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2. At the hearing, Mr. B. K. Das, Jearned counsel for the petitioner, submitted that the power to legislate relating to identifica-tion of backward classes is with the Union Parliament and not with the State Legislature. He contended that Entry 41 ofList-II of the Seventh Schedule to the Constitution empowered a State Legislature to make a law relating to State Public Services but the impugned Assam Act is not a legislation on public services of the State of Assam. It is a legislation for identification of backward classes and as no Entry in List-11 or List-111 of the Seventh Schedule to the Constitution relates to identification of backward classes, law relating to identification of backward classes can only be made by the Union Parliament in exercise of its residuary power under Article 248 of the Constitution or under Entry-97 of List-I of the Seventh Schedule to the Constitution. Mr. Das argued in the alternative that para-117 of the majority judgment of B.P. Jeevan Reddy, J. as reported in AIR 1993 SC 477 would show that the Backward Classes Commission was to be created under Article 16(4) read with Article 340 of the Constitution for the purpose of identifying and specifying the backward classes of citizens in whose favour reservations were to be provided and under Article 340 of the Constitution it is the President of India who has the power to appoint a Commission to investigate the conditions of backward classes and not the State Legislature of a State. The impugned Assam Act has been made by the State Legislature for constituting a Commission for identifying the backward classes contrary to the directions of the Supreme Court in the aforesaid majority Judgment of the Supreme Court in the case of Indra Sawhncy v. Union of India, (AIR 1993 SC 477) (supra) and the provisions of Article 340 of the Constitution. Mr. Das further contended that in any case the Union Parliament has already made the National Commission for Backward Classes Act, 1993, and the said Act makes detailed provisions with regard to constitution of National Commission for Backward Classes by the Central Government and for examination of requests for inclusion of any class of citizens as a backward class in the lists and hear complaints of over-inclusion or under-inclusion of any backward class in such lists and tender such advice to the Central Government as it deems appropriate. The said Central Act made by the Union Parliament there/ore covers the entire field relating to identification of backward classes and relating to inclusion of any class of citizens as a backward class in the lists as well as their over-inclusion or under-inchision in such lists. According to Mr. Das, since the aforesaid Central Act occupies the entire field for identification of backward classes and their inclusion, over-inclusion or under-inclusion in the lists, the State Legislature cannot make a law on the very same field and the impugned Assam Act is repugnant to the aforesaid Central Act. He submitted that Article 254 of the Constitution made it clear that a law made by the Legislature of a State which was repugnant to the provision of law made by the Union Parliament was void to the extent of such repugnancy. Mr. M. Singh, learned counsel appearing for respondent No. 5 adopted the aforesaid submissions.

4. Since the impugned Assam Act was enacted pursuant to the directions of the Supreme Court in the case of Indra Sawhney v. Union of India, AIR 1993 SC 477, the said paragraph-117 is quoted hereinbelow :--

"Desirability of a permanent statutory body to examine complaints of over-inclusion / under- inclusion.
117. We are of the considered view that there ought to be a permanent body, in the nature of a Commission or Tribunal, to which complaints of wrong inclusion or non-inclusion of groups, classes and sections in the lists of Other Backward Classes can be made. Such body must be empowered to examine complaints of the said nature and pass appropriate orders. Its advice/ opinion should ordinarily be binding upon the Government. Where, however, the Government does not agree with its recommendation, it must record its reasons therefor. Even if any new class/group is proposed to be included among the other backward classes, such matter must also be referred to the said body in the first instance and action taken on the basis of its recommendation. The body must be composed of experts in the field, both official and non-official, and must be vested with the necessary powers to make a proper and effective inquiry. It is equally desirable that each State constitutes such a body, which step would go a long way in redressing genuine grievances. Such a body can be created under Clause (4) of Article 16 itself- or under Article 16(4) read with Article 340 - as a concomitant of the power to identify arid specify backward class of citizens, in whose favour reservations are to be provided. We direct that such a body be constituted both at Central level and at the level of the States within four months from today. They should become immediately operational and be in a position to entertain and examine forthwith complaints and matters of the nature aforementioned, if any, received. It should be open to the Government of India and the respective State Governments to devise the procedure to be followed by such body. The body or bodies so created can also be consulted in the matter of periodic revision of lists of O.B.Cs. As suggested by Chandrachud, C.J. In Vasanth Kumar, AIR 1985 SC 1495, there should be a periodic revision of these lists to exclude those who have ceased to be backward or for inclusion of new classes, as the case may be."

The aforesaid observations and the directions of the Supreme Court would show that the body to examine complaints of Wrong inclusion or non-inclusion of groups, classes and sections in the lists of Other Backward Classes should be created under Clause (4) of Article 16 it self or under Article 16(4) read with Article 340 as a concomitant of the power to identify and specify backward class of citizens in whose favour reservations were to be provided.

5. Clause (4) of Article 16 of the Constitution provides that nothing in Article 16 shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. Thus complaints of wrong inclusion or non-inclusion of groups, classes and sections in the lists of Other Backward Classes were to be examined by the body to be created under Clause (4) of Article 16 of the Constitution for the purpose of providing for reservation of appointments or posts tn favour of any backward class of citizens which was not adequately represented in the services under the State. The object of the impugned Assam Act made pursuant to the aforesaid directions of the Supreme Court in the aforesaid para 117 of the Judgment in the case of Indra Sawhney v. Union of India, (AIR 1993 SC 477) (supra) was to create a statutory body for examining complaints of wrong inclusion or non-inclusion of groups, classes and sections in the lists of Other Backward Classes for the purpose of making provisions for reservation of appointments or posts in favour of such groups, classes and sections in the services under the State and not for any other purpose. This would also be evident from the preamble of the impugned Assam Act which is to the following effect :

6. Further, in the observations of the Supreme Court in para 117 of the judgment in the case of Indra Sawhney (supra), quoted above, it was made clear that the body to examine complaints of wrong inclusion or non-inclusion of groups, classes and sections in the lists of Other Backward Classes should be created either under Clause (4) of Article 16 itself or under Article 16(4) read with Article 342 as a concomitant of the power to identify and specify backward class of citizens, in whose favour reservations were to be provided..Such a body thus can be created under Clause (4) of Article 16 itself either by an executive order or by law. When such a body is created under Clause (4) of Article 16 itself by law, such law obviously has to be passed by the Parliament or the State Legislature in accordance with its power as enumerated in Article 246 and Article 309 of the Constitution. Since the impugned Assam Act has been made by the State Legislature of Assam in accordance with its exclusive power under Article 246(3) and Article 309 of the Constitution, the impugned Assam Act is within the legislative competence of the State Legislature of Assam and is not contrary to the directions of the Supreme Court in para 117 of the judgment in the case of Indra Sawhney, (AIR 1993 SC 477) (supra) as contended by Mr. Das, learned counsel for the petitioner. The argument of Mr. Das, learned counsel for the petitioner, that a body to examine complaints of wrong inclusion or non-inclusion of groups, classes and sections in the lists of Other Backward Classes could be created only under Article 340 of the Constitution as per the direction of the Supreme Court would have been relevant if the Supreme Court had held that such a body could not be created under Clause (4) of Article 16 itself but only under Article 16(4) read with Article 340. Moreover, under Article 340 of the Constitution, the President of India has the power to appoint a Commission to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour and to make recommendations as to steps that should be taken by the Union or any State to remove such difficulties and to improve their condition. Such a Commission appointed by the President may also investigate the conditions of socially and economically backward classes in a State and identify and specify the backward classes of citizens in whose favour reservations are to be provided. But this does not mean that only a Commission appointed by the President under Article 340 of the Constitution can examine the complaints of wrong inclusion or non-inclusion of groups, classes and sections in the lists of Backward Classes of citizens for the purpose of providing reservation of vacancies in services and posts under the State. A Stale can create a body either by an executive order or by lawunder Clause (4) of Article 16 of the Constitution to examine complaints of wrong inclusion or non-inclusion of groups, classes and sections in the lists of Other Backward Classes for the purpose of providing reservation in the public services under the State. The contention of Mr. Das therefore that the impugned Assam Act is ultra vires Article 340 of the Constitution has no merit.