Rajasthan High Court - Jaipur
Ratan Lal Bagri And Ors. vs The State Of Rajasthan & Ors. on 10 August, 2015
Author: Sunil Ambwani
Bench: Sunil Ambwani
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIUR BENCH:JAIPUR
(1) D.B. Civil Writ Petition (PIL) No.6046/1999
Ratan Lal Bagri and ors. V/s The State of Rajasthan & ors.
(2) D.B. Civil Writ Petition No.5936/1999
Arjun Singh & ors. V/s Union of India & ors.
(3) D.B. Civil Writ Petition No.5947/1999
Ram Kishore Gurjar & ors. V/s Union of India & ors.
(4) D.B. Civil Writ Petition No.6053/1999
Man Singh & ors. V/s State of Rajasthan & ors.
(5) D.B. Civil Writ Petition No.6692/1999
Hansraj Kumawat V/s The Union of India & ors.
(6) D.B. Civil Writ Petition No.1489/2000
Subhash Kumawat & anr. V/s State of Rajasthan & anr.
(7) D.B. Civil Writ Petition No.5221/2003
Satyanarain Singh V/s Union of India and ors.
Judgment reserved on: 09.07.2015.
Judgment pronounced on: 10.08.2015.
PRESENT
HON'BLE THE CHIEF JUSTICE MR. SUNIL AMBWANI
HON'BLE MR.JUSTICE AJIT SINGH
Mr. S.Guru Krishna Kumar, Senior Counsel assisted by
Mr. Omveer Singh Gujar, Mr. Shailendra Singh,
Mr. R.C. Joshi with Ms. Namita Parihar,
Mr. Shobhit Tiwari,
Mr. S.N. Kumawat,
Mr. S.S. Hora with Mr. T.C. Sharma, for the petitioners.
Mr. Rakesh Dwivedi, Senior Counsel assisted by
Ms. Sansriti Pathak, Mr. Shiv Mangal Sharma(AAG),
Mr. Dharamveer Tholia, AAG with
Mr. Rajan Prajapati, Mr. Himanshu Tholia, Dr.Sajit Jakhar
Mr. Sumit Tetarwal, Mr. Surjeet Jakhar,
Mr. Vishal Sharma & Mr. Sheetanshu Sharma on behalf of
Mr. N.M. Lodha(Advocate General), for the State respondents.
Mr. Jagdeep Dhankar, Senior Counsel assisted by
Mr. Vijay Poonia, Mr. Praveen Balwada,
Mr. Ajay Choudhary, Mr. Anshul Jakhar,
Mr. Shovit Jhajharia, for the respondent- Jat Mahasabha.
Mr.Rohitashwa Kajla, on behalf of Jat Mahasabha in CWP No.5936/1999.
Mr. S.P. Sharma, Senior Counsel assisted by
Mr. S.S. Shekhawat, Mr. Gaurav Sharma &
Mr. Nitish Rawat, for the applicant, Shri Naveen Pilania.
Mr. Biri Singh Sinsinwar, Senior Counsel assisted by
Mr. Dhruv Atrey,
Mr. R.N. Mathur, Senior Counsel assisted by
Mr. B.L. Choudhary, Mr. Prateek Mathur,
Mr. Ved Prakash,
Mr. S.S. Raghav,
Mr. Mahendra Singh,
Mr. M.A. Khan, for the respondents.
Mr. B.S. Chhaba, for the respondent-UOI.
Dr. R.S. Gathala, intervenor, with
Mr. Pradeep Kalwania, in CWP No.5221/2003.
Mr. Hanuman Choudhary, for the respondents in CWP No.5221/2003.
Mr.Sahiram Choudhary-intervenor,
Mr.Satyaveer Singh Punia-intervenor.
Mr.Gajanand Manav-intervenor.
JUDGMENT
(Reportable) BY THE COURT (Per Hon'ble Sunil Ambwani, Chief Justice)
1. We have heard learned counsel appearing for the parties at length, on several dates fixed in the matter.
THE RELIEFS SOUGHT BY THE PETITIONERS.
2. In these seven writ petitions with D.B. Civil Writ Petition (PIL) No.6046/1999 as a leading case, filed in public interest by Ratan Lal Bagri and ors, prayers have been made for quashing the Notification dated 27.10.1999 issued by the Union of India and the Notification dated 03.11.1999 issued by the State of Rajasthan including the Jats in the list of Other Backward Classes (OBC). They also prayed to declare that Jat, as a caste, is not Other Backward Class and is not entitled to any benefits available to OBC, with further declaration that the National Commission for Backward Classes (for short the NCBC) submitted its report without conducting any survey and further that in the absence of recommendations of the State Commission for Backward Classes (for short, the SCBC), no caste can be declared as OBC by the State Government or Union of India. A writ of mandamus has been sought to direct the NCBC to conduct a detailed survey in accordance with the guidelines laid down by the Supreme Court in Indra Sawhney and ors. V/s Union of India and ors. (1992 Suppl.(3) SCC 217) for identification of backward classes, invite objections from the members of the other backward classes, obtain opinion from the State of Rajasthan and the SCBC and thereafter, submit a fresh report to the Central Government for consideration.
3. In D.B.Civil Writ Petition No.5936/1999 filed by Arjun Singh Rathore and others, in addition to the prayers made in the leading case, they have also prayed for a direction to quash the recommendations made by the NCBC to include the Jat community in the OBC category; to quash the Notification dated 27.10.1999 issued by the Union of India including the Jat community in the OBC category and the Notification dated 3.11.1999 issued by the State Government including the Jat community in the list of OBC in the State of Rajasthan. In prayer clause (e), the petitioners have prayed to dissolve the present State Commission for Backward Classes as it has been illegally constituted, with directions to the State Government to reconstitute it by nominating its Members, who are impartial and experts in their field and who can work without being guided by the political whims. In prayer clause (f), the petitioners have prayed for directions to the SCBC, after it is properly constituted, to decide the representations pending before it filed by the communities like Jats, Rajputs, Kayamkhani, Meo, Jadiya Shrimal, on their own merits after giving fresh hearing.
4. In D.B. Civil Writ Petition No.5947/1999 filed by Ram Kishore Gurjar and others, the petitioners, apart from praying for quashing and setting aside the Notification dated 27.10.1999 issued by the Union of India and the Notification dated 3.11.1999 issued by the State Government including the Jat community in the OBC category, have further prayed for a declaration that the Jat community could not be given the benefit of reservation in any of the State services and elections like Municipal Councils, Municipal Corporations and other Local Bodies and that if such benefit has been given, then that may be withdrawn. The petitioners also prayed for dissolving the SCBC and to reconstitute it by nominating its members, who are impartial and experts and not guided by political whims. They have also prayed for considering pending representations of the other communities to be included in the list of OBC.
5. In D.B. Civil Writ Petition No.6053/1999 filed by Man Singh and ors., they have, in addition to the prayers made for quashing the Notification dated 27.10.1999 of the Union of India and Notification dated 3.11.1999 of the State Government, prayed for directions to reject the recommendations of the NCBC for inclusion of the Jat caste in the OBC category and have also prayed for withdrawing the Notifications and to declare the Jat caste as forward Hindu caste.
6. In D.B. Civil Writ Petition No.6692/1999, the petitioner- Hansraj Kumawat has prayed for the same reliefs, with an additional relief for a direction to the SCBC to make a survey and investigate in the matter of complaint whereby Jat Mahasabha has desired to include the Jat community in the list of OBC and to submit its report to the State Government within such time as may be fixed by the Court and to declare the Jat community as forward Hindu caste and as such, it cannot be included in the list of OBC.
7. In D.B. Civil Writ Petition No.1489/2000 filed by Subhash Kumawat and another, they have prayed for directions to quash the Notifications dated 1.1.2000 and 10.1.2000 issued by the State of Rajasthan being unconstitutional and the inclusion of these communities (forward Hindu castes Jat, Vishnoi etc. and forward Muslim castes Mev, Kaimkhani etc.) in the list of OBC be declared as unconstitutional. They have also prayed for a direction to the State Government to reject the recommendations as well as the reports of the SCBC and to reconstitute the State Commission for Backward Classes. They have also prayed for withdrawing the Notifications dated 1.1.2000 and 10.1.2000 and to declare the communities included in the Notifications as forward Hindu and forward Muslim castes and not the backward castes.
8. In D.B. Civil Writ Petition No.5221/2003 filed by Shri Satyanarain Singh, who was nominated and had functioned as Ex-Member Secretary of the Rajasthan State Backward Classes Commission, he has prayed for direction to quash the recommendations of NCBC in the Notification dated 27.10.1999 of the Government of India including the Jat community of Rajasthan in OBC category; the Notification dated 3.11.1999 issued by the State Government including the Jat community in the OBC category and further to quash and set aside the recommendations of the SCBC to include the Jat community in the OBC category, as also the Notification dated 10.1.2000 issued by the State Government including the Jats of Dholpur and Bharatpur in the OBC category. In the alternative, he has prayed for direction to the respondents to provide for classification in the OBC category into backward and most/more backward and to divide the reservation quota amongst them as may advance the social justice. He has also prayed for direction to quash the Notification dated 2.11.1999 of the State Government prescribing the income categorization of the creamy layers and to prohibit the State Government from providing reservation to the Jat community in the services within the State/Centre as well as in Local Bodies and Panchayati Raj Institutions.
9. The leading Writ Petition (PIL) No.6046/1999 and the other Writ Petitions connected with it, are pending in the Court for the last more than 12-15 years. They were taken up for hearing from time to time, but could not be heard and decided. On 18.7.2007, preliminary objections were raised to the maintainability of the writ petitions on the ground that in Para 123(A), (B) and (C) of the judgment in Indra Sawhney's case (supra), the Supreme Court had clarified that the issues concerning evaluation of criteria by the Government of India and the State Government in pursuance to the directions contained in clause (B) of para 123 as well as to the classification of backward classes shall have to be agitated before the Supreme Court and not the High Court. The Court framed two questions to be considered by it and addressed by the petitioners first before hearing the matter. The order dated 18.7.2007 is quoted below:-
On 4/7/2007, during the course of arguments, we wanted to know from the Advocate General as to whether the State Commission for Backward Classes was in existence and functional in the State and if not, whether the State Government intends to constitute State Commission for Backward Classes and if yes, within what time? The Advocate General sought time and accordingly, the matter was kept for today.
2. The Advocate General handed over the notification dated 16/7/2007 issued by the State Government constituting the Rajasthan State Commission for Backward Classes. The notification states that the terms on reference shall be issued separately.
3. Mr.B.P.Agrawal, Advocate General assured us that within a fortnight or so, the Chairman and the Members of the said Commission shall be appointed and the terms of reference issued. We accept the statement of the Advocate general.
4. Mr.B.P.Agrawal, Advocate General invited our attention to the judgment of the Supreme Court in the case of Indra Sawhney Vs. Union of India : AIR 1993 SC 477 particularly with reference to paragraphs 123.(A), (B) & (C). In paragraph 123(C), the Supreme Court has clarified that the issues concerning evaluation of criterion by the Government of India and the State Government in pursuance of directions contained in clause (B) of para 123 as well as to the classification of backward classes shall have to be agitated before the Supreme Court and not the High Court.
5. Para 123.(A), (B) & (C) of the judgment reads thus:-
123. (A). The Government of India, each of the State Governments and the Administrations of Union Territories shall, within four months from today, constitute a permanent body for entertaining, examining and recommending upon requests for inclusion and complaints of over-inclusion and under-inclusion in the lists of other backward classes of citizens. The advice tendered by such body shall ordinarily be binding upon the Government.
(B) Within four months from today the Government of India shall specify the bases, applying the relevant and requisite socio-economic criteria to exclude socially advanced persons/sections ('creamy layer') from 'Other Backward Classes'. The implementation of the impugned O.M. dated 13th September, 1990 shall be subject to exclusion of such socially advanced persons ('creamy layer').
This direction shall not however apply to States where the reservations in favour of backward classes are already in operation. They can continue to operate them. Such States shall however evolve the said criteria within six months from today and apply the same to exclude the socially advanced persons/sections from the designated 'Other Backward Classes.
(C) It is clarified and directed that any and all objections to the criteria that may be evolved by the Government of India and the State Governments in pursuance of the direction contained in Clause (B) of Para 123 as well as to the classification among backward classes and equitable distribution of the benefits of reservations among them that may be made in terms of and as contemplated by Clause (1) of the Office Memorandum dated 25th September 1991, as explained herein, shall be preferred only before this Court and not before or in any other High Court or other Court or Tribunal. Similarly, and petition or proceeding questioning the validity, operation or implementation of the two impugned Office Memorandums, on any grounds whatsoever, shall be filed or instituted only before this Court and not before any High Court or other Court or Tribunal.
6. In the light of the submissions of the Advocate General, we have asked the counsel for the petitioner to address us, first, on the following two aspects:-
(i) Whether in the light of the observations referred to hereinabove in the case of Indra Sawhney and, inter-alia, the prayers made by the petitioner that direction be issued to respondents to provide for classification in the O.B.C. Category into backward and most/more backward and to divide the reservation quota among them and for quashing the notification dated 2/11/1999 of the State Government prescribing income categorization of creamy layer, it is open to this Court to examine the matter on merits or the petitioner must approach the Supreme Court directly?
(ii) Whether in the light of the observations made by the Supreme Court in the case of Indra Sawhney, the issue relating to inclusion of Jat community pursuant to the notification dated 27.10.1999 issued by the Government of India on the recommendations of the Central Commission for backward Classes may not be left to be reconsidered by the Central Commission and the inclusion of Jat community vide Notification dated 3/11/1999 issued by the State Government be not considered by the State Commission for Backward Classes now constituted vide notification dated 16/7/2007 and the scrutiny by this Court be obviated?
7. The court time today is over. Ordinarily, the matter being in the nature of a public interest litigation, we would have posted the matter on next Wednesday but keeping in view the continuity of arguments, we fix the matter tomorrow.
8. Let the writ petition be posted for further arguments tomorrow i.e. 19/7/2007 at 2.30 p.m.
9. Copy of this order duly authenticated by the Court Master may be made available to the concerned Advocates, if they so desire.
10. On aspect no.(i), in the order dated 18.7.2007, we may observe that the petitioners have not argued and pressed for providing the classification in the O.B.C. category into backward and most/more backward and to divide the reservation quota among them. They have also not pressed for quashing the Notification dated 2.11.1999 of the State Government on the ground of prescribing income categorization of creamy layer and thus, it is not necessary to answer the question no.(i).
11. On aspect no.(ii), extensive arguments have been raised on the inclusion of Jat community as a caste in the OBC category by Notification dated 27.10.1999 of the Government of India, followed by the Notification dated 3.11.1999 issued by the State of Rajasthan. The petitioners have argued that the Jats as a caste or community do not meet the criteria of backwardness,as provided by the Mandal Commission and discussed in Indra Sawhney's case (supra). We will be dealing with the submissions in extenso in the judgment with the help of material, which was placed before us, the judgments of the Supreme Court and more particularly, the latest judgment in Ram Singh & ors. V/s Union of India (Writ Petition (Civil) No.274 of 2014) decided on 17.3.2015.
12. A Writ Petition (Civil) No.158/2002 was filed by Onkar Singh and another against the Union of India and others under Article 32 of the Constitution of India in the Supreme Court challenging the Notifications. The Writ Petition was dismissed, as withdrawn on 22.3.2002 by Hon'ble Supreme Court with the following order:-
It is not disputed that the petitioners have a remedy by filing a petition under Article 226 of the Constitution. In that view of the matter, the writ petition is dismissed as withdrawn with liberty to file a petition under Article 226 of the Constitution of India.
13. Amendment applications were filed challenging the Notification dated 10.1.2000, by which the State of Rajasthan included the Jats of Dholpur and Bharatpur in the OBC category and deleted the words except Dholpur and Bharatpur from the original Notification dated 3.11.1999. Since the Notification dated 10.1.2000 has also been challenged in D.B. Civil Writ Petition No.5221/2003 Satyanarain Singh V/s State of Rajasthan & ors., we have also heard the arguments on the validity of the Notification dated 10.1.2000 issued by the State of Rajasthan.
RAM SINGH'S CASE
14. Before narrating the facts of the case, which led to the filing of the writ petitions, we may observe here that during the pendency of the writ petitions, the National Commission for Backward Classes in its report dated 25.11.2010 rejected the claim of the Jat community of the State of Delhi for inclusion in the Central List of OBC. On 3.5.2011, the National Commission for Backward Classes (Power to Revenue Advice) Rules, 2011 (for short the Rules of 2011) were notified by the Ministry of Social Justice and Empowerment, applying the provisions of Section 114 and Order 47 CPC, vide Rule 4 of the Rules of 2011 to review its advice tendered to the Central Government under section 9(1) of The National Commission for Backward Classes Act, 1993 (for short, the Act of 1993). The NCBC received a large number of representations from the Jat community to review its earlier advice. On 20.6.2011, the NCBC decided that all the representations be deferred till the finalization of the Socio-economic Caste Censure (SCC) 2011, which was in progress after the last Census in 1933. On 19.7.2011, the NCBC decided to approach the Indian Council of Social Science Research (ICSSR), to conduct a survey in the States of Uttar Pradesh, Haryana, Madhya Pradesh, Rajasthan, Himachal Pradesh and Gujarat, to ascertain the socio-economic status of the Jat community. In October, 2012, the NCBC decided to reduce the comprehensive survey to be conducted by ICSSR, to a 2% sample survey. A decision was taken in the Central Cabinet on 19.12.2013 to request the NCBC to tender its advice based on the existing materials. The cases of Bihar, Uttarakhand and NCT of Delhi also to be included in the reference made to NCBC, which held the public hearing in February, 2014 in Siri Fort Auditorium, New Delhi, to consider the representations and the references made by the Central Government.
15. The NCBC submitted its report on 26.2.2014 giving its advice/opinion to the Central Government stating that the Jat community has not fulfilled the criteria for inclusion in the Central List of OBC, suggesting need for a non-caste based identification of backward classes. The NCBC also found that the Jats were not socially and educationally backward. The Union Cabinet, however, in its meeting dated 2.3.2014 took a decision, on the advice tendered by the NCBC that it had not taken into consideration the ground realities, and resolved not to accept the advice and to include the Jat community in the Central List of Backward Classes for the States of Bihar, Gujarat, Haryana, Himachal Pradesh and NCT of Delhi, Bharatpur and Dholpur Districts of Rajasthan, Uttar Pradesh and Uttarakhand. A Notification was consequently issued by the Union of India on 4.3.2014 including the Jat community in the Central List of OBC.
16. The Notification dated 4.3.2014 was challenged in the Supreme Court in Writ Petition (Civil) No.274/2014 Ram Singh & ors. V/s Union of India. The Supreme Court vide its judgment dated 17.3.2015 has quashed and set aside the Notification dated 4.3.2014 including the Jat community in the Central List of Backward Classes for the States of Bihar, Gujarat, Haryana, Himachal Pradesh and NCT of Delhi, Bharatpur and Dholpur Districts of Rajasthan, Uttar Pradesh and Uttarakhand. The Supreme Court, after examining the reports of the NCBC dated 26.2.2014 and considering its findings in respect of the States referred to above including the State of Rajasthan, has recorded a finding on the legal position of inclusion and exclusion of the castes as other backward class in the Central List and crystallized the law in its conclusions in paragraphs 46 to 55 as follows:-
46. Undoubtedly, the report dated 26.02.2014 of the NCBC was made on a detailed consideration of the various reports of the State Backward Classes Commissions; other available literature on the subject and also upon consideration of the findings of the Expert Committee constituted by the ICSSR to examine the matter. The decision not to recommend the Jats for inclusion in the Central List of OBCs of the States in question cannot be said to be based on no materials or unsupported by reasons or characterized as decisions arrived at on consideration of matters that are, in any way, extraneous and irrelevant. Having requested the ICSSR to go into the matter and upon receipt of the report of the Expert Committee constituted in this regard, the NCBC was under a duty and obligation to consider the same and arrive at its own independent decision in the matter, a duty cast upon it by the Act in question. Consideration of the report of the Expert Body and disagreement with the views expressed by the said body cannot, therefore, amount to sitting in judgment over the views of the experts as has been sought to be contended on behalf of the Union. In fact, as noticed earlier, the Expert Body of the ICSSR did not take any particular stand in the matter and did not come up with any positive recommendation either in favour or against the inclusion of the Jats in the Central List of OBCs. The report of the said Body merely recited the facts as found upon the survey undertaken, leaving the eventual conclusion to be drawn by the NCBC. It may be possible that the NCBC upon consideration of the various materials documented before it had underplayed and/or overstressed parts of the said material. That is bound to happen in any process of consideration by any Body or Authority of voluminous information that may have been laid before it for the purpose of taking of a decision. Such an approach, by itself, would not make either the decision making process or the decision taken legally infirm or unsustainable. Something more would be required in order to bypass the advice tendered by the NCBC which judicially (Indra Sawhney) and statutorily (NCBC Act) would be binding on the Union Government in the ordinary course. An impossible or perverse view would justify exclusion of the advice tendered but that had, by no means, happened in the present case. The mere possibility of a different opinion or view would not detract from the binding nature of the advice tendered by the NCBC.
47. Of relevance, at this stage, would be one of the arguments advanced on behalf of the Union claiming a power to itself to bypass the NCBC and to include groups of citizens in the Central List of OBCs on the basis of Article 16(4) itself. Undoubtedly, Article 16(4) confers such a power on the Union but what cannot be overlooked is the enactment of the specific statutory provisions constituting a Commission (NCBC) whose recommendations in the matter are required to be adequately considered by the Union Government before taking its final decision. Surely, the Union cannot be permitted to discard its self-professed norms which in the present case are statutory in character.
48. Certain other issues arising may be conveniently considered at this stage.
One such issue arises from the contentions advanced on behalf of the respondents, particularly on behalf of the Union Government, that the OBC lists of the concerned States, by themselves, can furnish a reasonable basis for the exercise of inclusion in the Central Lists. The above contention is sought to be countenanced by the further argument that the Union and the State Governments under the constitutional scheme have to work in tandem and not at cross purposes. While there can be no doubt that in the matter of inclusion in the Central Lists of other backward classes, the exercise undertaken by the State Governments in respect of the State Lists may be relevant what cannot be ignored in the present case is the very significant fact that in respect of all the States (except Haryana) the inclusion of Jats in the OBC Lists was made over a decade back. A decision as grave and important as involved in the present case which impacts the rights of many under Articles 14 and 16 of the Constitution must be taken on the basis of contemporaneous inputs and not outdated and antiquated data. In fact, under Section 11 of the Act revision of the Central Lists is contemplated every ten years. The said provision further illuminates on the necessity and the relevance of contemporaneous data to the decision making process.
49. The backwardness contemplated by Article 16(4) is social backwardness. This is implicit in the judgment in Indra Sawhney (supra), as will be noticed in a later part of the present order. Educational and economic backwardness may contribute to social backwardness. But social backwardness is a distinct concept having its own connotations. The extracts of the Minutes of the Meeting of the Cabinet held on 2 nd March, 2014 which had preceded the impugned notification dated 4th March, 2014 tends to overlook the fact that crucial test for determination of the entitlement of the Jats to be included in the Central Lists is social backwardness. This would be evident from Para 3 of the Minutes of the Cabinet Meeting dated 2nd March, 2014 which is extracted below :
3. The ICSSR has observed that Jats in Haryana are a land owning community and while their share in Class I & II Government services is closer to their population, they lag behind both in school and higher educational enrolment. In the National Capital Territory of Delhi, in terms of social and educational standing, Jats lag behind as compared to Gujars, who have been included as OBC in the Central List. Similarly, in Uttar Pradesh and Uttarakhand, in the enrolment in higher and technical education, Jats lag behind Ahirs/Yadavs. In Himachal Pradesh, the State Commission has come to the conclusion that the Jat Community is socially, educationally and economically backward and is fit for inclusion in the State list of OBCs. In Rajasthan, too, as regards literacy rate, enrolment in graduation level courses and representation in Government services, Jats lag behind.
50. In so far as Haryana is concerned, the test adopted appears to be educational backwardness. Similarly for the NCT of Delhi also, educational backwardness has been taken into account as the determining factor for inclusion of Jats along with the fact that the Jats are behind the Gujars who are already included in the Central Lists of OBCs. Similarly, in Uttar Pradesh and Uttarakhand, the test appears to be educational backwardness; same is the position with regard to Rajasthan. Though the States of M.P., Gujarat and Bihar have also been included in the Central Lists of OBCs by impugned notification, no apparent consideration of the cases of these States is reflected in the Minutes of the Cabinet Meeting dated 2nd March, 2014. Of course, the Cabinet is not expected to record the manner of its consideration of each of the States but when it is done so for some of the States, the absence of any mention of the other States would be a strong basis to conclude that the States that do not find any mention in the Minutes, in fact, did not receive the consideration of the Cabinet, at all.
51. A very fundamental and basic test to determine the authority of the Governments decision in the matter would be to assume the advice of the NCBC against the inclusion of the Jats in the Central List of Other Backward Classes to be wrong and thereafter by examining, in that light, whether the decision of the Union Government to the contrary would pass the required scrutiny. Proceeding on that basis what is clear is that save and except the State Commission Report in the case of Haryana (Justice K.C. Gupta Commission Report) which was submitted in the year 2012, all the other reports as well as the literature on the subject would be at least a decade old. The necessary data on which the exercise has to be made, as already observed by us, has to be contemporaneous. Outdated statistics cannot provide accurate parameters for measuring backwardness for the purpose of inclusion in the list of Other Backward Classes. This is because one may legitimately presume progressive advancement of all citizens on every front i.e. social, economic and education. Any other view would amount to retrograde governance. Yet, surprisingly the facts that stare at us indicate a governmental affirmation of such negative governance inasmuch as decade old decisions not to treat the Jats as backward, arrived at on due consideration of the existing ground realities, have been reopened, inspite of perceptible all round development of the nation. This is the basic fallacy inherent in the impugned governmental decision that has been challenged in the present proceedings. The percentage of the OBC population estimated at not less than 52% (Indra Sawhney) certainly must have gone up considerably as over the last two decades there has been only inclusions in the Central as well as State OBC Lists and hardly any exclusion therefrom. This is certainly not what has been envisaged in our Constitutional Scheme.
52. In so far as the contemporaneous report for the State of Haryana is concerned, the discussion that has preceded indicate adequate and good reasons for the view taken by the NCBC in respect of the said Report and not to accept the findings contained therein. The same would hardly require any further reiteration.
53. Past decisions of this Court in M.R. Balaji Vs. State of Mysore and Janaki Prasad Vs. State of Jammu & Kashmir had conflated the two expressions used in Articles 15(4) and 16(4) and read them synonymously. It is in Indra Sawhneys case (supra) that this Court held that the terms backward class and socially and educationally backward classes are not equivalent and further that in Article 16(4) the backwardness contemplated is mainly social. The above interpretation of backwardness in Indra Sawhney (supra) would be binding on numerically smaller Benches. We may, therefore, understand a social class as an identifiable section of society which may be internally homogenous (based on caste or occupation) or heterogeneous (based on disability or gender e.g. transgender). Backwardness is a manifestation caused by the presence of several independent circumstances which may be social, cultural, economic, educational or even political. Owing to historical conditions, particularly in Hindu society, recognition of backwardness has been associated with caste. Though caste may be a prominent and distinguishing factor for easy determination of backwardness of a social group, this Court has been routinely discouraging the identification of a group as backward solely on the basis of caste. Article 16(4) as also Article 15(4) lays the foundation for affirmative action by the State to reach out the most deserving. Social groups who would be most deserving must necessarily be a matter of continuous evolution. New practices, methods and yardsticks have to be continuously evolved moving away from caste centric definition of backwardness. This alone can enable recognition of newly emerging groups in society which would require palliative action. The recognition of the third gender as a socially and educationally backward class of citizens entitled to affirmative action of the State under the Constitution in National Legal Services Authority vs. Union of India is too significant a development to be ignored. In fact it is a path finder, if not a path-breaker. It is an important reminder to the State of the high degree of vigilance it must exercise to discover emerging forms of backwardness. The State, therefore, cannot blind itself to the existence of other forms and instances of backwardness. An affirmative action policy that keeps in mind only historical injustice would certainly result in under-protection of the most deserving backward class of citizens, which is constitutionally mandated. It is the identification of these new emerging groups that must engage the attention of the State and the constitutional power and duty must be concentrated to discover such groups rather than to enable groups of citizens to recover lost ground in claiming preference and benefits on the basis of historical prejudice.
54. The perception of a self-proclaimed socially backward class of citizens or even the perception of the advanced classes as to the social status of the less fortunates cannot continue to be a constitutionally permissible yardstick for determination of backwardness, both in the context of Articles 15(4) and 16(4) of the Constitution. Neither can any longer backwardness be a matter of determination on the basis of mathematical formulae evolved by taking into account social, economic and educational indicators. Determination of backwardness must also cease to be relative; possible wrong inclusions cannot be the basis for further inclusions but the gates would be opened only to permit entry of the most distressed. Any other inclusion would be a serious abdication of the constitutional duty of the State. Judged by the aforesaid standards we must hold that inclusion of the politically organized classes (such as Jats) in the list of backward classes mainly, if not solely, on the basis that on same parameters other groups who have fared better have been so included cannot be affirmed.
55. For the various reasons indicated above, we cannot agree with the view taken by the Union Government that Jats in the 9 (nine) States in question is a backward community so as to be entitled to inclusion in the Central Lists of Other Backward Classes for the States concerned. The view taken by the NCBC to the contrary is adequately supported by good and acceptable reasons which furnished a sound and reasonable basis for further consequential action on the part of the Union Government. In the above situation we cannot hold the notification dated 4.3.2014 to be justified. Accordingly the aforesaid notification bearing No. 63 dated 4.3.2014 including the Jats in the Central List of Other Backward Classes for the States of Bihar, Gujarat, Haryana, Himachal Pradesh, Madhya Pradesh, NCT of Delhi, Bharatpur and Dholpur Districts of Rajasthan, Uttar Pradesh and Uttarakhand is set aside and quashed. The writ petitions are accordingly allowed.
17. Learned counsels appearing for both the sides have heavily relied on the observations and the law laid down by the Supreme Court in Indra Sawhney's case (supra) in making submissions for setting aside the inclusion of the Jat community in the OBC category by the the Notifications issued by the Union of India on 27.10.1999 and the State of Rajasthan on 3.11.1999 and 10.1.2000. They have interpreted the judgments in Indra Sawhney's case (supra ) and Ram Singh's case (supra) in their own manner for supporting the arguments raised by them for and against the impugned Notifications.
18. On 1.5.2015, after the arguments on behalf of the petitioners were concluded, Shri Mukul Rohatgi, Attorney General of India appeared in the matter and after stating the background of the case, he submitted that considering the long period for which the writ petitions are pending in the Court and the subsequent developments including the Notification issued by the State Government on 10.1.2000 and the judgment in Ram Singh's case (supra), no useful purpose will be achieved in hearing the matters and in considering the reliefs prayed for by the petitioners. He submitted that he will advise the State Government to appoint the Chairman of the State Commission for Backward Classes and to extend the period of the SCBC beyond 30th June, 2015 and to refer the matter of inclusion of the Jat community of Dholpur and Bharatpur in the State List of OBC, to be considered by the State Commission for Backward Classes. He submits that this Court may consider to fix a reasonable time within which the SCBC may submit its recommendation to the State Government.
19. On a question put to him as to whether this was his personal view or the official statement on behalf of the State Government, learned Attorney General of India requested for a short adjournment, after which he proposed to return back with the official statement.
20. The matters were thereafter heard on 21st May and 22nd May, 2015 and were adjourned to 6th July, 2015. On 6th July, 2015, Shri Rakesh Dwivedi, learned Senior Counsel appeared on behalf of the State of Rajasthan and reiterated the submission made by the Attorney General. A question was also put to him as to whether he has the necessary instructions from the State Government. On the next day on 7th of July, 2015, Shri Rakesh Dwivedi on receiving instructions from the State Government, gave a statement in the Court that the State Government will reconstitute the State Commission for Backward Classes by appointing a Chairman and its Members within 30 days and that the matter with regard to reservation for the Jats of Dholpur and Bharatpur will be referred to the State Commission for Backward Classes, in an open manner to be considered by it and that on his statement, the Court may consider to grant a reasonable time to the State Commission for Backward Classes to make its recommendations to the State Government.
21. Since the Court had heard the submissions of the petitioners at length, a request was made to Shri Rakesh Dwivedi to address the Court on merits as well, on which he addressed the Court in reply to the submissions made by the petitioners, after which Shri Jagdeep Dhankar, learned Senior Counsel and other counsels were also heard and the judgment was reserved on 9.7.2015.
THE SUBMISSIONS
22. Leading the arguments on behalf of the petitioners, Shri S.Guru Krishna Kumar, learned Senior Counsel submits that the social and economic backwardness for the classes of citizens under Article 15(4) of the Constitution of India, and the backwardness for the class of citizens under Article 16(4) for an affirmative action, have special connotation. The requirement in law for affirmative action by a State for determination of backwardness is the existence of objective material, on which the decision is based. There was no material with the NCBC to justify the inclusion of the Jats of Rajasthan in the OBC, susceptible for judicial review. The Central Government as well as the State Government have a duty to independently exercise their powers for the purpose of collection of data and materials. The Mandal Commission did not make any recommendation for inclusion of the Jat caste in the OBC category. The request for inclusion of the Jat caste in the Central List of OBC for Haryana, UP, Rajasthan and MP States was considered by the NCBC in its report dated 28.11.1997. A two member Bench of the Commission held public hearing on 30.5.1997. The data furnished by the representatives of the Jats in respect of Rajasthan was drawn from the NCBC questionnaires filled in by the Rajasthan Jat Mahasabha and Akhil Bhartiya Jat Mahasabha, Sikar. Its findings were not based on objective criteria. It was observed in the report that the NCBC had waited for long for the report of the State Commission for Backward Classes, which was not made available. In fact, there was no permanent Commission set up in the State of Rajasthan, despite the recommendations in Indra Sawhney's case (supra). The decision of the NCBC was in-fact actuated by the political considerations, for which promises were made by the leaders. The recommendations for inclusion of the Jats in the OBC category suffer from the vice of undue haste, which is a proof of malafides. The entire exercise was tainted with malafides and amounts to fraud on power.
23. Learned Senior Counsel Shri S.Guru Krishna Kumar referred to Para 861(C) of the majority judgment by Hon'ble Justice B.P.Jeevan Reddy giving directions to the Government of India, State Governments and the Administration of Union Territories, in stating that he is not making any submission for the criteria that may be evolved by the Government of India and the State Government in pursuance to the directions in clause (B) of Para 861 as well as to the classification amongst backward classes and equitable distribution of the benefits of reservation amongst them, that may be made in terms of and as contemplated by clause (i) of the Office Memorandum dated September 25, 1991, which is provided to be challenged in the Hon'ble Supreme Court. He is confining his submission that there was no objective materials for judicial review in accordance with the principles stated in Barium Chemicals V/s Company Law Board (AIR 1967 SC 295).
24. Referring to Para 795 of majority judgment in Indra Sawhney's case (supra), it is submitted that relevant language employed in clauses of Articles 15 (4) and 16(4) of the Constitution of India is different. Article 16(4) does not expressly refer to Scheduled Castes or Scheduled Tribes. There is no reason as to why their backwardness as the standard backwardness should be treated for all those claiming its protection. All the castes, groups and tribes within the Scheduled Castes and Scheduled Tribes are not similarly situated. If any group or class is situated similarly to the Scheduled Castes, they may have a case for inclusion in that class but there seems to be no basis either in fact or in principle for holding that other classes/groups must be situated similarly to them for qualifying as backward classes. It was clarified that the backwardness, being a relative term, must in the context be judged by the general level of advancement of the entire population of the country or the State, as the case may be. It must be left to the Commission/Authority appointed to identify the backward classes to evolve a proper and relevant criteria and test the several groups, castes, classes and sections of people against that criteria. If, in any case, a particular caste or class is wrongly designated or not designated as a backward class, it can always be questioned before a Court of law as well. The relevancy of the criteria evolved by the Mandal Commission was not questioned by any one in Indra Sawhney's case (supra). Actual identification is a different matter. It is thus submitted that this Court is competent to determine that the Jats cannot be designated as a backward class.
25. It is submitted that Article 15(4) is not a substitute of Article 16(4). It is not correct to say that the backwardness as contemplated by Article 16(4) is limited to the socially and educationally backward classes referred to in Article 15(4) and Article 340. It is much wider. A caste can be and quite often is a social class in India. If it is backward socially, it would be a backward class for the purposes of Article 16(4). There are several occupational groups, sects and denominations, which for historical reasons are socially backward. They too represent backward social collectives for the purposes of Article 16(4). The Constitution nor the law prescribe the procedure or method of identification of backward classes., nor is it possible or advisable for the court to lay down any such procedure or method. It must be left to the authority appointed to identify. If can adopt such method/procedure as it thinks convenient and so long as its survey covers the entire populace, no objection can be taken to it. It was observed in Paragraphs 796-797 of the judgment in Indra Sawhney's case (supra) that identification of the backward classes can certainly be drawn with reference to castes among, and along with, other groups, classes and sections of people. One can start the process with the castes, wherever they are found, apply the criteria evolved for determining backwardness and find out whether it satisfies the criteria. If it does - what emerges is a "backward class of citizens" within the meaning of Article 16(4). Similar process can be adopted in the case of other occupational groups, communities and classes, so as to cover the entire populace. The central idea and overall objective should be to consider all available groups, sections and classes in society. Since caste represents an existing, identifiable social group/class encompassing an overwhelming majority of the country's population, one can well begin with it and then go to other groups, sections and classes. A creamy layer can be, and must be, excluded. A caveat was put that it is not correct to say that the backward class contemplated by Article 16(4) is limited to the socially and educationally backward classes referred to in Article 15(4) and Article 340. It is much wider. The accent in Article 16(4) appears to be on social backwardness. The test or requirement of social and educational backwardness cannot be applied to Scheduled Castes and Scheduled Tribes. These Tribes are closely inter-twined in the Indian context. The classes contemplated by Article 16(4) may be wider than those contemplated by Article 15(4).
26. It is submitted that the National Commission for Backward Classes Act was enacted in 1993, in pursuance to the directions issued in Indra Sawhney's case (supra) for examining under section 9(1) the requests for inclusion of any class of citizens as a backward class in such lists and to hear complaints of over-inclusion or under-inclusion of any backward class lists and tender such advice to the Central Government as it deems appropriate. Sub-section (2) provides that the advice of the Commission shall ordinarily be binding upon the Central Government. The powers of the Commission are defined in Section 10 and Section 11(1) provides that the Commission may at any time, and shall, at the expiration of ten years from the coming into force of the Act and every succeeding period of ten years thereafter, undertake revision of the lists with a view to excluding from such lists those classes who have ceased to backward classes or for including in such lists new backward classes. Sub-section (2) provides that the Central Government shall, while undertaking any revision referred to in sub-section(1), consult the Commission.
27. Referring to Paragraphs 679, 681 and 682 of the judgment in Indra Sawhney's case (supra), it is submitted that while answering the eight questions arising for discussion and after elaborating them in Para 682, it was observed in Para 683 that the questions framed are not only of great moment and consequence, they are also extremely delicate and sensitive, representing complex problems of Indian Society, wrapped and presented as constitutional and legal questions. Referring to Paras 779, 780 and 782, it was submitted that for identification of group, class or section as backward, one has to begin somewhere. There is no set or recognized method. There is no law or other statutory instrument prescribing the methodology. The ultimate idea is to survey the entire populace. If so, one can well begin with castes, which represent explicit identifiable social classes/groupings, more particularly when Article 16(4) seeks to ameliorate social backwardness. The caste, occupation, poverty and social backwardness are closely inter-twined in our society. It was observed that individual survey is out of question, since Article 16(4) speaks of class protection and not individual protection. Besides castes there may be other communities, groups, classes and denominations which may qualify as backward class of citizens. For example, in a particular State, Muslim community as a whole may be found socially backward. Similarly, certain sections and denominations may be included among backward communities. Any authority entrusted with the task of identifying backward classes may well start with the castes. Having exhausted the castes or simultaneously with it, the authority may take up for consideration other occupational groups, communities and classes. The approach and methodology adopted by Justice O.Chinnappa Reddy Commission was approved with majority judgment by Justice Jeevan Reddy in Para 782 observing that the efforts should be to consider all the available groups, sections and classes of society in whichever order one proceeds. Since the caste represents an existing, identifiable, social group spread over an overwhelming majority of the country's population, one may well begin with castes, if one so chooses, and then go to other groups, sections and classes.
28. Reference was also made on Paras 123 and 124 of the judgment of Justice Pandian, in which reference was made to the judgment in K.C. Vasanth Kumar v. State of Karnataka ((1985) Supp. SCC 714), in which it was held that there was no point in attempting to determine the social backwardness of other classes by applying the test of nearness to the conditions of existence of the Scheduled Castes. Such a test would practically nullify the provisions of reservation for socially and educationally Backward Classes other than Scheduled Castes and Scheduled Tribes. Vasanth Kumar's case (supra) did not attempt to lay down any guidelines for identification of backward classes, except in broad and very general way. Efforts have been made in Indra Sawhney's case (supra) to provide for some guidelines with the rider that the identification is a very elaborate and scientific exercise, for which the width is to be crucial and comprehensive. Referring to Para 798 of the judgment in Indra Sawhney's case (supra), it was submitted that adequacy of representation in the service under the State was a matter within the subjective satisfaction of the State. The Supreme Court observed that all that is required is, there must be some material upon which the opinion is formed. In such matter, the Court should show due deference to the opinion of the State, which in the context means the executive. The executive is supposed to know the existing conditions in the society, drawn as it is from among the representatives of the people in Parliament/Legislature. It does not, however, mean that the opinion formed is beyond judicial scrutiny altogether. The scope and reach of judicial scrutiny in matters within subjective satisfaction of the executive are broadly and extensively stated in Barium Chemicals V/s Company Law Board.
29. It is submitted that last caste census was made in the year 1931. The result of the caste census held in 2011 has not been published. The permanent Commission has been set up under the Act of 1993, but there is no permanent Commission for Backward Classes in the State of Rajasthan. No extensive survey was made and that only representatives of Jat community were heard without carrying out adequate advertisement in which the members of other castes were not present. The material produced before the Commission was not objectively considered. It was used as a political tool for the purpose of giving reservation to the Jats, for which promises were made on political platforms.
30. The submissions, as aforesaid, made by Shri S.Guru Krishna Kumar may be summarized as follows:-
(i) The recommendation of the NCBC made in the year 1997 for inclusion of Jats in the Central List of OBC for the State of Rajasthan is not based on any survey, as no quantifiable data was collected. The consequent Notification dated 27.10.1999 issued by the Central Government is liable to be quashed.
(ii) The justification made by the State of Rajasthan for inclusion of Jats in the State List of OBC by relying upon their inclusion in the Central List is absolutely unsustainable in law and in facts.
(iii) The contention that the 1997 report has been affirmed in the report of NCBC dated 26.2.2014 and has been indirectly affirmed in Ram Singh's case (supra) is untenable.
(iv) The stand of the respondents that judicial review of the report of NCBC and the consequent impugned Notification is excluded is misconceived.
(v) The grievance raised on the inclusion of Jats in the two Districts of Rajasthan, namely, Bharatpur and Dholpur, on the contention that the whole State should be taken as a unit is unsustainable.
31. Shri R.C.Joshi, learned counsel appearing for the petitioners submits that Kaka Kalelkar Commission set up on 29.1.1953 submitted its report on 30.3.1955, which was not accepted by the Central Government. A Commission was set up under the Chairmanship of Justice B.P.Mandal on 1.1.1979 which did not recommend the Jats to be included in the list of OBC. Following the Mandal Commission's report, two Notifications dated 20.8.1990 and 25.9.1991 were issued providing 27% reservation to the Other Backward Classes, which were challenged before the Hon'ble Supreme Court and decided in Indra Sawhney's case (supra). By Notification dated 28.9.1993, the State Government provided reservation to Other Backward Classes, to the extent of 21%, as per the list given in the report of the Mandal Commission. The State Government did not enact the State Commission for Backward Classes, in pursuance to the directions issued by the Supreme Court in Indra Sawhney's case (supra), whereas several States established the permanent mechanism with the Rules providing the procedure for inclusion and exclusion in the list for the purpose of giving reservation under Articles 15(4) and 16(4) in the State. The State of Rajasthan constituted the State Commission for Backward Classes by the Notification dated 11.3.1993, which was an executive order. The State Commission fixed its own yardsticks for determination of backwardness. When the State Commission for Backward Classes was ceased with the matter of inclusion of the Jats in the list of OBC for providing reservation in the State of Rajasthan and had conducted the survey, which was also reflected in the Schedule, giving public notice on 5.8.1999 for submissions, two members of the NCBC came to Jaipur on 30.5.1997 and held a limited public hearing in which only the Jat community appeared before them on 31.5.1997 and on the basis of two days hearing, in November, 1997, a report was submitted. No one except the Jat community was represented in the hearing. The appendix of the Commission's report refers to few members of the Jat community alone, who represented the matter before the NCBC. No statistics were provided by the State Government to the NCBC.
32. It is submitted that on 17.9.1997 and 29.9.1997, the State of Rajasthan wrote to the NCBC that before the State Government could take a final view, the report may not be submitted to the Central Government, as the recommendations are based without any survey. It is submitted that massive demonstrations were made by the Jat Mahasabha for pressurizing the Central Government and the State Government to make the recommendations for inclusion of the Jat as a caste in the Central and State lists of OBC. On 28.11.1997, the NCBC submitted its report and recommended inclusion of the Jats of Rajasthan except Bharatpur and Dholpur District in the Central List of OBC. The NCBC was of the opinion that the Jat rulers ruled Bharatpur and Dholpur for a long period of time and for which there was no material to show that they were oppressed for living in such a condition on which they could be said to be a backward community in the area. At this stage, massive demonstrations were made by the Jat Mahasabha and at the instance of Jat leaders, on 15.5.1999, the State Commission for Backward Classes was dissolved and a Notification was issued on 21.5.1999 constituting a new Commission headed by Justice R.S.Verma. The Notification was published in the Official Gazettee on 1.7.1999. On 27.10.1999, the Central Government accepted the recommendations of the NCBC and issued a Notification including the Jats of Rajasthan except the Jats of Bharatpur and Dholpur District in the Central List of OBC.
33. Mr.R.C.Joshi submits that the State of Rajasthan followed the report and within a week without waiting for the report of the State Commission for Backward Classes, issued a Notification on 3.11.1999 including the Jats except of Dholpur and Bharatpur Districts in the State list of OBC.
34. It is submitted that on 22.10.1999, the State Government made a representation to Justice Verma Commission for inclusion of the Jats of Dholpur and Bharatpur District in the list of OBC. Representations were also made on 12.11.1999 and 20.12.1999. Verma Commission submitted 6th report of the State Commission for Backward Classes on 29/30th December, 1999, with a covering letter to the Chief Minister stating that this first report of Verma Commission has been prepared in a short time. It is based on surveys made in some areas and the reports received from the State Government as well as the reports of the District Collectors and other Revenue Officers. In this report, Verma Commission did not refer to the report of the NCBC, by which the Jats in the State of Rajasthan except Dholpur and Bharatpur were recommended to be included in the Central List of OBC, on which the Central Government has issued a Notification and that the State Government has also issued a Notification including the Jats in the State list of OBC except Dholpur and Bharatpur Districts. In Para 23 of the report, Verma Commission observed that they do not have the authorized copy of the report of the NCBC and thus they are not in a position to state as to what was the recommendations of the NCBC. Verma Commission, thereafter, observed that the Jats are basically an agricultural group and that prior to independence, the rulers in Rajasthan had also committed atrocities on the Jat farmers. Prior to independence, they were in the darkness of illiteracy and this was the position of almost all the agricultural groups. Prior to independence, in the Jat community Swami Keshvanand had raised the voice for education. Late Baldevramji Mirdha and Choudhary Tara Chand also raised the awareness for education, as result of which Educational Institutions like Sangaria Vidhya Peeth was established. After independence, there was revolution in the field of education in Rajasthan and the Jat community was also affected by the revolution for education as other groups and to a large extent their educational backwardness was removed. In para 26 of the report, it was stated that after independence, the means of irrigation were increased in the Jat dominated areas and that the Jagirdari Pratha was completely abolished giving ownership rights to the farmers on the land, which also improved the economic, educational and social conditions of the Jat agricultural society and that it is expected that the NCBC, Central Government and the State Government must have considered these aspects. Thereafter, in Para 27 of the report, it was stated that while the State Commission for Backward Classes was collecting the detailed information on all aspects, the Jat community was declared as backward class. The State Commission has not yet collected sufficient material, information and statistics, but now the issue of reservation to the Jat community is no longer pending before the State Commission except for Bharatpur and Dholpur Districts and thus, there was no justification to give any comment on it. The State Commission, thereafter, stated in the same paragraph 27 that according to public perception, the Jat community of Rajasthan is enlightened community, which is socially recognized and highly educated. It is sufficiently represented in the Government services and in public representation and their political representation has also increased and thus, it would be proper that the State Commission may in the background give recommendation to give reservation to them. Para 27 of the report is quoted below:-
27. ???? ?? ????????? ?? ?? ?? ???? ?? ??? ?????? ?? ??????? ??????? ?????? ???? ??? ?? ?? ??? ??? ??? ?????? ?? ?????????? ?????? ?????? ???? ????? ?? ???? ???? ?? ???? ?? ??? ??? ?? ?????? ??????? ??????? ? ????? ?????? ???? ?? ???? ??? ??????, ?????? ????? ?? ?????? ???? ??? ?????? ?? ????? ?? ?? ???? ?? ????? ???? ?? ??? ??, ????? ???? ?????? ???? ??? ??????? ?? ???? ?? ???? ???? ?? ?????? ???? ??? ???, ???? ???? ????? ???? ???? ?? ??? ????? ?? ??????, ???????? ?? ??? ?????? ?? ????????, ?????? ??????? ????????? ??????? ? ???? ??????? ?????? ??, ????? ?? ??? ?????? ?????? ??? ? ???????????? ??? ?? ???????? ???????????? ??? ?? ??????? ??? ??? ??? ?? ???????? ?? ?????? ??????? ??? ???????? ???? ???????? ??, ??????? ????????-3, ??? ???? ??? ??? ??? ?????? ?? ?????? ?? ???????? ???????? ?? ?????? ??? ?? (????? ????? ????????-4) ??: ?? ???? ???? ?? ?? ????? ?? ???? ???? ???????? ?? ?? ???? ??????? ?????? ??? ??????? ? ???????? ?????? ?? ????? ???? ???, ?????? ?? ??? ?????? ?? ??????? ?????"
35. It is submitted that in its report to the State Government in the covering letter to the Chief Minister, Justice R.S.Verma had written that for the Jats of Bharatpur and Dholpur Districts, the matter has been delayed, for which primarily the Central Government is responsible. The Commission is requesting the NCBC and the Central Government since 25.10.1999 to provide the copy of the report by which recommendations were made for reservation of Jats except Dholpur and Bharatpur Districts. The Central Government has been ignoring the demand of the State Commission to provide the report, which has been made available on 6.1.2000, on which the State Commission has with full expediency heard the matter on 7.1.2000 and presented the report on 8.1.2000.
36. Shri R.C.Joshi submits that Verma Commission in its report dated 8.1.2000 made recommendations for inclusion of five castes, namely, Manihar at serial no.32; kheldar at separate number; Machuara at the end of serial no.14 after Bhisti; Banduk Saaj (Usta) serial no.48 after Sikligar; and the Jats of Districts of Dholpur and Bharatpur, in a short and cryptic report, without meeting the criteria for the requirements of identification of a caste, as laid down by the Mandal Commission and approved in Indra Sawhney's case (supra). Verma Commission made recommendations to include the Jats of Bharatpur and Dholpur Districts, who were specifically excluded by the NCBC in its report dated 28.11.1997. It acted in hot haste and for political consideration in submitting its report after the previous State Commission had been abolished. It committed procedural irregularities in submitting the report. Without issuing a public notice and giving opportunity to all concerned, it held the hearing within 24 hours of receiving the report of the NCBC and submitted its report in another 24 hours, which was accepted by the State Government in next 48 hours by issuing the Notification dated 10.1.2000 including the Jats of Bharatpur and Dholpur Districts in the State list of OBC. There is no material to show that the Cabinet of the State Government had accepted the report.
37. It is submitted by Shri R.C.Joshi that the consideration for inclusion of Jats of Bharatpur and Dholpur in the OBC category was entirely misconceived. The reasons had no relation with the identification of the Jats of Bharatpur and Dholpur as backward class. Verma Commission noticed that in Bharatpur and Dholpur, the Jat rulers had ruled the Districts for more than two centuries and thereafter, for the reasons, which had no co-relation with the backwardness of the caste, it proceeded to make recommendations on the ground of references made in two books, namely, Agrarian Movement in Rajasthan by Pemaram and The Tribes and Castes of the Central Provinces of India by R.V.Russell & Hiralal. Whereas Pema Ram had referred to the efforts made by Shri Krishna Singh Bahadur Jat in the year 1938 for social and educational reforms in Bharatpur, where his memorial was established and his efforts to make Jat Sabha as Kisan Jamindar in 1941. These references at pages 267 and 259 of the book were quoted by Verma Commission as follows:-
In 1938, the Jats of Bharatpur tried for social and educational reforms among the Jats and for this purpose they proposed to found a Jat Memorial named Shree Krishna Singh Bahadur Jat Memorial and also decided to establish a Jat Sabha in Bharatpur which was registered on 21st October, 1938. In 1940, Thakur Deshraj joined the Jat Sabha and became its Secretary. He worked hard in the rural localities and at Bharatur for the uplift of the Jats. He also started a weekly from Agra entitled Jat Jagat.
The number of jagirs was comparatively few in the Bharatpur state. There were only petty jagirs numbering 17, holding 28 villages. The biggest jagir was of Ballabhgarh, with an area of 23 square miles covering 14 villages. The nature of feudal system as was common in other states did not prevail in Bharatpur. The Jagirdars had no legal jurisdiction in their petty jagirs nor did they pay any tribute or revenue to the state. Though the jagirs were hereditary, their holders did not possess the right of adoption without obtaining the sanction of the ruler. The tenants under the Jagirdars held the same position as under the Khalsa. The Jagirdars were not empowered to dispossess the hereditary tenants and could not increase the land revenue.
38. After quoting from the book written by R.V.Russel & Hiralal (Page 232 Part-3), Verma Commission reported that Jat is equal to Gurjar and Ahir so far as social purity is concerned but still above them, because they are graziers and vagrants while he is a settled cultivator. Further referring to the People of India Part-I Volume 38 written by Shri K.S.Singh, Verma Commission quoted only one line The Jat women held a lower status in the society and observed that the society in which the woman is not respected, cannot be said to be empowered society and has to be treated as backward.
39. It is submitted that Verma Commission, thereafter, accepted that some of the persons have achieved success in the Jats of Dholpur and Bharatpur, but that by itself does not mean that the entire group was in the front and forward. Giving example of Shri Baba Sahed Ambedkar, who was highly educated and on which his community cannot be said to have moved forward, Verma Commission observed that the reasons for which the NCBC had distinguished the Jats of Bharatpur and Dholpur could not be said to be the reasons, which can be taken into consideration for treating them to be socially and educationally forward. Referring to the affidavit of Dr.Fateh Singh in which he has stated that NCBC had not heard the Jats of Bharatpur and Dholpur for excluding them from the recommendations, Verma Commission observed that the social beliefs and religious establishments and sub castes of Jats of Bharatpur and Dholpur were the same as the Jats of Rajasthan and that they have also martial relationship, and thus, it was recommended by Verma Commission to include the Jats of Bharatpur and Dholpur in the State list of OBC.
40. Shri R.C.Joshi submits that the Jats were smuggled into the list of OBC on a political consideration. They had threatened not to vote in the elections on which the successive Prime Ministers, namely, H.D.Deve Gowda and thereafter, Shri Atal Bihari Vajpayee, and that thereafter, Smt.Sonia Gandhi had also made promises that the Jats would be given the benefits of OBC. Justice Israni Commission set up by the State of Rajasthan had carried out extensive surveys in the year 1998. When the Jats found that the recommendations of Israni Commission are likely to be against them, Israni Commission was dissolved on 15.5.1999 and R.S.Verma Commission was appointed only with an objective to include the Jats in the State list of OBC within a week of the dissolution of Israni Commission. Verma Commission was constituted on 21.5.1999, which kept the matter pending for about six months and thereafter, submitted its report on 8th January, 2000, which was accepted in two days and offending Notification dated 10.1.1999 was issued including the Jats of Bharatpur and Dholpur also in addition to the Jats of State of Rajasthan.
41. It is submitted that the tests of backwardness recommended in Indra Sawhney's case (supra) were not followed in respect of the Jats of Rajasthan as well as the Jats of Bharatpur and Dholpur. He submits that it is significant that neither in Kaka Kalelkar Commission report, which was not accepted by the Central Government nor in the Mandal Commission report, the Jats were recommended to be included in the OBC category. In the Census Report of 1891 for Ajmer and Mewara region only male literacy rate was indicated.
42. Extensively referring from the book of Maharaja Surajmal written by Natwar Singh, Shri R.C.Joshi traced the history of migration of the Jat community from Pakistan. The Jats in Pakistan are also muslims. They migrated from the area of Sindhi, which was in Pakistan. He also referred to the Jat history written by Thakur Deshraj, a celebrated writer. He submits that the Jats mythological are said to be evolved from the Jata of Lord Shiva and their position in Ramayana and Mahabharat gives them a high status. They were rulers of the kingdoms. There are various Gotras in the Jats. It was much later that they won over the Rajputs and become farmers. They had a highly developed panchayat system and that there are instances that they did not pay taxes more than what was prescribed. In Shekhwatati, they resisted against taxes. There are historical proofs that large areas occupied by the Jat after winning them over from Chauhans. The Jat historian Dr.Pema Ram and article of Laxman Burdak does not show that the Jats have any such position on which they can be classified as backward class. They never raised any demand prior to 1993. When the State Commission for Backward Classes was set up and that when the extensive survey was being carried out by Israni Commission against their claim, they held demonstrations and on the threat of refusing to vote for any party, they persuaded the political leaders to smuggle them into the list of OBC.
43. Referring to Para 243 (17) of the judgment of Justice R.Pandian in Indra Sawhney's case (supra), it is submitted that permanent Commissions were recommended to be set up to examine the exclusion of any pseudo community if smuggled into the list of OBC. In Sub-para (17) of Para 243 in summation, Justice R.Pandian observed that:-
243. In Summation ..
(17) The Government of India and the State Governments have to create a permanent machinery either by way of a Commission or a Committee within a reasonable time for examining the requests of inclusion or exclusion of any caste, community or group of persons on the advice of such Commission or Committees, as the case may be, and also for examining the exclusion of any pseudo community if smuggled into the list of OBCs. The creation of such a machinery in the form of a Commission or Committee does not stand in the way of immediate implementation of the Office Memorandum dated 13th August 1990 and the purpose of creating such machinery is for further guidance.
44. Shri R.C.Joshi has also referred to the observations made by Justice R.M.Sahai in Paras 560 & 609 to 615 of the judgment in Indra Sawhney's case (supra), though his judgment is in minority. In Para 560, Justice Sahai, while giving the word of caution, observed that Therefore, the exercise of power must precede the determination of these aspects each of which is mandatory. Since the exercise of power depends on the existence of the two, its determination too must satisfy the basic requirement of being in accordance with the Constitution, its belief and thought. Any determination of backward class in historical perspective may be legally valid and constitutionally permissible. But if in determination or identification of the backward class any constitutional provision is violated or it is contrary to basic feature of Constitution then the action is rendered vulnerable.
45. In Paras 609 to 615, Justice Sahai observed that the exercise of identification of backwardness should be objective. If in some States it was found by the Commission appointed by their Governments that certain castes were adequately represented, yet because of extraneous reasons the Government had to bow and include them in the list of backward classes. Such inclusion is a fraud of constitutional power. Any citizen has a right to challenge and the Court has obligation to strike it down by directing exclusion of such group from the backward class. Mere identification of collectivity or group by a Commission cannot clothe the Government to exercise the power unless it further undertakes the exercise of determining if such group or collectivity is adequately or inadequately represented. The exercise is mandatory not in the larger sense alone but in the narrower sense as well.
46. In Para 615, Justice Sahai observed that equality has various shades. Its understanding and application have been shaped by social, economic and political conditions prevailing in the society. The reigning philosophy since 18th century has been the State's responsibility to reduce disparities amongst various sections of the population and promoting a just and social order in which benefits and advantages are evenly distributed. Since the Constitution treats all citizens alike for the purposes of employment except those who fall under Article 16(4) any further classification or grouping for reservation would be constitutionally invalid. No legislative exercise can transcend the constitutional barrier. For valid classification, the legislature or executive measures must be co-related with legislative purpose or objective.
47. Shri S.N.Kumawat, learned counsel appearing for the petitioners in Writ Petition No.6692/1999 submitted that by the Notification dated 10.1.2000, the State of Rajasthan deleted the exception of Jats of Bharatpur and Dholpur from the Notification dated 3.11.1999 and as such, provided the reservation to the members of the royal families of Jats. Neither any survey was conducted by Verma Commission nor any report was submitted for inclusion of the Jat of Rajasthan as well as Jats of Dholpur and Bharatpur in the OBC category. In fact, no survey whatsoever was conducted as mandated in Indra Sawhney's case (supra) before including the Jats of Rajasthan and the Jats of Bharatpur and Dholpur in the State list of OBC. The entire inclusion was based on political compulsions, on which they were smuggled into the lists of OBC.
48. Referring to the judgment of the Supreme Court in Ram Singh's case (supra), Shri Kumawat has relied on Paras 49, 54 and 55, in which it was observed:
...Yet surprisingly the facts that stare at us indicate a governmental affirmation of such negative governance inasmuch as decade old decisions not to treat the Jats as backward, arrived at on due consideration of the existing ground realities...
...as to the social status of the less fortunates cannot continue to be a constitutionally permissible yardstick...
...We must hold that inclusion of the politically organized classes (such as Jats) in the list of backward classes mainly, if not solely, on the basis that on same parameters other groups who have fared better have been so included cannot be affirmed.
...We cannot agree with the view taken by the Union Government that Jat in the 9 (nine) States in question is a backward community.
49. Shri S.N.Kumawat referred to the judgment of the Supreme Court in Indra Sawhney's case (supra), in which the recommendations were made for excluding the creamy layer from the benefit of reservation. It was held that the creamy layer, as propounded in Ashoka Kumar Thakur v. State of Bihar ((1995) 5 SCC 403), is not backward and therefore, not entitled to the benefit under Article 16(4) of the Constitution of India. Conferring benefits under Article 16(4) without excluding the creamy layer from the backward classes amounts to treating unequals as equals and equals as unequals, thus violating the principle of equality enshrined in Articles 14 and 16(1), which is basic feature of the Constitution of India.
50. Shri Kumawat submits that the Jats are highly educated, having more than adequate representation in the judiciary, first class service as well as in the Administration of Government and the political assignments. They cannot in any manner be treated as backward in the State of Rajasthan, nor can it be said that they are not adequately represented in the matters of Government largesses. The entire liquor and transport trade is in the hands of the Jats. They have ruled the Bharatpur and Dholpur for two centuries. They were included in the Central and State Lists of OBC on political considerations as no other caste or community or organization was heard by the NCBC and State Commission for Backward Classes. A special preference was given to the Rajasthan Jat Mahasabha and Akhil Bharatiya Jat Mahasabha, Sikar by the Commission for making recommendations for inclusion of Jats of Rajasthan in the OBC category, based on political considerations. It is submitted that between 2005 to 2011, having 1.5% population in India, 4.9% IAS/IPS were Jats and in 2013, 20 Jats were IPS/IAS. The Caste Census of 2011 has not been made public and that if it is made public, it will open the eyes of the Nation as to the manner in which the ruling party has been giving the representation to the favoured castes & communities to get their votes.
51. Shri Kumawat submits that Verma Commission did not give any opinion in favour of the Jats to be included in the State list of OBC. It made half way studies in two days on the basis of few books and made stray observations, which were readily accepted by the State Government. He submits that about 30 to 40% seats of OBC category are occupied by the Jats in every selection. They have become the dominant caste in the State of Rajasthan and are getting the benefit of agitations and political favour given to their leaders. Gurjar agitations are the result of getting the entire benefit in the OBC by the Jats and their inclusion without any application of mind and for co-lateral purposes.
52. Shri S.S.Hora, learned counsel appearing for the petitioners in Writ Petition No.5221/2003 submits that Article 16(4) is enabling provision to identify backward class of citizens, who are not adequately represented in the services under the State. If a fraud is played in the exercise of enabling power to give representation to any caste or community without carrying out adequate survey of its backwardness and adequacy of representation, the same must be set aside by the Court. The backwardness can be found only by quantitative contemporary survey. The books written by Shri Natwar Singh and Irfan Habib relied upon by the NCBC related to the history aspect and not quantitative contemporary survey of the social conditions of the Jats community in the State of Rajasthan. He extensively referred to Paras 644 and 667 of the judgment in Indra Sawhney's case (supra) and submits that a similar exercise must have been undertaken, however, both the NCBC and the State Commission for Backward Classes have not carried out exercise; objective criteria on the factors of identification of backwardness have not been met in the case of Jats. He referred to Paras 86 and 107 of the judgment of the Supreme Court in M.Nagraj V/s Union of India (2006(8) SCC 270) and submits that quantifiable data was not collected and assessed causing reverse discrimination to the citizens of the State. He also referred to ICSSR report, on which references have been made in Paragraphs 28 and 29 of the judgment in Ram Singh's case (supra) and the recommendations of acceptance of contemporaneous data and outdated data. He also referred to the use of expression Retrograde Governance in Ram Singh's case (supra) and submits that the data, which are antiquated, could not have been relied upon for giving representation to the Jats, including them in the lists of OBC.
53. Shri Sobhit Tiwari, learned counsel appearing for the petitioners in Writ Petition No.5936/1999 has referred to Paragraphs 779, 782, 783, 800 and 859 of the majority judgment rendered by Justice Jeevan Reddy and various corresponding paragraphs of the judgment rendered by five other Judges including paragraphs 605 and 608 of the minority judgment of Justice R.M.Sahai and submitted that for determining the backwardness for the purpose of affirmation, the action under Articles 15(4) and 16(4) is not dependent upon the caste only. The other factors including the occupation, income and education are required to be considered for determining the backwardness. He has also referred to Paragraph 623 of the judgment of Justice R.M.Sahai, in which he observed that after reservation in initial recruitment reserved class may come under the mainstream of the Nation. He has also emphasized that the word adequate under Article 16(4) does not mean proportionate representation. In the majority view in Paragraph 800 of the judgment rendered by Justice Jeevan Reddy, it was observed that identification of backward class can be done with reference to castes along with other occupational groups, communities and classes is not the only permissible method. Indeed, there may be some groups or classes in whose case caste may not be relevant to all. For example, agricultural labourers, rickshaw pullers/drivers, street hawkers, etc. may well qualify for being designated as backward classes. As per Justice Pandian (Para 243(3)), the expression 'backward class of citizens' occurring in Article 16(4) is neither defined nor explained in the Constitution. However, the backward class or classes can certainly be identified in Hindu society with reference to castes along with other criteria such as traditional occupation, poverty, place of residence, lack of education etc. and in communities where caste is not recognized by the above recognized and accepted criteria except caste criterion.
54. It is submitted that Justice Kuldeep Singh in his dissenting judgment agreed with the reasoning and conclusions of justice R.M.Sahai to the effect that occupation (plus income or otherwise) or any other secular collectivity can be the basis for the identification of 'backward classes'. Caste collectivity is unconstitutional and such as not permitted.
55. Shri Sobhit Tiwari has also referred to Paragraph 478 of the concurring judgment of Justice Sawant and Paragraph 326(2) of the dissenting judgment of Justice Thommen and submitted that in the present case, the identification of Jat caste for backwardness by the NCBC, of which the report was followed by the SCBC and thereafter, sketchy and vague report was given by Verma Commission including the Jats of Bharatpur and Dholpur Districts in the OBC category, suffers from grave error of law, inasmuch as, the parameters accepted in the majority judgment in Indra Sawhney's case were not followed at all.
56. Shri Shobhit Tiwari has also referred to the report of the National Commission for Religious and Linguistic Minorities, in which under Chapter-6, the criteria for identification of backward sections among religious minorities was discussed.
57. Shri Shobhit Tiwari submits that the Jat community with 9% population share in Rajasthan is having 1 Cabinet and 3 State Ministers out of total 26 Ministers in the Government of Rajasthan as on 15.12.2014. In Rajya Sabha, State of Rajasthan is allotted 10 seats, out of which, 2 seats are being occupied by the Jat community. In Lok Sabha, out of 25 seats of the State of Rajasthan, 8 seats are being occupied by the Jat community. Out of 200 Members of the Legislative Assembly of the State of Rajasthan, 35 seats are occupied by the Members of the Jat community as on 15.12.2014. The above facts show that their political representation is almost double to their proportionate share in population. He further submits that out of 33 Zila Pramukhs in the State of Rajasthan, 9 seats are occupied by the Members of the Jat community as on 15.12.2014, that is more than three times of their proportionate share in the population. Out of 82 communities included in the OBC category in the State of Rajasthan, 74 communities do not have a single representation on the post of Minister in the Government of Rajasthan; 80 communities do not have a single Member of Parliament in Rajya Sabha; 78 communities do not have a single representation on the post of MP (Lok Sabha); 69 communities do not have even a single representation on the post of Member of Legislative Assembly; and 76 communities do not have a single representation on the post of Zila Pramukh. He submits that the Jat communities have stolen march by surreptitiously entering in the backward class begging representation in politics as well as in the Services, pushing other backward classes on the back and eating away their shares in almost all the occupations in which reservation is provided for the backward classes.
58. Referring to the judgment of the Supreme Court in K.Krishna Murthy (Dr.) and ors. V/s Union of India & anr. ((2010) 7 SCC 202), it is submitted by Shri Shobhit Tiwari that the backwardness in social and economic sense does not necessarily imply political backwardness.
59. Leading the arguments on behalf of the respondents, Shri Jagdeep Dhankar, learned Senior Counsel appearing for Jat Mahasabha in D.B.Civil Writ Petition No.6046/1999 submits that the entire premise of challenge for inclusion of the Jats in the Central and State lists of OBC is that hearing was accorded by NCBC only to the members of the Jat community; the NCBC report is tailor made to suite the promise made by the Prime Ministers; the report is based on the 1931 census figures supplied by the Jat community; the recommendations of NCBC based on no evidence, were accepted in a hurried manner and on which the Notifications were first issued by the Central Government and then by the State Government; the State communications dated 17.9.1997 and 29.9.1997 were ignored; and the State Commission for Backward Classes was dissolved at the instance of powerful Jat leaders is misconceived. He submits that all these assertions are incorrect. The hearing was accorded by the NCBC not only to the Jat communities, but also to every one. On 30.5.1997 and 31.5.1997, two members of the NCBC, in accordance with the procedure decided by the NCBC, came to Jaipur for hearing. The members of the Jat community appeared before them. A report was submitted by the NCBC in November, 1997 to the Central Government recommending that the Jats of Rajasthan excluding those living in Bharatpur and Dholpur be included in the Central List of OBC. The NCBC has advertised the public hearing in the newspapers and notified by the State Government widely in the local media and had not debarred any one to appear before it. The NCBC was considering the inclusion of the Jats in the OBC category and thus, on appearance of the Jat leaders, they were also provided with questionnaires. The public hearing is usually held at the State Headquarter of the State concerned where there is open access, not only to the request makers but also to others, who may desire to oppose the inclusion.
60. Shri Jagdeep Dhankar has denied that the inclusion of the Jats in the OBC category was at the instance of the Prime Ministers, who had made statements in their favour. He submits that between April 24, 1997 and 19.3.1998, Shri I.K.Gujral was the Prime Minister of India and significantly, no reference has been made to him. The assertion that the Jats were included in the OBC category at the instance of Prime Ministers and not on the report of the NCBC is reckless allegation with impunity, which is not permissible.
61. Relying on Paragraphs 134, 135, 137 and 139 of the judgment in Indra Sawhney's case (supra), in which the discussions were made on the Caste Census of 1931, it is submitted that the NCBC has collected and analyzed the plethora of materials made available to it, apart from inputs provided in two days public hearing. The report of the NCBC has dealt with at micro level all the aspects that needed to be adverted and was not prepared and submitted in a hurried manner. It took two years for having a public hearing on May 30,1997. The matter was deliberated by the NCBC for six months, after which the report was submitted on 28.11.1997 under section 9(1) of the NCBC Act, 1993. The State Government has tried to scuttle the recommendations of the NCBC by sending communications on 17.9.1997 and 29.9.1997, stating that the survey/enquiry for the Jat caste was under consideration of the State Commission and it was thus not possible for the Government of Rajasthan to give its comments in a short time. In the counter affidavit filed on behalf of the Union Government, it was submitted that the NCBC was following the practice of writing to the State Governments and the State Commission for Backward Classes to obtain data and information and such a request was made to the State Government in the case of the Jat caste of Rajasthan also, after which the Bench waited for nearly six months for the receipt of the data from the State Government authorities. Since the State Government was not in a position to furnish any data, the Bench proceeded to finalize the findings. The NCBC in its report observed at Para 147 on the question of survey that even if they (State Government) considered a survey with regard to the Jats as necessary, it is now five years after the Supreme Court pronounced the judgment in Indra Sawhney's case (supra) and the State Commission for Backward Classes has been in existence since 1993 and after an interruption in 1996-97, it was partly reconstituted in 1997, it would be unfair to wait for their response after 4 or 5 years and till then the Jats will have to wait. The Supreme Court laid down mandatory revision of backward classes lists after every ten years and thus, any further delay was not justified.
62. Shri Jagdeep Dhankar has strongly denied the allegations that the State Commission for Backward Classes was dissolved at the instance of the powerful Jat leaders and the State Commission headed by Justice R.S.Verma was constituted. He submits that the Jats made representation in 1993. The State Commission was sitting over it and the process had not even commenced for carrying out a survey after six years of the submission of the representation by the Jats. The State Commission was on extension waiting for appointment of a new Commission. The reconstituted State Commission was not different than the previous one, ignoring the mandate of the Supreme Court. It cannot thus be said that the Jat leaders were influencing the Commissions. He submits that the Notification dated 27.10.1999 issued by the Central Government was in conformity with and in accordance with the recommendations made by the NCBC, which is a statutory expert body and its advice, based on the wealth of materials collected after due procedure, under section 9(2) of the NCBC Act of 1993 is ordinarily binding on the Central Government, which means unless there is very exceptional or strong reasons against the report, the advice must be accepted. Where the Government does not agree, according to Para 847 of the judgment in Indra Sawhney's case, it must record its reasons for disagreement. In Ram Singh's case also, the Supreme Court in the year 2015 has observed in Paragraph 46 that An impossible or perverse view would justify exclusion of the advice tendered but that had, by no means happened in the present case. The mere possibility of a different opinion or view would not detract from the binding nature of the advice tendered by the NCBC.
63. Referring to the procedure prescribed and adopted by the NCBC in which the examination of the requests and hearing of the complaints under section 9(1) of the NCBC Act is generally done by a Bench of two Members, of which the finding is to be placed before the Commission to be considered by it for formulating its advice to the Central Government, he submitted that the NCBC has rendered the report under section 9(1) of the NCBC Act of 1993 after due observance of the procedure prescribed under section 8(2) of the NCBC Act of 1993. The method in which the Jats as a caste were found to be backward class of the citizens, according to learned Senior Counsel, is in conformity with the findings in the report of the NCBC and which not only refers to the Memorandums and Questionnaires, but also refers to the Imperial Gazetteer of India Provincial Series Rajputana; Census of India, 1931; Kaka Kalelkar Commission report; literature in the book Maharaja Suraj Mal 1707-1763 by K.Natwar Singh; The Changing Rural Stratification System: A Comparative Study of Six Villages in Rajasthan by K.L.Sharma published by Orient Longman, New Delhi, 1974; Land Reforms in India by P.S.Appu (para 133 at page 169); The Agrarian Prospect in India by Daniel Thorner, Ford Foundation Scholar, Delhi University Press, 1955, Agrarian Movement in Rajasthan by Ram Pande, University Publishers, Delhi 1974 para 140 at page 172; and Jat Shakti Ka Ithihas by Thakur Desh Raj, para 140 at page 172. The NCBC also took into consideration the specific instances debarring social backwardness of the Jat community in the report and extensively dealt with on the conditions of the Jats before drawing its conclusion in Paragraph 152. The effect of the findings can be seen when the NCBC in its report at page 186 (after para 161) declined the request of the Jats for inclusion in the OBC category in Haryana, MP, and UP and the same was advised as regards Rajasthan except Jats of Bharatpur and Dholpur Districts. The report thus was not only relevant but also contemporaneous and had co-relation with reservation of Jats in other States. The report also relied upon the book Rivalry and Brotherhood-politics in the life of farmers in Northern India by Dipankar Gupta, in which he had compared the Jats in Rajasthan with the Yadavs and Kurmis of the Eastern UP and Bihar.
64. It is submitted by Shri Jagdeep Dhankar that the Court dealing with the exercise of power of judicial review does not substitute its judgment for that of the legislature. He relied on the judgment of Supreme Court in Heinz India (P) Ltd. V/s State of UP (2012(5) SCC 443) and submits that in the matters of expertise as in the case of academic matters unless there is a clear violation of the statutory provisions or rules and regulations, the matters must be left to the experts, vide University Grants Commission V/s Neha Anil Bo bde (2013(10) SCC 519).
65. Shri Jagdeep Dhankar heavily relying on the observations made by the Supreme Court in Ram Singh's case (supra) that a decision as grave and important as involved in the present case which impacts the rights of many under Articles 14 and 16 of the Constitution must be taken on the basis of contemporaneous inputs and not outdated and antiquated data, submitted that the report of the NCBC cannot be faulted on these parameters.
66. Shri Jagdeep Dhankar relied on Para 852 of the judgment in Indra Sawhney's case, in which it was held that even if one or two cases (e.g. Goa) where the list was prepared without appointing a Commission, it was not held to be bad on that count. The Government, which drew up the list, must be presumed to be aware of the conditions obtaining in their State/area. Unless so held by any competent court or the permanent mechanism, directed to be created herewith holds otherwise, the list must be deemed to be valid and enforceable.
67. So far as the Notification of the State Government dated 10.1.2000 including the Jats of Dholpur and Bharatpur in the category of OBC, it is submitted that the same was issued after accepting the unanimous report of the State Commission for Backward Classes dated 8.1.2000, which was constituted on March 11, 1993. It is submitted that on 22.10.1999, the State Government had mandated the State Commission to render its report only as regards the Jats of Bharatpur and Dholpur. A representation was presented to the State Commission on 12.11.1999 by the Jats of Bharatpur and Dholpur, of which a copy was sent by the State Commission to all who had earlier objected to inclusion of the Jats in the OBC as a whole in Rajasthan. There was only one written representation in this behalf on 20.12.1999 by Shri Ram Kishore Gurjar. The affidavit of Dr.Fateh Singh was dealt with by the State Commission and it was observed that the issue in respect of the Jats of Bharatpur and Dholpur was not before the NCBC. The recommendations made by the State Commission for inclusion of the Jats from Bharatpur and Dholpur in the OCB category were accepted by the State Government, on which the Notification was issued on 10.1.2000. If the petitioners had any grievance as regards the inclusion of any class/caste in the OBC, they could have taken recourse to the provisions of the NCBC Act, 1993 which provides under section 9 for making the request for both inclusion as well as over-inclusion or under inclusion.
68. Shri Jagdeep Dhankar submits that the issue of reservation, as indicated in Indra Sawhney's case (supra), is hyper-sensitive, highly explosive and extremely delicate subject. The permissible judicial creativity in tune with the Constitutional objectivity is essential to the interpretation of the Constitutional provisions, so that the dominant values may be discovered and enforced. One has to be very cautious and careful in approaching the issues in a very pragmatic and realistic manner. He reminds us of paragraph 683 of the judgment in Indra Sawhney's case (supra), in which it was observed that the questions arising herein are not only of great moment and consequence, they are also extremely delicate and sensitive.
69. It is submitted by Shri Jagdeep Dhankar that the petitioners, if they had any grievance as regards the inclusion of any class or caste in the OBC, were necessarily required to take recourse to the provisions of the NCBC Act, 1993. Section 9 mandates that the Commission shall examine the requests for inclusion of any class of citizens as a backward class in the lists and hear complaints of over-inclusion or under-inclusion of any backward class in such lists and tender such advice to the Central Government, as it deems appropriate.
70. Shri Rakesh Dwivedi, learned Senior Advocate appearing for the State of Rajasthan submits that the objections to the report of NCBC submitted in the year 1997 are not tenable. The NCBC followed the procedure established by it for making enquiries into the inclusion, over-inclusion and under-inclusion of castes for making its recommendations for reservation to OBC. The notices were widely circulated for hearing by two members of the NCBC in Rajasthan Patrika and Dainik Bhaskar, which are widely circulated newspapers in the Rajasthan. After hearing the representatives of the Jat community, questionnaires were given to them. If some of the persons, who could have objected missed out the opportunity to appear, they cold have made a representation to NCBC. Referring to the observations made by the Supreme Court in Indra Sawhney's case (supra), Shri Rakesh Dwivedi submitted that one can begin to make enquiries into the backwardness by identification of the caste, but that one cannot end up with caste in such identification. The judgment in M.R.Balaji and Ors.v.State of Mysore ((1963) Suppl.1 S.C.R. 439) was endorsed in Indra Sawhney's case (supra). The socio-historical position of a community is interlinked with the social and educational backwardness. The enormous evidence was produced before the NCBC including the historical as well as post independence data. Keeping the Census of 1931 as the base, the NCBC considered the representations in the light of social conditions of the Jats, which have been narrated by various celebrated Historians and Sociologists , such as, K.L.Sharma, Irfan Habib and Dipankar Gupta. It is submitted that the NCBC considered the wealth of materials in its report. In paragraphs 131 and 133, the studies made by Shri K.L.Sharma, Sociologist on the Jat history were considered by the NCBC. He submits that the land reforms in the State of Rajasthan beginning from 1952 by enactment of Jagirs Act were not translated on ground. There are several Rules and the Act, which did not allow the benefits of reform to percolate to the peasant community including the Jats. The materials taken into consideration by the NCBC were not irrelevant and that nothing irrelevant has been considered.
71. Shri Rakesh Dwivedi submits that bulk of the Jat community are peasants, out of which, the substantial numbers were landless agricultural labourers. In Ajmer and Mewara region, they were treated as OBC prior to independence. He submits that sufficiency or insufficiency of material cannot be a ground for considering the report of an Expert Committee. The statements of two Prime Ministers are after the submission of the report by the NCBC in the year 1997. The statements given by the representatives of the people, who are man of ground, cannot be ignored. The public representatives move amongst the people and have the pulse of their conditions including their backwardness.
72. Shri Rakesh Dwivedi has referred to paragraph 82 of the judgment of State of Andhra Pradesh & ors. V/s U.S.V. Balram Etc (1972) 1 SCC 660) and has extensively referred to paragraphs 842, 850, 855-B, 857 and 859 (3)(b) of the judgment in Indra Sawhney's case (supra) in submitting that inclusion of Jats in the OBC, on the recommendations of the NCBC in its report of the year 1997 and further, inclusion of Jats of Bharatpur and Dholpur by the State of Rajasthan based on the recommendations of Verma Commission, cannot be faulted. The petitioners had sufficient time to make representation to the NCBC or the State Backward Class Commission for over inclusion. He submits that it was not necessary for the State of Rajasthan, after the recommendations of the NCBC in the year 1997 for inclusion of the Jats in the Central List of OBC, to have carried out a separate study or call for a report from State Commission for including them in the State List of OBC. Having accepted the NCBC report of 1997, the reference made to the Verma Commission for inclusion of the Jats of Bharatpur and Dholpur was not beyond the powers of the State Government. It could always ask for a fresh look. He submits that in a Cooperative Federalism, it is an accepted practice that the State may rely upon the report of the NCBC or may refer the matter to the State Backward Classes Commission for inclusion of any caste or group or community as OBC. Even in Ram Singh's case (supra), strong recommendations have been made that such matter should be looked into by the permanent mechanism established by the Central Government or the State Government.
73. Shri Rakesh Dwivedi submits that for excluding two Districts of Rajasthan, namely, Bharatpur and Dholpur, the NCBC had to see the impact for giving reservation to the Jats in the State of Rajasthan. It could exclude the creamy layer or make geographical exclusion. The State Government did not commit any error in referring the matter of inclusion of Jats of Bharatpur and Dholpur in OBC to the State Backward Classes Commission. He has relied on the judgment of the Supreme Court in Subhash Chandra & anr. V/s Delhi Subordinate Services Selection Board and ors. ((2009) 15 SCC 458), (paragraphs 35 to 41), in which it was held that it is possible for a State to point out that although a group of people may be belonging to a caste or tribe which is otherwise backward but having regard to the social and economic advancement made by that group, they should be excluded. The persons belonging to a particular caste or tribe may suffer some disadvantages in one State but may not suffer the same disadvantages in the other. Our constitutional scheme, therefore, seeks to identify the social and economic backwardness of people, having regard to the State or Union Territory as a unit. In paragraph 40, referring to the judgment in Marri Chandra Shekhar Rao V/s Seth G.S.Medical College ((1990) 3 SCC 130), it was observed that the question posed in Marri Chandra Shekhar Rao (supra) was the effect of specification by the President, of the Scheduled Castes or Scheduled Tribes, as the case may be, for the State or Union Territory or part of the State. For the purposes of the Constitution, it was found to be necessary to determine what the expression `in relation to that State' under Articles 341 and 342 of the Constitution of India, seeks to convey. The Court noticed not only the various provisions of the Constitution of India, but also the earlier decisions governing the field and held that the petitioner was not entitled to admission to the medical college on the basis of Scheduled Tribe certificate in Maharashtra. The question posed was that a person belonging to a caste or tribe specified for the purposes of the Constitution to be a Scheduled Caste or a Scheduled Tribe in relation to the State-A migrates to the State-B where a caste or tribe with the same nomenclature is specified for the purposes of the Constitution to be a Scheduled Caste or a Scheduled Tribe in relation to that State-B, will that person be entitled to claim the privileges and benefits admissible to persons belonging to the Scheduled Castes and/or Scheduled Tribes in State-B. Answering the question, it was held that Article 16(4) cannot be made applicable to grant of benefit of reservation for SCs/STs, who have migrated to another State or Union Territory. They are not members of Scheduled Castes and Scheduled Tribes in the recipient State/Union Territory.
74. He submits that the State for the purposes of reservation should be treated as a Unit. The entire scheme of reservation is State-wise and may not be bifurcated. Article 340 refers to the recommendations made by the Commission to be appointed by the President, as to the steps that should be taken by the Union or any State to remove such difficulties and to improve their conditions. The recommendations are thus required to be made State-wise.
75. Mr.B.S.Chhaba, Assistant Solicitor General appearing for Union of India has adopted the arguments of Shri Rakesh Dwivedi in defending the Notification dated 27.10.1999 issued by the Union of India including the Jats in the Central List of OBC. He submits that the Notification is based on the recommendations of the NCBC, which had taken into consideration the wealth of materials for including the Jats in the Central List of OBC.
76. Shri Biri Singh Sinsinwar, Senior counsel appearing for the respondents has supported the inclusion of the Jats of Bharatpur and Dholpur Districts in the State list of OBC vide Notification dated 10.1.2000 issued by the State of Rajasthan. He submits that though it is not disputed that the Jats rulers ruled Bharatpur and Dholpur for a long period of time in the areas of their kingdoms in Bharatpur and Dholpur, but they did not make any effort to improve the social and economic conditions of the Jats in their areas. They acted and behaved as all other rulers, without caring for their community. He has made serious remarks against the petitioner-Shri Satyanarain Singh, who was Secretary of the Rajasthan State Backward Classes Commission and accused him of withholding the data, which was collected by the State Backward Classes Commission to be forwarded to the NCBC. He also withheld material and did not make any effort to allow the State Commission for Backward Classes to submit its report. Shri Satyanarain Singh was the instrumental in denying the Jats their due representation and inclusion in the Central and the State Lists of OBC. It was only after he demitted the office that the reports were submitted and the struggle of the Jats fructified into the report of NCBC.
77. We have also heard learned counsels appearing for the respondents and applicants including Mr.S.P.Sharma, Shri Hanuman Choudhary, Shri Ved Prakash, Shri Rohitaswa Kajla, Shri Pradeep Kalwania, Shri Satyaveer Singh Punia, Dr.R.S.Gathala, Shri Gajanand Manav and Shri Sahiram Choudhary, a retired RAS Officer, who intervened in the matter. They have reiterated the submissions made by Shri Jagdeep Dhankar and Shri Rakesh Dwivedi appearing for the respondents.
78. Shri Hanuman Choudhary, Shri Satyaveer Singh Punia and Shri Sahiram Choudhary have submitted that they belong to the Jat community and narrated with their experience the backwardness with which the Jat community has suffered for ages. They highlighted the difficult conditions in which the Jats, as a peasant community, could not rise and make progress and also narrated the historical background of the Jat community in which they migrated to Rajasthan and suffered the same atrocities, which were suffered by other backward classes in the State of Rajasthan. According to them, the majority of the members of the Jat community could not get the benefits of education and have remained in the same conditions as other backward classes.
79. Shri S.P.Sharma, learned counsel appearing for Ripu Sadan Abusaria, who was allowed to intervene on 23.9.2003 and to submit the documents, has referred to the contents of the report of NCBC dated 28.11.1997, in which the social backdrop of the Jats in Rajasthan was analyzed; the Jats were found to be comparable to Yadavs and Kurmis and were basically tenants at will of Jagirdars. Relying upon the report of the Rajasthan State Land Commission of December, 1959 and K.L.Sharma, on the conditions of Jats, it was reiterated that they have been rightly included in the Central and the State Lists of Other Backward Classes. He submits that no data has been provided by the petitioners to support that the Jats were smuggled into the Central and the State Lists of OBC. Relying heavily on Ram Singh's case (supra), he submits that the writ petitioners should be dismissed.
80. Shri R.N.Mathur has reiterated the submissions made by Shri Jagdeep Dhankar and Shri Rakesh Dwivedi and has prayed for dismissing the writ petitions.
THE DISCUSSION
81. In Indra Sawhney's case (supra), it was observed in the majority judgment in para-733 authored by Hon'ble Justice B.P.Jeevan Reddy, after referring to the Kalelkar Commission and Mandal Commission reports and the judgments in M.R.Balaji and Ors. v. State of Mysore (AIR 1963 SC 649), T.Devadasan v.Union of India (AIR 1964 SC 179), P.Rajendran V/s State of Madras (AIR 1968 SC 1012), Triloki Nath V/s State of J & K (II) (AIR 1969 SC 1), State of A.P. V/s U.S.V.Balram ((1972) 1 SCC 660), Janki Preasad Parinoo V/s State of J & K ((1973) 1 SCC 420), State of UP V/s Pradip Tandon ((1975) 1 SCC 267), State of Kerala V/s N.M.Thomas ((1976) 2 SCC 310) and K.C.Vasanth Kumar V/s State of Karnataka (1985 Supp SCC 714) and decisions of the US Court on the Equal Protection Clause in the Fourteenth Amendment, that Article 16(1) is a facet of Article-14. Just as Article-14 permits reasonable classification, so does Article-16(1). A classification may involve reservation of seats or vacancies, as the case may be. Under Clause (1) of Article 16, appointments and/or posts can be reserved in favour of a class.
82. On question no.2(a): whether clause (4) of Article 16 is an exception to clause (1), it was held that clause (4) is an instance of classification inherent in clause (1). Just as Article 16(1) is a facet or an elaboration of the principle underlying Article 14, clause (2) of Article 16 is also an elaboration of a facet of clause (1). Neither clause (1) nor clause (2) speak of class. Answering question no.2(b), it was held that backwardness having been classified by the Constitution itself as a class deserving special treatment and the Constitution having itself specified the nature of special treatment, it should be presumed that no further classification or special treatment is permissible in their favour apart from or outside of clause (4) of Article 16. It was then held that clause (4) is not, and cannot be held to be exhaustive of the concept of reservations; it is exhaustive of reservations in favour of backward classes alone. Merely because, one form of classification is stated as specific clause, it does not follow that the very concept and power of classification implicit in clause (1) is exhausted thereby. It is in very exceptional situations that any further reservation of whatever kind should be provided under clause (1). The very presence of clause (4) should act as a damper upon the propensity to create further classes deserving special treatment. After answering the questions on the scope of reservations under Article 16(1) and (4), Hon'ble Justice B.P.Jeevan Reddy, author of the majority judgment, proceeded to examine the meaning of the expression backward class of citizens in Article 16(4) and observed in para 779 that a caste is nothing but a social class - a socially homogeneous class. It is also an occupational grouping, with this difference that its membership is hereditary. One is born into it. Its membership is involuntary. Even if one ceases to follow that occupation, still he remains and continues a member of that group. It is a socially and occupationally homogeneous class. Its social status and standing depends upon the nature of the occupation followed by it. Lowlier the occupation, lowlier the social standing of the class in the graded hierarchy. In rural India, occupation-caste nexus is true even today. The Court however, after referring to the stark reality of the society cautioned that the 'caste-occupation-poverty'' nexus may not be encouraged, which should be eradicated, but any programme towards betterment of the section/class of the society designed to eradicate this evil must recognize this ground reality and attune its programme accordingly. Article 16(4), however, focuses on equality of opportunity in public employment and a special provision in favour of backward class of citizens to enable them to achieve it.
83. On the identification of backwardness of citizens, the majority judgment in Indra Sawhney's case (supra) observed:-
Not only should a class be a backward class for meriting reservations, it should also be inadequately represented in the services under the State. The language of Clause (4) makes it clear that the question whether a backward class of citizens is not adequately represented in the services under the State is a matter within the subjective satisfaction of the State. This is evident from the fact that the said requirement is preceded by the words "in the opinion of the State". This opinion can be formed by the State on its own, i.e., on the basis of the material it has in its possession already or it may gather such material through a Commission/Committee, person or authority........
Coming back to the question of identification, the fact remains that one has to begin somewhere - with some group, class or section. There is no set or recognised method. There is no law or other statutory instrument prescribing the methodology. The ultimate idea is to survey the entire populace. If so, one can well begin with castes, which represent explicit identifiable social classes/groupings, more particularly when Article 16(4) seeks to ameliorate social backwardness..... This does not mean that one can wind up the process of identification with the castes. Besides castes (whether found among Hindus or others) there may be other communities, groups, classes and denominations which may qualify as backward class of citizens. For example, in a particular State, Muslim community as a whole may be found socially backward. (As a matter of fact, they are so treated in the State of Karnataka as well as in the State of Kerala by their respective State Governments). Similarly, certain sections and denominations among Christians in Kerala who were included among backward communities notified in the former princely State of Travancore as far back as in 1935 may also be surveyed and soon and so forth. Any authority entrusted with the task of identifying backward classes may well start with the castes. It can take caste 'A', apply the criteria of backwardness evolved by it to that caste and determine whether it qualifies as a backward class or not. If it does qualify, what emerges is a backward class, for the purposes of Clause (4) of Article 16..... The approach may differ from State to State since the conditions in each State may differ. Nay, even within a State, conditions may differ from region to region. Similarly, Christians may also be considered. If in a given place, like Kerala,there are several denominations, sections or divisions, each of these groups may separately be considered. In this manner, all the classes among the populace will be covered and that is the central idea. The effort should be to consider all the available groups, sections and classes of society in whichever order one proceeds.....
The only object of the discussion in the preceding para is to emphasise that if a Commission/Authority begins its process of identification with castes (among Hindus) and occupational groupings among others, it cannot by that reason alone be said to be constitutionally or legally bad.... If the real object is to discover and locate backwardness, and if such backwardness is found in a caste, it can be treated as backward; if it is found in any other group, section or class, they too can be treated as backward.
84. In para 783, it was observed that the procedure indicated in paragraph 782 is the only procedure or method/approach to be adopted. There is no such thing as a standard or model procedure/approach. It is for the authority, appointed to identify, to adopt such approach and procedure as it thinks appropriate, and so long as the approach adopted by it is fair and adequate, the Court has no say in the matter. The only object of the discussion is to emphasize that if a Commission/Authority begins its process of identification with castes (among Hindus) and occupational groupings among others, it cannot by that reason alone be said to be constitutionally or legally bad. There is no rule of law that a test to be applied for identifying backward classes should be only one and/or uniform. In a vast country like India, it is simply not practicable. If the real object is to discover and locate backwardness, and if such backwardness is found in a caste, it can be treated as backward; if it is found in any other group, section or class, they too can be treated as backward.
85. In para 788 of the majority judgment, it was observed that in Indian context, social backwardness leads to educational backwardness and both of them together lead to poverty which in turn breeds and perpetuates the social and educational backwardness. They feed upon each other constituting a vicious circle. The backwardness contemplated by Article 16(4) is mainly social backwardness. It would not be correct to say that the backwardness under Article 16(4) should be both social and educational. The Scheduled Tribes and the Scheduled Castes are without a doubt backward for the purposes of the clause and no one has suggested that they should satisfy the test of social and educational backwardness. The Mandal Commission appointed under Article 340 was concerned only with the socially and educationally backward classes contemplated by the said Article. Even so, the social backwardness has been given precedence over others by the Mandal Commission- 12 out of 22 total points. The social backwardness leads to educational and economic backwardness. No objection can be, nor is taken, to the validity and relevancy of the criteria adopted by the Mandal Commission and the difficulties in the way of evolving the criteria of backwardness. In paragraph 793 with reference to 'means test' and 'creamy layer', it was recommended that the Government of India to satisfy the basis of exclusion whether on the basis of income, extent of holding or otherwise of 'creamy layer', as early as possible and within four months.
86. Paragraph 796-796 of the majority judgment rendered by Hon'ble Mr.Justice B.P.Jeevan Reddy is quoted below:-
796-797. We may now summarise our discussion under Question No. 3.(a) a caste can be an quite often is a social class in India. If it is backward socially, it would be a backward class for the purposes of Article 16(4). Among non-Hindus, there are several occupational groups, sects and denominations, which for historical reasons are socially backward. They too represent backward social collectives for the purposes of Article 16(4). (b) Neither the Constitution nor the law prescribe the procedure or method of identification of backward classes. Nor is it possible or advisable for the court to lay down any such procedure or method. It must be left to the authority appointed to identify. If can adopt such method/procedure as it thinks convenient and so long as its survey covers the entire populace, no objection can be taken to it. Identification of the backward classes can certainly be down with reference to castes among, and along with, other groups, classes and sections of people. One can start the process with the castes, wherever they are found, apply the criteria (evolved for determining backwardness) and find out whether it satisfies the criteria. If it does - what emerges is a "backward class of citizens" within the meaning of and for the purposes of Article 16(4). Similar process can be adopted in the case of other occupational groups, communities and classes, so as to cover the entire populace. The central idea and overall objective should be to consider all available groups, sections and classes in society. Since caste represents an existing, identifiable social group/class encompassing an overwhelming majority of the country's population, one can well begin with it and then go to other groups, sections and classes. (c) It is not necessary for a class to be designated as a backward class that it is situated similarly to the Scheduled Castes/Scheduled Tribes, (d) 'Creamy layer' can be, and must be, excluded. (e) It is not correct to say that the backward class contemplated by Article 16(4) is limited to the socially and educationally backward classes referred to in Article 15(4) and Article 340. It is much wider. The test or requirement of social and educational backwardness cannot be applied to Scheduled Castes and Scheduled Tribes, who indubitably fall within the expression "backward class of citizens." The accent in Article 16(4)appears to be on social backwardness. Of course, social, educational and economic backwardness are closely inter-twined in the Indian context. The classes contemplated by Article 16(4) may be wider than those contemplated by Article 15(4).
87. In paragraph 807 while answering the question as to the extent of reservation, the majority judgment observed that clause (4) speaks of adequate representation and not proportionate representation. Adequate representation cannot be read as proportionate representation. It is not possible to accept the theory of proportionate representation though the proportion of population of backward classes to the total population would certainly be relevant. The power conferred by clause (4) of Article 16 should be exercised in a fair manner and within reasonable limits and what is more reasonable than to say that reservation under clause (4) shall not exceed 50% of the appointments or posts, barring certain extraordinary situations.
88. On the question of judicial review, the majority judgment observed in para 842 as follows:-
842. It is enough to say on this question that there is no particular or special standard of judicial scrutiny in matters arising under Article 16(4) or for that matter, under Article 15(4). The extent and scope of judicial scrutiny depends upon the nature of the subject matter, the nature of the right affected, the character of the legal and constitutional provisions applicable and so on. The acts and orders of the State made under Article 16(4) do not enjoy any particular kind of immunity. At the same time, we must say that court would normally extend due deference to the judgment and discretion of the Executive - a co-equal wing - in these matters. The political executive, drawn as it is from the people and represent as it does the majority will of the people, is presumed to know the conditions and the needs of the people and hence its judgment in matters within its judgment and discretion will be entitled to due weight. More than this, it is neither possible nor desirable to say. It is not necessary to answer the question as framed.
89. On the question of desirability of a permanent statutory body to examine the complaints of over-inclusion and under-inclusion, the majority judgment observed in para 847 as follows:-
847. We are of the considered view that there ought to be a permanent body, in the nature of a Commission or Tribunal, to which complaints of wrong inclusion or non-inclusion of groups, classes and sections in the lists of Other Backward Classes can be made. Such body must be empowered to examine complaints of the said nature and pass appropriate orders. Its advice/opinion should ordinarily be binding upon the Government. Where, however, the Government does not agree with its recommendation, it must record its reasons therefor. Even it any new class/group is proposed to be included among the other backward classes, such matter must also be referred to the said body in the first instance and action taken on the basis of its recommendation. The body must be composed of experts in the field, both official and non-official, and must be vested with the necessary powers to make a proper and effective inquiry. It is equally desirable that each State constitutes such a body, which step would go a long way in redressing genuine grievances. Such a body can be created under Clause (4) of Article 16 itself - or under Article 16(4) read with Article 340 - as a concomitant of the power to identify and specify backward class of citizens, in whose favour reservations are to be provided. We direct that such a body be constituted both at Central level and at the level of the States within four months from today. They should become immediately operational and be in a position to entertain and examine forthwith complaints and matters of the nature aforementioned,if any, received. It should be open to the Government of India and the respective State Governments to devise the procedure to be followed by such body. The body or bodies so created can also be consulted in the matter of periodic revision of lists of O.B.Cs. As suggested by Chandrachud, CJ. In Vasant Kumar, there should be a periodic revision of these lists to exclude those who have ceased to be backward or for inclusion of new classes, as the case may be.
90. We are distressed to observe that whereas the Central Government enacted the National Commission for Backward Classes Act, 1993 and that most of the States have enacted the State Commissions for Backward Classes Act, the State of Rajasthan has not established any permanent body. Unlike many other States, the State of Rajasthan slept over the matter in establishing a permanent body. The State Backward Classes Commission constituted by an executive order has remained headless for a long period of time. The Chairman of the Rajasthan State Backward Classes Commission is appointed as and when the State Government desires. The accusation of political expediency of such appointment can be avoided if a permanent body is established under the legislation, more so, when the inclusion, over-inclusion and under-inclusion of the backward classes in the State of Rajasthan is a constant feature. As on date, there are 82 castes/groups included in the list of OBC in the State of Rajasthan. They have been included from time to time, on the representations made by such castes/groups/communities. The State Commission for Backward Classes had not made any recommendation so far to exclude any caste or group included by it. The inclusion, over inclusion and under inclusion being a continuous exercise, it is imperative, as mandated in the judgment of the Supreme Court in Indra Sawhney's case (supra), to establish a permanent body so that there may not be any dissatisfaction and complaints of discrimination amongst various castes and groups on the sensitive issue of providing reservation to them under clause (4) of Article 16 of the Constitution of India.
91. We, therefore, find it imperative to direct the State Government to constitute a permanent State Commission for Backward Classes by enacting legislation, which is long due in pursuance to the mandate in Indra Sawhney's case (supra), for the last 33 years.
92. The National Commission for Backward Classes submitted its report on 28.11.1997, on the requests received from the individuals, associations and organizations for inclusion of the Jats in the Central List of OBC for the States of Rajasthan, Madhya Pradesh, Uttar Pradesh and Haryana, in accordance with the procedure prescribed, in which a Bench of two Members of the NCBC examined the requests after holding public hearing in all these States. For the State of Rajasthan, Shri P.S.Krishnan and Shri Navtej Puadni were deputed to hold public hearing on 30.5.1997. The date of hearing was advertised by the State of Rajasthan in the leading newspapers. The Members of the NCBC heard, Shri Jagdish Dhankal, M.L.A., Shri Shishu Pal Singh, Prof.N.K.Mahle, Dr.Hari Singh, Shri Mam Raj Choudhary and others on 30.5.1997 and considered the representations detailed in Appendix-I for inclusion of the Jats of Rajasthan in the Central List of OBCs. The NCBC, thereafter, considered the geographical distribution of Jats; their position in the existing lists of backward classes, and the information in the questionnaires filled in by the Rajasthan Jat Mahasabha and the Akhil Bhartiya Jat Mahasabha, Sikar. The NCBC considered the social background of the Jats in the State of Rajasthan. It found that historically the Jats were serfs and tenants at will of erstwhile Jagirdars and were disabled to State services, education and civilized life. They suffered from cultural backwardness and illiteracy and did not have participation in modern sector. They had no representation in the Administrative Selection Boards and State Bureaucracy. The NCBC considered the data of their general poverty and high rate of illiteracy and found that they have not been able to come out from the feudal yoke after the Jagirdari abolition; and their size of land-holding is decreasing rapidly. The NCBC considered the data furnished in the representations, which included the literacy rate of the caste at 11.7%; the female literacy rate at 6%; the number of matriculates in the State at 1.12% for their caste as against their estimate of 3.7% matriculates of all castes in the total population of the State; and the details given in the various memorandums regarding social and educational backwardness. The NCBC found that the majority of the Jats were farmers and were harassed more than other communities. They were not recruited in State services. In Jodhpur State, a whole Jat regiment was disbanded. They were not allowed to avail the facility of education. They were not allowed to construct pucca houses and were oppressed by the Jagirdars, who did not allow them to rise. The representation of Jats in the Higher Services was extremely low to the extent that there were 5 out of 231 IAS; 7 out of 122 IPC; 46 out of 650 RAS; 45 out of 383 RPC; 14 out of 360 RACS; and 1 out of 25 RTS. There was not a single Professor in any of the Universities of Rajasthan. Though they constituted about 14% of the total population of the State, their representation in IAS and IPC is only at 2.1% and 5.7% respectively. Their representation in the State Services was extremely low. Referring to the representatives of the Jats of Rajasthan, the NCBC observed from the materials, in support of their case both in NCBC questionnaires duly filled up and through other documents and citations (para 126 of the report), that the Jats satisfied the test of backwardness. The NCBC referred to the studies of various celebrated Historian and Sociologist such as K.L.Sharma, Irfan Habib and Dipanker Gupta as well as Denial Thorner, a Ford Foundation Scholar. The NCBC, however, observed that except in Bharatpur and Dholpur, the Jats lived under native princely rulers or chieftains belonging to other castes, almost all of them were Rajputs. In these areas, the Jats suffered with backwardness.
93. In paragraph 150 of the report dated 28.11.1997, it was observed that the Rajasthan Government has been writing that the NCBC should not recommend inclusion of any community in the Central List of backward classes until and unless the State Commission recommends its inclusion in the State List, and if there is any difference of opinion, it should be discussed with them. The NCBC referred to the practice adopted by it to write to the State Government to get all data and information available with them and the State Commissions regarding castes/communities for which requests for inclusion in the Central List of backward classes was received and also to request them to be present during the public hearings. In the present case, after public hearing, nearly a half-year had passed. While every effort was made to ensure that there is a commonality of conclusions in respect of each community with the help of all available data and facts furnished by the State Governments including material furnished to them by the respective Commissions, the NCBC observed in its report of 1997 that it would be difficult to ensure unanimity if there are fundamental differences in basic premises and perceptions. The Rajasthan Commission in its correspondence with the NCBC, had taken a philosophico-sociological view that the caste system exists only among Hindus and castes do not exist among non-Hindu. The NCBC then observed that it will not be possible to strive for a unity of views between the Central and the State commission in all cases without, in view of the NCBC, being unfair to communities on one ground or the other; the State Commission and the NCBC are quasi-judicial bodies, which operate independently in their respective spheres under their own procedures and any delay on the part of one or a stronger prior perception on the part of the other, cannot be an obstacle in the way of inclusion of any community in the list of backward classes, based on adequate data/information available, by the other. On the basis of the data available, the NCBC in para 152 of the report opined that the Jats of Rajasthan except Bharatpur and Dholpur, are socially backward and accordingly, made recommendations in its findings and advice under section 9(1) of the NCBC Act, 1993 that the Jats of Rajasthan except in Bharatpur and Dholpur be included in the Central List of Backward Classes for Rajasthan at entry no.58.
94. The Central Government did not act on the recommendations made by the NCBC in its report dated 28.11.1997 for a period of almost two years. In between, there were demonstrations and statements given by the National leaders for inclusion of the Jats of Rajasthan in the OBC category. A Notification was issued by the Central Government on 27.10.1999 accepting the recommendations of the NCBC for including the Jats of the Rajasthan except in Bharatpur and Dholpur in the Central List of OBC.
95. In our view, the NCBC did not commit any procedural error or failed to consider the relevant material which was produced before it for inclusion of Jats of the State of Rajasthan except Bharatpur and Dholpur, in the Central List of OBC. The procedure prescribed was followed by the NCBC, a permanent Commission constituted under the NCBC Act, 1993 enacted on the recommendations made in Indra Sawhney's case (supra). The NCBC considered the requests of various Associations and Organizations of the Jat community for inclusion of the Jats in the Central List of OBC. The NCBC deputed its two Members to visit Rajasthan. They held public hearing at Jaipur on 30.5.1997, after the date was advertised by the State of Rajasthan in the leading newspapers, in which the Members of the Jat community appeared and submitted materials to establish that the Jats in the State of Rajasthan are socially and educationally backward and to justify inclusion of Jat caste in the Central List of OBC. The NCBC took into consideration the representations of the Jats; the questionnaires filled up them; their historical background; and the contemporaneous data furnished by the Jats for their inclusion in the Central List of OBC and despite the absence of Government representatives in the hearing and non-cooperation of the State Commission in sending the data and information available with it, the NCBC made its recommendations on the finding that such non-cooperation cannot come in the way of inclusion of a caste in the OBC, if it is found to be socially backward.
96. The efforts made by learned counsel for the petitioners to establish that due procedure was not followed, inasmuch as, the NCBC should have waited for the recommendations of the State Backward Classes Commission, and that the representatives of the State Government were not present at the time of public hearing, are not convincing to indict the report. The data and the material produced before the NCBC and its discussion clearly satisfies the guidelines in Mandal Commission report accepted in Indra Sawhney's case (supra) and Ram Singh's case (supra). The recommendations made by the NCBC in its report dated 28.11.1997 were based on historical background, quantifiable and contemporaneous data on the backwardness of Jats in Rajasthan. The sufficiency or insufficiency of the data cannot be examined by the Court, nor the test laid down in Berium Chemical's case can be successfully implied, to question the report.
97. The State Government relied on the Notification dated 27.10.1999 issued by the Central Government including the Jats of Rajasthan except of Bharatpur and Dholpur, in issuing the Notification dated 3.11.1999 within a week, including the Jats except of Bharatpur and Dholpur in the State List of OBC. The Notification issued by the State Government on 3.11.1999 has been challenged on the ground that the State of Rajasthan did not conduct any independent survey and had no quantifiable data, to warrant inclusion of Jats in the State List of OBC. The NCBC, after conducting public hearing in Jaipur, sought comments of the State of Rajasthan on 31.5.1997 to be submitted within a period of one and half months. The Secretary of the Government of Rajasthan, who was also the Chairman of the State Commission for Backward Classes addressed a letter dated 29.9.1997 to the Additional Secretary, Social Welfare Department, Government of India pointing out that it will not be possible to return the comments within such short period, as the issue was under consideration for the purposes of carrying out a survey. It was also requested not to consider any advice/recommendation of the NCBC, which has been given without consulting the State of Rajasthan so that no administrative/legal complications may arise.
98. It is submitted that the Constitutional scheme envisages collection of quantifiable data both at the Central and the State level. The words which, in the opinion of the State, is not adequately represented in the services of the State necessarily envisage collection of data both at the Central and State level. A class or community, which may be inadequately represented in the Central Services may not be so in the State services. In Indra Sawhney's case (supra), the permanent bodies were directed to be set up in Government of India, State Governments and the Administrations of Union Territories forthwith. The State of Rajasthan could not have, on the stand taken by it, relied on the report of the NCBC and the Notification of the Central Government dated 27.10.1999, to issue the Notification dated 3.11.1999, without conducting a fresh survey or obtaining a report from the State Backward Classes Commission.
99. It is submitted that the State Backward Classes Commission had earlier requested the Central Government not to consider any advice/recommendation of the NCBC since the issue was pending consideration in the State of Rajasthan and that in fact, the State Backward Classes Commission vide letter dated 16.10.1999 had given time to the objectors to make appropriate submissions by 6.11.1999 to the inclusion of the Jats in the OBC category, but before the expiry of the said date, the Notification dated 3.11.1999 was issued by the State of Rajasthan.
100. In Ram Singh's case (supra), it was observed that though in the matter of identification of backwardness of a class or group for inclusion in the Central List and the State List of OBC, the Centre and the State do not act at cross purposes, the affirmative action for backward class under Article 16(4) being a mandate of the Constitution, both the Centre and the State work in tandem and that thus, the report of the Central Government could be considered by the State Government for inclusion of any backward class or group or community in the Central or State List. We are of the view that there is no order of precedence in the matter of inclusion of any caste, group or community in the Central List or State List for the State and that independent survey is not necessary to be carried out for identifying the same caste, group or community for inclusion in the State List of OBC, after it has been included in the Central List of OBC. After the inclusion of any caste or group or community, identified to be socially and educationally backward, in the Central List of OBC, no fault can be found with the State Government, even if it was collecting data and material in including the same caste or group or community in the State List and its survey was inconclusive, unless it is found that the inclusion in the Central List was based on outdated, antiquated data and irrelevant data or on political considerations. Once the inclusion of the Jats in the Central List of backward classes, on the basis of the recommendations of the NCBC, is held to be justified, it is not open to the Court to hold that on the same data and material, the inclusion of Jats except of Bharatpur and Dholpur in the State List, was not legally permissible. The State Government could have relied on the same material and there is no bar for it to have relied upon the report of the NCBC for inclusion of Jats except of Bharatpur and Dholpur Districts in the State List of OBC. Even if the State Backward Classes Commission had not conducted any survey and collected any quantifiable data, it could have relied upon the report of NCBC of 1997 for issuing the Notification providing for reservation to Jats in the State of Rajasthan except of Bharatpur and Dholpur Districts. It cannot be said that the report of the NCBC of 1997 recommending the inclusion of Jats except of Bharatpur and Dholpur Districts in the Central List of OBC and reliance on such report for issuing Notification dated 3.11.1999 by the State Government was based on wholly irrelevant considerations or actuated by political motives to gain electoral advantage.
101. The Notification dated 3.11.1999 issued by the State Government including the Jats except of Bharatpur and Dholpur Districts in the State List of OBC does not suffer from any error of law and is thus held to be valid, on the tests laid down in Indra Sawhney's case (supra) and Ram Singh's case (supra).
102. We do not find any substance in the contention of learned counsel for the petitioners that the Constitutional scheme envisages collection of quantifiable data both at the Central and State level for inclusion of any caste or community in the list of backward classes of citizens for grant of reservation under Article 16(4) of the Constitution of India. The State Government could have relied upon the report of the Central Government on the materials and data collected and discussed by the Central Government. Both the Central Government and the State Government could have relied upon the data collected by each other or each of them separately. There was no requirement for the State Government to have undertaken a separate exercise for identifying the backwardness for the purposes of reservation under Article 16(4) to the Jats in the State of Rajasthan.
103. The Notification dated 10.1.2000 issued by the State Government including the Jats of Dholpur and Bharatpur in the State List of OBC has been challenged on the ground that it was issued with undue haste, without carrying out any surveys and collecting material and quantifiable data, which could have led the State Commission to take a view different from the recommendations made by the NCBC in its report of 1997. The State Government had dissolved the then constituted State Commission for Backward Classes on 15.5.1999 and had constituted a State Commission on 21.5.1999 headed by Justice R.S.Verma. The Notification was published in the official Gazettee on 1.7.1999. On 27.10.1999, the Central Government accepted the recommendations of the NCBC made in its report of 1997 and issued a Notification dated 28.11.1997 including the Jats of Rajasthan except of Bharatpur and Dholpur District in the Central List of OBC. The State of Rajasthan followed the same and issued the Notification dated 3.11.1999 including the Jats except of Bharatpur and Dholpur Districts in the State List of OBC. On 22.10.1999, the State Government made a representation to Justice Verma Commission for inclusion of the Jats of Bharatpur and Dholpur Districts in the State list of OBC. Representations were also made to the State Commission on 12.11.1999 and 20.12.1999. Justice R.S. Verma Commission requested for supplying the report of the NCBC of 1997, which was not made available to it. Justice R.S.Verma in his covering letter to the Chief Minister dated 8th January, 2010 enclosing the report of the State Backward Classes Commission, mentioned that the report of NCBC of 1997 was made available to the State Commission on 6.1.2000. In the same sentence, he writes that after the report of NCBC of 2007 was made available, he gave information to all concerned parties and conducting the hearing on 7.1.2000, and on the next date i.e. on 8.1.2000, he submitted the report recommending the inclusion of the Jats of Bharatpur and Dholpur Districts also in the State list of OBC.
104. The report submitted by the State Commission for Backward Classes on 8.1.2000 was accepted by the State Government and a Notification including the Jats of Bharatpur and Dholpur in the State List of OBC was issued on the third day of receiving the report i.e. on 10.1.2000. The haste with which the sensitive matter such as inclusion of Jats of an area, not found to be backward by NCBC, smacks malafides and compels us to believe that the State Government was acting under extreme political pressure from the Jat community for inclusion of Jats of Bharatpur and Dholpur in the State list of OBCs.
105. A perusal of the report of the State Commission for Backward Classes headed by Justice R.S.Verma dated 8.1.2000 would show that no survey was carried out by it, nor any quantifiable data was collected and analyzed. The State Commission for Backward Classes instead of making the recommendations on the material or data collected by it, carried out an exercise of reviewing the report of NCBC of 1997. On the 9th page of the report dated 8.1.2000, Justice Verma Commission mentioned that it does not find any justifiable reasons for not including the Jats of Bharatpur and Dholpur in the list of OBC as compared to the Jats of other parts of the Rajasthan and observed that the Jats being the rulers of Bharatpur and Dholpur, by itself could not be a ground to conclude that they had a higher social status than other Jats. The Jats of both the Districts, namely, Bharatpur and Dholpur were also equally oppressed as other groups of farmers and for this purpose, Justice Verma Commission relied on the book written by Pemara on Agrarian Movement in Rajasthan, which related to the data of 1938 and 1941. The Verma Commission then proceeded to refer to paragraph 259 of the same Book to rely upon his observation that the number of Jagirs in Bharatpur State was comparatively few. There were only petty jagirs numbering 17, holding 28 villages; the biggest jagir was of Ballabhagarh, with an area of 23 square miles covering 14 villages and that the nature of feudal system as was common in other States did not prevail in Bharatpur. The Jagirdars had no legal jurisdiction in their petty jagirs nor did they pay any tribute or revenue to the State. Justice Verma Commission thereafter proceeded to rely upon the Book written by R.V.Russell & Hiralal on The Tribes and Customs of the Central Provinces of India Part-II page 232, in which the Jats were equated with Gujars and Ahirs so far as the social purity is concerned, but still above them, because they are graziers and vagrants while the Jats were settled cultivators. The position of Jats was treated to be similar of Gujar and Ahirs, with the difference that Gujars and Ahirs were graziers and vagrants. The data collected from the book published in 1916 does not show that the purity of Jats of Bharatpur and Dholpur was different from other Jats. Justice Verma Commission relied on the book written by Dr. K.S.Singh on People of India Part I Vol.38 and referred the one line The Jat women hold a lower status in the society. On the basis of the data, which was neither relevant nor contemporaneous, Justice Verma Commission concluded that the reasons for which the NCBC report of 1997 had tried to distinguish the Jats of Bharatpur and Dholpur are not such on which the Jats of these two Districts can be said to be socially and educationally forward. Justice Verma Commission then observed that the fact that only the Jats of Bharatpur and Dholpur could use Singh in their name is not correct as many Jats of Western Rajasthan also write Singh after their names.
106. We find substance in the contention of learned counsel for the petitioners that not only the 8th report of the State Commission for Backward Classes headed by Justice R.S.Verma dated 8.1.2000 was given in extreme haste and was followed with similar urgency by the State Government in issuing the Notification dated 10.1.2000, which smells of considerations other than which are relevant for identification of any caste or community for inclusion in the list of OBC, but the findings recorded in the said 8th report are wholly irrelevant and perverse. The out-dated material had no relevance to the backwardness of the Jats of Bharatpur and Dholpur, who were recommended to be excluded by the NCBC in its report of 1997. Justice R.S.Verma Commission made an exercise of hearing a review petition on the findings in the report of NCBC of 1997.
107. We entirely agree with the argument raised by learned counsel for the petitioners that the report of the State Backward Classes Commission headed by Justice R.S.Verma was far removed from the consideration on which a caste or community of a particular area or region can be included in the list of OBC. The report was an eye wash given in extreme haste in which he did not even care to read the report of NCBC of 1997 in full, heard the parties in a day and prepared the report within 3 days, which was accepted by the State Government to be notified within next 3 days. There was no application of mind to the guidelines issued in the report of the Mandal Commission, which was accepted in Indra Sawhney's case (supra) and Ram Singh's case (supra).
108. It was vehemently argued by learned counsel appearing for the respondents including Shri Jagdeep Dhankar and others with passion that the social and educational position of the Jats of Bharatpur and Dholpur Districts was not different than of the Jats of remaining part of the State. They suffer the same harassment, oppression and humiliation and did not get sufficient opportunities to advance socially and educationally. In our view, the passions with which the matter was argued in the Court room will not justify the requirements of law of existence of sufficient material based on surveys and quantifiable and contemporaneous data for making the recommendations for reservation for any caste or community for any area and its acceptance by the State Government. We thus find that the Jats of Bharatpur and Dholpur Districts excluded from OBC category in the report of NCBC 1997, which was relied upon by the State Government in giving reservation to the Jats vide Notification dated 3.11.1999, were smuggled into the State List of OBC in haste in malafide exercise of authority based on political considerations. The recommendation made by the State Commission for Backward Classes headed by Justice R.S.Verma in the 8th report dated 8.1.2000 and the consequent Notification dated 10.1.2000 including the Jats of Bharatpur and Dholpur Districts in the State list of OBC is thus liable to be set aside.
109. It was admitted to both the parties as well as the counsels appearing for the Central Government and the State Government that the observations in Indra Sawhney's case (supra) incorporated in Section 11 of the National Commission for Backward Classes Act, 1993 provide for revision of the lists to be undertaken, with a view to excluding from such lists those classes, who have ceased to be backward or for including in such lists new backward classes. Section 11 of the NCBC Act of 1993 incorporated on the observation in para 847 of the judgment in Indra Sawhney's case (supra) provided for revision of the lists every ten years. The Central Government may at any time in case of representation for inclusion or over-inclusion or under-inclusion, undertake the revision of the list and as mandated by Section 11, to carry out the revision of the list every ten years.
110. Sections 9 and 11 of the NCBC Act of 1993 provide-
9. Functions of the Commission.- (1) The Commission shall examine requests for inclusion of any class of citizens as a backward class in such lists and hear complaints of over-inclusion or under-inclusion of any backward class in such lists and tender such advice to the Central Government as it deems appropriate.
(2) The advice of the Commission shall ordinarily be binding, upon the Central Government.
11. Periodic revision of lists by the Central Government;- (1) The Central Government may at any time, and shall, at the expiration of ten years from the coming into force of this Act and every succeeding period of ten years thereafter, undertake revision of the lists with a view to excluding from such lists those classes who have ceased to be backward classes or for including in such lists new backward classes.
(2) The Central Government shall, while undertaking any revision referred to in sub-section (1), consult the Commission
111. We are informed by learned counsel appearing for the parties that no such revisions as mandated by Section 11 of the NCBC Act, 1993 have been carried out after every 10 years and that so far as the inclusion of Jats is concerned, no revision has been carried out after their inclusion in the Central List except of Bharatpur and Dholpur Districts on 27.10.1999 and by the State Government vide Notification dated 3.11.1999. Now about 18 years have passed since the NCBC submitted its report in the year 1997, and 16 years since the Notifications were issued by the Central Government and the State of Rajasthan, calling for mandatory review to be carried out to consider with the help of the contemporaneous data collected after surveys as to whether the Other Backward Classes including the Jats suffer from the same backwardness to justify continuance of their inclusion in the Central and the State Lists of OBC.
112. The revision of the lists every ten years is necessary not only for the purposes of considering whether a caste or community or group in the list of backward classes still continue to be socially and educationally backward to justify their continuance, it may include new castes/groups in the list of OBC, which were either left out or have been identified subsequently to give them a share of the caste of reservation in the Services.
113. Learned counsels appearing for the contesting respondents, have submitted that the revision contemplated every 10 years, should not be confined only to the Jats but to all castes and communities included in the OBCs.
114. In Ram Singh's case (supra), the Supreme Court observed in para 48 of the Judgment, as quoted above, that where the inclusion in the OBC has been made over a decade ago, the issue being grave and important, which impacts the rights of many under Articles 14 and 16, the revisions must be carried out on the basis of contemporaneous inputs and not outdated and antiquated data, in the decision making process.
115. The backwardness contemplated by Article 16(4) is a social backwardness. Educational and economic backwardness, in view of the judgment in Indra Sawhney's case (supra) may contribute to the social backwardness, the social backwardness is a distinct concept having its own connotations. The continuation of inclusion of some castes, groups and communities in the Central and State Lists for more than 10 years may cause discrimination to the other castes, groups and communities, which are either yearning for inclusion or have complaints of over inclusion or under-inclusion and even if there are no complaints or representation, a mandatory review has to be carried out every 10 years as mandated by Section 11 of the NCBC Act, 1993, failing which inclusion and continuation of the existing castes, groups and communities will per se become discriminatory to the casts, groups and communities, which have not been included or those who are not backward. The affirmative action in favour of the persons included in the Central List and the State List, who on revision, may be excluded, will continue to eat the share in the public Services on account of continuation of such castes, groups and communities in the Central and the State Lists of OBC.
116. It was submitted by learned counsel appearing for the petitioners and has not been denied by the respondents that on account of jumping over the fence, the persons belonging to OBCs are taking away the share of the unreserved category in the public employment. The data collected in the report of the Rajasthan State Backward Classes Commission of the year 2012, placed before us, demonstrates that in the State of Rajasthan, the Jat, Charan, Yadav and Ahir communities have taken away largest share in public services on account of reservations for OBC to the extent of 21%, out of 82 castes included in the list of OBCs, out of which 36 castes have no representation at all. The aspiration of other castes, who have received the benefits of OBC in public services, also causes invidious and hostile discrimination amongst the OBCs. The revision may exclude some of the castes and include the castes, groups, communities and many others which may adjust the reservation amongst them as well as in comparison to the unreserved in general category.
117. Though it was not argued nor it is necessary for us to decide, if a caste, community or group can be excluded for a region or geographical area, such as a revenue district for its exclusion from a Notification declaring such caste, community or group in the list of OBCs in the Central or State list, we may observe that unlike Article 341 providing for reservation for Scheduled Castes, in which a State is considered a Unit, for area to provide reservation, there is no requirement under Article 340 for providing a State as a Unit for reservations to Other Backward Classes. The backwardness under Article 16(4) may be area specific to any caste in a State, in which on surveys or material produced the other area may be excluded for the affirmative action for any castes, communities or group of people inhabiting the areas as its residents. 118. We may usefully refer to the observations made by the Constitution Bench of the Supreme Court in M.Nagaraj V/s Union of India ((2006) 8 SCC 212) in which considering the validity of the 85th Amendment to the Constitution, it was held as follows:-
Reservation is necessary for transcending caste and not for perpetuating it. Reservation has to be used in a limited sense otherwise it will perpetuate casteism in the country. Reservation is underwritten by a special justification. Equality in Article 16(1) is individual- specific whereas reservation in Article 16(4) and Article 16(4-A) is enabling. The discretion of the State is, however, subject to the existence of backwardness and inadequacy of representation in public employment. Backwardness has to be based on objective factors whereas inadequacy has to factually exist. This is where judicial review comes in.
119. We are thankful to learned counsels appearing for the parties for assisting us and providing the material and the case laws for deciding the issues raised in the writ petitions pending for last 15 years.
120. The writ petitions are partly allowed. The Notification dated 10.1.2000 issued by the State of Rajasthan including the Jats of Bharatpur and Dholpur, and deleting the words except Dholpur and Bharatpur from the original Notification dated 3.11.1999 issued by it, is quashed. The Jats of Bharatpur and Dholpur Districts will be excluded from the State List of OBCs. The quashing of Notification dated 10.1.2000 will however be prospective, and will not affect the benefit of reservation already given and received by the Jats of Bharatpur and Dholpur Districts.
121. The State of Rajasthan is directed to appoint a permanent Commission for Backward Classes by enacting a suitable legislation for examining the requests of inclusion and the complaints of over-inclusion or under-inclusion in the list of OBC, to advise the Government, as directed in paragraph 847 and 859(13) of the judgment in Indra Sawhney & ors. V/s Union of India & ors. (supra) and for which directions have also been given in Ram Singh V/s Union of India (Writ Petition (Civil) No.274 of 2014) decided on 17.3.2015. The permanent mechanism will be set up within four months.
122. The Central Government as well as the State Government are directed, in terms of the observations made in Indra Sawhney's case (supra) and as mandated by Section 11 of the National Commission for Backward Classes Act, 1993, to revise the Central List and the State List of the OBCs and review all the inclusions of the castes, groups and communities including the Jats in the State of Rajasthan as well as the Jats of Bharatpur and Dholpur, for which the statutory period of ten years has expired after their inclusion. The revisions will be made irrespective of the representations and references for over-inclusion and under-inclusion of any backward class in the lists and also for consideration of inclusion of those who have made representations or may make representations giving sufficient materials with quantifiable and contemporaneous data, after carrying out survey and field studies and analyzing such data, for which the guidelines have been provided in the judgments in Indra Sawhney's case (supra) and Ram Singh's case (supra).
123. The parties will bear their own costs of litigation.
124. A copy of this judgment be placed in the files of the connected Writ Petitions.
(AJIT SINGH),J. (SUNIL AMBWANI),CJ. Parmar Certificate:
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Parmar, P