Rajasthan High Court - Jaipur
Captain Gurvinder Singh &Ors; vs State Of Raj And Ors on 9 December, 2016
Author: M.N. Bhandari
Bench: M.N. Bhandari
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JAIPUR BENCH JAIPUR
O R D E R
1. D.B. CIVIL WRIT PETITION NO.1645/2016
PETITIONERS :-
1. Captain Gurvinder Singh (Retd.) S/o Sardar Gurbax Singh, Age
56 years, R/o H.no. 8, Sadul colony, Bikaner c/o G-II-81, Bajaj
Nagar Apartments, Jaipur.
2. N.K.Jhamar S/o Shri S.M.Jhamar, Age 57 years, R/o B-76,
Chhatri Yojna, Vaishali Nagar, Ajmer.
3. Yogendra Rathore S/o Shri Ram Singh Rathore, Age 50 years,
R/o 68, Bhartendu Nagar, Khatipura, Jaipur.
4. Samta Aandolan Samiti through its President Shri Parashar
Narayan Sharma S/o Shri K.L. Sharma, G-3, Sangam Residency,
Plot No. 9-10, Gangaram Ki Dhani, Vaishali Nagar, Jaipur (Raj.)
VERSUS
RESPONDENTS :-
1. State of Rajasthan through Chief Secretary, Government of
Rajasthan, Secretariat, Jaipur.
2. Additional Chief Secretary, Department of social Justice
and Empowerment, Secretariat, Jaipur.
3. Principal Secretary, Department of Personnel, Government
of Rajasthan, Secretariat, Jaipur.
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4. Rajasthan State Backward Classes Commission through
Member Secretary, A-46, Shanti Path, Tilak Nagar, Jaipur.
2. D.B. CIVIL WRIT PETITION NO.2795/2016
PETITIONER :-
Kanaram Dhayal s/o Sh. Ganpatram Dhayal, aged about 51 years, by
caste Jat, r/o Dhani Shyam Singh Wali, Tan Mau, P.S. & Tehsil
Shrimadhopur, Distt. Sikar presently residing at 49, Shankar Vihar
Extension, Murlipura, Jaipur
VERSUS
RESPONDENTS :-
1. State of Rajasthan through Chief Secretary, Government of
Rajasthan, Secretariat, Jaipur.
2. Additional Chief Secretary, Department of Social Justice and
Empowerment, Secretariat, Jaipur.
3. Principal Secretary, Department of Personnel, Government of
Rajasthan, Secretariat, Jaipur.
4. Rajasthan State Backward Classes Commission through Member
Secretary, A-46, Shanti Path, Tilak Nagar, Jaipur.
3. D.B. CIVIL WRIT PETITION NO.1511/2016
PETITIONER :-
Sharvan Singh Tanwar S/o Mohan Singh Tanwar, Age - 29 years,
by cast -Rajput, Resident of 28, Anand Vihar-I, PO - Ninder, Tehsil
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-Amer, Distt - Jaipur (Rajasthan)
VERSUS
RESPONDENTS :-
(1) State of Rajasthan though Chief Secretary, Secretariat,
Jaipur.
(2) Principal Secretary, Depart of Personnel, Secretariat,
Jaipur.
(3) Rajasthan Backward Class Commission, Jaipur through its
Chairman
(4) Rajasthan Public Service Commission through its Secretary,
Jaipur Road, Ajmer (Rajasthan)
Date of Order : 09th December 2016
HON'BLE MR. JUSTICE M.N. BHANDARI
HON'BLE MR. JUSTICE J.K. RANKA
Mr. Sanjeev Prakash Sharma, Senior Advocate with
Mr. Shobhit Tiwari
Mr. Gaurav Sharma
Mr. Abhishek Pareek
Mr. Divesh Sharma
Mr. Ankit Sethi
Mr. RB Mathur with
Mr. Nikhil Simlote, for petitioners.
Mr. Sharvan Singh Tanwar, petitioner present in person.
Mr. Ranjeet Kumar, Solicitor General of India
Mr. Rajendra Prasad, Addl. Advocate General with
Mr. Ashish Sharma
Mr. Surya Pratap Singh
Mr. Jatin Agrawal
Mr. G.S. Gill, Additional Advocate General with
Mr. Baldev Singh Sandhu & Mr. Harish C. Kandpal
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Mr. RR Baisla, Dy. Government Counsel
Mr. Shiv Mangal, Additional Advocate General with
Mr. Saransh Kumar, Adv.
Mr. Ashok Gaur, Sr. Adv. with
Mr. Shailendra Singh,
Mr. Ashwini Jaiman and
Mr. Ajay Choudhary
Dr. Manish Singhvi with
Mr. Sunil Kumar Jain- for Gadia Lohars
Mr. Rajeev Sagarwal with
Mr. RS Jogi, for applicant Yogi Samaj.
*****
By the Court : (Per Hon'ble Bhandari, J.)
R E P O R T A B L E :
By this bunch of writ petitions, a challenge is made to the Notification dated 16 th October, 2015 issued by the State Government and Rajasthan Special Backward Classes (Reservation of Seats in Educational Institutions in the State and of Appointments and Posts in Services under the State) Act, 2015 (for short "the Act of 2015").
In the case of Shrawan Singh Tanwar in DB Civil Writ Petition No.1511/2016, a further challenge is made to the report submitted by the Other Backward Classes Commission (for short "the OBC Commission") recommending five castes for Special Backward Classes with 5 per cent reservation. Five castes have been thereby shifted from the CWP - 1645/2016 ALONG WITH OTHER PETITIONS 5 category of Backward Classes to Special Backward Classes.
In the case of Kanaram Dhayal in DB Civil Writ Petition No.2795/2016, additional challenge is made to Justice Jas Raj Chopra Committee report dated 15th December, 2007.
By the Act of 2015, five castes, earlier falling in the category of Other Backward Classes and getting benefit of reservation, have been brought in the category of Special Backward Classes to provide 5 per cent reservation exceeding the ceiling of 50 per cent.
Learned counsel for the petitioners submitted that efforts of the Government is to somehow provide 5 per cent reservation to Gurjars/Gujjars and other castes. It was after Gurjar/Gujjar agitation for their inclusion in the category of Scheduled Tribes. The Government initially constituted Justice Jas Raj Chopra Committee but when Gurjars/Gujjars could not be included in the category of Scheduled Tribes then they were provided special reservation without quantifiable data. It was under a fear of agitation again.
It is stated that prior to filing of the present CWP - 1645/2016 ALONG WITH OTHER PETITIONS 6 writ petition, the petitioner had preferred Public Interest Litigation (DB Civil Writ Petition No.13491/2009). It was to challenge the Rajasthan Scheduled Castes, Scheduled Tribes, Backward Classes, Special Backward Classes and Economically Backward Classes (Reservation of Seats in Educational Institutions in the State and of Appointments and Posts in Services under the State) Act, 2008 (for short "the Act of 2008"). The said writ petition was decided vide order dated 22nd February, 2012. The State Government was directed to revisit Sections 3 & 4 of the Act of 2008 as well as the Notification. The Division Bench found that quantifiable data have not been collected to provide reservation beyond 50 per cent. The Court observed that when five castes were falling in the category of other backward classes then why category of Special Backward Classes has been created to provide 5 per cent reservation exceeding 50 per cent. Several other observations were made in the aforesaid judgment.
A reference of the judgment of the Apex Court in the case of M. Nagaraj & Ors. Vs. Union of India & Ors. reported in (2006) 8 SCC 212 and Ashoka Kumar CWP - 1645/2016 ALONG WITH OTHER PETITIONS 7 Thakur Vs. Union of India & Ors. reported in (2008) 6 SCC 1 was given by the Division Bench. The direction was to keep in mind the law laid down by the Apex Court in various cases, which includes the judgments, referred to above and also in the case of Indra Sawhney etc. etc. Vs. Union of India & Ors. reported in (1992) Suppl. 3 SCC 217. The matter was ordered to be led before the Commission. The petitioners were to be given opportunity amongst others to present their case. It was, however, directed that the State would not give effect to the Act of 2008 till then. After the judgment aforesaid, the matter was led before the OBC Commission where the petitioners were also given opportunity of hearing. Several objections were raised before the Commission. The Commission has given its report. It is based on the report of an agency and the State. It was even after considering the instructions given by the State Government to examine the requirement of special backward class status to certain castes, namely, (i) Banjara/Baladiya/Labana, (ii) Gadia Luhar/Gadolia, (iii) Gujar/Gurjar and (iv) Raika/Raibari (Devash). A Notification was then issued on 13 th December, 2012.
CWP - 1645/2016 ALONG WITH OTHER PETITIONS 8 The petitioners preferred DB Civil Writ Petition No.1862/2013 to challenge the subsequent Notification dated 13th December, 2012 as well as the report of the SBC Commission of the year 2012. It was apart from challenge to the order dated 13th December, 2012 and report given by the Institute of Development Studies (for short "IDS") 2012 . A prayer was also made for exclusion of "Meena" community from the category of Schedule Tribes in view of their adequate representation in services. A Public Interest Litigation, by a writ petition, bearing No.5202/2012 was also filed by one Mukesh Solanki. The Division Bench passed a detailed order on 29th January, 2013 staying the operation of the Notification dated 13th December, 2012 in the said writ petition.
During pendency of those writ petitions, a Notification dated 16th October, 2015 was brought and is under challenge. The petitioners after knowing about issuance of the Notification dated 16th October, 2015 and its retrospective effect, moved an application in pending writ petition bearing No.1862/2013 to invite attention of the CWP - 1645/2016 ALONG WITH OTHER PETITIONS 9 Court towards willful disobedience of its order thus to initiate contempt proceedings by invoking Article 215 of the Constitution of India. An application was submitted by the State Government as well to declare the writ petition to be infructuous. The Division Bench of this Court rendered the writ petition to be infructuous vide its order dated 04 th February, 2016 with liberty to raise all the issues in the present writ petition/s. The petitioners filed these writ petitions to challenge validity of the Notification dated 16 th October, 2015 apart from the Act of 2015.
Learned counsel for the petitioners have given brief history of the earlier litigation to show present writ petitions to be in continuance to the earlier.
It is submitted that recommendation of the Commission as well as the Act of 2015 are violative of Articles 15 & 16 of the Constitution of India. Article 15 of the Constitution of India prohibits discrimination on the ground of religion/race/caste/sex or place of birth etc. Article 15(4), however, provides that nothing in this article or in clause (2) of Article 29 shall prevent the State from making special provision for advancement of any socially and CWP - 1645/2016 ALONG WITH OTHER PETITIONS 10 educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
In the similar manner, Article 16(2) of the Constitution of India prohibits discrimination on the grounds of religion/race/caste/sex or place of birth etc. Article 16(4) of the Constitution of India, however, provides for reservation to the backward class of citizens which, in the opinion of the State, is not adequately represented in the services. Article 16(4A) of the Constitution of India was added by 77th Constitutional Amendment and Article 16(4B) was inserted by 81st amendment. The amended provision of Article 16(4B) of the Constitution of India enables the State Government to consider unfilled vacancy of a year to be separate class and to be filled in any succeeding year or years. Such vacancies are not to be considered together with the vacancy of the year, in which, they are to be filled, for determining ceiling of 50 per cent reservation on the total number of vacancies, in that year.
According to learned counsel for the petitioners, Article 16(4B) of the Constitution imposes ceiling of 50 per cent on the reservation to the vacancies of a year. If the Act CWP - 1645/2016 ALONG WITH OTHER PETITIONS 11 of 2015 is given effect on recruitment, the constitutional mandate of Article 16(4B) cannot be adhered to. It provides reservation beyond 50 per cent even if it is applied on the vacancies of a year. It is thus hit by Article 16 (4B) of the Constitution.
It is further submitted that apart from violation of the constitutional provisions, the Act of 2015 even goes against the judgment of the Constitutional Bench of the Supreme Court in the case of M.R. Balaji & Ors. Vs. State of Mysore reported in 1963 AIR 649. In the said case, Articles 15(4) and 16(4) of the Constitution were considered. The Court found that interest of weaker sections of the society is to be adjudged with the interests of other communities. The judgment on competing claims is undoubtedly a difficult matter, but, under the guise of making special provision, if the State reserves practically all the seats available in the colleges then it would be subverting the object of Article 15(4) of the Constitution of India. In that case, the Court was reluctant to say definitely what would be a proper provision to make but speaking generally and in a broader way, a special provision for reservation should be less CWP - 1645/2016 ALONG WITH OTHER PETITIONS 12 than 50 percent of the seats and how much less than 50 percent, depends on the circumstances of each case. In the said case, recommendation of the Nagana Gowda Committee for 68 per cent reservation was not found proper in the larger interest of the State. The direction was accordingly given to the State Government that while making advancement of the weaker sections of the society, they should approach the task objectively in a rational manner. The recommendation of the committee for reservation to the extent of 68 percent was held to be inconsistent with Article 15(4) of the Constitution of India.
The powers of the Court were also considered by the Apex Court. It was found that the Courts often consider substance of the matter and not its form. The veil of the executive action can be lifted for careful scrutiny. If the executive action, in substance and in truth, has transgressed the constitutional powers, the impugned action should be struck down treating it to be a fraud on the constitution. The determination of the backward class solely based on the caste was held to be in violative of Article 15(4) of the Constitution of India.
CWP - 1645/2016 ALONG WITH OTHER PETITIONS 13 In view of the judgment in the case of M.R.Balaji & Ors. (supra), the State Government should not have provided reservation in the educational institutions beyond 50 per cent of the total seats meant for admission. It is moreso when the judgment in the case of M.R.Balaji & Ors. (supra) was affirmed subsequently by the Constitutional Bench of the Apex Court in the case of Indra Sahwney (supra) and also in the case of Ashoka Kumar Thakur (supra).
The Supreme Court further reiterated the same proposition of law in the case of M.Nagaraj (supra) and Kumari K.S. Jayashree & Anr. Vs. State of Kerala & Anr. reported in 1976 AIR 2381. The Commission as well as the State Government failed to appreciate the judgments aforesaid, despite specific directions of the Division Bench, while deciding the Public Interest Litigation vide its judgment dated 22nd February, 2012 in DB Civil Writ Petition No.13491/2009.
Learned counsel further submitted that even as per Article 16(4B) of the Constitution of India, the reservation cannot be provided beyond 50 percent of the CWP - 1645/2016 ALONG WITH OTHER PETITIONS 14 vacancies of a year, though while adhering ceiling of 50 percent, unfilled vacancies of previous year are to be taken separately. The unfilled vacancies are considered to be those which could not be filled in the earlier years in accordance with the provisions for reservation. It may be due to non- availability of the reserve caste candidates to the extent of the vacancies reserved for them. The State Government cannot reserve vacancies of a year beyond 50 per cent. If the Act of 2015 is given effect, reservation would be beyond the ceiling of 50 per cent against the vacancies of a year.
Learned counsel for the petitioners have given reference of several judgments of the Supreme Court and this Court to substantiate their arguments, which would be considered and discussed in the later part of the judgment.
The petitioner Shrawan Singh Tanwer, appearing in person, has further assailed the report of the SBC Commission. Reference of various parts of the report has been given to show recommendation in violation and in ignorance of several judgments of the Supreme Court apart from the Constitution of India. The Commission was under an obligation to see various factors including adequacy of CWP - 1645/2016 ALONG WITH OTHER PETITIONS 15 representation of various castes in services. If a caste is adequately represented in services, then to be excluded from reservation. It applies for admission in the educational institutions also.
The statements referred in the report shows that many castes have been adequately represented in services, rather, major benefit of OBC reservation is taken by them, yet not excluded so as to pass on the benefit of the reservation to other castes. The table given in the report reveals percentage of representation of various castes in services. The Commission has considered the case of five castes only leaving others. It ignored the mandate and direction given earlier by the Division Bench in the Public Interest Litigation, decided vide order dated 22 nd February, 2012.
The Commission failed to get quantifiable data to recommend special reservation to backward classes by forming a special group for them. It is not that reservation to the five castes, included in the category of special backward classes, was not provided earlier. All the five castes were getting reservation meant for OBC, yet taken in the category CWP - 1645/2016 ALONG WITH OTHER PETITIONS 16 of special backward classes. The Commission was required to address as to what are the extra ordinary reasons to provide a separate and special category of reservation and to cross the ceiling of 50 percent for them. The issues aforesaid have not been addressed by the Commission.
The petitioner, present in person, and learned counsel appearing for the petitioners have made reference of various parts of the report of the Commission to show discrepancies therein apart from non-adherence of mandate of the judgment of Apex Court and the Constitution. It would be discussed by this Court appropriately after considering the arguments of learned counsel for the respondents.
A reference of the object in bringing 81 st amendment in the Constitution has also been given. It is to reiterate ceiling of 50 per cent on reservation. It permits reservation beyond 50 per cent against backlog vacancies only. The backlog vacancies are to be taken separately so that it is not affected by ceiling of 50 per cent. The Act under challenge has been enacted in ignorance of the object in bringing 81st amendment in the Constitution of India.
The report of SBC Commission reveals its CWP - 1645/2016 ALONG WITH OTHER PETITIONS 17 exercise only to the extent of recommendation in favour of five castes, whereas, 82 castes were identified for consideration. The Commission seems to have constituted to make recommendations only for five castes leaving the others. The way, recommendations have been made by the SBC Commission reveals nothing but to act as per the wishes of the State Government to provide reservation to few castes.
A reference of the directions of Division Bench of this Court has been given in the report. The Commission was required to get a survey of all the 82 castes by a scientific method. The Commission has admitted that as per the settlement and otherwise, survey was to be conducted through a scientific method and while doing so, it was required to consider the directions of the High Court on various issues. The IDS was given task to conduct survey. The Commission found that the IDS has failed to conduct survey by scientific method on proportionate basis.
The IDS further failed to make assessment of the backwardness of the caste by taking total population percentage to draw their proportionate representation, thus CWP - 1645/2016 ALONG WITH OTHER PETITIONS 18 report was not found to be reliable. The Commission considered census of 1931 for ascertaining the proportionate population percentage of each caste in the State of Rajasthan, whereas, census of 1931 could not have been taken into consideration to draw quantifiable data. The recent data of each caste should have been taken into consideration with their backwardness in terms of the education and representation in services. The table given under chapter nine of the report for different castes has not been drawn on scientific basis. The recommendations are contrary to the details given in the said Chapter itself, thus report of SBC Commission has contradictory conclusions. The SBC Commission has failed to discharge its duties, as was expected and directed by the Apex Court and this High Court. Thus, report of SBC Commission should be rejected.
The survey report of the IDS was discarded by the Commission, yet references of various factors taken into consideration by the IDS has been given in Chapter nine of the report. In the same manner, no report exists for 25 castes. The Commission should have made survey for all the 82 castes, but, it failed to do so.
CWP - 1645/2016 ALONG WITH OTHER PETITIONS 19 Learned counsel and the petitioner, present in person, have given reference of other parts of the report also to show not only discrepancies but an effort to make report to fulfill the wishes of the State Government.
A reference of the 9th report of the State Backward Class Commission has also been given apart from the reference of the report of Justice Jasraj Chopra Committee. It is to show variation in recommendations.
Learned counsel as well as the petitioner in person have made elaborate arguments in reference to various judgments of the Apex Court and the recommendations of the SBC Commission, which would be considered while referring to the rival arguments of the parties.
The locus of the petitioners in maintaining writ petitions has also been explained.
The petitioners Captain Gurvinder Singh and others were litigant earlier also when not only Public Interest Litigation but other petitions were decided by the Division Bench of this Court. The Court, in its earlier judgment dated 22nd December, 2010 left all the issues open for its decision and gave liberty to the petitioners to raise it again, if so CWP - 1645/2016 ALONG WITH OTHER PETITIONS 20 required. The petitioners were given liberty to represent and raise all the issues before the SBC Commission also. Their representations were allowed even by the SBC Commission, thus issue of locus has unnecessarily been raised by the private respondents. It is moreso when the petitioner Nos.2 & 3 in the case of Captain Gurvinder Singh & Ors. are government employees and would be affected by the Act of 2015, thus have locus to challenge it.
The summary of the issues raised for challenge to the report of SBC Commission are as follows :-
1. The SBC Commission has relied on the report of the IDS despite holding it to be unreliable.
2. The IDS has submitted its report in June, 2012 whereas the backwardness table was submitted on 26 th December, 2012, which is subsequent to the date of the report by the IDS.
3. As per the report of Mandal Commission, there exists 11 indicators of backwardness covering 22 points. The SBC Commission has excluded economic criteria altogether and, even for the special backwardness, only 8 points have been considered. For educational CWP - 1645/2016 ALONG WITH OTHER PETITIONS 21 backwardness, only two points have been referred, which show non-consideration of all the heads and issues, relevant for consideration.
4. No study has been conducted by the SBC Commission as regards to "Nomadic" status of SBC communities. The report is given only on the basis of old record.
5. The Commission has relied on outdated data of the year 1931.
6. The Commission sought and provided representation of various castes in few services only. It was only for 24 services out of 117. The State Government thus failed to provide proper data of representation of various castes in the services.
7. The services under different Government Corporations, Local Self Bodies and other autonomous bodies have been taken on pick- and-choose basis.
8. The SBC Commission failed to consider that reservation to the OBC was provided in the year 1993 and few castes were added in the year 2000-2001, such as "Jats" etc. Their representation in services prior to 2000-2001 has not been considered to arrive at proper CWP - 1645/2016 ALONG WITH OTHER PETITIONS 22 ratio of their representation in services.
9. The SBC Commission further failed to consider effect of reservation on the efficiency of administration. As per the Constitution and dictum of the Apex Court, the report should incorporate as to whether reservation would affect efficiency of administration. If the efficiency of administration is affected, reservation cannot be recommended.
10. No reasons have been given to provide category of special backward class to five castes when they were already getting benefit of reservation for last many years and Gujjars were getting adequate representation.
11. The SBC Commission has considered the case of around 58 different courses of few colleges with few students, whereas, there are more than 4 lac students. The survey of all the educational courses has not been conducted.
As per the statements/tables considered in the report, 42 castes are having representation in the public employment below the representation of "Gurjar/Gujjar"
CWP - 1645/2016 ALONG WITH OTHER PETITIONS 23 caste and 23 castes have no representation but they are not included in the list of special backward classes and no reason for it has been assigned. The IDS did not conduct survey of all the castes. A prayer is accordingly made to set aside the report of the SBC Commission, so as the Notification and the Act, under challenge.
The State Government has contested the writ petitions.
Learned Solicitor General Mr.Ranjeet Kumar has made a reference of settlement arrived between Gurjars/Gujjars and the Government of Rajasthan on 07 th June, 2007. As per the settlement, a High Powered Committee was constituted. Justice Jasraj Chopra (Retd.) was nominated as Chairman of the Committee. The State Government laid down the terms of the High Powered Committee. It was for inclusion of certain castes in the category of Schedule Tribes as per the criteria laid down by the Government of India.
The Commission was to systematically examine the demand of the Gurjars/Gujjars by carefully studying different representations. The extensive survey was carried CWP - 1645/2016 ALONG WITH OTHER PETITIONS 24 out by the High Powered Committee by even touring the villages.
Justice Jasraj Chopra Committee submitted its report on 15th December, 2007. The State Legislature brought an Act in the year 2008 to provide reservation to special backward classes and economically backward classes. 68 per cent reservation in all was provided and, out of it, 5 per cent was for Special Backward Classes and 14 per cent was to Economically Backward Classes. The State Government included four castes under Sections 3 & 4 of the Act of 2008.
Three writ petitions were filed in the year 2009. The Division Bench of this Court, vide its order dated 12 th October, 2009, passed an interim order against the reservation in excess to 50 per cent. The State Government issued an order on 06th May, 2010 to provide one percent reservation to the Special Backward Classes after taking into consideration the interim order passed by this Court.
The writ petitions were thereupon decided vide order dated 22nd December, 2010. It was found that High Powered Committee, led by Justice Jasraj Chopra, did not CWP - 1645/2016 ALONG WITH OTHER PETITIONS 25 collect adequate data. The Court issued few directions, which have been summarized by learned Solicitor General as under :
"(i) The Government shall re-visit Sections 3 and 4 of the Act of 2008 in the light of the relevant judgment of Supreme Court. The State shall also consider the extent of reservation required and whether there was any need to enhance it more than stipulated prior to the 2008 Act.
(ii) The State shall not give effect to Sections 3 and 4 of the Act of 2008 and the Notification with respect to enhancement of financial limit of creamy layer from Rs.2.5 lac to Rs.4.5 lac.
(iii) The State shall also reconsider the provision of 14 per cent reservation to Economic Backward Classes.
(iv) The matter shall be referred to the Rajsathan State Backward Classes Commission ("SBCC") and the Government shall place quantifiable data of numerous factors, which are CWP - 1645/2016 ALONG WITH OTHER PETITIONS 26 necessary, in light of the judgment of the Apex Court.
(v) Petitioners shall also be given
opportunity amongst others in
accordance with law to present their case before the Commission.
(vi) The exercise given above shall be completed within a period of one year.
(vii) Stay shall continue till the matter is decided afresh and even if the State decides to enhance reservation beyond the percentage, which was existing prior to the Act of 2008, the State shall not give effect to the said enhanced percentage of reservation for a period of two months thereafter."
After the judgment aforesaid, the State Government entered into an agreement with the IDS to collect quantifiable and comparative data of 82 different castes in respect of social, educational and economical backwardness and their representation in government services.
CWP - 1645/2016 ALONG WITH OTHER PETITIONS 27 Pursuant to the agreement, the IDS submitted its report on 31st May 2011. The Government of Rajasthan thereupon constituted Rajasthan SBC Commission to make a report in consonance with the judgment of High Court dated 22nd December, 2010. The SBC Commission submitted its report in the month of November, 2012. Five castes were identified for providing 5 per cent reservation by taking them in Special Backward Class category.
The State Government, thereupon, issued an order on 30th November, 2012 to provide five percent reservation to Special Backward Class in the educational institutions as well as in services under the State of Rajasthan. A challenge to the said order and the report submitted by IDS was made. The other writ petition was to challenge certain provisions of the Act of 2008. This Court passed an interim order on 29 th January, 2013, whereby, operation of the order as well as the Notification was stayed till disposal of the petition.
The State Government filed an application for clarification as well as for modification of the interim order. The High Court was pleased to clarify its order for 01 per cent reservation in favour of the special backward class.
CWP - 1645/2016 ALONG WITH OTHER PETITIONS 28 The State Government, thereupon, issued Notification to bring the Act of 2015 and is under challenge. The Act of 2015 provides 5 per cent reservation to five castes in the category of special backward class. The Act was given effect from 16th October, 2015.
The challenge to the Notification as well as the Act of 2015 apart from the report of the SBC Commission etc. has been made.
The challenge to the Act of 2015 has been made on misconception of ceiling of 50 per cent on reservation. The reservation is permissible beyond 50 per cent under the Constitution and judgments of the Supreme Court. Learned counsel for petitioners have failed to take proper interpretation of the constitutional provisions as well as the judgments of the Apex Court while advancing the arguments for challenge to the Notification of 2015. Articles 15(4) and 16(4) of the Constitution of India do not prescribe any numerical limit on reservation. In the case of Indra Sawhney (supra), the Apex Court held that reservation should not ordinarily exceed 50 per cent. The judgment of the Apex Court in the case of M.R.Balaji & Ors. (supra) was clarified CWP - 1645/2016 ALONG WITH OTHER PETITIONS 29 from binding rule of ceiling of 50 per cent to mere rule of prudence. The Apex Court, however, carved out exceptional circumstances to permit reservation beyond 50 per cent. It is in an extra ordinary situation. The ceiling of 50 per cent on reservation is an ordinary rule, excess to it is an exception, hence, ceiling of 50 per cent has not been put either by the Constitution of India or by the Apex Court.
A reference of Article 16(4) of the Constitution of India has also been given. It does not preclude the State Government to provide reservation beyond 50 percent.
81st Constitutional Amendment in the year 2000 has not made any change in the law laid down by the Apex Court in the case of Indra Sawhney (supra). It was to clarify that for "carry-forward vacancies", reservation can exceed to 50 per cent. The Parliament thus introduced Article 16(4B) of the Constitution of India for carry forward reserve vacancies and not to put ceiling of 50 per cent on reservation.
The challenge to the Article 16(4A) and 16(4B) of the Constitution of India was decided by the Apex Court in the case of M.Nagaraj & Ors. (supra). The petitioners have relied on certain paras of the judgment in the case of M.Nagaraj & CWP - 1645/2016 ALONG WITH OTHER PETITIONS 30 Ors. (supra) to urge ceiling of 50 per cent as a strict rule. The Apex Court in the said case followed the judgment of Indra Sawhney (supra) on ceiling limit of 50 per cent. It is to be applied ordinarily but can exceed under extra ordinary situation, thus it is incorrect to submit ceiling of 50 per cent on reservation.
A further reference of the judgment in the case of S.V. Joshi & Ors. Vs. State of Karnataka reported in (2012) 7 SCC 41 has been given. There, depending on the quantifiable data, reservation beyond 50 per cent has been made permissible.
The petitioners have not considered Article 16 (4B) of the Constitution of India with the object, it was inserted. Article 16(4B) of the Constitution of India refers about ceiling of 50 per cent reservation for backlog vacancies. It has to be read in reference to the judgment of the Apex Court in the case of Indra Sawhney (supra). The ceiling of 50 per cent on reservation is a general rule but exception has been allowed in para 810 of the said judgment. In view of the above, Article 16 (4B) of the Constitution of India does not propound theory of ceiling of 50 per cent on reservation. A CWP - 1645/2016 ALONG WITH OTHER PETITIONS 31 reference of the judgment of the Division Bench in Writ Petition No.13491/2009 decided on 22 nd December, 2010 has also been given where challenge to the Act of 2008 was not accepted on the aforesaid ground. If the directions given therein are considered properly, it permits reservation beyond 50 percent but should be based on quantifiable data.
The respondent State Government had revisited Sections 3 and 4 of the Act of 2008. The SBC Commission could collect quantifiable data before recommending reservation for special backward classes thus the challenge to the Notification and the Act of 2015 on the ground of ceiling of 50 per cent on reservation is not tenable.
Learned Solicitor General and Additional Advocate General Mr.Rajendra Prasad, appearing for the State of Rajasthan, further submitted that after the judgment of the Division Bench in the first bunch of writ petitions, the State Government entered into an agreement with the IDS for collection of quantifiable datas of 82 different castes included the category of other backward classes. The IDS is a reputed autonomous organisation in the field of social surveys. The report of the IDS has been indirectly endorsed CWP - 1645/2016 ALONG WITH OTHER PETITIONS 32 by the Apex Court in the case of Ram Singh & Ors. Vs. Union of India reported in (2015) 4 SCC 697. The IDS submitted its report in the month of June, 2012 based on quantifiable data. The said report was placed before the SBC Commission. The Commission thereafter gave its report. The legislative wisdom was invoked to provide 5 per cent reservation to special backward classes vide impugned Notification and the Act of 2015.
A challenge to the report of the SBC Commission has been made in ignorance of the quantifiable data. It was in respect of all the issues, namely, backwardness, inadequacy of representation as well as effect on the efficiency of administration. The Commission as well as the State Government could make out an exceptional case to exceed to the ceiling of 50 per cent. The extra ordinary circumstances have been given to provide 5 percent special reservation to five castes.
Para 810 of the judgment in the case of Indra Sawhney (supra) was referred specifically to reinforce the arguments on the ceiling of 50 per cent on reservation. The castes included in the category of special backward CWP - 1645/2016 ALONG WITH OTHER PETITIONS 33 classes are "Nomadic", resulting in severe backwardness. The historical background of those castes was also taken into consideration by the SBC Commission. A case of special reservation in their favour has thus made out.
The data provided by the IDS were taken into consideration by the SBC Commission meticulously. It did not accept the data blindly, rather serious criticism to the methodology adopted by the IDS has been made. It shows independence of the Commission apart from the application of mind to draw proper conclusions for recommendations of special reservation in favour of five castes.
The Commission had considered various historical documents, research papers, representation of different castes in services and data pertaining to admission in the educational institutions. In doing so, if some discrepancy had occurred, it deserves to be condoned as held by the Apex Court in the case of Ram Singh & Ors. (supra). A small discrepancy should not be accepted to doubt the correctness of the report. The petitioners have given reference of various castes, which are having no representation or lessor representation in the services as well as in the educational CWP - 1645/2016 ALONG WITH OTHER PETITIONS 34 courses as compared to the Gurjars/Gujjars and other four castes, which have been given special reservation. It is to show that despite no representation or lessor representation of other castes, recommendations in their favour have not been made. The aforesaid argument is based by misplaced understanding of law. As per the judgment of the Apex Court, issue relating to the backwardness, inadequacy of representation in service and educational institutions apart from effect on the efficiency in the administration is to be seen. In view of the above, the recommendations of the Commission may not be set aside.
Learned Senior Advocate Mr.Ashok Gaur, appearing for the respondent No.4, raised objection about locus standi of the petitioner Captain Gurvinder Singh. It is submitted that no fundamental or legal rights of the petitioner have been infringed. To maintain the writ petition, the petitioner should fall in the definition of "person aggrieved". The petitioner is not one who can be said to be "person aggrieved". A reference of the judgment in the case of Calcutta Gas Company Pvt. Ltd. Vs. State of West Bengal reported in AIR 1962 SC 1044 has been given apart from the judgment in the case of CWP - 1645/2016 ALONG WITH OTHER PETITIONS 35 Ayaabkhan Noorkhan Pathan VS. State of Maharashtra reported in 2013(4) SCC 465.
It is further stated that report of the SBC Commission of the November, 2012 has not been challenged. In absence of challenge to the report of the SBC Commission, consequential Notification and enactment cannot be challenged. It is settled proposition of law that without challenging the basic order, consequential order or Notification cannot be challenged. The infirmity in the report can be shown only when it is challenged and not otherwise, thus the arguments for challenge to the report should not be accepted in absence of its challenge. To support the arguments, a reference of the judgment in the case of Edukanti Kistamma (Dead) through LRs Vs. Venatareddy (Dead) through LRs reported in 2010(1) SCC 756 has been given.
Learned Senior Counsel urged about limited scope of judicial review, if the report is prepared by an expert body. The report submitted by the Commission is based on historical background, surveys, quantifiable and comparative data of backwardness of all the five castes. The sufficiency CWP - 1645/2016 ALONG WITH OTHER PETITIONS 36 or insufficiency of data should not be examined by this Court unless the report reflects a perverse or impossible view. The report has been given after hearing of all the parties and was accepted by the Government.
A reference of the judgment in the case of Heinz India Pvt. Ltd. Vs. State of Uttar Pradesh reported in 2012(5) SCC 443 apart from the judgment in the case of Ratan Lal Bagri Vs. State of Rajasthan reported in 2016(1) WLC (Raj.) 618 has been given.
The interpretation of Articles 15(4) and 16(4) of the Constitution of India has not been taken correctly for assailing the Act of 2015. Both the provisions give power to provide reservation and ceiling of 50 per cent is not provided therein for appointment in services and admission in the educational institutions. After 81st amendment in the Constitution of India, a challenge to it was made. The Apex Court upheld the constitutional amendment. It has permitted reservation beyond 50 per cent thus the argument of learned counsel for the petitioners about ceiling of 50 per cent on reservation in services is not tenable. The SBC Commission found extraordinary reasons to provide reservation beyond CWP - 1645/2016 ALONG WITH OTHER PETITIONS 37 50 percent. It is based on quantifiable data collected through an agency deployed by the State of Rajasthan and also after getting data from the State. The judgment in the case of B.Archana Reddy & Ors. Vs. State of AP reported in 2005(6) ALT 364 has also been referred.
Learned counsel further submitted that in the case of M.Nagaraj & Ors. (supra), Suraj Bhan Meena Vs. State of Rajasthan reported in 2011(1) SCC 647 and UP Power Corporation Vs. Rajesh Kumar reported in 2012 (7) SCC 1, ceiling of 50 per cent has not been imposed on the reservation. The alleged limit of 50 per cent is not otherwise provided under Article 15(4) of the Constitution of India.
The report submitted by the SBC Commission shows extraordinary reasons in favour of five castes. The quantifiable data collected shows social and educational backwardness of all the five castes. It is apart from the inadequacy of representation in government services so as in the educational courses. The reservation is not going to cause adverse effect on efficiency of administration, thus triple tests to justify special reservation in favour of five castes have been satisfied by the Commission. The Commission has CWP - 1645/2016 ALONG WITH OTHER PETITIONS 38 considered all the relevant issues and even the judgments of Apex Court, thus it has made compliance of the judgment of Division Bench of this Court.
Learned counsel has further made a reference of the report of SBC Commission to show that a proper procedure was adopted to get relevant quantifiable data. Nine factors were taken into consideration before making recommendations. Chapter Six of the report talks about traditional and social background of five castes, whereas, Chapter nine makes analysis of quantifiable data.
The reference of indicators adopted by the IDS has rightly been taken into consideration, though the report of IDS was earlier held to be not reliable. The details were still relevant, thus taken into consideration to show inadequate representation in services and their educational backwardness.
Learned counsel Dr. Manish Singhvi, appearing for Gadiya Lohars, has also opposed the writ petitions. It is submitted that the argument of ceiling of 50 per cent advanced in the case of Indra Sahwney (supra) is no longer applicable after 81st amendment in the Constitution of India.
CWP - 1645/2016 ALONG WITH OTHER PETITIONS 39 The object and reasons in bringing 81 st amendment in the Constitution of India was referred. A reference of judgment of the Apex Court in the case of Indra Sahwney (supra) has been given where ceiling of 50 per cent was taken as a general rule without exclusion of backlog vacancies. The purpose of Article 16(4B) of the Constitution of India is not to apply as ceiling of 50 per cent on backlog vacancies . It was to overcome from the judgment in the case of Indra Sahwney (supra). The ceiling of 50 per cent on the vacancies of a given year can be complied by carry forward of excess vacancies above 50 per cent. Even ceiling of 50 per cent emphasised by the Apex Court in the case of Indra Sahwney (supra) is with just exception. The Apex Court in the subsequent judgment has permitted reservation above 50 per cent, if extraordinary reasons exists thus reservation beyond 50 per cent is permissible.
Learned counsel Dr.Manish Singhvi has made a reference of Article 15(4) of the Constitution of India, which provides reservation in educational institutions. The aforesaid provision is not subject to Article 16(4B) of the Constitution CWP - 1645/2016 ALONG WITH OTHER PETITIONS 40 of India. Article 15(4) of the Constitution of India does not provide ceiling, as alleged to have been imposed under Article 16(4B) of the Constitution of India, yet it has been challenged by the petitioners.
In the case of M.Nagaraj & Ors. (supra), the Apex Court has taken cognizance of excessive reservation. The extent of reservation has been left open and to be decided on the facts of each case. The aforesaid judgment was subsequent to the constitutional amendment thus applies to the present case. The judgment in the case of S.V. Joshi (supra) permits reservation beyond 50 percent if quantifiable data exists. In the case of Ashoka Kumar Thakur (supra), the State Authorities failed to supply quantifiable data to support reservation beyond 50 percent thus judgment aforesaid was given on its own facts.
A reference of judgment of Division Bench of this Court in Special Appeal No.13491/2009 dated 22nd February, 2010 has also been given to show that reservation beyond 50 percent is permitted if quantifiable data are available. In the background aforesaid, neither the Constitution of India nor the Apex Court and even this Court have put a cap of 50 per CWP - 1645/2016 ALONG WITH OTHER PETITIONS 41 cent on reservation for admission in the institutions and service.
The argument on the scope of judicial review of the report of the SBC Commission has also been made. In the case of Ram Singh (supra), it is held that recommendation of the expert committee is ordinarily binding on the State Government. In the present case, the SBC Commission has given a detailed report by making out an exceptional case for 5 per cent reservation to special backward classes. The report was accepted by the Government to provide reservation thus the Court should be slow to interfere in the recommendations made by the SBC Commission being an expert body. The judicial review of the report is not permissible. The petitioners have made reference of those judgments where the Court interfered in the reservation because quantifiable data were not collected by the State Government prior to reservation in services.
In case of Himachal Pradesh Scheduled Tribes Employees Federation & Anr. Vs. Himachal Pradesh Samanaya Varg Karamchari Kalyan Mahasandh & Ors. reported in (2013) 10 SCC 308, the Supreme Court CWP - 1645/2016 ALONG WITH OTHER PETITIONS 42 permitted reservation once the quantifiable datas are made available, which is the case herein also. In the case of Sardar Inder Singh Vs. State of Rajasthan reported in 1957 SCR 605, it is held that matters, exclusively in the domain of legislature, are not open for determination by the Court.
Learned counsel has shown element of "public interest"
for special reservation to Gadiya Lohars looking to their historical background and other elements. The Constitution of India is required to be taken into consideration apart from the recommendations of the Justice Venkatachaliah Commission on working of Indian Constitution.
A reference of judgment of the Apex Court in the case of Workmen Vs. Meenakshi Mills Ltd. reported in (1992) 3 SCC 336 has also been given. The judgment in the case of Indra Sahwney (supra) also permits reservation beyond 50 per cent. The Gadiya Lohar is a "Nomadic" community thus needs special treatment for their advancement. A reference of recommendations of Justice Lokur Committee to justify the report of the SBC Commission so as the Notification under challenge has been given. The National Commission has also stated Gadiya Lohars of Eastern Rajasthan to be CWP - 1645/2016 ALONG WITH OTHER PETITIONS 43 "Nomadic".
Justice Jasraj Chopra Committee and Kaka Kelkar Committee have also highlighted and recommended for special treatment to Gadiya Lohars. The plight of the community has been considered by the SBC Commission in its report to provide special reservation to them.
It is also urged that even if there are deficiencies in the SBC Commission report, it may be ignored as they are not significant. The Gadiya Lohars are socially as well as educationally backward having inadequate representation in services and in the educational institutions.
The clarification about reservation in OBC and SBC categories to five castes has also been made. It is submitted that after 5 per cent special reservation to five castes, they would not be entitled to the reservation meant for OBC and one percent surviving under the Act of 2008. The five castes would be entitled to the reservation only in their own category created in pursuance of the Act of 2015 thus confusion created by the petitioners is without any basis and otherwise to be clarified by this Court. Looking to the aforesaid, the writ petitions deserve to be dismissed.
CWP - 1645/2016 ALONG WITH OTHER PETITIONS 44 We have considered rival submissions of learned counsel for respective parties and scanned the record carefully.
The bunch of writ petitions have been filed to challenge the Notification dated 16th October, 2015 and the Act of 2015. The writ petitions also challenge the order dated 06 th May, 2010 to provide one percent reservation in favour of special backward classes and also the report dated 15 th December, 2007 given by Justice Jasraj Chopra (retired) Committee.
A challenge to the OBC Commission report of November, 2012 has also been made in one writ petition with further prayer to constitute a permanent statutory body as per directions of the Apex Court in the case of Indra Sawhney (supra).
The challenge to the aforesaid is made on various grounds, however, before considering the issues raised by the petitioners, it would be proper to give facts of the case. (1) Resume of the facts :-
An agitation was made by the Gurjars/Gujjars in the State of Rajasthan to include them in the category of CWP - 1645/2016 ALONG WITH OTHER PETITIONS 45 Scheduled Tribes. It affected law and order in the State. It even affected Railways as well as road transport. An agreement was entered between Gurjars/Gujjars and the State of Rajasthan and, thereupon, a Notification dated 07 th June, 2007 was issued to constitute High Powered Committee. Justice Jasraj Chopra (retired) was nominated as Chairperson of the Committee. The State Government, vide Notification dated 12th June, 2007, laid down the term of reference for High Powered Committe, which is as follows :
"In terms of criteria laid down by the Government of India for inclusion in the category of Scheduled Tribes, this Committee would systematically examine the demand of Gujjars caste by carefully studying different representations and opinion in this regard received by it and as per the report to the Government with its conclusions within three months time."
The High Powered Committee submitted its report on 15th December, 2007. The State Government considered the said report and, thereupon, the Rajasthan Scheduled Castes, Scheduled Tribes, Backward Classes, Special Backward Classes and Economically Backward CWP - 1645/2016 ALONG WITH OTHER PETITIONS 46 Classes (Reservation of Seats in Educational Institutions in the State and of Appointments and Posts in Services under the State) Act, 2008 was brought. Under the Act of 2008, total 68 percent reservation was provided for admission in the educational institutions and services. The reservation in favour of Scheduled Castes, Scheduled Tribes and Backward Classes was maintained to the extent of 16, 12 and 21 per cent respectively. Five per cent reservation was provided for special backward class, whereas, 14 per cent for economically backward classes. The State Government, thereupon, issued another Notification on 25 th August, 2009 and made amendment in Sections 3 and 4 of the Act of 2008 to include four other castes therein, namely, (i) Banjara/Baladiya/Labana, (ii) Gadia Luhar/Gadolia, (iii) Gujar/Gurjar and (iv) Raika/Raibari (Devashi). The challenge to the Act of 2008 was made by Captain Gurvinder Singh and others through a writ petition. The High Court passed an interim order on 12th October, 2009 to restrain reservation above 50 per cent.
The writ petition bearing No.13491/2009 and connected writ petitions were decided by this Court vide CWP - 1645/2016 ALONG WITH OTHER PETITIONS 47 judgment dated 22nd December, 2010. The Division Bench of this Court found that High Powered Committee headed by Justice Jasraj Chopra (retired) did not provide adequate data. The writ petition was disposed of with the following directions, which are summarised hereunder :
(i) The Government shall revisit Sections 3 & 4 of the Act of 2008 in the light of the relevant judgments of the Supreme Court.
(ii) The State Government should also consider the extent of reservation and whether there was any need to enhance it more than stipulated, prior to the 2008 Act.
(iii) The State Government was restrained to give effect to Sections 3 & 4 of the Act of 2008 with respect of enhancement of financial limits of creamy layer from Rs.2.5 lac to Rs.4.5 lac.
(iv) The State would also reconsider 14 per cent reservation to Economically Backward Classes.
(v) It would be referred to the Rajasthan State CWP - 1645/2016 ALONG WITH OTHER PETITIONS 48 Backward Classes Commission ("SBCC"). The Government was directed to provide quantifiable data of numerous factors, which are necessary in light of the judgments of the Apex Court.
(vi) The petitioners would be given opportunity amongst others to present their case before the Commission.
(vii) The exercise to be completed within a period of one year.
After the judgment dated 22nd December, 2010, the Government entered into an agreement with the IDS on 31st May, 2014. It was for collection of quantifiable and comparative data of 82 different castes falling in the category of other backward classes. It is to assess their social, educational and economic backwardness apart from their representation in the government services. The IDS submitted its report in the month of June, 2012.
The State Government, vide its order dated 07 th June, 2012 and 08th June, 2012, nominated members and Chairperson of Rajasthan Special Backward Classes Commission. The SBC Commission was directed to submit CWP - 1645/2016 ALONG WITH OTHER PETITIONS 49 report within a period of one year. The SBC Commission submitted its report in the month of November, 2015 itself, i.e., within five months after its constitution. The SBC Commission recommended 5 per cent special reservation to five castes, out of which, four castes were included by the State Government vide its Notification dated 25 th August, 2009. The Government of Rajasthan issued an order on 30 th November, 2012 to provide 5 per cent special reservation to five castes recommended by the SBC Commission. It invited fresh litigation. The petitioner - Captain Gurvinder Singh filed a writ petition bearing No.1862/2013 and the other writ petition was by Mukesh Solanki bearing No.520/2013. It was to challenge Sections 3 & 4 of the Act of 2008 as well as the order dated 30th November, 2012 etc. The Division Bench of this Court passed an interim order on 29th January, 2013 against the government order and the Notification dated 30th November, 2012. The operation of the order was stayed till disposal of the petition. The State Government moved an application for modification/clarification of the interim order. The Division Bench of this Court, vide its order dated 04 th March, 2013, CWP - 1645/2016 ALONG WITH OTHER PETITIONS 50 permitted the Government to provide one per cent reservation in favour of special backward class but the application for vacation of stay order was dismissed.
The State Legislature, thereupon, issued a Notification dated 16th October, 2015. It was to bring Rajasthan Special Backward Classes (Reservation of Seats in Educational Institutions in the State and of Appointments and Posts in Services under the State) Act, 2015.
The present three writ petitions have been filed to challenge the said Notification and the Act of 2015 apart from the report of SBC Commission in one writ petition and the report of Justice Jasraj Chopra Committee.
After filing of the present writ petitions, the Division Bench of this Court dismissed the writ petition bearing No.1862/2013 after rendering it to be infructuous but with liberty to raise all the issues in the present writ petition, which was filed prior to disposal of the earlier writ petition.
The resume of the facts shows that after Gurjar/Gujjars' agitation, the Government has issued various CWP - 1645/2016 ALONG WITH OTHER PETITIONS 51 orders and Notifications apart from enactment in the year 2008 and, now the Act of 2015 to provide special reservation to five castes, earlier getting reservation in the category of OBC. It is by carving out a special category called as special backward class. The reservations to different categories are now as follows :
(i)Scheduled Castes - 16 percent
(ii) Scheduled Tribes - 12 percent
(iii) Backward Classes - 21 percent
(iv) Special Backward Classes - 5 percent The petitioners have raised various grounds to challenge the Notification dated 16th October, 2015 and the Act of 2015 apart from the reports of Justice Jasraj Chopra Committee and of the SBC Commission. It is not only in reference to constitutional provisions but the judgments of the Apex Court. The objections to the maintainability of the writ petition/s have been raised.
(2) Locus standi of the petitioners :-
It is alleged that the writ petition has been filed CWP - 1645/2016 ALONG WITH OTHER PETITIONS 52 without showing infringement of fundamental or legal rights. The petitioner Captain Gurvinder Singh and others do not fall in the definition of "person aggrieved", thus they have no locus to challenge the Notification as well as the Act of 2015. The petitioners have neither applied for admission in the educational courses nor are in service. The petitioners are thus busy bodies and, otherwise, it is not a Public Interest Litigation, which can be maintained other than by the "person aggrieved".
Learned counsel for the petitioners submitted that objection has been taken for the sake of it. Captain Gurvinder Singh and others were the petitioners in Writ Petition No.13491/2009 as well as in subsequent Writ Petition No.1862/2013. The writ petition No.13491/2009 was decided vide judgment dated 22nd December, 2010 with a direction to revisit certain provisions and matter to be sent to the Commission. The issues raised therein were kept open by the Court with liberty to raise it again, if so required. The petitioners were given opportunities before the SBC Commission. They participated in the proceedings before the SBC Commission and nobody raised an objection to their CWP - 1645/2016 ALONG WITH OTHER PETITIONS 53 locus standi. Two other petitioners are in government services, thus are "person aggrieved". The petitioner, in person, Mr.Shrawan Singh Tanwar has even challenged the SBC Commission report, being aggrieved by it. The petitioner No.4 in the case of Captain Gurvinder Singh & Ors. is a registered society. The object of the society is to work for equality amongst the citizens. It is to oppose casteism, religionism, communalism, etc., thus has maintained the writ petition to challenge the Notification dated 16 th October, 2015 and the Act of 2015, which infringes Articles 15(4) and 16(4B) of the Constitution of India.
Captain Gurvinder Singh and others were the petitioners in Writ Petition No.13491/2009 decided by this Court vide its order dated 22nd December, 2010 along with two other writ petitions. The said writ petition was not dismissed on the ground of locus standi of the petitioners, rather, perusal of operative portion of the order dated 22 nd December, 2010 shows a direction to provide an opportunity to the petitioners amongst others to present their case before SBC Commission. The operative portion of the order dated 22nd December, 2010 in the case of Captain Gurvinder CWP - 1645/2016 ALONG WITH OTHER PETITIONS 54 Singh & Ors. along with two other writ petitions is quoted hereunder for ready reference :
"As agreed, let the matter be referred to the Rajasthan State Backward Classes Commission and the State Government shall place before the Commission the quantifiable data of numerous factors which is necessary in light of the Apex Court decisions in the case of M.Nagaraj (supra) and Ashoka Kumar Thakur (supra). As collection of quantifiable data is going to consume sufficient time, let this exercise be completed within a period of one year. The petitioners shall also be given opportunity amongst others in accordance with law to present their case before the Commission. It is reiterated that stay shall continue till the matter is decided afresh and even if the State decides to enhance reservation beyond the percentage which was existing prior to coming into force the Act of 2008, the State shall not give effect to the said enhanced percentage of reservation for a period of two months thereafter. As agreed, we leave all the questions raised in the petitions CWP - 1645/2016 ALONG WITH OTHER PETITIONS 55 to be examined by the State at first instance in light of amended provisions of Articles 15 and 16 of the Constitution and decisions of Apex Court in Indra Sawhney (supra), M.Nagaraj (supra), Ashoka Kumar Thakur (supra), Suraj Bhan Meena (supra) and S.V.Joshi (supra)."
The para, quoted above, shows various directions and, therein, the petitioners were also ordered to be given opportunity to present their case before the SBC Commission in accordance with law. It is not in dispute that Captain Gurvinder Singh and others were given an opportunity of hearing by SBC Commission.
In the second inning of litigation by Captain Gurvinder Singh and others, the writ petition bearing No.1862/2013 was decided vide order dated 04th February, 2016 along with another writ petition of Mukesh Solanki. There, the writ petitions were rendered infructuous in view of the Notification and the Act under challenge but after noticing pendency of the present writ petition. The petitioners were given liberty to raise all the issues in the present writ CWP - 1645/2016 ALONG WITH OTHER PETITIONS 56 petition.
The directions given in both the judgments were not assailed by any of the parties, thus became final. In the light of the aforesaid, Captain Gurvinder Singh and others cannot be non-suited on the ground of their locus. It is moreso when petitioner No.4 is a registered society, which is created with the object to claim equality amongst the citizens thus it cannot be said that petitioners do not fall in the definition of "person aggrieved".
The respondent No.4 has given reference of the judgment of the Apex Court in the case of Calcutta Gas Company Pvt. Ltd. (supra) and also in the case of Ayaabkhan Noorkhan Pathan (supra) to support his arguments. The judgment aforesaid has no application to the facts of this case.
In the case of Ayaabkhan Noorkhan Pathan (supra), the challenge was to a caste certificate of an individual in the hands of a stranger. The Apex Court held that stranger should not be permitted to meddle in the proceedings against an individual unless he falls in the category of aggrieved person. The legal right of the petitioners herein has been CWP - 1645/2016 ALONG WITH OTHER PETITIONS 57 canvassed. The petitioner Nos. 2 & 3 in the petition of Captain Gurvinder Singh & Ors. are in service, thus affected by reservation to special backward classes and the petitioner No.4 is a registered society to espouse the cause for equality. Their legal rights have been earlier recognised, thus not only this Court but the SBC Commission has given opportunity of hearing to them, hence, the objection regarding maintainability of the writ petition on the ground of locus standi of the petitioners cannot be accepted. Accordingly, the objection regarding maintainability of the writ petition on the ground of locus standi is decided against the private respondents.
The second objection is in regard to maintainability of the writ petition in absence of challenge to the report of SBC Commission.
(3) In absence of challenge to the report of SBC Commission, the consequential Notification and the Act of 2015 cannot be challenged :-
Learned counsel for the private respondents submitted that in absence of challenge to the report of the SBC Commission, the Notification dated 16th October, 2015 and CWP - 1645/2016 ALONG WITH OTHER PETITIONS 58 the Act of 2015 cannot be challenged. When the enactment is on the basis of recommendation of the SBC Commission, it was necessary for the petitioners to first challenge the report of the SBC Commission and then to challenge the Notification and the Act of 2015. A reference of the judgment in the case of Edukanti Kistamma (Dead) through LRs. (supra) has been given.
Learned counsel for the petitioners have contested the issue in reference to the earlier litigation where the report of the SBC Commission was also challenged and, while disposing the said writ petition, bearing No.1862/2013, a liberty was given to the petitioners to raise all the issues in the present writ petition.
We have considered second objection and find that in the writ petition preferred by Captain Gurvinder Singh and others, a challenge to the report of SBC Commission has not been made though the grounds have been raised. In the case of Shrawan Singh Tanwar, a challenge to the report of the SBC Commission has also been made. The bunch of the petitions has been taken together for hearing with the consent of learned counsel for the parties. In view of the CWP - 1645/2016 ALONG WITH OTHER PETITIONS 59 challenge to the report of the SBC Commission in one writ petition heard along with connected writ petitions, second objection is of no substance. Accordingly, the judgment in the case of Edukanti Kistamma (Dead) through LRs (supra) has no application to the facts of this case.
It is necessary to observe that Notification dated 16 th October, 2015 and the Act of 2015 have been challenged not only in reference to the report of the SBC Commission but also in reference to Articles 15(4) and 16(4B) of the Constitution of India. It is even in reference to the judgments of the Apex Court. The scrutiny of legal issues in reference to the constitutional provisions and the judgments of the Apex Court needs to be made thus writ petitions are otherwise maintainable. It cannot be accepted that unless the SBC Commission report is challenged, the Act of 2015 cannot be assailed even on legal grounds and, otherwise, the report of the SBC Commission has been challenged in one writ petition.
In the light of the aforesaid, second objection regarding maintainability of the writ petitions is also rejected.
CWP - 1645/2016 ALONG WITH OTHER PETITIONS 60 The State of Rajasthan has not raised objection regarding maintainability of the writ petitions. It seems to be for the reasons given above.
All the issues raised by the petitioners and defended by the respondents need elaborate discussion. This Court has formulated following issues for its consideration :
(I) (A) Whether ceiling of 50 per cent exists on reservation in public employment as well as for admission in the educational institutions in view of the judgment of the Apex Court?
(B) Whether reservation can be based on caste?
The petitioners have challenged the Notification dated 16th October, 2015 and the Act of 2015 apart from the report of the SBC Commission providing reservation beyond 50 per cent in educational institutions as well as in public employment.
A reference of Articles 15(4) and 16(4) of the Constitution of India have been given apart from the amendment made thereunder from time to time. The CWP - 1645/2016 ALONG WITH OTHER PETITIONS 61 judgments of the Apex Court as well as this Court apart from other High Courts have been cited to substantiate the arguments. The respondents have countered it by giving interpretation to the provisions of the Constitution of India and relied the judgments of the Apex Court.
The issue aforesaid needs elaborate discussion not only in reference to the judgments of the Apex Court but the amendment made in the Constitution of India. It is, more specifically, 81st amendment in the Constitution of India after the judgment of the Apex Court in the case of Indra Sawheny (supra). For ready reference, Articles 15 and 16 of the Constitution of India are quoted hereunder :
"Article 15-Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth :
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to CWP - 1645/2016 ALONG WITH OTHER PETITIONS 62
(a) access to shops, public restaurants, hotels and palaces of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State from making any special provision for women and children. (4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
Article 16 - Equality of opportunity in matters of public employment :
(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
CWP - 1645/2016 ALONG WITH OTHER PETITIONS 63 (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
(4A) Nothing in this article shall prevent the State from any provision for reservation [in matters of promotion, CWP - 1645/2016 ALONG WITH OTHER PETITIONS 64 with consequential seniority, to any class] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.
(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent.
Reservation on total number of vacancies of that year.
(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational CWP - 1645/2016 ALONG WITH OTHER PETITIONS 65 institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination."
Article 15 of the Constitution prohibits discrimination on the grounds of religion, race, caste, sex or place of birth etc. Clause (3) of Article 15, however, permits the Government to make special provision for women and children. Clause (4) of Article 15 permits the State Government to make special provision for advancement of socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. The word "socially and educationally backward classes of citizens" has been used and not the socially and educationally backward "caste" so as to avoid discrimination on the ground of religion or caste. We find that the word "classes of citizens" has been made interchangeable with the word "caste" to identify socially and economically backward classes. The practice to identify the caste for the "classes of citizens" has been adopted from the beginning. It is in ignorance of the constitutional mandate. The framers of the Constitution CWP - 1645/2016 ALONG WITH OTHER PETITIONS 66 never thought to divide society by caste or religion thus specific prohibition for it was provided in Articles 15 and 16 of the Constitution.
The caste system is prevalent from the beginning and was even in the knowledge of the framers of the Constitution thus only Articles 15 and 16 of the Constitution put a bar on discrimination based on caste and religion to avoid division of country by caste. While making amendment in Article 15 to bring Article 15(4) of the Constitution, Parliament was cautious in using the word "classes of citizens". Clause (4) of Article 15 of the Constitution was brought to see advancement of socially and educationally backward classes of citizens. The time has come to adhere to the provisions of the Constitution in strict terms without substitution of the word "classes of citizens" by "caste of citizens".
The reservation in educational courses as well as public employment is prevalent for more than last six decades and there is no exclusion of any caste, rather, there exists inclusion of certain castes.
It is expected of the Central as well as the State CWP - 1645/2016 ALONG WITH OTHER PETITIONS 67 Governments to revisit the system of reservation so that socially and educationally backward classes of citizens can be uplifted within time frame. It is by framing a proper policy. The issue aforesaid was discussed by the Apex Court in the case of M.R. Balaji & Ors. (supra). It is by providing financial and other assistance to attract classes, who are socially or educationally backward. The advancement of those categories of citizens may not be only by way of reservation but by evolving other methods as well. The financial assistance for education would be for upliftment of the citizens with overall development and, in doing so, they would not require any reservation in due course of time resulting in overall development of the country itself.
The reservation should not be provided to achieve political goals as it results in caste based agitation to bargain with the Government. It was recently seen in the State of Haryana where agitators disrupted normal life of the citizens.
It is time to review the policy by the legislature with an aim to achieve the objects, for which, Constitution CWP - 1645/2016 ALONG WITH OTHER PETITIONS 68 was framed and, while doing so, Preamble of the Constitution should be kept in mind. The Preamble refers to sovereign, socialist, secular, democratic republic with equality of status and liberty. The equality of status has been reflected in Articles 14, 15 and 16 of the Constitution of India. The issue raised by the petitioners in reference to Articles 15(4) or 16(4B) of the Constitution is to be viewed after keeping in mind the Preamble of the Constitution of India. It is apart from the judgments of the Apex Court on the issue.
The judgment in the case of M.R. Balaji & Ors. (supra) is in reference to Article 15(4) of the Constitution of India. In the said case, the State of Mysore was endeavoring since 1958 to make special reservation for advancement of socially and educationally backward classes of citizens. The orders and Notifications for it were always challenged before the Court, since then. The Apex Court found that the Commission therein should have taken into consideration not only traditional apathy but poverty and lack of education in rural areas apart from many other issues to find out socially and educationally backwardness of classes of citizens. It was found that the Nagana Gowda Committee, constituted by the CWP - 1645/2016 ALONG WITH OTHER PETITIONS 69 State Government, had taken "caste" to be sole basis for determination of socially and educationally backwardness of the classes of citizens. It has also reiterated requirement of both, socially and educationally backwardness, to attract Article 15(4) of the Constitution of India. In paras 21 to 29 of the judgment in the case of M.R. Balaji & Ors. (supra), the issue of reservation, solely based on caste, has been criticised and thereupon paras 30 to 34 deal with the extent of reservation. Paras 21 to 23, 25, 29, 34, 35, 37 of the said judgment are quoted hereunder for ready reference :
"21. In considering the scope and extent of the expression "backward classes" under Art. 15(4), it is necessary to remember that the concept of backwardness is not intended to be relative in the sense that any classes who are backward in relation to the most advanced classes of the society should be included in it. In such relative tests were to be applied by reason of the most advanced classes, there would be several layers or strata of backward classes and each one of them may claim to be included under Art.15(4). This position is not disputed before us by the learned Advocate-General for the State. The backwardness under Art.15(4) must be social and educational. It is not either social or educational, but it is both social and educational;
CWP - 1645/2016 ALONG WITH OTHER PETITIONS 70 and that takes us to the question as to how social and educational backwardness has to be determined.
22. Let us take the question of social backwardness first. By what test should it be decided whether a particular class is socially backward or not ? The group of citizens to whom Article 15(4) applies are described as 'classes of citizens', not as castes of citizens. A class, according to the dictionary meaning, shows division of society according to status, rank or caste. In the Hindu social structure, caste unfortunately plays an important part in determining the status of the citizen. Though according to sociologists and Vedic scholars, the caste system may have originally begun on occupational or functional basis, in course of time, it became rigid and inflexible. The history of the growth of caste system shows that its original functional and occupational basis was later over-burdened with considerations of purity based on ritual concepts, and that led to its ramifications which introduced inflexibility and rigidity. This artificial growth inevitably tended to create a feeling of superiority and inferiority and to foster narrow caste CWP - 1645/2016 ALONG WITH OTHER PETITIONS 71 loyalties. Therefore, in dealing with the question as to whether any class of citizens is socially backward or not, it may not be irrelevant to consider the caste of the said group of citizens. In this connection, it is, however, necessary to bear in mind that the special provision is contemplated for classes of citizens and not for individual citizens as such, and so, though the caste of the group of citizens may be relevant, its importance should not be exaggerated. If the classification of backward classes of citizens was based solely on the caste of the citizen, it may not always be logical and may perhaps contain the vice of perpetuating the caste themselves.
23. Besides, if the caste of the group of citizens was made the sole basis for determining the social backwardness of the said group, that test would inevitably break down in relation to many sections of Indian society which do not recognise castes in the conventional sense known to Hindu society. How is one going to decide whether Muslims, Christians or Jains, or even Lingayats are socially backward or not ? The test of castes would be inapplicable to those groups, but that CWP - 1645/2016 ALONG WITH OTHER PETITIONS 72 would hardly justify the exclusion of these group in toto from the operation of Art. 15(4). It is not unlikely that in some States some Muslims or Christians or Jains forming groups may be socially backward. That is why we think that though castes in relation to Hindus may be a relevant factor to consider in determining the social backwardness of groups or classes of citizens, it cannot be made the sole or the dominant test in that behalf. Social backwardness is on the ultimate analysis the result of poverty, to a very large extent. The classes of citizens who are deplorably poor automatically become socially backward. They do not enjoy a status in society and have, therefore, to be content to take a backward seat. It is true that social backwardness which results from poverty is likely to be aggravated by considerations of caste to which the poor citizens may belong, but that only shows the relevance of both caste and poverty in determining the backwardness of citizens.
25. What then is the test applied by the State in passing the impugned order ? We have already seen that the Nagan Gowda CWP - 1645/2016 ALONG WITH OTHER PETITIONS 73 Committee appointed by the State was inclined to treat the caste as almost the sole basis in determining the question about the social backwardness of any community. The Committee has no doubt incidentally referred to the general economic condition of the community as a contributory factor; but the manner in which it has enumerated the backward and more backward classes leaves no room for doubt that the predominant, if not the sole, test that weighted in their minds was the test of caste. When we consider the impugned order itself, the position becomes absolutely clear. The impugned order has adopted the earlier order of July 10, 1961, with some changes as to the quantum of reservation, and so, it is necessary to examine the earlier order in order to see what test was applied by the State in classifying the backward Classes. In its preamble, the order of July 10, 1961, clearly and unambiguously states that the Committee had come to the conclusion that in the present circumstances, the only practicable method of classifying the Backward Classes in the State is on the basis of castes and communities and the State Government accepts this test. In other CWP - 1645/2016 ALONG WITH OTHER PETITIONS 74 words, on the order as it stands there can be no room for doubt that the classification of backward and more backward classes was made by the State Government only on the basis of their castes which basis was regarded as a practicable method. It is true that in support of the inclusion of the Lingayats amongst the Backward Classes the order refers to some other factors, but neither the Report of the Nagan Gowda Committee, nor the orders passed by the State Government on July 10, 1961, and July 31, 1962, afford any indication as to how any test other than that the caste was applied in deciding the question. The learned Advocate-General has contended that the statement in the preamble of the order of July 10, 1961 should not be literally construed and he has argued that the words used in the relevant portion are inartistic and he has suggested that the order is not based on the sole basis of castes. We are not impressed by this argument. We have considered both the orders in the light of the Report and the recommendations made by the Nagan Gowda Committee and we are satisfied that the classification of the socially backward classes of citizens made by the CWP - 1645/2016 ALONG WITH OTHER PETITIONS 75 State proceeds on the only consideration of their castes without regard to the other factors which are undoubtedly relevant. If that be so, the social backwardness of the communities to whom the impugned order applies has been determined in a manner which is not permissible under Art. 15(4) and that itself would introduce an infirmity which is fatal to the validity of the said classification.
29. In this connection, it is necessary to add that the sub-classification made by order between Backward Classes and More Backward Classes does not appear to be justified under Art. 15(4).
Art. 15(4) authorises special provision being made for the really backward classes. In introducing two categories of Backward Classes, what the impugned order, in substance, purports to do is to devise measures for the benefit of all the classes of citizens who are less advanced, compared to the most advanced classes in the State, and that, in our opinion, is not the scope of Art. 15(4). The result of the method adopted by the impugned order is that nearly 90% of the population of the State is treated as backward, and that illustrates how the order in fact divides CWP - 1645/2016 ALONG WITH OTHER PETITIONS 76 the population of the State into most advanced and the rest, and puts the latter into two categories of Backward and More Backward. The classification of the two categories, therefore, is not warranted by Art. 15(4).
34. The learned Advocate-General has suggested that reservation of a large number of seats for the weaker sections of the society would not affect either the death or efficiency of scholarship at all, and in support of this argument, he has relied on the observations made by the Backward Classes Commission that it found no complaint in the States of Madras, Andhra, Travancore-Cochin and Mysore where the system of recruiting candidates from other Backward Classes to the reserve quota has been in vogue for several decades. The Committee further observed that the representatives of the upper classes did not complain about any lack of efficiency in the offices recruited by reservation (p.
135). This opinion, however, is plainly inconsistent with what is bound to be the inevitable consequence of reservation in higher university education. If admission to professional and technical colleges is CWP - 1645/2016 ALONG WITH OTHER PETITIONS 77 unduly liberalised it would be idle to contend that the quality of our graduates will not suffer. That is not to say that reservation should not be adopted;
reservation should and must be adopted to advance the prospects of the weaker sections of society, but in providing for special measures in that behalf care should be taken not to exclude admission to higher educational centers to deserving and qualified candidates of other communities. A special provision contemplated by Art. 15(4) like reservation of posts and appointments contemplated by Art. 16(4) must be within reasonable limits. The interests of weaker sections of society which are a first charge on the states and the centers have to be adjusted with the interests of the community as a whole. The adjustment of these competing claims is undoubtedly a difficult matter, but if under the guise of making a special provision, a State reserves practically all the seats available in all the colleges, that clearly would be subverting the object of Art. 15(4). In this matter again, we are reluctant to say definitely what would be a proper provision to make. Speaking generally and in a broad way, a special CWP - 1645/2016 ALONG WITH OTHER PETITIONS 78 provision should be less than 50%; how much less than 50% would depend upon the relevant prevailing circumstances in each case. In this particular case it is remarkable that when the State issued its order on July 10, 1961, it emphatically expressed its opinion that the reservation of 68% recommended by the Nagan Gowda Committee would not be larger interests of the State. What happened between July 10, 1961, and July 31, 1962, does not appear on the record. But the State changed its mind and adopted the recommendation of the Committee ignoring its earlier decision that the said recommendation was contrary to the larger interests of the State. In our opinion, when the State makes a special provision for the advancement of the weaker sections of society specified in Art. 15(4), it has to approach its task objectively and in a rational manner. Undoubtedly, it has to take reasonable and even generous steps to help the advancement of weaker elements; the extent of the problem must be weighted, the requirements of the community at large must be borne in mind and a formula must be evolved which would strike a reasonable balance between the several CWP - 1645/2016 ALONG WITH OTHER PETITIONS 79 relevant considerations. Therefore, we are satisfied that the reservation of 68% directed by the impugned order is plainly inconsistent with Art. 15(4).
35. The petitioners contend that having regard to the infirmities in the impugned order, action of the State in issuing the said order amounts to a fraud on the Constitutional power conferred on the State by Art. 15(4). This argument is well- founded, and must be upheld. When it is said about an executive action that it is a fraud on the Constitution, it does not necessarily mean that the action is actuated by malafides. An executive action which is patently and plainly outside the limits of the constitutional authority conferred on the State in that behalf is struck down as being ultra vires the State's authority. If, on the other hand, the executive action does not patently or overtly transgress the authority conferred on it by the Constitution, but the transgression is covert or latent, the said action is struck down as being a fraud on the relevant constitutional power. It is in this connection that courts often consider the substance of the matter and not its form and in ascertaining the substance of the matter, the appearance or the cloak, or the veil of the executive action is carefully scrutinized and if it appears that notwithstanding the appearance, the cloak or the veil of the executive action, in substance and in CWP - 1645/2016 ALONG WITH OTHER PETITIONS 80 truth the constitutional power has been transgressed, the impugned action is struck down as a fraud on the Constitution. We have already noticed that the impugned order in the present case has categorised the Backward Classes on the sole basis of caste which, in our opinion, is not permitted by Art. 15(4); and we have also held that the reservation of 68% made by the impugned order is plainly inconsistent with the concept of the special provision authorised by Art. 15(4). Therefore, it follows that the impugned order is a fraud on the Constitutional power conferred on the State by Art. 15(4).
37. Whilst we are dealing with this question, it would be relevant to add to that the provisions of Art. 15(4) are similar to those of Art. 16(4) which fell to be considered in the case of The General Manager, Southern Railway v. Rangachari (1970)IILLJ289SC In that case, the majority decision of this Court held that the power of reservation which is conferred on the State under Art. 16(4) can be exercised by the State in a proper case not only by providing for reservation of appointments, but also by providing for reservation of selection posts. This conclusion was reached on the basis that it served to give effect to the CWP - 1645/2016 ALONG WITH OTHER PETITIONS 81 intention of the Constitutional-makers to make adequate safeguards for the advancement of Backward Classes and to secure their adequate representation in the Services. The judgment shows that the only point which was raised for decision of this Court in that case was whether the reservation made was outside Art. 16(4) and that posed the bare question about the construction of Art. 16(4). The propriety, the reasonableness or the wisdom of the impugned order was not questioned because it was not the respondent's case that if the order was justified under Art. 16(4), it was a fraud on the Constitution. Even so, it was pointed out in the judgment that the efficiency of administration is of such a paramount importance that it would be unwise and impermissible to make any reservation at the cost of efficiency of administration; that, it was stated, was undoubtedly the effect of Art. 335. Therefore, what is true in regard to Art. 15(4) is equally true in regard to Art. 16(4). There can be no doubt that the Constitution-makers assumed, as they were entitled to, that while making adequate reservation under Art. 16(4), care would be taken not to CWP - 1645/2016 ALONG WITH OTHER PETITIONS 82 provide for unreasonable, excessive or extravagant reservation, for that would, by eliminating general competition in a large field and by creating wide-spread dissatisfaction amongst the employees, materially affect efficiency. Therefore, like the special provision improperly made under Art. 15(4), reservation made under Art. 16(4) beyond the permissible and legitimate limits would be liable to be challenged as a fraud on the Constitution. In this connection it is necessary to emphasis that Art. 15(4) is an enabling provision; it does not impose an obligation, but merely leaves it to the discretion of the appropriate government to take suitable action, if necessary."
The Apex Court has not accepted caste to be the sole basis to determine classes of citizens. It is not only in Hindu religion but backwardness may exist in other religions, like, Muslims, Christians, Jains and even Lingayats. They cannot be provided benefit of reservation based on caste. The extent of reservation has also been discussed elaborately in paras 34 & 35 of the judgment, referred above.
A balance is required to be maintained between CWP - 1645/2016 ALONG WITH OTHER PETITIONS 83 two sets of citizens while applying Article 15(4) of the Constitution. The reservation therein was provided to the extent of 68 percent in the educational institutions, which was not approved by the Apex Court. It was held to be excessive, affecting other citizens. The Court was reluctant to speak generally but, in a broad way, observed that reservation should be less than 50 per cent. How much less than 50 per cent would depend upon prevailing circumstances of each State. The reservation to the extent of 68 per cent was taken to be in violation of the constitutional powers conferred on the State under Article 15(4) of the Constitution. The Notification was struck down finding it to be a fraud on the constitutional powers.
In para 35, the Court observed about reservation based on caste and to the extent of 68 per cent in few lines, which are; we have already noticed that the impugned order in the present case has categorised the Backward Classes on the sole basis of caste which, in our opinion, is not permitted by Article 15(4) and we have also held that the reservation of 68% made by the impugned order is plainly inconsistent with the concept of the special provision authorised by Article 15(4). Therefore, it follows that the impugned order is a fraud on the Constitutional power conferred on the State by Article CWP - 1645/2016 ALONG WITH OTHER PETITIONS 84 15(4).
The Apex Court has considered the issue of extent of reservation from time to time. The judgment in the case of Indra Sawhney (supra) has been referred by learned Solicitor General of India to show that reservation beyond 50 per cent to be permissible.
To appreciate the argument, we may now refer the judgment of the Apex Court in the case of Indra Sawhney (supra). The question No.6 was framed to decide extent of reservation. The discussion on the issue has been made in paras 804 to 810 and they are quoted thus :
"804. In Balaji, a Constitution Bench of this Court rejected the argument that in the absence of a limitation contained in Article 15(4), no limitation can be prescribed by the court on the extent of reservation. It observed that a provision under Article 15(4) being a "special provision" must be within reasonable limits. It may be appropriate to quote the relevant holding from the judgment:
When Article 15(4) refers to the special provision for the advancement of certain classes or Scheduled Castes or Scheduled Tribes, it must not be ignored CWP - 1645/2016 ALONG WITH OTHER PETITIONS 85 that the provision which is authorised to be made is a special provision; it is not a provision which is exhaustive in character, so that in looking after the advancement of those classes, the State would be justified in ignoring altogether the advancement of the rest of the society. It is because the interests of the society at large would be served by promoting the advancement of the weaker elements in the society that Article 15(4) authorises special provision to be made. But if a provision which is in the nature of an exception completely excludes the rest of the society, that clearly is outside the scope of Article 15(4). It would be extremely unreasonable to assume that in enacting Article 15(4) the Parliament intended to provide that where the advancement of the Backward Classes or the Scheduled Castes and Tribes was concerned, the fundamental rights of the citizens constituting the rest of the society were to be completely and absolutely ignored....A Special provision contemplated by Article 15(4) like reservation for posts and appointments CWP - 1645/2016 ALONG WITH OTHER PETITIONS 86 contemplated by Article 16(4) must be within reasonable limits. The interests of weaker sections of society which are a first charge on the State and the center have to be adjusted with the interests of the community as a whole. The adjustment of these competing claims is undoubtedly a difficult matter, but if under the guise of making a special provision, a State reserves practically all the seats available in all the colleges, that clearly would be adverting the object of Article 15(4). In this matter again, we are reluctant to say definitely what would be a proper provision to make. Speaking generally and in a broad way a special provision should be less than 50%; how much less than 50% would depend upon the relevant prevailing circumstances in each case.
In Devadasan this rule of 50% was applied to a case arising under Article 16(4) and on that basis the carry-forward rule was struck down. In Thomas, however the correctness of this principle was questioned. Fazal Ali, J. observed:
CWP - 1645/2016 ALONG WITH OTHER PETITIONS 87 This means that the reservation should be within the permissible limits and should not be a cloak to fill all the posts belonging to a particular class of citizens and thus violate Article 16(1) of the Constitution indirectly. At the same time Clause (4) of Article 16 does not fix any limit on the power of the government to make reservation. Since Clause (4) is a part of Article 16 of the Constitution it is manifest that the State cannot be allowed to indulge in excessive reservation so as to defeat the policy contained in Article 16(1). As to what would be a suitable reservation within permissible limits will depend upon the facts and circumstances of each case and no hard and fast rule can be laid down, nor can this matter be reduced to a mathematical formula so as to be adhered to in all cases. Decided cases of this Court have no doubt laid down that the percentage of reservation should not exceed 50%. As I read the authorities, this is however, a rule of caution and does not exhaust all categories. Suppose for instance a State has a large number of backward class of citizens which CWP - 1645/2016 ALONG WITH OTHER PETITIONS 88 constitute 80% of the population and the Government, in order to give them proper representation, reserves 80% of the jobs for them can it be said that the percentage of reservation is bad and violates the permissible limits of Clause (4) of Article 16? The answer must necessarily be in the negative. The dominant object to this provision is to take steps to make inadequate representation adequate.
Krishna Iyer, J. agreed with the view taken by Fazal Ali, J. in the following words:
I agree with my learned brother Fazal Ali, J. in the view that the arithmatical limit of 50% in any one year set by some earlier rulings cannot perhaps be pressed too far. Overall representation in a department does not depend on recruitment in a particular year, but the total strength of a cadre. I agree with his construction of Article 16(4) and his view about the carry forward' rule. Mathew, J. did not specifically deal with this aspect but from the principles of 'proportional equality' and 'equality of results' espoused by the learned Judge, it CWP - 1645/2016 ALONG WITH OTHER PETITIONS 89 is argued that he did not accept the 50% rule. Beg, J. also did not refer to this rule but the following sentence occurs in his judgment at pages 962 and 963:
If a reservation of posts under Article 16(4) for employees of backward classes could include complete reservation of higher posts to which they could be promoted, about which there could be no doubt now, I fail to see why it cannot be partial or for a part of the duration of service and hedged round with the condition that a temporary promotion would operate as a complete and confirmed promotion only if the temporary promotee satisfies some tests within a given time.
Ray, C.J., did not dispute the correctness of the 50% rule but at the same time he pointed out that this percentage should be applied to the entire service as a whole.
805. After the decision in Thomas, controversy arose whether the 50% rule enunciated in Balaji stands overruled by Thomas or does it continue to be valid. In CWP - 1645/2016 ALONG WITH OTHER PETITIONS 90 Vasant Kumar, two learned judges came to precisely opposite conclusions on this question.
Chinnappa Reddy, J. held that Thomas has the effect of undoing the 50% rule in Balaji whereas Venkataramiah, J. held that it does not.
806. It is argued before us that the observations on the said question in Thomas were obiter and do not constitute a decision so as to have the effect of overruling Balaji. Reliance is also placed upon the speech of Dr. Ambedkar in the Constituent Assembly, where he said that reservation must be confined to a minority of seats (See para 28). It is also pointed out that Krishna Iyer, J. who agreed with Fazal Ali, J. in Thomas on this aspect, came back to, and affirmed, the 50% rule in Karamchari Sangh (at pp. 241 and 242). On the other hand, it is argued for the respondents that when the population of the other backward classes is more than 50% of the total population, the reservation in their favour (excluding Scheduled Castes and Scheduled Tribes) can also be 50%.
807. We must, however, point out that Clause (4) speaks of adequate representation and not proportionate representation. Adequate CWP - 1645/2016 ALONG WITH OTHER PETITIONS 91 representation cannot be read as proportionate representation. Principle of proportionate representation is accepted only in Articles 330 and 332 of the Constitution and that too for a limited period. These articles speak of reservation of seats in Lok Sabha and the State Legislatures in favour of Scheduled Tribes and Scheduled Castes proportionate to their population, but they are only temporary and special provisions. It is therefore 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. Just as every power must be exercised reasonably and fairly, the power conferred by Clause (4) of Article 16 should also be exercised in a fair manner and within reasonably 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 extra- ordinary situations as explained hereinafter. From this point of view, the 27% reservation provided by the impugned Memorandums in favour of backward classes is well within the reasonable limits. Together with reservation in favour of Scheduled Castes and Scheduled CWP - 1645/2016 ALONG WITH OTHER PETITIONS 92 Tribes, it comes to a total of 49.5%. In this connection, reference may be had to the Full Bench decision of the Andhra Pradesh High Court in Narayan Rao v. State 1987 A.P. 53, striking down the enhancement of reservation from 25% to 44% for O.B.Cs. The said enhancement had the effect of taking the total reservation under Article16(4) to 65%.
808. It needs no emphasis to say that the principle aim of Article 14 and 16 is equality and equality of opportunity and that Clause (4) of Article 16 is but a means of achieving the very same objective. Clause (4) is a special provision - though not an exception to Clause (1). Both the provisions have to be harmonised keeping in mind the fact that both are but the restatements of the principle of equality enshrined in Article 14. The provision under Article 16(4) - conceived in the interest of certain sections of society - should be balanced against the guarantee of equality enshrined in Clause (1) of Article 16 which is a guarantee held out to every citizen and to the entire society. It is relevant to point out that Dr. Ambedkar himself contemplated reservation being "confined to a minority of seats" (See his speech in Constituent Assembly, set out in para 28). No other CWP - 1645/2016 ALONG WITH OTHER PETITIONS 93 member of the Constituent Assembly suggested otherwise. It is, thus clear that reservation of a majority of seats was never envisaged by the founding fathers. Nor are we satisfied that the present context requires us to depart from that concept.
809. From the above discussion, the irresistible conclusion that follows is that the reservations contemplated in Clause (4) of Article 16 should not exceed 50%.
810. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the main stream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out."
Para 809, quoted above, shows irresistible conclusion that reservations contemplated in Clause (4) of CWP - 1645/2016 ALONG WITH OTHER PETITIONS 94 Article 16 should not exceed 50 per cent. In para 810 of the said judgment, ceiling of 50 per cent reservation was taken as a rule, however, exception was carved out in extra ordinary situations inherent in the great diversity of the country and the people. The relaxation in strict rule of 50 per cent is to be applied with extreme caution and if special case is made out. The Apex Court therein considered the judgment of Constitutional Bench in the case of M.R.Balaji & Ors. (supra) and also the judgment in the case of State of Kerala & Anr. Vs. N.M. Thomas & Ors. reported in (1976) 2 SCC 310 to conclude ceiling of 50 per cent as a rule with exception in extra ordinary situation. Sub-para 4 of para 860 of the judgment in the case of Indra Sawhney (supra) is also quoted hereunder for ready reference :
"860. For the sake of ready reference, we also record our answers to questions as framed by the counsel for the parties and set out in para
26. Our answers question-wise are:
(1)..........
(2).........
(3).........
(4) The reservations contemplated in Clause (4) of Article 16 should not exceed CWP - 1645/2016 ALONG WITH OTHER PETITIONS 95 50%. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the main-stream of national life and in view of the conditions peculiar to and characteristic of them need to be treated in a different way, some relaxation in this strict rule may become imperative.
In doing so, extreme caution is to be exercised and a special case made out. For applying this rule, the reservations should not exceed 50% of the appointments in a grade, cadre or service in any given year. Reservation can be made in a service or category only when the State is satisfied that representation of backward class of citizens therein is not adequate.
To the extent, Devadasan is inconsistent herewith, it is over-ruled."
In the light of the judgment of the Constitutional Bench of the Apex Court in the case of Indra Sawhney CWP - 1645/2016 ALONG WITH OTHER PETITIONS 96 (supra), it can conveniently be concluded that ceiling of 50 per cent on reservation is to be taken as a rule but, in extra ordinary situation, it would be permissible to exceed the ceiling. While applying the relaxation to the general rule of 50 per cent, an extreme caution has to be taken. It is only when special case is made out or there exists extra ordinary situation.
The Apex Court in the said judgment further emphasised requirement of permanent body for entertaining, examining, recommending for inclusion and exclusion of caste in the list of other backward classes of citizens. The permanent body was to be constituted within the period of four months. The exclusion was also emphasised.
The Apex Court in the case of Indra Sawhney (supra) further considered the judgment in the case of T.Devadason Vs. Union of India & Anr. reported in AIR 1964 SC 179. The issue therein was in regard to carry forward of vacancies in case it remained unfilled from reserve category. It was held that ceiling of 50 per cent should be applied as a rule and it would be even to carry forward vacancies. The conclusion thereby was that even if CWP - 1645/2016 ALONG WITH OTHER PETITIONS 97 there are carry forward of vacancies, ceiling of 50 per cent would be applied. When the vacancies are advertised, it may include even backlog of vacancies, yet ceiling of 50 per cent would be applicable thus no exception to ceiling was allowed even for the backlog vacancies. The Apex Court has given an illustration for it in para 817 of its judgment and conclusions have been drawn in para 818. Both the paras are relevant thus quoted hereunder for ready reference because subsequently 81st amendment in the Constitution of India was made in the light of the observations made therein :-
"817. We are of the respectful opinion that on its own reasoning, the decision in so far as it strikes down the Rule is not sustainable. The most that could have been done in that case was to quash the appointments in excess of 50%, inasmuch as, as a matter of fact, more than 50% of the vacancies for the year 1960 came to be reserved by virtue of the said Rule. But it would not be correct to presume that that is the necessary and the only consequence of that rule. Let us take the very illustration given at pp. 691-2, - namely 100 vacancies arising in three successive years and 18% being the reservation quota - and examine. Take a case, where in the first year, out of 18 CWP - 1645/2016 ALONG WITH OTHER PETITIONS 98 reserved vacancies 9 are filled up and 9 are carried forward. Similarly, in the second year again, 9 are filled up and another 9 are carried forward. Result would be that in the third year, 9 + 9 + 18 = 36 (out of a total of 100) would be reserved which would be far less than 50%; the rule in Balaji is not violated. But by striking down the Rule itself, carrying forward of vacancies even in such a situation has become impermissible, which appears to us indefensible in principle. We may also point out that the premise made in Balaji and reiterated in Devadasan, to the effect that Clause (4) is an exception to Clause (1) is no longer acceptable, having been given up in Thomas. It is for this reason that in Karamchari Sangh, Krishna Iyer, J. explained Devadasan in the following words:
In Devadasan's case the court went into the actuals, not into the hypotheticals.
This is most important. The Court actually verified the degree of deprivation of the 'equal opportunity' right....
.... What is striking is that the Court did not take an academic view or make a notional evaluation but checked up to CWP - 1645/2016 ALONG WITH OTHER PETITIONS 99 satisfy itself about the seriousness of the infraction of the right....Mathematical calculations, departing from realities of the case, may startle us without justification, the apprehension being misplaced. All that we need say is that the Railway Board shall take care to issue instructions to see that in no year shall SC&ST candidates be actually appointed to substantially more than 50% of the promotional posts.
Some excess will not affect as mathematical precision is different in human affairs, but substantial excess will void the selection. Subject to this rider or condition that the 'carry forward' rule shall not result, in any given year, in the selection of appointments of SC&ST candidates considerably in excess of 50% we uphold Annexure I. We are in respectful agreement with the above statement of law. Accordingly, we over-rule the decision in Devadasan. We have already discussed and explained the 50% rule in paras 93 to 96. The same position would apply in the case of carry forward rule as well. We, however, agree that an year should be taken as the unit or CWP - 1645/2016 ALONG WITH OTHER PETITIONS 100 basis, as the case may be, for applying the rule of 50% and not the entire cadre strength.
818. We may reiterate that a carry forward rule need not necessarily be in the same terms as the one found in Devadasan. A given rule may say that the unfilled reserved vacancies shall not be filled by unreserved category candidates but shall be carried forward as such for a period of three years. In such a case, a contention may be raised that reserved posts remain a separate category altogether.
In our opinion, however, the result of application of carry forward rule, in whatever manner it is operated, should not result in breach of 50% rule.
81st amendment in the Constitution was brought on 09th June, 2000 and is relevant and to be seen in seriatim of the events.
The reference of objects and reasons in bringing 81st amendment in the Constitution has been given by learned counsel Dr. Manish Singhvi. It is to nullify the effect of the judgment putting ceiling of 50 per cent on backlog vacancies.
CWP - 1645/2016 ALONG WITH OTHER PETITIONS 101 The plain reading of Clause (4B) of Article 16 of the Constitution of India, however, reveals that reference of ceiling of 50 per cent has been given and is to be applied on the vacancies of the year in which they are to be filled.
The issue of reservation based on caste has been elaborately discussed by the Apex Court in the case of Ashoka Kumar Thakur (supra), Indra Sawhney (supra) and M.R.Balaji (supra). It is with a direction of exclusion of caste from Backward Class otherwise to be considered failure of the system. The issue of period was also discussed. Para 666 in the case of Ashoka Kumar Thakur (supra) is quoted hereunder to sum up the issue :
"666. Caste has divided this country for ages. It has hampered its growth. To have a casteless society will be realization of a noble dream. To start with, the effect of reservation may appear to perpetuate caste. The immediate effect of caste based reservation has been rather unfortunate. In the pre-reservation era people wanted to get rid of the backward tag -- either social or economical. But post reservation, there is a tendency even among those who are considered as 'forward', to seek 'backward' CWP - 1645/2016 ALONG WITH OTHER PETITIONS 102 tag, in the hope of enjoying the benefits of reservations. When more and more people aspire for 'backwardness' instead of 'forwardness' the country itself stagnates. Be that as it may. Reservation as an affirmative action is required only for a limited period to bring forward the socially and educationally backward classes by giving them a gentle supportive push. But if there is no review after a reasonable period and if reservation is continued, the country will become a caste divided society permanently. Instead of developing an united society with diversity, we will end up as a fractured society for ever suspicious of each other. While affirmative discrimination is a road to equality, care should be taken that the road does not become a rut in which the vehicle of progress gets entrenched and stuck. Any provision for reservation is a temporary crutch. Such crutch by unnecessary prolonged use, should not become a permanent liability. It is significant that Constitution does not specifically prescribe a casteless society nor tries to abolish caste. But by barring discrimination in the name of caste and by providing for affirmative caste. When the differences in status among CWP - 1645/2016 ALONG WITH OTHER PETITIONS 103 castes are removed, all castes will become equal. That will be a beginning for a casteless egalitarian society."
In view of the judgment of the Apex Court, referred to above, ceiling of 50 per cent is to be taken as a rule and exception can be in the extra ordinary situation when a special case is made out. It is also that reservation should not be made solely based on caste. The answer of the first question is given accordingly. The finding aforesaid is not to affect next issue in reference to Article 16(4B) of the Constitution of India.
(ii) whether Clause (4B) of Article 16 of the Constitution of India can be construed to be constitutional amendment to provide ceiling of 50 per cent on the vacancy of a year?
To make a proper interpretation of Clause (4B) of Article 16 of the Constitution, it has to be divided in two parts.
The first part is for backlog vacancies not to be included in total vacancies of the year for ceiling of 50 per CWP - 1645/2016 ALONG WITH OTHER PETITIONS 104 cent.
The second part makes a reference of vacancy of the year in which it is to be filled for determination of ceiling of 50 per cent reservation.
The ceiling of 50 per cent on reservation would accordingly be applicable on the vacancy of the year only in which it is to be filled and not on the backlog vacancies. The amendment does not relax ceiling of 50 per cent on the vacancies of the year, in which, it is to be filled. Clause (4B) of Article 16 of the Constitution of India has to be read without inclusion or exclusion of words used therein.
It is, however, argued on behalf of the State that even if Article 16(4B) of the Constitution of India imposes ceiling of 50 per cent, it is only for the vacancies which are to be filled in that year. The provision can be enforced even with 54 per cent reservation. While restricting the reservation to the extent of 50 per cent on the vacancy of a year, excess to be carried forward in the next year. By undertaking the said exercise, Article 16(4B) of the Constitution of India would not be violated.
We have given due consideration to the arguments CWP - 1645/2016 ALONG WITH OTHER PETITIONS 105 aforesaid. In this regard, the meaning of "unfilled or backlog vacancies" needs to be considered. The "backlog vacancies", referred as "unfilled vacancies" are those which are reserved for being filled in the year in accordance with Clause (4) or Clause (4A) of Article 16 of the Constitution but remains unfilled. It is to be taken as separate class of vacancies. It may be due to non-availability of adequate number of reserve category candidates or their failure to obtain required marks in the selection, if provided.
If it is assumed that 4 per cent vacancies are to be considered as unfilled or backlog vacancies every year then with carry forward of those vacancies every year, it would accumulate and become more than 100 per cent after few years leaving no vacancy for general category.
The interpretation of Article 16(4B) of the Constitution of India, given above, needs further consideration in the light of the judgments of the Apex Court and this Court subsequent to the constitutional amendment.
The judgment in the case of M.Nagaraj & Ors. (supra) has been referred by learned counsel for respective parties. The Apex Court has considered various issues in CWP - 1645/2016 ALONG WITH OTHER PETITIONS 106 reference to Article 16(4), (4A) and (4B) of the Constitution of India apart from Articles 14, 15, 335, 368 and the Preamble of the Constitution of India. It was in the matter of promotion but general principles have been laid down by the Constitutional Bench of the Apex Court in the case supra after amendment in Article 16 of the Constitution of India.
The reference of paras 55 to 57, 85, 88, 89, 95, 112, 116, 117, 119, 121 and 123 have been given by the respondents, whereas, learned counsel for the petitioners have given reference of paras 46, 51, 100, 102 of the said judgment, however, this Court would refer the relevant paras of the said judgment for proper evolution of the issue.
In para 49 of the said judgment, the Apex Court held that reservation is necessary for transcending caste and not for perpetuating it. The reservation has to be used in a limited sense otherwise it will perpetuate casteism in the country. The observation regarding perpetuation of casteism is of relevance and to be taken into consideration in reference to passage of time, after independence. The State as well as the Central Government are required to consider as to whether continuance of reservation based on caste would CWP - 1645/2016 ALONG WITH OTHER PETITIONS 107 be in the interest of the country or it would perpetuate the casteism. It may divide the country based on caste and would be opposed to the idea of framers of the Constitution to keep the nation one with equality between the citizens.
In para 53 of the said judgment, the issue of extent of reservation has been framed and, thereupon, discussion was made in subsequent paras. Para Nos.53 to 59, 82, 83, 85, 88, 89 and 95 of the judgment in the case of M.Nagaraj & Ors. (supra) are quoted hereunder for ready reference :
"53. The question of extent of reservation involves two questions:
1. Whether there is any upper limit beyond which reservation is not permissible?
2. Whether there is any limit to which seats can be reserved in a particular year; in other words the issue is whether the percentage limit applies only on the total number of posts in the cadre or to the percentage of posts advertised every year as well?
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54.The question of extent of reservation is closely linked to the issue whether Article 16(4) is an exception to Article 16(1) or is Article 16(4) an application of Article 16(1). If Article 16(4) is an exception to Article 16(1) then it needs to be given a limited application so as not to eclipse the general rule in Article16(1). But if Article 16(4) is taken as an application of Article 16(1) then the two articles have to be harmonized keeping in view the interests of certain sections of the society as against the interest of the individual citizens of the society. Maximum limit of reservation possible
55. Word of caution against excess reservation was first pointed out in The General Manager, Southern Railway and Anr. v. Rangachari Gajendragadkar, J. giving the majority judgment said that reservation under Article 16(4)is intended merely to give adequate representation to backward communities. It cannot be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other employees. A reasonable balance must be struck between the claims of backward classes CWP - 1645/2016 ALONG WITH OTHER PETITIONS 109 and claims of other employees as well as the requirement of efficiency of administration.
56. However, the question of extent of reservation was not directly involved in Rangachari. It was directly involved in M.R. Balaji and Ors. v. The State of Mysore and Ors. with reference to Article 15(4). In this case, 60% reservations under Article 15(4) was struck down as excessive and unconstitutional. Gajendragadkar, J. observed that special provision should be less than 50 per cent, how much less would depend on the relevant prevailing circumstances of each case.
57. But in State of Kerala and Anr. v. N.M. Thomas and Ors. (1976)ILLJ376SC Krishna Iyer, J. expressed his concurrence to the views of Fazal Ali, J. who said that although reservation cannot be so excessive as to destroy the principle of equality of opportunity under Clause (1) of Article 16, yet it should be noted that the Constitution itself does not put any bar on the power of the Government under Article 16(4). If a State has 80% population which is backward then it CWP - 1645/2016 ALONG WITH OTHER PETITIONS 110 would be meaningless to say that reservation should not cross 50%.
58. However, in Indra Sawhney the majority held that the rule of 50% laid down in Balaji was a binding rule and not a mere rule of prudence.
59. Giving the judgment of the Court in Indra Sawhney, Reddy, J. stated that Article 16(4) speaks of adequate representation not proportionate representation although proportion of population of backward classes to the total population would certainly be relevant. He further pointed out that Article 16(4) which protects interests of certain sections of society has to be balanced against Article 16(1) which protects the interests of every citizen of the entire society. They should be harmonised because they are restatements of principle of equality under Article14. (emphasis added).
82. Before dealing with the scope of the constitutional amendments we need to recap the judgments in Indra Sawhney and R.K. Sabharwal . In the former case the majority held that 50% rule should be applied to each year otherwise it may happen that the open CWP - 1645/2016 ALONG WITH OTHER PETITIONS 111 competition channel may get choked if the entire cadre strength is taken as a unit. However in R.K. Sabharwal, this Court stated that the entire cadre strength should be taken into account to determine whether the reservation up to the quota-limit has been reached. It was clarified that the judgment in Indra Sawhney was confined to initial appointments and not to promotions. The operation of the roster for filling the cadre strength, by itself, ensure that the reservation remains within the ceiling-limit of 50%.
83. In our view, appropriate Government has to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service. The cadre strength as a unit also ensures that upper ceiling-limit of 50% is not violated. Further, roster has to be post- specific and not vacancy based.
85. The Supreme Court in its judgment dated 16.11.92 in Indra Sawhney stated that reservation of appointments or posts under Article 16(4) is confined to initial appointment CWP - 1645/2016 ALONG WITH OTHER PETITIONS 112 and cannot extend to reservation in the matter of promotion. Prior to the judgment in Indra Sawhney reservation in promotion existed. The Government felt that the judgment of this Court in Indra Sawhney adversely affected the interests of SCs and STs in services, as they have not reached the required level. Therefore, the Government felt that it was necessary to continue the existing policy of providing reservation in promotion confined to SCs and STs alone. We quote hereinbelow Statement of Objects and Reasons with the text of the Constitution (Seventy-Seventh Amendment) Act, 1995 introducing Clause (4A) in Article 16of the Constitution:
THE CONSTITUTION (SEVENTY- SEVENTH AMENDMENT) ACT, 1995 STATEMENT OF OBJECTS AND
REASONS.-The Scheduled Castes and the Scheduled Tribes have been enjoying the facility of reservation in promotion since 1955. The Supreme Court in its judgment dated 16th November, 1992 in the case of Indra Sawhney v. Union of India, however, observed that reservation of appointments or posts under Article 16(4) of the Constitution is confined to initial CWP - 1645/2016 ALONG WITH OTHER PETITIONS 113 appointment and cannot extent to reservation in the matter of promotion. This ruling of the Supreme Court will adversely affect the interests of the Scheduled Castes and the Scheduled Tribes. Since the representation of the Scheduled Castes and the Scheduled Tribes in services in the States have not reached the required level, it is necessary to continue the existing dispensation of providing reservation in promotion in the case of the Scheduled Castes and the Scheduled Tribes. In view of the commitment of the Government to protect the interests of the Scheduled Castes and the Scheduled Tribes, the Government have decided to continue the existing policy of reservation in promotion for the Scheduled Castes and the Scheduled Tribes. To carry out this, it is necessary to amend Article 16 of the Constitution by inserting a new Clause (4A) in the said Article to provide for reservation in promotion for the Scheduled Castes and the Scheduled Tribes.
2. The Bill seeks to achieve the aforesaid object.
CWP - 1645/2016 ALONG WITH OTHER PETITIONS 114 An Act further to amend the Constitution of India Be it enacted by Parliament in the Forty- sixth Year of the Republic of India as follows:-
1. Short title. - This Act may be called the Constitution (Seventy-seventh Amendment) Act, 1995.
2. Amendment of Article 16. - In Article 16 of the Constitution, after Clause (4), the following clause shall be inserted, namely:
(4A) Nothing in this Article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.
The said Clause (4A) was inserted after Clause (4) of Article 16to say that nothing in the said Article shall prevent the State from making any provision for reservation in matters of promotion to any class(s) of posts in the services under the State in CWP - 1645/2016 ALONG WITH OTHER PETITIONS 115 favour of SCs and STs which, in the opinion of the States, are not adequately represented in the services under the State.
88. In the circumstances, Clause (4A) of Article 16 was once again amended and the benefit of consequential seniority was given in addition to accelerated promotion to the roster-point promotees. Suffice it to state that, the Constitution (Eighty-Fifth Amendment) Act, 2001 was an extension of Clause (4A) of Article 16. Therefore, the Constitution (Seventy-Seventh Amendment) Act, 1995 has to be read with the Constitution (Eighty-Fifth Amendment) Act, 2001.
89. We quote hereinbelow Statement of Objects and Reasons with the text of the Constitution (Eighty-Fifth Amendment) Act, 2001:
THE CONSTITUTION (EIGHTY-FIFTH AMENDMENT) ACT, 2001 STATEMENT OF OBJECTS AND REASONS.-The Government servants
belonging to the Scheduled Castes and the Scheduled Tribes had been enjoying the CWP - 1645/2016 ALONG WITH OTHER PETITIONS 116 benefit of consequential seniority on their promotion on the basis of rule of reservation. The judgments of the Supreme Court in the case of Union of India v. Virpal Singh Chauhan : AIR1996SC448 and Ajit Singh Januja (No.1) v. State of Punjab :
(1996)IILLJ154SC , which led to the issue of the O.M. dated 30th January, 1997, have adversely affected the interest of the Government servants belonging to the Scheduled Castes and Scheduled Tribes category in the matter of seniority on promotion to the next higher grade. This has led to considerable anxiety and representations have also been received from various quarters including Members of Parliament to protect the interest of the Government servants belonging to Scheduled Castes and Scheduled Tribes.
2. The Government has reviewed the position in the light of views received from various quarters and in order to protect the interest of the Government servants belonging to the Scheduled Castes and Scheduled Tribes, it has been decided to negate the effect of O.M. dated 30th January 1997 immediately. Mere CWP - 1645/2016 ALONG WITH OTHER PETITIONS 117 withdrawal of the O.M. dated 30th will not meet the desired purpose and review or revision of seniority of the Government servants and grant of consequential benefits to such Government servants will also be necessary. This will require amendment to Article 16(4A) of the Constitution to provide for consequential seniority in the case of promotion by virtue of rule of reservation. It is also necessary to give retrospective effect to the proposed constitutional amendment to Article 16(4A) with effect from the date of coming into force of Article 16(4A) itself, that is, from the 17th day of June, 1995.
3. The Bill seeks to achieve the aforesaid objects.
Received the assent of the President on the 4-1-2002 An Act further to amend the Constitution of India.
BE it enacted by Parliament in the Fifty- second Year of the Republic of India as follows:
1. Short title and commencement.- (1) This CWP - 1645/2016 ALONG WITH OTHER PETITIONS 118 Act may be called the Constitution (Eighty-
fifth Amendment) Act, 2001.
(2) It shall be deemed to have come into force on the 17th day of June 1995.
2. Amendment of Article 16.- In Article 16 of the Constitution, in Clause (4A), for the words "in matters of promotion to any class", the words "in matters of promotion, with consequential seniority, to any class"
shall be substituted.
95. By Clause (4B) the "carry-
forward"/"unfilled vacancies" of a year is kept out and excluded from the overall ceiling-limit of 50% reservation. The clubbing of the backlog vacancies with the current vacancies stands segregated by the Constitution (Eighty-First Amendment) Act, 2000. Quoted hereinbelow is the Statement of Objects and Reasons with the text of the Constitution (Eighty-First Amendment) Act, 2000:
THE CONSTITUTION (EIGHTY FIRST AMENDMENT) ACT, 2000 STATEMENT OF OBJECTS AND REASONS.- Prior to August 29, 1997, the vacancies reserved for the Scheduled CWP - 1645/2016 ALONG WITH OTHER PETITIONS 119 Castes and the Scheduled Tribes, which could not be filled up by direct recruitment on account of non- availability of the candidates belonging to the Scheduled Castes or the Scheduled Tribes, were treated as "Backlog Vacancies". These vacancies were treated as a distinct group and were excluded from the ceiling of fifty per cent reservation. The Supreme Court of India in its judgment in the Indra Sawhney v. Union of India held that the number of vacancies to be filled up on the basis of reservations in a year including carried forward reservations should in no case exceed the limit of fifty per cent. As total reservations in a year for the Scheduled Castes, the Scheduled Tribes and the other Backward Classes combined together had already reached forty-nine and a half per cent and the total number of vacancies to be filled up in a year could not exceed fifty per cent, it became difficult to fill the "Backlog Vacancies" and to hold Special Recruitment Drives. Therefore, to implement the judgment of the Supreme Court, an Official Memorandum dated August 29, 1997 was issued to provide that the fifty per cent limit shall apply to CWP - 1645/2016 ALONG WITH OTHER PETITIONS 120 current as well as "Backlog Vacancies" and for discontinuation of the Special Recruitment Drive.
2. Due to the adverse effect of the aforesaid order dated August 29, 1997, various organisations including the Members of Parliament represented to the central Government for protecting the interest of the Scheduled castes and the Scheduled Tribes. The Government, after considering various representations, reviewed the position and has decided to make amendment in the constitution so that the unfilled vacancies of a year, which are reserved for being filled up in that year in accordance with any provision for reservation made under Clause (4) or Clause (4A) of Article 16 of the Constitution, shall be considered as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent, reservation on total number of vacancies of that year. This amendment in the Constitution would enable the State to CWP - 1645/2016 ALONG WITH OTHER PETITIONS 121 restore the position as was prevalent before august 29, 1997.
3. The Bill seeks to achieve the aforesaid object.
An Act further to amend the Constitution of India.
Be it enacted by Parliament in the Fifty- first Year of the Republic of India as follows:
1. Short title: This Act may be called the Constitution (Eighty-first Amendment) Act, 2000.
2. Amendment of Article 16: In Article 16 of the Constitution, after Clause (4A), the following Clause shall be inserted, namely: -
(4B) Nothing in this Article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under Clause (4) or Clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the CWP - 1645/2016 ALONG WITH OTHER PETITIONS 122 vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year."
The conclusions drawn by the Apex Court make a reference of ceiling of 50 per cent reservation apart from the concept of creamy-layer. The administrative efficiency is a constitutional requirement to maintain structure of equality of opportunity in public employment.
Para No.100 of the judgment in the case of M.Nagaraj & Ors. (supra) concludes with following finding : As stated above, Article 16(4B) lifts the 50% cap on carry-over vacancies (backlog vacancies). The ceiling- limit of 50% on current vacancies continues to remain.
Para 123 of the judgment is also relevant where following conclusion was drawn : It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely. The ceiling of 50 per cent is thus reiterated therein while upholding the amendment in Articles 16(4A) and 16(4B).
CWP - 1645/2016 ALONG WITH OTHER PETITIONS 123 In the case of Ashoka Kumar Thakur (supra), various issues were considered again, which includes, as to whether identification of backward classes can be based on "caste". After considering various judgments of the Apex Court, it was held that "caste" cannot be the sole basis for identification of backward classes and if it is determined based on caste alone, it would violate Article 15(1) of the Constitution of India. The caste was, however, permitted to be starting point to find out as to whether the "caste" as a whole can be classified as a backward class. In view of the aforesaid, the "caste" can be taken into consideration to find out backwardness but it cannot be the sole basis, otherwise, it will hit Articles 15(1) and 16 of the Constitution of India.
In the case of Anil Chandra & Ors. Vs. Radha Krishna Gaur & Ors. reported in 2009 (9) SCC 454 same issue was decided. Para Nos.17 & 18 of the said judgment are quoted hereunder for ready reference :
"17. In the present case and in the facts and circumstances stated herein earlier, we are of the view that it was the constitutional obligation of the State, at the time of providing reservation in the matter of CWP - 1645/2016 ALONG WITH OTHER PETITIONS 124 promotion to identify the class or classes of posts in the service for which reservation is required, however, neither any effort has been made to identify the class or classes of posts for which reservation is to be provided in promotion nor any exercise has been done to quantify the extent of reservation. Adequate reservation does not mean proportional representation. Rule 8(A) has been inserted mechanically without taking into consideration the prerequisites for making such a provision as required under Article 16(4A) of the Constitution of India. The ceiling- limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which, the structure of equality of opportunity in Article 16 would collapse. However, in this case, as stated, the main issue concerns the "extent of reservation" and in this regard, the State should have shown the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation.
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18. As observed in M. Nagaraj and Ors. v. Union of India and Ors.(SCCP. 278, PARA
123) , it has been held that :
"123............The State is not bound to make reservation for SC/ST in matter of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335of the Constitution. It is clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely."
The paras, quoted above, show the extent of reservation. The judgment in the case of M.Nagaraj & Ors. (supra) has been referred to show ceiling of 50 per cent under Article 16(4B) of the Constitution on vacancy of the year. It is also held that reservation cannot be provided on CWP - 1645/2016 ALONG WITH OTHER PETITIONS 126 proportional representation.
The judgment in the case of Suraj Bhan Meena (supra) has also been referred by learned counsel for the petitioners to support their arguments. The Apex Court in the said judgment held that quantifiable data is a condition precedent to show inadequate representation of members of Scheduled Castes and Scheduled Tribes. The reservation without quantifiable data would be illegal.
The other judgment referred by learned counsel for the petitioners is in the case of UP Power Corporation (supra). Para No.81 of the said judgment is quoted hereunder where conclusion on the various issues has been drawn by the Apex Court :
"81. From the aforesaid decision in M. Nagaraj Case and the paragraphs we have quoted hereinabove, the following principles can be carved out:
(i) Vesting of the power by an enabling provision may be constitutionally valid and yet 'exercise of power' by the State in a given case may be arbitrary, particularly, if the State fails to CWP - 1645/2016 ALONG WITH OTHER PETITIONS 127 identify and measure backwardness and inadequacy keeping in mind the efficiency of service as required under Article 335.
(ii) Article 16(4) which protects the interests of certain sections of the society has to be balanced against Article 16(1) which protects the interests of every citizen of the entire society. They should be harmonized because they are restatements of the principle of equality under Article 14.
(iii) Each post gets marked for the particular category of candidates to be appointed against it and any subsequent vacancy has to be filled by that category candidate.
(iv) The appropriate Government has to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service.
The cadre strength as a unit also ensures that the upper ceiling-limit of 50% is not violated. Further roster has CWP - 1645/2016 ALONG WITH OTHER PETITIONS 128 to be post-specific and not vacancy based.
(v) The State has to form its opinion on the quantifiable data regarding adequacy of representation. Clause (4A) of Article 16 is an enabling provision. It gives freedom to the State to provide for reservation in matters of promotion. Clause (4A) of Article16 applies only to SCs and STs. The said clause is carved out of Article 16(4A). Therefore, Clause (4A) will be governed by the two compelling reasons -
"backwardness" and "inadequacy of representation", as mentioned in Article 16(4). If the said two reasons do not exist, then the enabling provision cannot be enforced.
(vi) If the ceiling-limit on the carry-
over of unfilled vacancies is removed, the other alternative time-factor comes in and in that event, the time- scale has to be imposed in the interest of efficiency in administration as mandated by Article 335. If the time- scale is not kept, then posts will continue to remain vacant for years CWP - 1645/2016 ALONG WITH OTHER PETITIONS 129 which would be detrimental to the administration. Therefore, in each case, the appropriate Government will now have to introduce the duration depending upon the fact-situation.
(vii) If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article16(4) and Article 335, then this Court will certainly set aside and strike down such legislation.
(viii) The constitutional limitation under Article 335 is relaxed and not obliterated. As stated above, be it reservation or evaluation, excessiveness in either would result in violation of the constitutional mandate. This exercise, however, will depend on the facts of each case.
(ix) The concepts of efficiency, backwardness and inadequacy of representation are required to be
identified and measured. That exercise depends on the availability of data. That exercise depends on numerous factors. It is for this reason that the enabling CWP - 1645/2016 ALONG WITH OTHER PETITIONS 130 provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimize these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment.
(x) Article 16(4), therefore, creates a field which enables a State to provide for reservation provided there exists backwardness of a class and inadequacy of representation in employment.
These are compelling reasons.
They do not exist in Article 16(1).
It is only when these reasons are satisfied that a State gets the power to provide for reservation in the matter of employment.
The summary of the conclusions shows as to how and up to what extent reservation can be provided.
The judgment in the case of S.V.Joshi & ors. (supra) has been relied by learned Solicitor General of India so as the private respondents. The reservation can exceed CWP - 1645/2016 ALONG WITH OTHER PETITIONS 131 the ceiling of 50 per cent if quantifiable data are available with the State Government. The reference of earlier judgments of the Apex Court in the case of M.Nagaraj & Ors. (supra) and Ashoka Kumar Thakur (supra) apart from other judgments has been given in para 13 of judgment in the case of S.V. Joshi & Ors. (supra), which is quoted hereunder for ready reference :
"13. Further, after the filing of the writ petition, various pronouncements have been made by the judgments of the Constitution Benches of this Court in M.Nagaraj v. Union of India and Ashoka Kumar Thakur v. Union of India. Under the said decisions, which have been rendered in the light of the Constitution (Eighty-first Amendment) Act, 2000 and the Constitution (Ninety-third Amendment) Act, 2005, reservation exceeding fifty per cent could be made only on the basis of quantifiable data before the Government. It appears that till today, this exercise has not been undertaken and the State Government has not collected the quantifiable data.
CWP - 1645/2016 ALONG WITH OTHER PETITIONS 132 It has not presented such data before the Court."
The writ petition therein was filed before pronouncement of the judgment by the Constitutional Bench of the Supreme Court in the case of M.Nagaraj & Ors. (supra) and Ashoka Kumar Thakur (supra). The reference of those judgments has been given in the para quoted above. Learned counsel appeared therein did not make a reference of Article 16(4B) of the Constitution of India though, reference of the constitutional amendment has been made. Para 10 of the judgment in the case of S.V.Joshi & Ors. (supra) is quoted hereunder, which clarify that State action should be subject to the subsequent judgment of the Apex Court in the cases referred above thus the judgment aforesaid has to be read in reference to the aforesaid :
"10. We may state that, subsequent to the filing of this writ petition in 1994, Article 15 and 16 of the Constitution have been amended vide the Constitution (Ninety-third Amendment) Act, 2005 and the Constitution (Eighty-first Amendment) Act, 2000, respectively. Moreover, subsequent decisions in CWP - 1645/2016 ALONG WITH OTHER PETITIONS 133 M.Nagaraj v. Union of India and Ashoka Kumar Thakur v. Union of India, are also required to be kept in mind by the State Government, if at all, it seeks to pass any other order in near future."
The judgment of the Apex Court in the case of M. Nagaraj (supra) held ceiling of 50 per cent on reservation in reference to Article 16(4B) of the Constitution (see para 100, 110 and 121 to 124).
The judgment in the case of B.Archana Reddy & Ors. (supra) has also been relied. Para Nos. 191 & 192 of the said judgment are quoted hereunder for ready reference :
"191. This point requires consideration of two aspects. Accepting the recommendation of B.C. Commission, the impugned Ordinance provides 5% reservation for Muslims over and above the existing 46% reservation. With this, 51 % of the positions in educational institutions and public employment would become reserved. According to the learned Counsel, reservation of 51 % is unreasonable and violates Articles 15(4) and 16(4) as well as Balaji principle approved by Indra Sawhney I. Per contra, two CWP - 1645/2016 ALONG WITH OTHER PETITIONS 134 submissions are made on behalf of the respondents. The learned Advocate General for the State would contend that provision of reservations for Muslims by declaring them as backward is valid. The same cannot be defeated by the quantum of reservation provided, in which event, the Court can always approve the reservations in favour of Muslims and leave it to the State to work out the percentage of reservation in the manner construed by the Court. So to say as an alternate submission he would urge to consider retaining Section 3 and severing Sections 4 and 5of the Ordinance which provides 5% reservation. The other learned Counsel supporting the Ordinance are emphatic that provision of 51% reservation including 5% for Muslims does not in any manner impinge the law declared by the Supreme Court. According to the learned Counsel, the extra 1% is saved by the prevalent "extraordinary situation"
referred to by the Supreme Court in paragraph 810 of Indra Sawhney I. Sri R.K. Dhawan, learned Senior Counsel appearing for one of the interveners in W.P.No. 13832 of 2005 would urge that the excess over 50% being only 1% is 'de minimis' ('De minimis' means "the Law does not care for or take CWP - 1645/2016 ALONG WITH OTHER PETITIONS 135 notice of very small or triffling matters", (see Black's Law Dictionary; 1990 edn. p.431)), that Muslim population being 9.25%, provision of 5% reservation to them cannot be said unjustified and that percentages are to be reviewed on periodical basis and therefore, would not furnish the valid ground for invalidation of the Ordinance. We may mention that doctrine of 'de minimis' has no application when the constitutional guarantee to equality and equal protection of laws is flouted with impunity, without any justification. If 1 % excess reservation cannot be sustained on any such ground, de minimis is not available. (See Indian Bank's Association v. Devkala Consultancy Service [2004] 267 ITR 179(SC) ).
192. In Balaji, the Supreme Court adverted to question of reasonableness of reservation exceeding 50%. On the premise that Clause (4) of Article 15 and Clause (4) of Article 16(4) being in the nature of exception, it was held that a special provision contemplated under these clauses must be within reasonable limits. The Court then observed that, "speaking generally and in a broad way, a special provision should be less than 50%; how much less than 50% would depend upon the relevant prevailing CWP - 1645/2016 ALONG WITH OTHER PETITIONS 136 circumstances in each case". The view that enabling provision in two articles is an exception was not accepted in Thomas. But, rule of 50% reservation survived in Thomas, Vasanth Kumar and Indra Sawhney I. In the last cited decision, majority explained this rule as under.
While 50% shall be the rule, it is necessary not to put out of diversity of this country and the people. It might happen that in farflung and remote areas the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way,some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out. (emphasis supplied)"
A reference of the order in the case of Shri Sanjeet Shukla Vs. State of Maharashtra & Ors. in Civil Appellate Jurisdiction Public Interest Litigation (S) CWP - 1645/2016 ALONG WITH OTHER PETITIONS 137 No.20360/2014 dated 14th November, 2014 has also been given. In the said case also, width of reservation was considered. The reservation was provided to the extent of 73 per cent. The Bombay High Court framed the question about cap of 50 per cent reservation. The summary of all the judgments of the Apex Court has been given in para Nos.12 to 33 of the order.
In the case of M. Nagaraj & Ors. (supra), the Supreme Court directed the concerned State to show compelling reasons in the form of quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment, in addition to compliance of Article 335 of the Constitution of India for maintaining administrative efficiency. Thus, the direction in the case of M.Nagaraj (supra) was for collection of quantifiable data to show backwardness of the class and inadequacy of representation of that class in public employment for the purpose of justifying the extent of reservations in favour of that class even within 50 per cent ceiling limit of reservations.
CWP - 1645/2016 ALONG WITH OTHER PETITIONS 138 Moreover, as recently as on 15 July 2014 in Rohtas Bhankhar vs. Union of India reported in 2014(8) SCC 872 , another Constitution Bench of the Supreme Court has reiterated the conclusions recorded in the case of M. Nagaraj & Ors. (supra).
For the aforesaid reasons, prima facie, we are of the view that in matters of reservation of appointments/posts in public services, after the constitutional amendments in the year 2000, the Supreme Court has laid down a constitutional mandate that "the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50 per cent. In view of the law laid down by the Supreme Court in such emphatic terms, no exceptions are permitted.
The order of the Bombay High Court in the case of Sanjeet Shukla (supra) was not interfered by the Apex Court on its challenge. The observation about ceiling limit of 50 per cent given under Article 16(4B) of the Constitution of India has been endorsed without exception. Therein, the judgment in the case of Rohtas Bhankhar (supra) has also been referred.
CWP - 1645/2016 ALONG WITH OTHER PETITIONS 139 The judgment in the case of Ram Singh & Ors. (supra) was on the reservation to "Jaats" and has been struck down by the Apex Court. It includes reservation to Jaats of Dholpur and Bharatpur in OBC category in the State of Rajasthan also.
The summary of the judgments, referred above, reveals that ceiling of 50 per cent on reservation is a rule, excess to it can be in extra ordinary situation, which should be based on quantifiable data.
The constitutional amendment thereupon in Article 16 (4B) of the Constitution, however, does not show permissibility of reservation above 50 per cent for the vacancies of the year. The exception is for backlog vacancies. If true meaning of the constitutional provisions is taken, ceiling of 50 per cent for the vacancies of the year, in which, it is to be filled, exists. The State cannot provide reservation beyond 50 per cent of the vacancies of the year, in which, it is to be filled. The judgment on the constitutional amendment shows permission to cross the ceiling of 50 per cent in a given case but learned counsel, appearing in those cases, did not refer to basic structure of the amended provisions of Article CWP - 1645/2016 ALONG WITH OTHER PETITIONS 140 16(4B) of the Constitution of India and, in any case, ceiling of 50 per cent of the reservation needs to be applied as a rule on the vacancies of the year, in which, it is to be filled. Article 16(4B) of the Constitution puts a cap of 50 per cent on reservation on the vacancies of the year. To consider, para Nos.100, 110 and 121 to 124 in the case of M. Nagaraj & Ors. (supra) are quoted hereunder and is an answer to the question:
"100. As stated above, Article 16(4B) lifts the 50% cap on carry-over vacancies (backlog vacancies). The ceiling- limit of 50% on current vacancies continues to remain. In working-out the carry-forward rule, two factors are required to be kept in mind, namely, unfilled vacancies and the time factor. This position needs to be explained. On one hand of the spectrum, we have unfilled vacancies; on the other hand, we have a time-spread over number of years over which unfilled vacancies are sought to be carried-over. These two are alternating factors and, therefore, if the ceiling-limit on the carry-over of unfilled vacancies is removed, the other alternative time-factor comes in and in that event, the time-scale has CWP - 1645/2016 ALONG WITH OTHER PETITIONS 141 to be imposed in the interest of efficiency in administration as mandated by Article 335. If the time-scale is not kept then posts will continue to remain vacant for years, which would be detrimental to the administration. Therefore, in each case, the appropriate Government will now have to introduce the time-cap depending upon the fact-situation. What is stated hereinabove is borne out by Service Rules in some of the States where the carry- over rule does not extend beyond three years.
110. As stated above, the boundaries of the width of the power, namely, the ceiling-limit of 50% (the numerical benchmark), the principle of creamy layer, the compelling reasons, namely, backwardness, inadequacy of representation and the overall administrative efficiency are not obliterated by the impugned amendments. At the appropriate time, we have to consider the law as enacted by various States providing for reservation if challenged. At that time we have to see whether limitations on the exercise of power are violated. The State is free to exercise its discretion of providing for reservation subject to CWP - 1645/2016 ALONG WITH OTHER PETITIONS 142 limitation, namely, that there must exist compelling reasons of backwardness, inadequacy of representation in a class of post(s) keeping in mind the overall administrative efficiency. It is made clear that even if the State has reasons to make reservation, as stated above, if the impugned law violates any of the above substantive limits on the width of the power the same would be liable to be set aside. CONCLUSION:
121. The impugned constitutional amendments by which Articles 16(4A) and 16(4B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling-limit of 50% (quantitative limitation), the concept of creamy layer CWP - 1645/2016 ALONG WITH OTHER PETITIONS 143 (qualitative exclusion), the sub-
classification between OBC on one hand and SCs and STs on the other hand as held in Indra Sawhney, the concept of post-based Roster with in-built concept of replacement as held in R.K. Sabharwal.
122. We reiterate that the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.
123. However, in this case, as stated, the main issue concerns the "extent of reservation". In this regard the concerned State will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SC/ST in matter of promotions. However if they CWP - 1645/2016 ALONG WITH OTHER PETITIONS 144 wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.
124. Subject to above, we uphold the constitutional validity of the Constitution (Seventy-Seventh Amendment) Act, 1995, the Constitution (Eighty-First Amendment) Act, 2000, the Constitution (Eighty-Second Amendment) Act, 2000 and the Constitution (Eighty-Fifth Amendment) Act, 2001." In the light of the discussion made above, we hold that as per Article 16(4B) of the Constitution of India, ceiling of 50 per cent on reservation on the vacancies of the year, in which they are to be filled, exists. The exception is for the backlog or unfilled post/s of previous year/years.
CWP - 1645/2016 ALONG WITH OTHER PETITIONS 145 Extent of Judicial Review :
It is urged on behalf of the State and the protagonists of the Act of 2015 that this Court does not sit in appeal over the expert analysis by the Commission or the subjective satisfaction of the State with regard to backwardness of five castes. All these areas are consecrated to the realm of the policy choices of the State and no interference is called for.
In Indra Sahwney's case, after tracing the meandering course of review standard applications by the U.S. Supreme Court, from De Funis v. Charles Odegaard 416 US 312 (1974) to Metro Broadcasting Inc v. Federal Communications Commission, 497 US 547 (1990), no single, uniform pattern of thought can be discerned from these decisions and the ideas appear to be still in the process of evolution. (Indra Sahwney, para 732). Dealing with the question as to the extent of judicial review in issues of identification of Backward Classes and the percentage of reservations made for such classes, it was observed that there is no particular or special standard of judicial scrutiny in matters arising under Articles 15(4) and 16(4). The extent CWP - 1645/2016 ALONG WITH OTHER PETITIONS 146 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.
It was considered whether the policy of the Government could be subject to judicial review. Referring to catena of Supreme Court judgments on the extent of judicial review of the policy choices of Government, the Apex Court in the case of Indra Sahwney (supra) held that the action of the Government making a provision for reservation in favour of any Backward Class of citizens is a matter of policy of the Government; what is best for the Backward Classes and in what manner the policy should be formulated and implemented bearing in mind the object to be achieved by such reservations is a matter for decision exclusively within the province of the Government and such matters do not ordinarily attract the power of judicial review, except on settled grounds( perversity and the like).
Sawant, J. reiterated the decision adopted by Jeevan Reddy. J and concluded that there are no special principles of judicial review nor does the scope of judicial CWP - 1645/2016 ALONG WITH OTHER PETITIONS 147 review expand when the identification of Backward Class and the percentage of reservations kept for them is called in question. So long as the correct criterion for the identification of Backward Class is applied, the result arrived at cannot be questioned on the ground that other valid criteria was also available for such identification. The result arrived at even if marginally defective would not violate the exercise; No method is perfect when sociological findings are in issue. It was, however, emphasised that when the criterion applied for identifying Backward Class is either perverse or per se defective or unrelated to such identification and even if, it is not calculated to give the result or is calculated to give, by the very nature of the criterion, a contrary or unintended result, the criterion is open for judicial examination.
It is the State which has to form an opinion whether the conditions postulated for reservations are satisfied, however, the satisfaction on the basis of which an opinion is formed by the State must be rationally supported by objective criteria; considering all relevant matters and eschewing all irrelevant matters; after a proper assessment CWP - 1645/2016 ALONG WITH OTHER PETITIONS 148 of the competing claims of classes of citizens. It should evaluate relative backwardness before the conclusion that particular classes of citizens are so backward and so inadequately represented in the public services as to be worthy of special protection by means of reservation. It was held that State action, whether legislative or executive, is open to challenge if in conflict with the Constitution, the governing Act or the general principles of the land or is so arbitrary and unreasonable that no fair-minded authority would ever have made it.
After a brief survey of the standards of judicial review and scrutiny applied to test suspect classifications by the U.S. decisions, held that though the State has substantial latitude in determination of either backwardness or the inadequacy of representation, if the principles for identification are invalid, the classification violates constitutional limits, if the analysis is illegal and invalid or the policy is adopted for extraneous considerations, the Court could apply the corrective. The legality must be weighed alongside the guaranteed rights to citizens and the Court may "smoke out" any illegitimate use or transgression of the CWP - 1645/2016 ALONG WITH OTHER PETITIONS 149 constitutional limits.
From an analysis of the several opinions in the case of Indra Sahwney (supra), as to the appropriate standards of judicial review in matters pertaining to affirmative action, it appears to us that the area is broadly left open. What is clear however is that the extent and level of scrutiny is relative to the legal or constitutional right and interest involved in a specific claim, presented before the Court.
When a reservation policy of the State is challenged, several issues fall into consideration. These are;
(a) The constitutional limits within which State action may be pursued, such as the explicit or clearly implied constitutional prohibitions as to classificatory parameters;
(b) The relevance or rationality of the criteria adopted by the State or an expert body accredited by the State to perform the exercise.
(c) The adequacy (in legal terms) of the data considered in the exercise;
(d) The rationality of the synthesis between the evolved criteria and the collected data, for analysis; and CWP - 1645/2016 ALONG WITH OTHER PETITIONS 150
(e) The rationality of the conclusions arrived at by the expert body and the decision of the State.
In our considered view, identification of an appropriate standard of review, relevant to the examination of the several steps and aspects involved in the State exercise of declaration of a Special Backward Class, lends clarity to the task of judicial review and advances coherence and consistency to litigative outcomes. In view of the above, judicial review is not barred but jurisdiction would be limited to the issues given above.
On the Report of SBC Commission :
The SBC Commission was reconstituted by the order dated 07th/08th June, 2012 and the Commission submitted its report in the month of November, 2012, i.e., after four months of its constitution. The report is divided in ten chapters to deal with different heads.
The procedure adopted by the SBC Commission is given in Chapter three. A reference of the report submitted by the IDS apart from primary and secondary data collected in relation to Backward/Special Backward Classes has given given. The State Government was requested to supply CWP - 1645/2016 ALONG WITH OTHER PETITIONS 151 comparative caste-wise data to find out representation of 82 castes. Reference of various judgments and objections made by Captain Gurvinder Singh and Samta Andolan Samiti, etc. has been given.
Chapter Four refers to the memorandums for reservation of Special Backward Classes. The Commission has dealt with the representation of (i) Gujjar/Gurjars caste followed by (ii) Raika, Raibari (Debasi) caste, (iii) Banjara, Baladia, Labana caste, (iv) Gadia Lohar, Gadolia caste and (v) Gadaria (Gadari), Gayri caste.
In Chapter Five, the objections and arguments of the petitioners and others have been referred.
Chapter Six speaks about traditional and social background of castes referred above. In the said Chapter, consideration is mainly as to whether those castes fall in the category of Nomadic/Pastrolist. The perusal of the report shows reference of old record and literature to hold them to be Nomadic. It is not making reference of the present status of all the five castes or even of last ten years. The SBC Commission has drawn its conclusions based on the old material, which may not be so relevant for the status of those CWP - 1645/2016 ALONG WITH OTHER PETITIONS 152 castes at present. The literature taken into consideration is of "Rajputane ka Itihas" written by Gouri Shanker Heera Chand Ojha, Vikram Samvat 1993, which comes to the year 1928 or 1929.
A reference of "Ramayan Era" has also been given by the Commission without realising that they are not to write history of different castes. The Commission was expected to see status of the castes in relevant era. It may be of past ten years from the year 2012 or may be of 20 years. A reference of census of 1931 has also been given, though, the Apex Court has directed to re-consider the status of the castes every ten years. The Commission thus failed to make consideration in reference to the judgment of the Apex Court. It is when all the five castes are getting benefit of reservation for last few decades.
Chapter Seven refers to the reports given by various Commissions and Committees. The indicators used by the Mandal Commission have also been referred. The basis to include Gurjar/Gujjar, Banjara, Raibari, Gadia Lohar, etc. in the category of special backward class has been taken into consideration.
CWP - 1645/2016 ALONG WITH OTHER PETITIONS 153 A further reference of the report of Justice Jasraj Chopra Committee has been given for inclusion of Gurjar/Gujjar community in Scheduled Tribes apart from the report of Justice Shashikant Sharma Committee.
In Chapter Eight, analysis of the judgments of the Apex Court has been made. The consideration of quantifiable data given by the State Government for reservation to five castes in Special Backward Class has been considered in Chapter Nine. Chapter Ten draws conclusion and makes recommendations. Therein, the report submitted by IDS has been discussed thoroughly.
The IDS was directed to make assessment of 82 castes and to submit report within six months. A survey was to be made by applying scientific method but, according to the report of SBC Commission, the IDS failed to apply scientific method, while making survey. The relevant part of the said report is quoted hereunder for ready reference :
"समझझौतते मम यह शतर्त थथी ककि इन जजाततययों किजा सरर किरनते किते ललिए नममनजा सरर तकिनथीकि अपनजायथी जजाएगथी और ससंसथजान दरजारजा प्रयक य त रवैजजातनकि वरधधिययों सते CWP - 1645/2016 ALONG WITH OTHER PETITIONS 154 पररणजाम किजा तनषकिरर्त तनकिजालिजा जजाएगजा। यह भथी शतर्त थथी ककि सरर मजाननथीय उचच्च नयजायजालिय दरजारजा तनरर लशत मजानरणणयों/ससंकितेतकियों किको धयजान मम रखकिर ककियजा जजायतेगजा, अथजार्तत इसमम सजामजाजजकि वपछडजापन, शवैक्षणणकि वपछडजापन एरसं सरकिजाररी नझौकिररययों मम प्रतततनधधितर इतयजादर किजा समजारतेश हकोगजा। परनतय ररपकोरर्त किते वरशलितेरण सते यह तथय सजामनते आयजा ककि सरर मम जको नममनजा वरलभनन जजातत/रगर किजा शहररी एरसं गजामथीण क्षतेत्र किजा ललियजा गयजा उसमम रवैजजातनकि वरधधि यजा आनप य जाततकि समत्र किजा अभजार थजा।
नममनजा ललिए जजानते मम उस जजातत किकी रजाजय मम जनससंखयजा प्रततशत किते ससंकितेतकि किको भथी किजाम मम नहरीसं ललियजा गयजा एरसं नजा हरी गजामथीण नममनते र शहररी नममनते किजा किकोई आनप य जाततकि सत्र म किजाम मम ललियजा गयजा जको ककि तनमन सजाररणथी सते सपषर हवै।"
The SBC Commission considered various survey reports submitted by IDS. It was found to be contrary or against the public opinion in reference to various castes. The SBC Commission thus asked the IDS to clarify various issues, which were replied by IDS on 26 th October, 2012. Relevant part of SBC Commission report, referring to the clarifications by IDS is also quoted hereunder for ready reference :
"अत: आयकोग नते वरकिजास अधययन ससंसथजान, जयपयर किते CWP - 1645/2016 ALONG WITH OTHER PETITIONS 155 तनरतेशकि सते यह समच्चनजा एरसं सपषररीकिरण प्रजापत ककियजा ककि उपरकोकत सच्च म किजासंकि किते तनधिजार्तरण मम ककिन-ककिन ससंकितेतकियों किको कयजा-कयजा रररीयतजा ररी गई? सरर किते रझौरजान वरलभनन जजातत/रगर किते परररजारयों र वयजकतययों किकी ससंखयजा किजा तनधिजार्तरण शहररी एरसं गजामथीण सरर परररजारयों किजा प्रततशत किजा तनधिजार्तरण कयजा रखजा गयजा एरसं सन न 1931 किकी जनगणनजा मम वरलभनन जजाततययों किकी अनप य जाततकि जनससंखयजा किते ससंकितेतकियों किको कयजा रररीयतजा ररी गई? इन सभथी बबिनरओ य सं पर पयन: वरच्चजार किर सरर किकी प्रशनजारलिरी मम पमछते गयते प्रशनयों किको ससंखयजातमकि वरशलितेरण (Quantitative Analysis) किते रझौरजान जको समच्चकिजासंकियों किकी गणनजा किकी गई र ससंखयजातमकि वरशलितेरण (Quantitative Analysis) मम जको अलभरतव तथीय वरशलितेरण (Attitudinal Analysis) एरसं अनततनर्तदहत रसतय वरशलितेरण (Content Analysis) ककियजा गयजा उनमम ककिन-ककिन ससंकितेतकियों किको ककितनजा-ककितनजा महतर दरयजा गयजा र उपरकोकत वरशलितेरण मम वरलभनन आयकोगयों दरजारजा अपनजायते गयते मजापरणण किको ककिस प्रकिजार सते मल म यजासंकिन मम किजाम मम ललियजा गयजा आदर बबिनरओ य सं किको वरच्चजारजाथर्त समजारतेलशत किर जसथतत सपषर किरम । वरकिजास अधययन ससंसथजान दरजारजा दरनजासंकि 26.10.2012 किको इस सनरभर्त मम प्रतेवरत सपषररीकिरण मम सपषर ककियजा CWP - 1645/2016 ALONG WITH OTHER PETITIONS 156 ककि सरर किते रझौरजान तनमन वयरहजाररकि किदठिनजाईयजासं रहरी:-
(1) अजजात सच्च म नजा आधिजार पर सरर ककियजा गयजा। सन न 1931 किकी जनगणनजा किते अलिजारजा ओबिथीसथी किकी जनससंखयजा बिजाबित अनय किकोई समच्चनजा उपलिबधि नहरीसं थथी।
(2) 81 वपछणथी जजातत रगर्त किकी शहरयों मम र गजासंरयों मम ककितनथी-ककितनथी प्रततशत जनससंखयजा मझौजमर हवै यह समच्चनजा उपलिबधि नहरीसं थथी। जजसकिते किजारण ककिसथी जजातत रगर्त किजा प्रतततनधधितर सरर मम (असमजान अथजार्तत बिहयत जयजारजा एरसं बिहयत किम) रहजा जजस किजारण सते सच्च म किजासंकि किजा तनणर्तय अनयथजा प्रभजावरत रहजा।
(3) कियछ जजातत वपछडजा रगर्त कितेरलि शहरयों मम हरी लमलिते र कियछ जजातत रगर्त कितेरलि गजासंरयों मम हरी लमलिते, जजससते असमजान प्रतततनधधितर सरर किते रझौरजान आयजा जजस किजारण सरर अनयथजा प्रभजावरत रहजा।
(4) किई वपछडजा रगर किते आरजास किकी जसथतत किकी जजानकिजाररी नहरीसं थथी जजसकिते किजारण जजानकिजार CWP - 1645/2016 ALONG WITH OTHER PETITIONS 157 वयजकतययों किकी सहजायतजा लिरी गई। नतथीजजा यह रहजा ककि सजासंयकोधगकि (Random) सरर किते सथजान पर सकोदतेशय नमन म जा (Purposive Sampling) वयरसथजा किजाम मम लिरी गई। जजससते भथी पररणजाम प्रभजावरत रहजा।
(5) पररणजामसररूप 25 अतत वपछडजा रगर्त जजाततययों किजा इस सरर किते रझौरजान 5 घरयों सते 46 घरयों किते सरर किते आधिजार पर तलि य नजातमकि तनषकिरर्त तनकिजालिजा, जजससते तलि य नजातमकि तनषकिरर्त अनयथजा प्रभजावरत हयआ। वरकिजास अधययन ससंसथजान नते यह मजानजा ककि इन किजारणयों सते किततपय तनणर्तय आम जन धिजारणजा किते अनरू य प नहरीसं जजा सकिते एरसं इसकिते ललिए ससंसथजान नते जजन जजातत वपछडजा रगर्त/जजातत किते 100 सते किम घरयों किजा सरर ककियजा, उसकिते आधिजार पर अनय जजाततययों सते तलि य नजातमकि समच्चकिजासंकि किको सहरी नहरीसं मजानतते हयए उन 25 अतत वपछडजा जजाततययों/रगर किजा सच्च म किजासंकि र शतेर जजातत/रगर किजा सच्च म किजासंकि अलिग तवैयजार ककियजा गयजा।
(6) जको सरर ककियजा गयजा रह उस परररजार दरजारजा सरयसं बितजाई गई समच्चनजा पर आधिजाररत हवै एरसं इसमम परररजार दरजारजा ररी गई समच्चनजा किजा किहरीसं भथी प्रतत पररीक्षण (Cross Examination) नहरीसं ककियजा CWP - 1645/2016 ALONG WITH OTHER PETITIONS 158 गयजा।"
The SBC Commission discarded the survey report for 25 castes holding it to be improper and, after naming those castes, following observations were made, which are also quoted hereunder for ready reference :
"जजनकिजा समच्चकिजासंकि किजा तनधिजार्तरण तको ककियजा गयजा हवै परनतय सरर मम इनमम 100 घरयों सते किम किजा सरर ककियजा गयजा हवै। उपरकोकत समच्चकिजासंकि किते आधिजार पर 3 जजातत/रगर्त किजा सच्च म किजासंकि उपरकोकत 5 वरशतेर वपछडथी जजाततययों सते जयजारजा हवै। जजनमम नर (गवैर दहनर)म किजा समच्चकिजासंकि 45.84 हवै। परनतय सरर मम इनकिजा कितेरलि 13 गजामथीण र 9 शहररी अथजार्तत 22 घरयों किते सरर किते आधिजार पर तलि य नजातमकि समच्चकिजासंकि पररगणणत ककियजा जजसकिकी रजह सते सहरी तनषकिरर्त नहरीसं तनकिजालिजा जजा सकितजा। इसथी प्रकिजार मकोधगयजा/मकोगयजा किजा समच्चकिजासंकि गजामथीण 65 परररजार र शहररी शमनय कियलि 65 परररजारयों किते आधिजार पर तनकिजालिजा गयजा हवै तथजा खतेररजालि जजातत रगर्त किजा समच्चकिजासंकि 62.82 हवै जको ककि गजामथीण 40 र शहररी शन म य कियलि 40 परररजारयों किते आधिजार पर तनकिजालिजा गयजा हवै। उपरकोकत तथीनयों जजातत/रगर किते सच्च म किजासंकि किम परररजारयों किते सरर एरसं शहररी तथजा गजामथीण किजा CWP - 1645/2016 ALONG WITH OTHER PETITIONS 159 सहरी अनप य जात नहरीसं लितेनते किते किजारण रवम रत मजानजा जजाकिर इन सभथी 25 रगर्त/जजातत किजा वरसतत व सरर किर वपछणतेपन किते सच्च म किजासंकि नयते लसरते सते आधिजाररत किरनते किकी आरशयकितजा हवै। अत: अधययन ससंसथजान दरजारजा इन 25 जजातत/रगर किते वपछडतेपन पर प्रजापत तनषकिरर्त सतयतजा सते परते हह एरसं पयन:
तनधिजार्तरण आरशयकि हवै।
आयकोग किजा तनषकिरर्त रहजा हवै ककि असमजान एरसं अपयजार्तपत सरर किते तनषकिरर किते आधिजार पर उपरकोकत 25 रगर किते तलि य नजातमकि वपछडतेपन किजा समच्चकिजासंकि तनधिजार्तरण किजा तनणर्तय सहरी नहरीसं आ सकितजा।"
The final observation of SBC Commission in reference to the report of IDS shows that proper survey was not conducted by IDS and it decided to call for the details of representation of various castes in the State services and educational institutions. Relevant part to call for the report from the Government after making comments on the report of IDS is also quoted hereunder :
"वरकिजास अधययन ससंसथजान नते उपरकोकत जको सरर ककियजा उसकिते तनषकिरर्त आसंकिलिन मम सरर किकी तनमन CWP - 1645/2016 ALONG WITH OTHER PETITIONS 160 सथीमजाओसं सते अतयनत प्रभजारथी रहते हवै:-
(1) सरर ररीम नते जको सवैमपलि सरर ककियजा हवै उसमम 13 जजाततययों किजा तको शहररी क्षतेत्रयों मम एकि भथी घर किजा सरर नहरीसं ककियजा गयजा। यते जजाततयजासं हह गणररयजा, लसनधिथी मयसलिमजान, णजासंगथी, किजाछछ, लिकोधिथी (लिकोधिजा), मकोधगयजा (मकोगयजा), रजाठि, खतेररजा, लिकोधिते तसंरर, किकोतरजालि, खतेलिरजार, हतेलिजा, जजागररी।
इसथी तरह सते 4 जजाततययों किजा गजामथीण क्षतेत्र मम एकि भथी घर किजा सरर नहरीसं हयआ। यते हह मकोच्चथी (गवैर दहनर)म , लसकिलिरीगर, ठिठितेरजा र च्चन म गर।
(2) इसथी तरह सते 16 जजाततययों किजा शहररी क्षतेत्र मम एकि सते 10 घरयों किते बिथीच्च किजा हरी सरर ककियजा गयजा हवै जजनमम किनबिथी/किलरथी/परतेलि/पजाररीरजार, अनजनजा/णजासंगररी परतेलि/कियलिमथी, धिजाकिड, वरशनकोई, मतेर, रजायलसख, च्चजारण सयोंधधियजा, ककिरजार खजारकोलि, घजासंच्चथी, बिजागररयजा, गदथी, मयलितजानथी, नर तमकोलिरी, एरसं च्चमनगर।
इसथी तरह सते गजामथीण क्षतेत्र मम 11 जजाततयजासं CWP - 1645/2016 ALONG WITH OTHER PETITIONS 161 ऐसथी भथी हह जजनमम कियलि 1 सते 10 परररजारयों किते बिथीच्च किजा हरी सरर हयआ हवै जजनमम गजाडणत नजागझौररी, किसंज म णजा , फजारूकिकी भदरयजारजा, नयजाररयजा, पररजा, लसलिजारर, सततयजा लसनधिथी सपतेरजा (गवैर दहनर)म , लसरकिकीरजालि, हवैलिजा, जजागररी हवै। (3) शहररी क्षतेत्रयों मम 8 जजाततयजासं धगररी, मवैर, मरजाररी, च्चकोबिरजार, सततयजा लसनधिथी, सपतेरजा, लसरकिकीरजालि, ठिठितेरजा एरसं गजामथीण क्षतेत्र किकी 4 जजाततयजासं भणभमजजा, नर, तमकोलिरी खतेलिरजार किजा भथी मजात्र 11 सते 20 परररजारयों किजा हरी सरर ककियजा गयजा हवै।
उपरकोकत अधययन किते वरशलितेरण सते आयकोग इस तनषकिरर्त पर पहयसंच्चजा ककि इतनते किम सरर किते आधिजार पर जहजासं 81 जजातत/रगर मम सते 13 जजाततययों किजा तको शहररी तथजा 4 जजाततययों किजा गजामथीण मम ककिसथी भथी घर किजा सरर नहरीसं हयआ हवै, 27 जजाततयजासं जजनमम 16 शहररी और 11 गजामथीण मम सते 1 सते 10 घरयों किते बिथीच्च किजा सरर हयआ र 12 जजाततयजासं जजनमम 8 शहररी र 4 गजामथीण किजा 11 सते 20 घरयों किते बिथीच्च किजा सरर हयआ, इतनते किम सरर मम इन जजाततययों किते बिजारते मम सरर किते आधिजार पर ककिसथी तनषकिरर्त पर पहयसंच्चनजा CWP - 1645/2016 ALONG WITH OTHER PETITIONS 162 नयजायकोधच्चत नहरीसं हकोगजा। इसकिते सजाथ हरी सरर मम मख य य पवैरजामथीरर यह भथी रहजा ककि ररीम नते जको सरर ककियजा उसमम उततररजातजा नते जको बितजायजा उसकिकी बबिनजा सनतजय षर/समपयजषर किते हरी वरशरजास किरकिते उसथी किते आधिजार पर तनषकिरर्त दरयजा हवै। सजाथ हरी सरर किकी एकि खजामथी यह भथी रहरी हवै ककि सरकिजाररी सतेरजा किते बिजार मम जको गजामथीण शहरयों मम तनरजास किरनते लिग गयते उनकिजा शहरयों मम सरर नहरीसं हयआ एरसं गजासंर मम भथी सरर नहरीसं हयआ। इस किजारण भथी सरर सते उस क्षतेत्र किते तनरजालसययों किजा सरकिजाररी नझौकिररययों मम प्रतततनधधितर किकी सहरी जसथतत किजा आसंकिलिन नहरीसं ककियजा जजा सकितजा। अत: आयकोग नते यह तनणर्तय ललियजा ककि रजाजय सरकिजार मम तनयक य त सरकिजाररी नझौकिररययों मम वपछडजा रगर्त किकी 81 जजाततययों किते जजाततरजार आसंकिणते प्रजापत ककियते जजायते। इस समबिनधि मम सरसय सधच्चर नते मख य य सधच्चर एरसं प्रमख य शजासन सधच्चर, किजालमर्तकि किको उपरकोकत आसंकिडते उपलिबधि किररजानते हतेतय किहजा। प्रमयख शजासन सधच्चर, किजालमर्तकि नते यह बितजायजा ककि च्चयन समच्चथी मम अनय वपछणजा रगर्त हरी ललिखजा हकोतजा हवै तथजा जजाततरजार च्चयन समच्चथी तवैयजार नहरीसं हकोतथी हवै। अत: अनय वपछडथी जजाततययों किजा जजाततरजार CWP - 1645/2016 ALONG WITH OTHER PETITIONS 163 नझौकिररययों मम वरररण एकिबत्रत किरनजा बिहयत मजय शकिलि किजाम हवै। कययोंककि सभथी जजलियों र सभथी वरभजागयों सते जजाततरजार आसंकिडते प्रजापत किरनते मम किम सते किम 6 मजाह किजा समय लिगनते किकी ससंभजारनजा हवै। आयकोग नते पयन: इस पर वरच्चजार ककियजा और यह तनणर्तय ललियजा ककि प्रमयख प्रमयख वरभजागयों मम गत 5 ररर्त मम रजाजसथजान लिकोकि सतेरजा अयकोग सते जको तनयजय कतयजासं हयई हह रते मख य यत: प्रथम र दवरतथीय शतेणथी किकी हह। वरभजागयों सते उन तनयजय कतययों किते कियलि परयों, अनय वपछडजा रगर्त किते ललिए ररजरर्त पर, सजामजानय परयों किते वररूद अनय वपछडजा रगर्त किते च्चयन, कियलि अनय वपछडजा रगर्त किजा च्चयन और उनकिजा जजाततगत एरसं ससंखयजागत 5 ररर्त (2007 सते 2012) जजातत प्रमजाण पत्र/सवरर्तस बियकि मम उललितेणखत जजाततगत आसंकिडते प्रजापत ककियते जजायते। इस बिजाबित तनमन वरभजागयों सते समच्चनजा प्रजापत किकी गई।"
The State Government supplied statements showing representation of various castes in the services from the year 2007 to 2012 but it is not for all the departments. The representation of various castes in the educational institutions has also been given. The SBC Commission CWP - 1645/2016 ALONG WITH OTHER PETITIONS 164 thereupon considered even the report of IDS, though, earlier said to be not based on proper survey.
The State Government requested for six months time for survey of all the castes, but the Commission directed to collect data of last five years only, that too, in pursuance of the selection made by the RPSC. The report by the State Government is based on selection in Class I and Class II services only. This itself makes recommendation of the Commission to be defective and not in consonance to the judgment of the Apex Court. The Commission was required to get complete data of representation of 82 castes in all the departments and not of few and two classes of services. It even ignored the selection made by the departments at their own. This itself made their survey incomplete.
If the report of IDS or the State Government for representation of various castes in the services is also taken into consideration, it shows "zero" representation of many castes, yet they were not taken into consideration while making recommendations.
It seems that Commission was to make recommendations only for five castes, which were earlier CWP - 1645/2016 ALONG WITH OTHER PETITIONS 165 given special reservation leaving other castes though it should have made proper survey of all the 82 castes.
The statement submitted by the State Government showing representation of various castes in services from the year 2007 to 2012 is reproduced hereunder to show that many castes are having "zero"
representation in services, whereas, few castes are having proportionately excessive representation, yet not recommended for exclusion. It is moreso when the Apex Court has directed for exclusion of the caste, if adequately represented. The Commission has failed to discharge its obligation properly while making the report :
रजाजसथजान सरकिजार मम ररर्त 2007 सते 2012 तकि आरपथीएससथी सते च्चयतनत रजाजय सतेरजा किते वपछडजा रगर्त किते अधधिकिजाररययों किकी जजाततरजार सच्च म नजा CWP - 1645/2016 ALONG WITH OTHER PETITIONS 166 ससेंसस 1931 कक गजामथीण जनससंखखख वरकिजास कख किजालमर्तकि रजाजसथजान रजाणणजयकिर रजाजय मदहलिजा एरसं वरभजाग गहव वरभजाग उदयकोग सहकिजाररतजा एरसं प्रततिशति वरभजाग लितेखजा सतेरजा वरभजाग बिथीमजा बिजालि वरकिजास पसंच्चजायतथी रजाज क्रम सतेरजा किजा नजाम/नजाम जजातत रगर आरएएस आरपथीएस आरएसथीएस आरसथीररीएस आई एन आर णबलयय सथी आरआई आरसथीएस गजामथीण कियलि एस णथी सथी एनएस वरकिजास रजाजय सतेरजा कियलि च्चयन 169 55 89 194 52 18 32 223 830 ओबिथीसथी मम च्चयतनतयों किकी ससंखयजा 54 12 18 36 3 10 4 7 47 191 ओबिथीसथी मम च्चयतनत + सजामजानय किते वररूद च्चयतनत ओबिथीसथी किकी ससंखयजा 60 21 29 63 4 14 5 9 76 281 1 गजाडणयजा-लिह य जार, गजाणकोललियजा 0 0.074 2 रजाईकिजा, रवैबिजाररी(रतेबिजासथी) 1 1 0.172 3 बिसंजजारजा, बिजालिदरयजा, लिबिजानजा 0 0.199 4 गणररयजा (गजाणररी), गजायररी, घकोसथी (गरजालिजा) 0 0.656 5 गमजर, गयजर्तर 2 1 1 1 3 8 4.737 6 जजार 20 10 10 18 2 5 1 2 32 100 9.097 7 च्चजारण 5 5 4 11 1 2 1 11 40 0.285 8 यजारर, अहरीर 6 2 2 8 2 2 3 25 1.546 9 वरशनकोई 4 2 3 4 1 1 2 17 0.592 10 कियमजारत, कियमहजार (प्रजजापतत), सआ य रजा 5 2 2 1 1 4 15 3.171 11 मजालिरी, सवैनथी, बिजागरजान 3 2 2 1 2 1 3 14 3.257 12 जजाधगण, खजातथी, बिढई, सथ य जार, तरखजान 1 1 1 5 8 1.845 13 सकोनथी, सन य जार, सरणर्तकिजार, जडणयजा 1 1 3 1 4 10 0.652 CWP - 1645/2016 ALONG WITH OTHER PETITIONS 167 14 रजर 1 3 4 0.420 15 सजार, सरजामथी, बिवैरजागथी, जसंगम 1 1 2 2 6 0.26 16 नजाई, सतेन, रतेरनजाई 1 1 1.408 17 रजारत 1 1 2 0.940 18 धिजाकिड 1 1 0.823 19 रजारणजा-रजाजपत म , ररकोगजा, हजमररी, रजथीर 1 2 1 4 1.589 20 बिणरजा, जजाच्चकि, भजार, जजागजा, रजार 1 1 0.330 21 किलिजालि (रजासंकि), किलिजालि (मतेरजाणजा), किलिजालि (सर य जालिकिजा), किलिजालि (जजायसरजालि), किलिजालि (अहलिर म जाललियजा), किलिजालि (परतेलि) 1 1 2 0.377 22 ठिठितेरजा, किसंसजारजा (भरजारजा) 0 0.024 23 घजासंच्चथी 0 0.046 24 ततेलिरी 1 1 2 0.719 25 खजारकोलि (खजाररजालि) 0 0.063 26 सततयजा लसनधिथी 1 1 2 27 किजायमखजानथी 2 1 1 4 0.308 28 लिखतेरजा (लिखजारजा),किच्चतेरजा, 0 0.110 मतनहजार 29 धिकोबिथी (मजय सलिम) 0 0.040 30 लिकोहजार, पजासंच्चजालि 1 1 0.722 31 जकोगथी, नजाथ, लसद 1 1 0.669 32 छछपजा (छछपथी), भजारसजार, 1 1 0.300 नजामजा, खटथी, छछपजा, रसंगरतेज, नथीलिगर 33 धिथीरर, किहजार, भकोई, 0 0.328 सगररसंशथी-मजालिरी, किकीर, महतेरजा, मललिजाह (तनरजार), बिजाररी, लभशतथी, मछयआरजा 34 रजासंगथी 0 0.431 35 जणरजा, खजारडणयजा (लसररथी) 1 1 0.031 36 णजाकिकोत, रतेशजासंतररी, रसंगजासजामथी 1 1 1 3 0.237 (अणमकोपजा) CWP - 1645/2016 ALONG WITH OTHER PETITIONS 168 37 महजा-बजाहमण (आच्चजारज), 0 0.483 फकिकीर (किबबसतजान मम किजायर्त किरनते रजालिते) 38 किनबिथी, किलिबिथी, परतेलि, 1 1 0.0005 पजाररीरजार, आसंजणजा, णजासंगथी परतेलि, कियलिमथी 39 मतेर 1 1 1.421 40 धगररी, गकोसजासंई (गश य जासंई) 0 0.260 41 हलिजालिरी, किसजाई 0 0.210 42 जयलिजाहजा 0 0.151 43 लसनधिथी मस य लिमजान 1 1 0.369 44 तमकोलिरी (तमबिकोलिरी) 0 0.052 45 लिकोधिथी(लिकोधिजा) 0 0.077 46 रजाठि 0 0.447 47 मतेर (मतेहरजात-किजाठिजात, मतेहरजात- 0 0.243 घकोणजात, च्चथीतजा) 48 बिजागररयजा 0 49 भणभज म जा 0 0.031 50 नगजारच्चथी-रमजामथी, रजाणजा, 0 0.085 बिजायतथी (बिजारकोर) 51 हतेलिजा 0 52 किसंणतेरजा, वपसंजजारजा 0 0.235 53 ककिरजार (ककिरजाड) 0 0.133 54 लमरजासथी, ढजाणथी, 0 0.150 लिसंगजा/मसंगतनयजार 55 मकोधगयजा(मकोगयजा) 0 0.051 56 नयजाररयजा (नयजारगर) 0 0.020 57 ओण 0 0.020 58 पररजा (फरजालि) 0 0.066 59 लसकिलिरीगर, बिनरकि म सजाज 0 0.0177 (उसतजा) 60 लसरकिकीरजालि 0 0.003 61 जजागररी 0 0.007 62 रजायलसख 1 1 CWP - 1645/2016 ALONG WITH OTHER PETITIONS 169 63 लिकोढते-तसंरर 0 64 सयोंधधियजा 0 0.290 65 गदथी 0 0.045 66 फजारूकिकी भदरयजारजा 0 0.0001 67 लसलिजारर (सकोमपयरजा, मतम तर्तकिजार 1 1 0.121 किते अततररकत)च्चतेजजारजा 68 खतेररजा 0 0.003 69 किसंज म णजा , रजाइन 0 0.037 70 सपतेरजा (गवैर दहनर य जजातत) 0 0.35 71 मरजाररी, बिजाजथीगर (गवैर दहनर म 0 0.001 जजातत) 72 नर (गवैर दहनरज म जातत) 0 0.064 73 गजाणथीत नजागझौररी 0 1.409 74 खतेलिरजार 0 0.0002 75 च्चन म गर 0 0.005 76 मल य तजा लतजानथीज 0 0.001 77 मकोच्चथी (गवैर दहनर म जजातत) 0 0.012 78 रतेशरजालिरी 0 0.073 79 किकोतरजालि/किकोररजालि 0 0.002 80 च्चकोबिरजार 0 0.021 81 किजाछछ (कियशरजाह), शजाकय 0 0.513 82 मजय सलिम 1 1 83 अनय 0 नकोर :- उपरकोकत सजारणथी रजाजय सरकिजार किते समबिजनधित वरभजागयों दरजारजा प्रजापत समच्चनजा किते आधिजार पर ससंकिललित किकी गई हवै।
CWP - 1645/2016 ALONG WITH OTHER PETITIONS 170 रजाजसथजान सरकिजार मम ररर्त 2007 सते 2012 तकि आरपथीएससथी सते च्चयतनत अनय वपछडजा रगर्त किते रजाजपबत्रत अधधिकिजाररयको किकी जजाततरजार सयच्चनजा तनरतेशजालिय, धच्चककितसजा, रजाणणजय किर तकिनथीकिकी सरजासथय एरसं वरभजाग सजारर्तजतनकि गजामथीण वरकिजास एरसं किकॉलितेज किकी परररजार तनमजार्तण वरभजाग पसंच्चजायतथी रजाज वरभजाग लशक्षजा लशक्षजा किलयजाण सतेरजाएसं समसस 1931 क.स. किकी जनससंखयजा किजा प्रततशत सतेरजा किजा नजाम/नजाम जतेसथीररीओ सहजायकि कितनषठि सहजायकि सहजायकि प्ररकतजा णकॉकरसर्त कियलि जजातत रगर अलभयनतजा अलभयनतजा अलभयनतजा प्रकोफतेसर (लसवरलि एरसं वरदयत य ) कियलि च्चयन 485 99 246 10 852 199 4783 6674 ओबिथीसथी मम 96 20 54 3 90 45 1137 1445 च्चयतनतयों किकी ससंखयजा ओबिथीसथी मम च्चयतनत 163 29 93 3 163 54 1559 2064 + सजामजानय किते वररूद च्चयतनत ओबिथीसथी किकी ससंखयजा 1 गजाडणयजा-लिह य जार, 2 2 0.074 गजाणकोललियजा 2 रजाईकिजा, 1 2 3 0.172 रवैबिजाररी(रतेबिजासथी) 3 बिसंजजारजा, बिजालिदरयजा, 2 2 0.199 लिबिजानजा 4 गणररयजा (गजाणररी), 1 2 3 0.656 गजायररी, घकोसथी (गरजालिजा) 5 गमजर, गयजर्तर 5 1 4 1 52 63 4.767 6 जजार 80 12 29 2 71 20 670 884 9.097 7 च्चजारण 9 1 2 10 21 43 0.285 CWP - 1645/2016 ALONG WITH OTHER PETITIONS 171 8 यजारर, अहरीर 10 2 3 18 2 114 149 1.546 9 वरशनकोई 5 3 1 2 37 48 0.592 10 कियमजारत, कियमहजार 5 1 8 9 6 67 96 3.171 (प्रजजापतत), सआ य रजा 11 मजालिरी, सवैनथी, 10 6 15 10 7 108 156 3.257 बिजागरजान 12 जजाधगण, खजातथी, 3 4 5 7 50 69 1.845 बिढई, सथ य जार, तरखजान 13 सकोनथी, सन य जार, 5 2 1 4 45 57 0.852 सरणर्तकिजार, जडणयजा 14 रजर 3 2 2 11 18 0.420 15 सजार, सरजामथी, 5 2 4 25 36 0.246 बिवैरजागथी, जसंगम 16 नजाई, सतेन, रतेरनजाई 3 1 3 3 8 18 1.468 17 रजारत 1 3 1 5 10 0.940 18 धिजाकिड 3 1 53 57 0.823 19 रजारणजा-रजाजपमत, 1 1 3 5 10 1.589 ररकोगजा, हजमररी, रजथीर 20 बिणरजा, जजाच्चकि, 2 1 10 13 0.330 भजार, जजागजा, रजार 21 किलिजालि (रजासंकि), 1 1 2 9 13 0.377 किलिजालि (मतेरजाणजा), किलिजालि (सर य जालिकिजा), किलिजालि (जजायसरजालि), किलिजालि (अहलिर म जाललियजा), किलिजालि (परतेलि) 22 ठिठितेरजा, किसंसजारजा 1 1 1 3 0.024 (भरजारजा) 23 घजासंच्चथी 1 1 1 1 3 7 0.046 24 ततेलिरी 1 1 1 1 1 15 20 0.719 25 खजारकोलि (खजाररजालि) 1 0 1 0.063 26 सततयजा लसनधिथी 2 2 27 किजायमखजानथी 4 12 16 0.308 CWP - 1645/2016 ALONG WITH OTHER PETITIONS 172 28 लिखतेरजा 2 2 4 0.110 (लिखजारजा),किच्चतेरजा, मतनहजार 29 धिकोबिथी (मजय सलिम) 0 0 0.040 30 लिकोहजार, पजासंच्चजालि 1 2 1 3 7 0.722 31 जकोगथी, नजाथ, लसद 2 2 4 0.669 32 छछपजा (छछपथी), 2 5 1 2 29 39 0.300 भजारसजार, नजामजा, खटथी, छछपजा, रसंगरतेज, नथीलिगर 33 धिथीरर, किहजार, भकोई, 1 1 2 4 0.328 सगररसंशथी-मजालिरी, किकीर, महतेरजा, मललिजाह (तनरजार), बिजाररी, लभशतथी, मछयआरजा 34 रजासंगथी 4 4 0.431 35 जणरजा, खजारडणयजा 1 25 26 0.031 (लसररथी) 36 णजाकिकोत, रतेशजासंतररी, 2 0 2 0.237 रसंगजासजामथी (अणमकोपजा) 37 महजा-बजाहमण 1 6 7 0.483 (आच्चजारज), फकिकीर (किबबसतजान मम किजायर्त किरनते रजालिते) 38 किनबिथी, किलिबिथी, 2 3 34 39 0.0005 परतेलि, पजाररीरजार, आसंजणजा, णजासंगथी परतेलि, कियलिमथी 39 मतेर 1 1 1 1 4 1.421 40 धगररी, गकोसजासंई 1 2 3 6 0.260 (गश य जासंई) 41 हलिजालिरी, किसजाई 0 0 0.210 42 जयलिजाहजा 11 11 0.151 43 लसनधिथी मस य लिमजान 1 4 5 0.369 44 तमकोलिरी (तमबिकोलिरी) 1 1 0.052 45 लिकोधिथी(लिकोधिजा) 1 4 5 0.077 46 रजाठि 0 0 0.447 CWP - 1645/2016 ALONG WITH OTHER PETITIONS 173 47 मतेर (मतेहरजात- 2 2 0.243 किजाठिजात, मतेहरजात-
घकोणजात, च्चथीतजा)
48 बिजागररयजा 1 5 6
49 भणभज
म जा 0 0 0.031
50 नगजारच्चथी-रमजामथी, 1 1 0.085
रजाणजा, बिजायतथी
(बिजारकोर)
51 हतेलिजा 0 0
52 किसंणतेरजा, वपसंजजारजा 4 4 0.235
53 ककिरजार (ककिरजाड) 0 0 0.133
54 लमरजासथी, ढजाणथी, 0 0 0.150
लिसंगजा/मसंगतनयजार
55 मकोधगयजा(मकोगयजा) 0 0 0.051
56 नयजाररयजा (नयजारगर) 0 0 0.020
57 ओण 1 1 0.066
58 पररजा (फरजालि) 0 0 0.024
59 लसकिलिरीगर, 1 1 0.0177
बिनरकि
म सजाज (उसतजा)
60 लसरकिकीरजालि 0 0 0.003
61 जजागररी 0 0 0.007
62 रजायलसख 0 0
63 लिकोढते-तसंरर 0 0
64 सयोंधधियजा 2 2 0.290
65 गदथी 2 2 0.045
66 फजारूकिकी भदरयजारजा 1 1 0.0001
67 लसलिजारर (सकोमपरय जा, 0 0 0.121
मतम तर्तकिजार किते
अततररकत)च्चतेजजारजा
CWP - 1645/2016
ALONG WITH OTHER PETITIONS
174
68 खतेररजा 0 0 0.003
69 किसंज
म णजा , रजाइन 0 0 0.037
70 सपतेरजा (गवैर दहनर य 0 0 0.035
जजातत)
71 मरजाररी, बिजाजथीगर 0 0 0.001
(गवैर दहनर म जजातत)
72 नर (गवैर 0 0 0.064
दहनरज
म जातत)
73 गजाणथीत नजागझौररी 3 3 1.409
74 खतेलिरजार 2 2 0.0002
75 च्चन
म गर 1 1 0.005
76 मल
य तजा
लतजानथीज 0 0 0.001
77 मकोच्चथी (गवैर दहनर म 0 0 0.012
जजातत)
78 रतेशरजालिरी 1 1 0.073
79 किकोतरजालि/किकोररजालि 0 0 0.002
80 च्चकोबिरजार 0 0 0.021
81 किजाछछ (कियशरजाह), 1 1 0.513
शजाकय
82 मजय सलिम 0 0
83 अनय 7 7
रजाजसथजान सरकिजार मम ररर्त 2007 सते 2012 तकि आरपथीएससथी सते च्चयतनत अनय वपछणजा रगर्त किते अधिथीनसथ सतेरजा / मसंत्रजालितयकि / अनय किमर्तच्चजाररययों किकी जजाततरजार समच्चनजा :
CWP - 1645/2016 ALONG WITH OTHER PETITIONS 175 सतेसस खजादय एरसं 1931 किकी रजाजसथजान रजाणणजय शम एरसं गहव वरभजाग आबिकिजाररी उदयकोग नजागररकि जनससंखयजा लितेखजा सतेरजा किर वरभजाग तनयकोजन वरभजाग आपमततर्त किजा क.स. प्रततशत सतेरजा किजा नजाम/नजाम उपतनररीक्षकि उपतनररीक्षकि / जतम नयर तनररीक्षकि ररीए कितनषठि जजलिजा अधधिनसथ कियलि जजातत रगर पलिजारमन किमजा. लितेखजाकिजार गतेण-II शम उदयकोग सतेरजाएसं अधधिकिजाररी अधधिकिजाररी कियलि च्चयन 835 277 72 351 1 9 92 1637 ओबिथीसथी मम च्चयतनतयों 134 25 14 58 3 24 258 किकी ससंखयजा ओबिथीसथी मम च्चयतनत 263 134 20 106 3 26 552 + सजामजानय किते वररूद च्चयतनत ओबिथीसथी किकी ससंखयजा 1 गजाडणयजा-लिह य जार, 0 0.074 गजाणकोललियजा 2 रजाईकिजा, रवैबिजाररी(रतेबिजासथी) 1 1 0.172 3 बिसंजजारजा, बिजालिदरयजा, 1 1 0.199 लिबिजानजा 4 गणररयजा (गजाणररी), 0 0.656 गजायररी, घकोसथी (गरजालिजा) 5 गमजर, गयजर्तर 10 6 1 1 18 4.767 6 जजार 166 69 7 26 11 279 9.097 7 च्चजारण 32 13 3 2 1 51 0.285 8 यजारर, अहरीर 15 6 2 9 1 1 34 1.546 9 वरशनकोई 15 2 2 3 1 23 0.592 10 कियमजारत, कियमहजार 5 2 2 14 1 3 27 3.171 (प्रजजापतत), सआ य रजा 11 मजालिरी, सवैनथी, बिजागरजान 5 5 2 7 2 21 3.257 12 जजाधगण, खजातथी, बिढई, 4 4 3 1 10 22 1.845 सथ य जार, तरखजान 13 सकोनथी, सन य जार, 3 1 2 1 7 0.652 सरणर्तकिजार, जडणयजा 14 रजर 2 4 1 7 0.420 15 सजार, सरजामथी, बिवैरजागथी, 1 1 2 0.246 जसंगम CWP - 1645/2016 ALONG WITH OTHER PETITIONS 176 16 नजाई, सतेन, रतेरनजाई 1 2 1 4 1.468 17 रजारत 2 1 3 0.940 18 धिजाकिड 2 1 3 0.823 19 रजारणजा-रजाजपमत, 3 1 1 4 9 1.589 ररकोगजा, हजरम री, रजथीर 20 बिणरजा, जजाच्चकि, भजार, 1 1 0.330 जजागजा, रजार 21 किलिजालि (रजासंकि), 1 2 1 4 0.377 किलिजालि (मतेरजाणजा), किलिजालि (सर य जालिकिजा), किलिजालि (जजायसरजालि), किलिजालि (अहलिर म जाललियजा), किलिजालि (परतेलि) 22 ठिठितेरजा, किसंसजारजा 0 0.024 (भरजारजा) 23 घजासंच्चथी 2 2 0.046 24 ततेलिरी 1 1 0.719 25 खजारकोलि (खजाररजालि) 0 0.063 26 सततयजा लसनधिथी 1 2 1 4 27 किजायमखजानथी 1 1 0.306 28 लिखतेरजा 2 2 0.110 (लिखजारजा),किच्चतेरजा, मतनहजार 29 धिकोबिथी (मजय सलिम) 0 0.040 30 लिकोहजार, पजासंच्चजालि 1 1 1 3 0.722 31 जकोगथी, नजाथ, लसद 3 2 1 6 0.669 CWP - 1645/2016 ALONG WITH OTHER PETITIONS 177 32 छछपजा (छछपथी), 3 3 0.300 भजारसजार, नजामजा, खटथी, छछपजा, रसंगरतेज, नथीलिगर 33 धिथीरर, किहजार, भकोई, 0 0.328 सगररसंशथी-मजालिरी, किकीर, महतेरजा, मललिजाह (तनरजार), बिजाररी, लभशतथी, मछयआरजा 34 रजासंगथी 0 0.431 35 जणरजा, खजारडणयजा 0 0.03 (लसररथी) 36 णजाकिकोत, रतेशजासंतररी, 2 2 0.237 रसंगजासजामथी (अणमकोपजा) 37 महजा-बजाहमण 0 0.483 (आच्चजारज), फकिकीर (किबबसतजान मम किजायर्त किरनते रजालिते) 38 किनबिथी, किलिबिथी, परतेलि, 1 1 0.0005 पजाररीरजार, आसंजणजा, णजासंगथी परतेलि, कियलिमथी 39 मतेर 0 1.421 40 धगररी, गकोसजासंई (गयशजासंई) 1 1 0.260 41 हलिजालिरी, किसजाई 1 1 0.210 42 जयलिजाहजा 1 1 0.151 43 लसनधिथी मस य लिमजान 0 0.369 44 तमकोलिरी (तमबिकोलिरी) 1 1 0.052 45 लिकोधिथी(लिकोधिजा) 1 1 0.077 46 रजाठि 0 0.447 47 मतेर (मतेहरजात-किजाठिजात, 0 0.243 मतेहरजात-घकोणजात, च्चथीतजा) 48 बिजागररयजा 0 CWP - 1645/2016 ALONG WITH OTHER PETITIONS 178 49 भणभज म जा 0 0.031 50 नगजारच्चथी-रमजामथी, 0 0.085 रजाणजा, बिजायतथी (बिजारकोर) 51 हतेलिजा 0 52 किसंणतेरजा, वपसंजजारजा 0 0.235 53 ककिरजार (ककिरजाड) 0 0.133 54 लमरजासथी, ढजाणथी, 1 1 0.150 लिसंगजा/मसंगतनयजार 55 मकोधगयजा(मकोगयजा) 0 0.051 56 नयजाररयजा (नयजारगर) 0 0.020 57 ओण 0 0.066 58 पररजा (फरजालि) 0 0.024 59 लसकिलिरीगर, 0 0.0177 बिनरकि म सजाज (उसतजा) 60 लसरकिकीरजालि 0 0.003 61 जजागररी 0 0.007 62 रजायलसख 0 63 लिकोढते-तसंरर 0 64 सयोंधधियजा 0 0.290 65 गदथी 0 0.045 66 फजारूकिकी भदरयजारजा 0 0.0001 67 लसलिजारर (सकोमपयरजा, 0 0.121 मतम तर्तकिजार किते अततररकत)च्चतेजजारजा 68 खतेररजा 0 0.003 69 किसंज म णजा , रजाइन 0 0.037 CWP - 1645/2016 ALONG WITH OTHER PETITIONS 179 70 सपतेरजा (गवैर दहनर य 0 0.035 जजातत) 71 मरजाररी, बिजाजथीगर (गवैर 0 0 दहनर म जजातत) 72 नर (गवैर दहनरज म जातत) 0 0.064 73 गजाणथीत नजागझौररी 0 1.409 74 खतेलिरजार 0 0.0002 75 च्चन म गर 0 0.005 76 मल य तजा लतजानथीज 0 0.001 77 मकोच्चथी (गवैर दहनर म 0 0.012 जजातत) 78 रतेशरजालिरी 0 0.073 79 किकोतरजालि/किकोररजालि 0 0.002 80 च्चकोबिरजार 0 0.021 81 किजाछछ (कियशरजाह), 0 0.513 शजाकय 82 मजय सलिम 4 4 83 अनय 26 26 ननोट : उपरनोकति सखरणण रखजख सरकखर कक ससंबसंधधिति वविभखगग दविखरख प्रखपति ससचनख कक आधिखर पर ससंकललिति कक गई हहै।"
CWP - 1645/2016 ALONG WITH OTHER PETITIONS 180 The data aforesaid show no representation in services of few castes, whereas, adequate representation of other castes, yet it has been ignored by the Commission.
Learned Solicitor General Mr.Ranjeet Kumar has referred the Notification dated 31st July, 2009 to show extra ordinary situation in the State so as to bring the Act of 2008 for making a new category of "special backward class". A reference of Section 2H of the Act of 2008 has been given to show definition of "Special Backward Class". Section 4 provides reservation to various categories, which includes, Special Backward Class.
Five castes brought under the umbrella of special backward classes were earlier also getting benefit of reservation for last many years. No extra ordinary situation could be given by the SBC Commission and the State Government to create a new category for five castes. The extra ordinary circumstances have been shown for sake of it and otherwise based on incomplete data. If the extra ordinary situation is due to less or negligible representation of five castes in the services as well as in educational courses, the status of other castes was not seen which are having no CWP - 1645/2016 ALONG WITH OTHER PETITIONS 181 representation. It seems that the SBC Commission was to make recommendation only for five castes out of 82, without proper justification. It is moreso when the IDS was asked to submit report for 82 castes and even the reference by the State Government was for all those castes. Why the report was submitted without complete survey, could not be explained.
It was also urged by learned Solicitor General that once a decision has been taken by the Government to provide reservation to special backward classes, it should not be interfered unless shown to be with ulterior motive or enactment is unconstitutional, otherwise, wisdom of Legislature should prevail.
The aforesaid has been taken into consideration by this Court.
We find that reservation has been provided beyond 50 per cent having no extra ordinary situation. All the five castes were getting reservation in OBC category and it is not that the Gujjars/Gurjars and others were having no representation either for admission in the educational institutions or in services. The data has not been collected to CWP - 1645/2016 ALONG WITH OTHER PETITIONS 182 the extent it was required. In those circumstances, recommendation of the SBC Commission can be said to be perverse. It is otherwise without consideration for exclusion of few castes when adequate representation exists. It was expected that if one or two castes has taken major part of the reservation and, for that, other caste could not get adequate representation, then to exclude castes taken major part of reservation, so that remaining castes may get due benefit.
This Court has made its observation on the report of SBC Commission on few issues, otherwise, entire report is such, on which, confidence cannot be deposed. The Commission has given reference of Kaka Kalelkar Committee report apart from many other committees in ignorance of the direction of the Apex Court to review the list every ten years. The purpose to review is not only to include but exclude those, who could get adequate representation in the services as well as educational institutions. The statement has even been prepared after taking into consideration the ratio on the total population though not permissible and otherwise, in reference to the year 1931. In view of the above, the SBC CWP - 1645/2016 ALONG WITH OTHER PETITIONS 183 Commission and the State Government have failed to discharge their obligation as per the directions of the Apex Court to collect quantifiable data.
It has been admitted that IDS had conducted survey in urban as well as rural areas. In a district, only five villages under Panchayat Samitis were chosen and, for urban area, 13 cities and towns were selected. We need not to make further comment on it because the SBC Commission itself has made serious comments on the report of the IDS. The scientific method to conduct survey has not been adopted, though the SBC Commission thereupon relied on the report of IDS while drawing its conclusions in Chapter Ten, which remains in contradiction to their own comments on the report.
Learned Solicitor General Mr.Ranjeet Kumar was fair to admit that the SBC Commission did not accept the report of IDS as it was without adopting scientific method and proportional formula. The State Government was thus asked to submit data of various castes in regard to admission in the educational institutions and appointment in the services. It was submitted thereupon but in a haste. It was for appointment in class I and II services leaving others, that CWP - 1645/2016 ALONG WITH OTHER PETITIONS 184 too, selection by the Rajasthan Public Service Commission though selections were conducted by many Departments itself followed by appointments but those were not taken into consideration.
It is further admitted by learned counsel appearing for the State Government that IDS had shown various practical difficulties in survey. All those facts have been reflected in the reply of IDS to the Commission and has been referred by this Court in the previous paras. No survey was conducted by the SBC Commission.
The backwardness of the castes has been assessed only by IDS and not by the State Government and if said assessment has been relied by the SBC Commission then it cannot be said to be proper when it was not based on scientific and proportionate basis, as commented by the Commission itself. The State Government has not conducted survey or supplied any data for percentage of backwardness of each caste.
The survey regarding admission in the educational institutions and appointment in services conducted by the State Government is largely for five years, i.e., from the year CWP - 1645/2016 ALONG WITH OTHER PETITIONS 185 2007 to 2012, though the Commissioner-cum-Secretary to the Social Justice and Welfare Department had furnished figures from the year 2001 till 2012. The conclusions of the SBC Commission should have been in reference to the said period for all the castes. The consolidated table referred by the Commission is also quoted hereunder for ready reference :
Table No.16-In State Government, Government Undertakings, Cooperative Institutions and Autonomous Corporation Category Wise/Castewise made appointment from 1.1.2001 to 30.09.2012 (First and Second Step) S.No. I % to II % to III % to Total % to total % to % to total total total total appointm total Population on Total Appointment 1400 appoint 21514 appoint 26361 appoint 49275 ent OBC Census 1931 ment ment ment appoi Reserved for OBC 296 3905 5412 9613 ntmen t Total Selection of OBC 432 5748 9098 15278 1 2 3 4 5 6 7 8 9 10 11 12 1 Gadia-lohar/Gadolia 0 0.00 11 0.05 11 0.04 22 0.04 0.14 0.074 2 Raika, Rebari (Debasi) 2 0.14 6 0.03 15 0.06 23 0.05 0.15 1.173 3 Banjara/Baladia/Labana 0 0.00 39 0.18 19 0.07 58 0.12 0.38 1.199 4 Gadaria 0 0.00 8 0.04 68 0.26 76 0.15 0.50 0.661 (Gadri)/Gayri/Ghosi (Gvala) 5 Gujar/Gurjar 7 0.50 195 0.91 634 2.41 836 1.70 5.47 4.767 6 Jat 178 12.71 2126 9.88 2240 8.50 4544 9.22 29.74 9.097 7 Charan 48 3.43 185 0.86 115 0.44 348 0.71 2.28 0.285 8 Ahir (Yadav) 30 2.14 430 2.00 473 1.79 933 1.89 6.11 1.546 9 Vishnoi 22 1.57 128 0.59 168 0.64 318 0.65 2.08 0.593 10 Kumhar (Prajapati), 16 1.14 311 1.45 940 3.57 1267 2.57 8.29 3.171 Kumawat/Suara 11 Mali/Saini/Bagwan 20 1.43 437 2.03 1212 4.60 1669 3.39 10.92 3.257 12 Badai/Jangid/Khati/Suthar/ 15 1.07 247 1.15 446 1.69 708 1.44 4.63 1.846 Tarkhan 13 Swarnkar/Sunar/Soni/Jadia 25 1.79 175 0.81 111 0.42 311 0.63 2.04 0.652 14 Darzi 10 0.71 83 0.39 125 0.47 218 0.44 1.43 0.420 CWP - 1645/2016 ALONG WITH OTHER PETITIONS 186 Table No.16-In State Government, Government Undertakings, Cooperative Institutions and Autonomous Corporation Category Wise/Castewise made appointment from 1.1.2001 to 30.09.2012 (First and Second Step) 15 Sad/Swami/Bairagi/Jangam 6 0.43 110 0.51 180 0.68 296 0.60 1.84 0.246 16 Nai/Sain/Vednal 2 0.14 86 0.40 224 0.85 312 0.63 2.04 1.469 17 Rawat 2 0.14 23 0.11 105 0.40 130 0.26 0.85 0.940 18 Dhakar 3 0.21 118 0.55 329 1.25 450 0.91 2.95 0.823 19 Daroga/RAvna Rajput, 4 0.29 79 0.37 280 1.06 363 0.74 2.38 1.589 Hazuri/Wazir 20 Badwa/Jachak/Bhat/Jaga/ 1 0.07 29 0.13 40 0.15 70 0.14 0.46 0.338 Rao 21 Kalal(Tak)/Kalal(Mewara)/ 5 0.36 66 0.31 91 0.35 162 0.33 1.06 0.377 Kalal (Suwalka)/ Kalal (Jaiswal)/Kalal (Ahluwalia)/Kalal (Patel) 22 Thathera/Kansara 0 0.00 4 0.02 5 0.02 9 0.02 0.06 0.024 (Bharava) 23 Ghanchi 2 0.14 20 0.09 27 0.10 49 0.10 0.32 0.046 24 Teli 2 0.14 59 0.27 134 0.51 195 0.40 1.28 0.719 25 Kharol (Kharwal) 1 0.07 2 0.01 5 0.02 8 0.02 0.05 0.077 26 Satiya Sindhi 2 0.14 8 0.04 4 0.02 14 0.03 0.09 0.000 27 Kayamkhani 7 0.50 50 0.23 82 0.31 139 0.28 0.91 0.309 28 Lakhera (Lakhara), 1 0.07 16 0.07 28 0.11 45 0.09 0.29 0.110 Kachera/Manihar 29 Dhobi (Muslim) 1 0.07 1 0.00 24 0.09 26 0.05 0.17 0.044 30 Lohar/Panchal 1 0.07 19 0.09 76 0.29 96 0.19 0.63 0.723 31 Jogi/Nath/Sidh 1 0.07 23 0.11 72 0.27 96 0.19 0.63 0.69 32 Chhipa 1 0.07 108 0.50 94 0.36 203 0.41 1.33 0.300 (Chhipi)/Bhavsar/Nama/Kh ati Chippa/Rangrej/Neelgar 33 Dhivar/Kahar/Bhol/Sagarv 1 0.07 14 0.07 47 0.18 62 0.13 0.41 0.235 anshi-
Mali/Keer/Mehra/Mallah (Nishad)/Bari/Bhisti/Mach uara 34 Dangi 0 0.00 2 0.01 7 0.03 9 0.02 0.06 0.432 35 Janwa, Khardiya (Sirvi) 1 0.07 33 0.15 22 0.08 56 0.11 0.37 0.031 36 Dakaut/Deshantri/Rangasa 2 0.14 10 0.05 26 0.10 38 0.08 0.25 0.237 mi (Adbhopa) 37 Maha-Brahman 1 0.07 14 0.07 36 0.14 51 0.10 0.33 0.484 (Acharaj)/Fakir (Working in Kabristan) 38 Kanbi/Kalbi/Patel/Patidar/ 1 0.07 81 0.38 64 0.24 146 0.30 0.96 0.001 Anjana/Dangi Patel/Kumi 39 Mev 1 0.07 15 0.07 27 0.10 43 0.09 0.28 1.421 40 Giri/Gosain (Gushain) 0 0.00 28 0.13 46 0.17 74 0.15 0.48 0.260 41 Halali/Kasai 0 0.00 5 0.02 8 0.03 13 0.03 0.09 0.211 42 Julaha 2 0.14 28 0.13 41 0.16 71 0.14 0.46 0.151 CWP - 1645/2016 ALONG WITH OTHER PETITIONS 187 Table No.16-In State Government, Government Undertakings, Cooperative Institutions and Autonomous Corporation Category Wise/Castewise made appointment from 1.1.2001 to 30.09.2012 (First and Second Step) 43 Sindhi Musalman 2 0.14 10 0.05 30 0.11 42 0.09 0.27 0.370 44 Tamoli (Tamboli) 1 0.07 17 0.08 12 0.05 30 0.06 0.20 0.052 45 Lodhi (Lodha) 0 0.00 12 0.06 58 0.22 70 0.14 0.46 0.089 46 Rath 0 0.00 1 0.00 25 0.09 26 0.05 0.07 0.447 47 Mer (Mehrat-Kathat, 1 0.07 5 0.02 26 0.10 32 0.06 0.21 0.244 Mehrat-Ghodat, Cheeta) 48 Bagaria 0 0.00 6 0.03 1 0.00 7 0.01 0.05 0.000 49 Bharbhuja 0 0.00 0 0.00 4 0.02 4 0.01 0.03 0.031 50 Nagarchi- 0 0.00 3 0.01 3 0.01 6 0.01 0.04 0.085 Damami/Rana/Baiti (Barot) 51 Hela 0 0.00 0 0.00 0 0.00 0 0.00 0.00 0.000 52 Kandera/Pinjara 0 0.00 8 0.04 26 0.10 34 0.07 0.22 0.235 53 Kirar (Kirad) 1 0.07 3 0.01 13 0.05 17 0.03 0.11 0.133 54 Mirasi/Dandi/Langa/Mang 0 0.00 3 0.01 9 0.03 12 0.02 0.08 0.150 niyar 55 Mogia (Mogya) 0 0.00 0 0.00 0 0.00 0 0.00 0.00 0.052 56 Nyaria (Nyargar) 0 0.00 0 0.00 3 0.01 3 0.01 0.02 0.021 57 Odd 0 0.00 3 0.01 12 0.05 15 0.03 0.10 0.066 58 Patwa (Phadal) 0 0.00 1 0.00 2 0.01 3 0.01 0.02 0.024 59 Sikllgar/Bandooksaz (Usta) 0 0.00 2 0.01 4 0.02 6 0.01 0.04 0.018 60 Sirklwal 0 0.00 0 0.00 0 0.00 0 0.00 0.00 0.000 61 Jagri 0 0.00 0 0.00 2 0.01 2 0.00 0.01 0.008 62 Raisikh 0 0.00 12 0.06 46 0.17 58 0.12 0.38 0.000 63 Lodhe-Tanwar 0 0.00 2 0.01 9 0.03 11 0.02 0.07 0.000 64 Sohdhla 0 0.00 2 0.01 0 0.00 2 0.00 0.01 0.291 65 Gaddee 0 0.00 5 0.02 0 0.00 5 0.01 0.03 0.045 66 Farooki Bhatiyara 0 0.00 2 0.01 0 0.00 2 0.00 0.01 0.000 67 Silawat(Other than 2 0.14 3 0.01 19 0.07 24 0.05 0.15 0.122 Sompura and Murtikaar)/Chejara 68 Kherwa 0 0.00 0 0.00 0 0.00 0 0.00 0.00 0.004 69 Kunjada/Raen` 0 0.00 0 0.00 0 0.00 0 0.00 0.00 0.038 70 Sapera (Non Hindu Caste) 0 0.00 0 0.00 0 0.00 0 0.00 0.00 0.035 71 Madari/Bajigar (Non Hindu 0 0.00 0 0.00 16 0.06 16 0.03 0.10 0.002 Caste) 72 Nut (Non Hindu Caste) 0 0.00 0 0.00 3 0.01 3 0.01 0.02 0.065 73 Gadeet Nagauri 0 0.00 5 0.02 1 0.00 6 0.01 0.04 1.409 74 Kheldar 0 0.00 2 0.01 0 0.00 2 0.00 0.01 0.000 75 Chungar 0 0.00 3 0.01 0 0.00 3 0.01 0.02 0.005 CWP - 1645/2016 ALONG WITH OTHER PETITIONS 188 Table No.16-In State Government, Government Undertakings, Cooperative Institutions and Autonomous Corporation Category Wise/Castewise made appointment from 1.1.2001 to 30.09.2012 (First and Second Step) 76 Multanies 0 0.00 0 0.00 0 0.00 0 0.00 0.00 0.002 77 Mochi (Non Hindu Caste) 0 0.00 0 0.00 3 0.01 3 0.01 0.02 0.012 78 Deshwali 0 0.00 4 0.02 15 0.06 19 0.04 0.12 0.073 79 Kotwal/Kotwal 0 0.00 0 0.00 0 0.00 0 0.00 0.00 0.002 80 Chobdar 0 0.00 0 0.00 2 0.01 2 0.00 0.01 0.021 81 Kachhi (Kushwaha), 1 0.07 13 0.06 53 020 67 0.14 0.44 0.513 Shakya Total 432 30.86 5559 25.84 9098 34.51 15089 30.62 98.76 44.671 The statement aforesaid reveals reservation of 9613 posts for OBC and, as against aforesaid, 15278 OBC candidates could get appointment, i.e., exceeding to reserve posts meant for them. If it is taken against 49275 posts, so advertised, then OBC candidates could occupy nearly 30 per cent posts. The aforesaid fact has also been ignored by the SBC Commission while considering the statement referred to above. It seems that ignoring the adequate representation of few castes, recommendation to create a new category of "special backward classes" has been given to satisfy the desire of the State Government. The way, recommendations have been made, cannot be said to be based on cogent reasons.
In all, 49275 appointments were made in various services since 01st January, 2001 till 30th September, 2012 CWP - 1645/2016 ALONG WITH OTHER PETITIONS 189 and, out of it, 15278 posts were filled from OBC candidates, which comes to nearly 30 per cent of the total posts, whereas, reservation to the OBC category is 21 per cent. Out of 15278 appointments, 836 were of Gujjar/Gurjar caste, whereas, Jaats could get 4544 posts. The figures aforesaid shows that around 30 per cent posts have been occupied by Jaat candidates.
A caste occupied around 30 per cent of the total posts of OBC category has not been considered for their exclusion so that remaining castes may get adequate share on its exclusion. If the total posts filled from four castes namely, Jaat, (4544), Ahir (Yadav) (933), Kumhar or Kumawat (Prajapati, Kumawat/Suara) (1267) and Mali/Saini/Bagwan (1669) are considered, then around 60 per cent of the posts came in their share leaving 40 per cent for all other castes in OBC category. In view of the judgment of the Apex Court, the SBC Commission was required to consider and make recommendations not only for inclusion of certain castes but should have been even for exclusion thereof. The new category has been created without extra ordinary situation because it is for those castes, which were otherwise getting CWP - 1645/2016 ALONG WITH OTHER PETITIONS 190 reservation for last many years.
It is urged that the Apex Court in the case of SV Joshi (supra) held that contradiction or other irregularity in the report of the Commission should not be taken as basis to discard or annul the legislation. It is, no doubt, true that while making detailed and lengthy report, some discrepancies may occur but reference of the facts given above reveals major discrepancies and report of the SBC Commission shows contradiction and perversity. The report is not based on scientific method or quantifiable data. The Court cannot be silent spectator for the aforesaid, rather, if the discrepancies of the nature spelled out by this Court are allowed to stand then recommendations by the SBC Commission would be an empty formality only.
Many parts of the report reflect comment on the survey conducted by the IDS and are reproduced hereunder to show observations of the Commission itself that in what manner, data have been collected :
"In MOU it was made clear that sample survey technique would be adopted and conclusion would be drawn by applying scientific method as adopted by the CWP - 1645/2016 ALONG WITH OTHER PETITIONS 191 Institution. Survey would be conducted keeping in view the directions given by Hon'ble Rajasthan High Court in which social backwardness, educational backwardness and inadequate representation in government services would be included. A bare perusal of the report submitted by the Institution reveals that sample of castes/classes of villages and cities was lacking scientific method and proportional formula. For sample of a caste, index of population percentage in the State was not taken into consideration. Proportional formula in village sample and urban city sample was also not taken into consideration. The institution collected primary data by conducting survey on various factors in the form of questioner. The questioner prepared by the institution is Appendix-
15. Quantifiable data on various factor should have been collected by applying random survey method, which is scientific but in various circumstances the data have not been collected applying full random survey method but data has CWP - 1645/2016 ALONG WITH OTHER PETITIONS 192 been collected applying purposive sample method. The result was otherwise affected.
From the analysis of above study, the commission has come to the conclusion that on the basis of survey of few houses it will not be justifiable to reach at correct conclusion. Out of 81 castes/classes, 13 castes are those in whose matter not a single house was surveyed in city areas and 4 are those in whose matter not a single house was surveyed in village areas. 27 castes are such in whose matter only 1-10 houses have been surveyed. Out of above 27 castes 16 are those in whose matter only 1-10 houses have been survey in city areas and 11 castes are those in whose matter only 1-10 houses have been surveyed in village areas. 12 castes are such in whose matter only 11-20 houses have been surveyed. Out of above 12 castes 8 are those in whose matter only 11-20 houses have been surveyed in city areas and 4 castes are those in whose matter only 11-20 houses have been surveyed in village areas. One of the parameters adopted in survey was that CWP - 1645/2016 ALONG WITH OTHER PETITIONS 193 information furnished by the individual was accepted as it was without any confirmation/satisfaction. One more lacuna left was that after entering into government service the villagers who migrated to cities were neither surveyed in cities nor in villages. Correct assessment of representation of inhabitants of that area in government employment cannot be determined. The Commission has taken decision to call caste wise data of employees working in Government services belonging to all 81 castes of Backward Classes. Member Secretary of the Commission requested to the Chief Secretary and Principal Secretary, Department of Personnel to provide data. Principal Secretary, Department of Personnel has informed the Commission that in select list only OBC is mentioned and that caste wise select list is not prepared. He informed that it was very difficult to collect caste-wise data of employees. He further informed that if efforts were being made it would take at least 6 months to collect the information from CWP - 1645/2016 ALONG WITH OTHER PETITIONS 194 all departments of all districts. The Commission considered that aspect also decided to call caste wise and number wise data from main departments of last five years (2007-2012), such as total vacancies, vacancies reserved for OBC, selection of OBC candidates against general category candidates, total selection of OBC, information of caste of selected candidates on the basis of caste certificate submitted with application form or entry of caste in service book because the selection done by Rajasthan Public Service Commission during that period was on first and second class posts. Following departments were requested to send information:
1. Department of Personnel
2. Home/Police Department
3. Finance Department
4. Excise Department
5. Commercial Taxes Department
6. State Insurance Department
7. Women & Child Development Department
8. Labour & Employment Department
9. Department of Industry
10. Food & Civil Supply Department CWP - 1645/2016 ALONG WITH OTHER PETITIONS 195
11. Public Works Department
12. College Education
13. Co-operative Department
14. Village & Panchayati Raj Department
15. Technical Education Data of selection of candidates of various castes/classes during five years in above departments and percentage of population of 1931 census of those castes were consolidated and cadre wise tables were prepared, which are Table No.13, 14 and 15 here-under."
The extracted portion above is only an illustration otherwise other discrepancies also exist and, in those circumstances, the report of the SBC Commission cannot be accepted. The survey should have been conducted in the manner required and otherwise directed by the Apex Court in various judgments. It was expected of the Commission not to rely on the old data which are not relevant at present. The deficiencies and the perversity in the report can be summarised as under :
(i) The SBC Commission has failed to consider Article CWP - 1645/2016 ALONG WITH OTHER PETITIONS 196 16(4B) of the Constitution, rather, referred the judgment in the case of Indra Sahwney (supra) to exceed the ceiling of 50 per cent while drawing conclusions in Chapter Ten of the report where, in the last few paras, consideration has been made in reference to the judgment of the Apex Court in the case of Indra Sawhney (supra) and in reference to Article 16(4B) of the Constitution of India.
(ii) The State Government provided details of representation of various castes in services but it was only in Class I and II services leaving others, that too, for few services out of 170 thus, data aforesaid should not have been relied in absence of complete survey and report thereupon.
(iii) The SBC Commission has commented on the report of the IDS that survey has not been conducted in a scientific method yet, in later part, survey report has been relied.
(iv) The SBC Commission has failed to consider that CWP - 1645/2016 ALONG WITH OTHER PETITIONS 197 economic criteria could not have been excluded altogether and it otherwise relied on only 8 points out of 24 given in 11 Indicators as per the report of the Mandal Commission. For the educational backwardness, only 2 points have been referred thus survey and the report does not refer to all the indicators and points before making the report.
(v) The SBC Commission had considered 58 different courses of few colleges and few students, whereas, there are more than four lac students thus even survey for educational institutions was not properly undertaken.
(vi) The issue of "Nomadic" status is again based on the old literature and papers and not based on the survey by the SBC Commission at their own.
(vii) The SBC Commission further failed to consider the effect of the reservation on efficiency of administration, though, a direction for consideration of the aforesaid issue was also given. The Commission has made comment about various castes and their CWP - 1645/2016 ALONG WITH OTHER PETITIONS 198 representation for which no survey exists. It is for 25 castes yet report was given and seems to be in haste to fulfill the wishes, though, the Commission was expected to be independent and to draw conclusions after conducting survey of all the castes, that too, of the relevant period.
(viii) The SBC Commission failed to consider the issue of exclusion of any caste, if adequately represented, which may be the reason that other castes could get comparatively less representation.
The aforesaid are few issues to show perversity and the inadequacy in the report before making recommendations for reservation beyond 50 per cent, that too, after carving out a new category for those, who were already getting benefit of reservation for past many years. The extra ordinary circumstances to make out an exceptional case do not exist to provide 5 per cent reservation. The report cannot be said to be based on quantifiable data.
In view of the discussion made above, the report of the SBC Commission cannot be accepted and is, CWP - 1645/2016 ALONG WITH OTHER PETITIONS 199 accordingly, quashed. As a consequence of the aforesaid apart from the discussion made in reference to Article 16(4B) of the Constitution of India and the judgments of the Apex Court, the impugned Notification dated 16th October, 2015 issued by the State Government and the Rajasthan Special Backward Classes (Reservation of Seats in Educational Institutions in the State and of Appointments and Posts in Services under the State) Act, 2015 are struck down.
With the aforesaid, all the writ petitions are disposed of.
A copy of this order be placed in each connected file.
(J.K.RANKA), J. (M.N.BHANDARI), J. Preeti, P.A.