and research to western U.P. in the name of agricultural resolution but percentage of its contribution towards agriculture development in Uttarakhand is negligible.
The educational pattern of this University will be fully utilised for bringing agriculture revolution in the hill areas after a separate State is formed.
In the same manner after formation of the State in place of increasing the number of schools and colleges, the education will be made employment oriented. The educational schemes will be prepared in such a manner that a long term blue print is prepared so that the youths who graduate from Technical and employment oriented schools and colleges in different disciplines every year do not remain unemployed. Every year a balance has to be struck between Government/ semi-Govern-ment/private sectors for making available work for them to start private enterprises and the plans will have to be prepared for 20 to 50 years so that unemployment may be contained."
50. The Constitution of India does not define this oft used expression 'reservation' which is an appendix to certain equality clauses in the Chapter under Fundamental Rights. In reference to our Constitution, and * our social fabric the concept has to be understood. Otherwise, formulae implementation will breed misunderstanding and solve nothing. In the context of our social structure, which did not see nor was jolted by any socio-political revolution, the like of those in France in 1789, North America in 177.6 or Russia in 1917, no social order was changed by convulsions. The Constitution of India itself brought the revolution. As oid habits die hard, the change is happening but gradually and slowly. The Constitution of India by one stroke declared 'untouchability' abolished and its practise in any form was forbidden. Is the reality as the Constitution says?
51. Reservation under the Constitution is nothing but an abstraction of mitigating inequalities which in the reality of the social fabric is writ large with lack of balance, socially and economically. Thus, whether reservation under the Constitution is understood as a concept of mitigating inequalities, competing equalities or compensatory discrimination, as theory put into practise it does not and cannot operate in a vacuum. Its play ground is a given set of circumstances, of people, and in an area writ large with societal inequalities. In the absence of these factors, it is dangerous to handle affirmative action on reservations as it breeds cancer like hate in a conflicting community. On this very aspect a recognised academic and India Watcher says :
"A MORE DETAILED account of one policy area may serve to give us a firmer sense of how such programs operate and an appreciation of the complexities of evaluating them. If only one policy area is to be developed at length, Government employment is an obvious choice, for in a number of ways it is the paradigm case of the Indian policy of compensatory discrimination. It relies on the reservation device as the core of the program; it is promoted both by State and Central Government; policy in this area is made with due deliberation by informed agencies; the various groups of interested participant are attentive and responsive; the actors have recurrently invoked judicial intervention. It is an area that in the eyes of proponents and opponents occupied a central symbolic position in envisioning the compensatory discrimination policy. To all of this must be added one more factor; the data that make assessment possible, while insufficient in many respects, are more abundant, accessible, and .readily comparable than in any other field of policy."
52. If reservation must operate within and for a certain area, and with the recent decisions of the Supreme Court, factors for assessment and implementation need to be reviewed from time to time. Then, identifying beneficiaries by a geographical criteria unless abandoned by some extraneous factor, has come to stay in India. The approach of Courts as a judicial response has been noticed by academics like Mr. Marc Gallanter and the Court has no intention of stealing the credit on certain aspects noticed, in reference to this very State, the educational institutions in it and the reservations for and in favour of the hills of Uttarakhand Division. The comment of Mr. Marc Gallanter, in dealing with the factor, 'Geographical Criteria' is :
"Reservations in admission to medical colleges in favour of residence of backward areas started to come before the High Court in northern India in the late 1960s. The judicial response was mixed. The Jammu and Kashmir Court allowed reservation of places for residents of Ladakh, and one bench of the Allahabad Court allowed reservations for candidates from rural areas, hill areas, and Uttarakhand Division because the residents of these areas undeniably formed a "socially and educationally backward class" in relation to medical education.
However, another Allahabad Bench found these reservations troubling on the ground that the Government had failed altogether to indicate the basis for regarding these classes as socially backward, and its criteria for finding them educationally backward were insufficient. The Court appeared willing to take judicial notice that Uttarakhand was so backward that the designation of its residents as socially and educationally backward class was justified, but it struck down the rural and hill areas reservations. Similarly, in Gurinder Pal Singh v. State of Punjab, reservations for the candidates from "Backward Areas" were struck down on the ground that such preference on residential grounds did not distinguish between "(a) millionaire and a pauper living in such areas and thus did not direct benefits to "the really deserving residents of such areas."
In the meantime the Supreme Court had encountered backward areas in the modified Jammu and Kashmir Scheme which designated as Backward Class too "areal" groups: residents of areas within five miles of the cease-fire lines, and residents of 696 villages in ten "bad pockets" (about 8% of the total population of the State). The border areas were characterized by inhibitions on mobility and investment as well as severe restrictions on free movements; the bad pockets were distinguished by difficult terrain, absence of vehicular communication, and general inaccessibility, as well as scant irrigation, lack of electric power and so forth. The Supreme Court held it allowable to regard the residents of bad pockets and cease-fire areas as socially and educationally backward but required that the Government cure defects in the rules to insure that outsiders would not secure advantages that should be confined to "genuine residents"
When the U.P. Schemes was litigated again in Pradip Tandon, a Full Bench of the Allahabad High Court struck down the reservations on the ground that the Government had indulged in unwarranted generalization, not justified by any investigation. Even if the paucity of candidates from these areas, reflected their educational backwardness, there was no data on their social backwardness, and to regard 80% of the population as socially backward would be "an appalling opinion, staggering to one's imagination." Basically, the reservation amounted to an impermissible classification by place of birth.
In November 1974. the Supreme Court decided appeals from the conflicting Allahabad decisions. The Court was satisfied that both the populations of the hill areas (2.5 millions) and of the Uttarakhand Division (0.75 millions) were indeed socially and economically Backward Classes. Because these areas displayed traits of economic undevelopment, isolation, and absence of education institution, their populations might be regarded as Socially and educationally backward classes. But the attempt to deem the 75 million inhabitants of Uttar Pradesh's rural areas (80% of the state's population) a Backward Class was undone by the lack of heterogeneity of the class : 'They are not of the same kind. Their occupation is different. Their standards are different."
We are left with the notion that the population of a locality or a region may form a Backward class. But as the area gets larger, it will become increasingly difficult to show that its inhabitants display sufficient homogeneity to qualify as a class. As in the use of communal units, some overinclusion is unavoidable -- few who are not personally backward may be included. But geographical classes may be even more susceptible to over-inclusion than communities. While the inhabitants of geographical areas do share similar conditions of bad road, isolation, lack of schools, etc., they may differ sharply in their resources and in their capacity for coping with these shared problems. Extending benefits that require prior training and advantages (like medical admissions) to geographical classes would, one might expect, lead to enjoyment of these benefits by the most advantaged within the beneficiary group those who are personally least socially and educationally backward.
Geography can be used in conjunction with other factors as well as independently; and it can be used to disqualify as well as to qualify for benefits. Lists of eligible groups are typically based on area and contain are a restriction. Location may be used not only to select beneficiaries but to screen otherwise eligible beneficiaries; analogous to the income cut-off provision discussed above. Government may impose area restriction on the enjoyment of certain benefits. The Supreme Court held that it is permissible for the State to give favourable tax treatment to income of Scheduled Tribes earned within specified tribal areas and to withhold that beneficial treatment of income earned outside those areas."
53. In the matter before the High Court there is no conflict as has been made out in the counter-affidavit, between the citizens of this State of Uttar Pradesh, and the State. Nor can there be any conflict between the legislature of this State and the State Government; that it has been apparently made is another matter. But if the situation be that in academics and the formality of Government there are no issues but in the practicality of politics there are, then, constitutionally such conflicts can only be resolved by the Courts.
54. The two resolutions of the State legislatures recognising the identity of the area and the people of Kumaun and Garhwal, their diversity from the rest of the State and recognition of the legitimate right of the peoples of Kumaon and Garhwal, to a separate State known as Uttarakhand is a formality of the legislature expressed in its two formal resolutions of the House.
55. The High Court cannot ignore these resolutions. It is the collective will of the House. It is even firmer than legislation as it is not exclusively executive, nor legislatively delegated nor affirmation by majority. It is unanimous in its intention and collective in its sanctity. The State Government cannot ignore the resolve of the House of Legislature. Having participated in deliberations and having had the benefit of a considered report placed before the House, resolutions of the House, then bind the Government in its working within and out. The State Government cannot contradict the House which gave its verdict on a major issue of State policy on the brink of becoming a national issue. Should the State Government contradict the resolutions of the House of the Legislature, it would be a clear case of conflict between the legislature and the State Government. It would be, if a constitutional crisis happens, of the Government's making. An issue without a cause. The State Government must give due respect to the resolutions of the State Legislature, if it is clear in its intention and commitment in politics to the peoples of Kumaon and Garhwal. The High Court, constitutionally neither initiates nor decrees the formation of a statehood. But, if long years of deliberations, between the peoples of Kumaon annd Garhwal and the Government of this State dating back to 1930, more than sixty years ago, have ended in a grand finale of assuring the peoples of Uttarakhand a State of this name, then it is a case of furtherance of constitutional formalities between the federal and State Government.
56. In the final result there is no issue on reality. It has been created for the record of this case. In practical terms this conflict between the State Government and the peoples of Kumaon and Garhwal must cease. The State Government cannot ignore the resolutions of the State Legislature. The acid test : Would the Legislature pass a legislation to contradict its deliberated resolutions?
57. Thus, as the Supreme Court has interpreted situations dealing with reservations area wise and geographically, the resolutions of the State Legislature, in context, can be harmoniously blended with settled law. The order of the High Court when the writ petition was considered for a Rule nisi, in spirit needs to be made absolute. This implies that regard being had to the resolutions of the State Legislature dated 24-8-1994, the legislation subordinate or otherwise by this certificate action, restrains the State of Uttar Pradesh from making it applicable to the regions of Kumaon and Garhwal. But, this declaration and mandate of the High Court is qualified, to respect the resolutions of the State Legislature and blend and make it compatible with the settled law in the decisions of the Supreme Court. As this judgment has noticed the decisions of the Supreme Court which interpretes reservations area wise and geographically, the State of Uttar Pradesh may make reservations for Backward Classes, for admissions to schools, colleges and universities of Kumaon and Garhwal districtwise and divisionwise and fix reservations according to the demographic pattern and ratio between the population of each district and division and those receiving the benefit of reservation. It should be districtwise for primary schools, schools up to class ten, including plus two and divisionwise for universities. If in any district or division, if the data of reservation, based on the census abstract, exceeds what the law permits, then, it would be subject to the limitation of the law. This is explained as an example thus. If in any district in the Commissioner's division of Kumaun or Garhwal, the ratio of reservations for Backward Classes in context were to exceed the limit of 27% as prescribed, then the reservation would not be beyond this limit.
58. This writ petition, thus, succeeds.
59. The regions of Kumaun and Garhwal for the reasons given in this judgment in keeping with the resolutions of the State legislatures of Uttar Pradesh, in the context of the matter will need to be treated differently than the rest of the State. The legislation dealing with reservation for admission to State and State-aided schools, colleges and universities, in Kumaun and Garhwal shall not be applicable except as declared and certified by a writ of certiorari on the certificate action brought to the High Court to occasion this judgment. A rule of mandamus issues, as a writ, accordingly, to the State of Uttar Pradesh and the respondents so arrayed.
60. The writ petition is allowed with costs. 61. Petition allowed.