Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7
CASE NO.:
Appeal (civil) 3430 of 2006
PETITIONER:
Atyant Pichhara Barg Chhatra Sangh & Anr
RESPONDENT:
Jharkhand State Vaishya Federation & Ors
DATE OF JUDGMENT: 08/08/2006
BENCH:
Dr. AR. Lakshmanan & Lokeshwar Singh Panta
JUDGMENT:
J U D G M E N T
(@ 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 \026
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 \026 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7
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,
Indira Sawhney & Ors. Vs. Union of India & Ors., 1992
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.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7
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:
"229\005\005There 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."
"422. 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,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7
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.