Atyant
Pichhara Barg Chhatra Sangh & Anr Vs. Jharkhand State Vaishya Federation
& Ors [2006] Insc 480 (8 August 2006)
Dr.
Ar. Lakshmanan & Lokeshwar Singh Panta
(@
S.L.P.(C) No. 23559 of 2003) Dr. AR. Lakshmanan, J.
Leave
granted.
The
above appeal is directed against the impugned common final judgment and order
dated 16.8.2003 of the Division Bench of the High Court of Judicature at Jharkhand,
Ranchi passed in L.P.A. No.176 of 2003, whereby the High Court allowed the said
appeal of respondent No.1 Jharkhand State Vaishya Federation and set aside the
common judgment and order dated 3.3.2003 of the learned single Judge of the
High Court and thus upheld the validity of Resolution No. 5800 dated 10.10.2002
of the State Government and thus affirmed the decision of the State Government
to amalgamate the two classes i.e. Extremely Backward Class and Backward Class
and the reduction of reservation from 12% and 9% respectively to 14% only for
the purpose of admission in professional educational institutions.
This
appeal raises important questions of law with respect to reservation in
professional educational institutions for the Extremely Backward Classes in the
State of Jharkhand. The State of Jharkhand had given 73% reservation for
appointments in Government services adopting the Bihar (Scheduled Castes, Scheduled Tribes and Backward Classes)
Reservation Act (Bihar Act No. 3 of 1992) with certain modifications vide
Notification No. 3465 of 2001 issued on 3.10.2001. Similarly through
Notification No. 3884 of 2001 issued on 5.11.2001, there were four specific
categories that were entitled to reservation in professional/technical
colleges:
Scheduled
Caste - 14% Scheduled Tribe - 32% Extremely Backward Classes - 18% Backward
Classes - 09% Total - 73% The process of reservations to 73% was challenged
before the High Court of Jharkhand on the ground that it was ultra vires the
Constitution in a number of writ petitions. Keeping in mind the fact that a
similar petition was pending before this Court (VOICE vs. State of Tamil Nadu S.L.P.(C)
No. 13526 of 1993), the Full Bench of the High Court deferred the hearing to
await the judgment of this Court. But as an interim measure, the High Court on
22.8.2002 reduced the reservation to 50% with specific directions to be given that
any appointment to Government service made in the open category would be
subject to the decision of this Court and also directed that the same
reservations would mutatis mutandis apply to reservation in educational
institutions as well. The Court clarified this order on 30.9.2002 which reads
as under:
"The
appointments thus to be made in the said 50% categories(as would now
correspondingly stand reduced from 73% to 50%) shall, be on proportionate
basis, with due reference and regard being had to the percentage of the
categories as constituted the sum-total of the original impugned 73%."
Accordingly, the State of Jharkhand
issued Notification No. 5800 of 2002 on 10.10.2002 superseding the earlier
Notification of 5.11.2001 whereby quotas were reduced to 50% in consonance with
the High Court's orders.
This
action by the Government through Notification No. 5800 of 2002 dated 10.10.2002
of amalgamating two classes namely, Backward Classes and Extremely Backward
Classes was challenged by the appellants before the High Court of Jharkhand
through W.P.(C) Nos. 6220, 6332 and 6545 of 2002. The learned single Judge
quashed the Notification. On appeal by the State, the Division Bench allowed
the appeal.
In
response to a number of writ petitions (W.P.Nos. 3696/2002, 4706/2001,
4637/2001 etc.) challenging the validity of 73% reservations with respect to
appointments, Full Bench of the High Court through an interim order mandated
that the reservation should be limited to only 50% and that the reduction
should be done on a proportionate basis with due reference and regard being had
to the percentage of categories as constituted the sum total of the impugned
order.
It
also noted that the observations would mutatis mutandis apply to the admission
process. This order of Full Bench ( Five Judges) is marked as Annexure P-2.
On a
petition seeking clarification of the said order at the instance of the State
of Jharkhand, the High Court made modifications whereby it clarified that it
would be open to the State to fix appropriate percentage quotas with respect to
each individual, class and category, as it may objectively and fairly decide,
constituting the sum total of 50% (Annexure P-3).
Resolution
contained in Memo No. 5 - Reservation- 03/2001-5800/Ranchi was issued by the State
Government superceding the earlier Notification of 5.11.2001 whereby quotas
were reduced to 50% in consonance with the High Court orders. But the quotas
were now fixed amalgamating the categories of Backward Classes and Extremely
Backward Classes in the following manner:
Scheduled
Caste - 10% Scheduled Tribe - 26% Other Backward Category - 14% Total - 50%
Writ Petition No. 6220 of 2002 was filed by the appellant herein in the High
Court of Jharkhand at Ranchi challenging the validity of the Government's
Resolution contained in Memo No. 5800/2002 which did not fix the quotas in
terms of the order of the Full Bench of the High Court but amalgamated the
Backward Classes and Extremely Backward Classes quotas and provided
consolidated reservation.
The
learned single Judge by his judgment and order dated 3.3.2003 allowed the writ
petitions and came to the conclusion that the original Resolution No.
3884/Ranchi dated 5.11.2001 being still in existence so far as it relates to
the "Reserved Categories", the respondents cannot club together the
Extremely Backward Category and Backward Category for the purpose of interim
arrangement. Consequently, he set aside Resolution No. 5800/Ranchi dated 10.10.2002 to the extent it
clubbed together the Extremely Backward Category and Backward Category. The
matter was remitted to the State to determine separately as to what will be the
percentage of Extremely Backward Category and Backward Category for the purpose
of interim arrangement and for admission in professional/technical and
equivalent training. The Court also took note of the fact that the High Court
on earlier occasion, had merely brought down the percentage of reservation and
it did not permit the State to club together one or other category or interfere
with the reservation given in favour of the Extremely Backward Category.
Being
aggrieved, the State Government filed L.P.A. No. 237 of 2003 and the Intervenor-Jharkhand
State Vaishya Federation filed L.P.A. No. 176 of 2003 with the leave of the
Court against the common judgment and order of the learned single Judge in
W.P.(C) No. 6332 & 6220 of 2002 respectively.
However,
no appeal was preferred against the said judgment and order of the learned
single Judge passed in W.P.(C) No. 6545 of 2003 and the said judgment and order
was allowed to become final.
The
Division Bench of the High Court by its final judgment and order allowed the
appeals and set aside the judgment and order of the learned single Judge and
thus upheld the validity of Resolution No. 5800 dated 10.10.2002 of the State
Government and thus affirmed the decision of the State Government to amalgamate
the two classes i.e. Extremely Backward Classes and Backward Classes and the
reduction of percentage of reservation from 18% and 9% respectively to 14%
only.
The
Division Bench came to the conclusion that even though, a sub-categorization of
a particular category may not be interfered with by the Court, the Court cannot
direct that the State should make a sub-categorization of a reserved category,
that was really a matter of policy. It also came to the conclusion that the
earlier order of the Full Bench cannot be understood as confined to altering
the proportion and not the category or as preventing it bringing together two
categories into one common category. It further came to the conclusion that
Resolution No. 5800 dated 10.10.2002 passed by the Government cannot be called
in question either on the ground that it is beyond the power of the Government
generally or on the ground that it is against the terms of the interim order of
the Full Bench as modified. In view of the aforesaid conclusion, it also set
aside the direction of the learned single Judge remitting the matter to the
State Government to determine separately the percentage of seats for the
Extremely Backward Categories and Backward Categories.
Aggrieved
by the said order, the above appeal is filed by way of special leave before
this Court.
We
heard Dr. Rajeev Dhawan, learned senior counsel assisted by Mr. Lakshmi Raman
Singh, learned counsel appearing for the appellants and Mr. Anil K. Jha,
learned counsel appearing for the respondents.
We
have gone through the papers, records and documents placed before us including
the order impugned in this appeal and also the order passed by the Full Bench
of the High Court. Dr. Rajeev Dhawan, learned senior counsel appearing for the
appellants, submitted that the Government was not justified in ordering
amalgamation of two classes i.e. Extremely Backward Classes and Backward
Classes based on different sets of relevant materials and also ordering
amalgamation without there being any study, data and materials to justify the
amalgamation and, therefore, the decision of the Government is vitiated on
account of non- consideration of the relevant facts and materials and
consideration of irrelevant materials. He further contended that the decision
of the State Government to amalgamate two classes does suffer from the vice of
discrimination as the two unequals have been treated as equals and thus two
different classes of people have been treated as similar.
Our
attention was drawn to Notification No. 5800 of 2002 dated 10.10.2002 passed by
the State of Jharkhand which, according to the learned senior counsel, was not
in terms of the order of the Full Bench of the High Court dated 22.8.2002 read
with the clarificatory order dated 30.9.2002 which was passed during the pendency
of the writ petitions before the Full Bench. It was further submitted that the
Division Bench ought to have noticed that after being given Statehood, the
State of Jharkhand had specifically adopted the Bihar Act and also issued
Notifications giving 73% reservation to four categories, but in the gap of a
year after the High Court orders, the State had issued Notification
amalgamating the categories of Extremely Backward Classes and Backward Classes
into one without application of mind and without taking into account all the
relevant facts which have got an important bearing on the issue. Our attention
was also drawn to the decision of this Court in the case of Mandal Commission, Supp(3)
SCC 217. Our attention was drawn to certain passages in the said judgment.
Mr.
Anil K. Jha, learned counsel appearing for the respondents, submitted that the
State Government superseded the earlier Resolution No. 3884 dated 5.11.2001
regarding extension of reservation in admission in specified professional and
technical institutions and issued a fresh Resolution No. 5800 dated 10.1.2002
in its place to make it consistent with the directions of the High Court and
that in accordance with the directions of the High Court. It was further
contended that no separate percentage was fixed for Backward Classes and
Extremely Backward Classes and the same was done after careful application of
mind and due deliberation by the highest policy making body of the Government
i.e., the Council of Ministers and that the decision was taken in view of the
fact that the categorization of other Backward Classes between Extremely
Backward Classes and Backward Classes was done by the undivided Government of
Bihar and was not found exactly relevant in the context of the State of Jharkhand.
It was contended that this new policy of the State Government of allocating
reservation of other Backward Classes as one block is also similar to and
consistent with the policy of the Central Government in this regard.
We
have given our thoughtful consideration to the rival submissions made by the
learned counsel appearing for either side.
In our
opinion, the Division Bench did not appreciate that the Full Bench had given
the Government the limited liberty to bring down the percentage of reservation
from 73% to 50% for an interim purpose and did not give any direction with
respect to the amalgamation of categories. In our opinion, the amalgamation of
two classes of people for reservation would be unreasonable as two different
classes are treated similarly which is in violation of the mandate of Article
14 of the Constitution of India which is to "treat similar similarly and
to treat different differently." It is well settled that to treat unequals
as equals also violates Article 14 of the Constitution.
The
State has failed to show any new circumstances except for a bald statement that
the same was done after careful application of mind and due deliberation by the
highest policy making body i.e., the Council of Ministers. There are no
materials or empirical data to indicate that the circumstances had been changed
and the State has not undertaken any study, research or work. In such
circumstances to merely suggest that the council of Ministers had applied their
minds and had reached a decision is arbitrary and unreasonable.
Mandal
Commission's decision(supra) has specifically noted that there is no
constitutional bar to a state categorizing the backward classes as backward and
more backward class.
State
of Jharkhand by its actions seeks to disempower
communities that have been extended the benefits of reservation after a
conscious adoption of the Bihar Act. What the G.O. 5800 seeks to do by
combining the Extremely Backward Class and Backward Class into one group is to
treat unequals as equals thus violating the notion of substantive equality and
Article 14 of the Constitution of India bringing it within the purview of
judicial review by Court.
It is
also to be noticed that while the Bihar Act applied only to the appointment to
posts in services, it had been extended to the admissions in educational
institutions in the State by the operation of the Court's order dated 22.8.2002
which enabled the mutatis mutandis application of the reservations in
employment to educational institutions as well.
Mandal
Commission's case notes that the actions of the State Government while
including or excluding classes to the List is subject to the judicial review.
Paragraphs 229 and 422 of the judgment of the Mandal Commission note that a
community that has been included in the List can be taken out only after the
State has reached a conclusion that the community is adequately represented in
the services of the State. Paragaphs 229 and 422 of the Mandal Commission's
decision are as under:
-
"There
cannot be any controversy indeed there is none –
that
the Government which is certainly interested in the maintenance of standards of
its administration, possesses and retains its soverign authority to adopt
general regulatory measures within the constitutional framework by reviewing
any of its schemes or policies. The interval of the period at which the review
is to be held is within the authority and discretion of the Government, but of
course subject to the constitutional parametres and well settled principles of
judicial review. Therefore, it is for the Government to review the lists at any
point of time and take a decision for the exclusion of any pseudo community or
caste smuggled into the backward class or for inclusion of any other community
which in the opinion of the Government suffers from social backwardness."
-
"Under the
Constitution, the reservations in employment in favour of backward classes are
not intended either to be indiscriminate or permanent. Article 16(4) which
provides for reservations, also at the same time prescribes their limits and
conditions. In the first place, the reservations are not to be kept in favour
of every backward class of citizens. It is only that backward class of citizens
which, in the opinion of the State, is "not adequately represented"
in the services under the State, which is entitled to the benefit of the
reservations. Secondly, and this follows from the first, even that backward
class of citizens would cease to be the beneficiary of the reservation policy,
the moment the State comes to the conclusion that it is adequately represented
in the services." This apart, Mandal Commission's case went on to note the
importance of setting up of a Backward Commission. It was observed by this
Court in Paragraph 847 as under:
"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 and
specify backward class of citizens, in whose favour reservations are to be
provided. We direct that such a body be constituted both at Central level and
at the level of the States within four months from today. They should become
immediately operational and be in a position to entertain and examine forthwith
complaints and matters of the nature aforementioned, if any, received. It
should be open to the Government of India and the respective State Governments
to devise the procedure to be followed by such body. The body or bodies so
created can also be consulted in the matter of periodic revision of lists of O.B.Cs.
As suggested by Chandrachud, CJ. in Vasant Kumar, there should be a periodic
revision of these lists to exclude those who have ceased to be backward or for
inclusion of new classes, as the case may be." The communities which are
included in the List of Backward Classes and most Backward Classes have been
receiving the benefit of reservation after a conscious adoption of the Bihar legislation and categorization by the State of Jharkhand. To say that there has been a
complete change in their circumstances in two years so as to exclude them from
their special status without any reference to the Backward Castes Commission or
a Special Commission which has been specifically appointed for the purpose
would be in violation of the guidelines laid down in the Mandal Commission's
case.
Such a
stand has been taken by the Andhra Pradesh High Court in a Muslim reservation's
case, T. Murlidhar Rao vs. State of Andhra Pradesh, W.P.M.P.No. 15546 of 2004 in W.P.No.12239 of 2004 which
has noted that consultation with the Commission is a mandatory requirement.
It was
argued by the learned counsel appearing for the respondents that the Central
Government is following the policy of clubbing the Extremely Backward Classes
with the Backward Classes. In our opinion, it does not justify Jharkhand
following the same policy. Jharkhand Government will look into the facts and
circumstances that are peculiar to it by appointing an Expert Commission or a
Body as has been provided for in the Mandal Commission's case which can inquire
into the representations/complaints made over under- inclusion and
over-inclusion and make binding recommendations. As rightly pointed out by the
learned senior counsel appearing for the appellants, the Division Bench failed
to notice that the Government did not provide any material on record which
would have justified amalgamation of the two classes of people nor were any
documents, relevant materials or any reports produced to show a change in
circumstances as was alleged by the Government. Before taking the decision to
amalgamate two classes, the relevant factors were not taken into account. In
fact, the specific reservation for Extremely Backward Classes had been granted
on the recommendation of the Backward Commission headed by Shri Mungeri Lal
constituted for the said purpose. The said Committee before making
recommendation to make reservation separately for Backward Classes and
Extremely Backward Classes had kept in mind the economic and social situation
as also the necessity for separate reservation. The recommendation is based
after a detailed survey. On the other hand, when the amalgamation of the
categories took place, there were no material or empirical data to indicate
that the circumstances had been changed other than a mere bald statement to the
effect. It is settled law that even policy matters have to be tested at the
touchstone of arbitrariness and that the present policy is discriminatory and
arbitrary. As already noticed, the State of Jharkhand has specifically adopted the Bihar Act and also issued Notifications
giving 73% reservation to four categories. This apart, the Full Bench had
allowed the State Government only the liberty to reduce the percentage of
reservation and not the categories or classes to whom the reservation could be
extended to.
For
the aforesaid reasons, we hold that the order dated 16.8.2003 passed by the
Division Bench in L.P.A. No. 176 of 2003 is set aside and the matter is
remitted to the State Government for undertaking a deep study and research by a
special Committee of Experts constituted for the purpose or by appointing an
Expert Commission headed by a Retired High Court Judge or body as has been
provided for in the Mandal Commission's case to enquire into the
recommendations/complaints made over under-inclusion and over-inclusion and
make binding recommendations. The State Government is directed to constitute an
Expert Commission of a Body within three months from the date of the receipt of
this order.
In the
result, the appeal is allowed and the order dated 16.8.2003 passed in L.P.A.
No.176 of 2003 is set aside.
However,
there shall be no order as to costs.
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