Indian Kanoon - Search engine for Indian Law

The majority held as under :-

142. The amendment in question makes a reasonable classification between "economically weaker sections" and other weaker sections, who are already mentioned in Articles 15(4), 15(5) and 16(4) of the Constitution and are entitled to avail the benefits of reservation thereunder. The moment there is a vertical reservation, exclusion is the vital requisite to provide benefit to the target group. In fact, the affirmative action of reservation for a particular target group, to achieve its desired results, has to be carved out by exclusion of others. The same principle has been applied for the affirmative action of reservation qua the groups of SEBCs, OBCs, SCs, and STs. Each of them takes reservation in their vertical column in exclusion of others. But for this exclusion, the purported affirmative action for a particular class or group would be congenitally deformative and shall fail at its inception. Therefore, the claim of any particular class or section against its exclusion from the affirmative action of reservation in favour of EWS has to be rejected.

146. According to the petitioners, it is a case of their direct discrimination when they have been excluded from EWS reservation. The problem with this argument is that EWS reservation itself is another form of compensatory discrimination, which is meant for serving the cause of such weaker sections who have hitherto not been given any State support by way of reservation. SEBCs/OBCs/SCs/STs are having the existing compensatory discrimination in their favour wherein the presently supported EWS are also excluded along with all other excluded classes/persons. As a necessary corollary, when EWS is to be given support by way of compensatory discrimination, that could only be given by exclusion of others, and more particularly by exclusion of those who are availing the benefit of the existing compensatory discrimination in exclusion of all others. Put in simple words, the exclusion of SEBCs/OBCs/SCs/STs from EWS reservation is the compensatory discrimination of the same species as is the exclusion of general EWS from SEBCs/OBCs/SCs/STs reservation. As said above, compensatory discrimination, wherever applied, is exclusionary in character and could acquire its worth and substance only by way of exclusion of others. Such differentiation cannot be said to be legally impermissible; rather it is inevitable. When that be so, clamour against exclusion in the present matters could only be rejected as baseless.

49. Thus, by Article 342A(3) the entries in the State list would be by the State and for its own purpose of the State. Therefore, the Article 342-A as it now stands clearly provides a parallel structure whereby the State Government or the concerned Union Territory would notify a caste or community as OBC for its own purpose and the Central Government will notify a caste or community in Central List for the purposes of the Central Government. The purpose of these two separate lists is distinct and separate. Central List is for the Central Government and State list is for the State Government. The castes and communities contained in the two respective lists, as per Constitutional scheme, do not come together and have been kept distinct and separate by the bare language of Article 342-A. In fact, the very purpose of 105th amendment was to confer the power on the State Governments to notify a particular caste or community as SEBC (or OBC) for its own purpose because by the Constitution Bench judgment of the Supreme Court in the case of Jaishri Laxmanrao Patil (supra) it was interpreted that Article 342-A has taken away the said power. The very purpose of this 105th amendment was to retain power with the States to maintain their own lists, which may be different from the State lists.

50. By insertion of proviso to Article 338-B, it has further been provided that nothing in the Article 338-B (9) would apply for the purposes of 342-A(3). Thus the National Commission for Backward Classes would not have jurisdiction of consultation with the State Government for the purpose of entries of OBCs to be made in the State list.

51. As per Article 366 (26C) the definition of SEBC (or OBC), as it now stands, is that such backward classes as are so deemed under Article 342-A for the purpose of Central Government or the State or Union territory as the case may be. Here again the SEBCs (OBCs) notified or declared in the State list and Central list are treated differently.