Reservation refers to the practice of reserving specific groups of people access to government employment, educational institutions, and even legislatures.
Reservation, which is also known as affirmative action, can be viewed as positive discrimination. Reservation is a government policy in India, and it is supported by the Indian Constitution (by means of various amendments).
Is the 27% OBC reservation in Maharashtra local body election valid?
Is 50% reservation for in-service doctors in super-specialty courses in Tamil Nadu valid?
Is the Maratha Quota in excess of the 50% ceiling limit valid?
The Supreme Court has observed that the 27% OBC Quota is valid because it has been implemented through setting up a commission and after collecting data regarding the inadequacy in the representation local government-wise.
The Supreme Court has allowed the State of Tamil Nadu to implement 50% reservation for in-service doctors in super-specialty courses.
The Maratha quota in excess of the 50% ceiling limit has been declared unlawful by the Supreme Court. The Supreme Court unanimously decided that there were no extraordinary circumstances warranting the grant of more than 50% reservation to Marathas as a Socially and Economically Backward Class (SEBC).
Supreme Court - Daily Orders
Rahul Ramesh Wagh vs The State Of Maharashtra on 17 January, 2022
1
ITEM NO.33 Court 3 (Video Conferencing) SECTION IX
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 19756/2021
(Arising out of impugned final judgment and order dated 22-10-2021
in WP No. 11744/2021 passed by the High Court Of Judicature At
Bombay At Aurangabad)
RAHUL RAMESH WAGH Petitioner(s)
VERSUS
THE STATE OF MAHARASHTRA & ORS. Respondent(s)
IA No. 161602/2021 - APPROPRIATE ORDERS/DIRECTIONS
IA No. 156051/2021 - EXEMPTION FROM FILING C/C OF THE IMPUGNED
JUDGMENT
IA No. 156052/2021 - EXEMPTION FROM FILING O.T. IA No. 162021/2021 - INTERVENTION APPLICATION IA No. 161600/2021 - INTERVENTION APPLICATION IA No. 419/2022 - INTERVENTION/IMPLEADMENT IA No. 156048/2021 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES IA No. 156049/2021 - PERMISSION TO PLACE ADDITIONAL FACTS AND GROUNDS IA No. 422/2022 - RECALLING THE COURTS ORDER) WITH Diary No(s). 31495/2021 (IV-C) IA No. 169713/2021 - INTERVENTION APPLICATION IA No. 169716/2021 - RECALLING THE COURTS ORDER) SLP(C) No. 20160/2021 (IX) IA No. 161250/2021 - CLARIFICATION/DIRECTION IA No. 159686/2021 - EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT IA No. 159687/2021 - EXEMPTION FROM FILING O.T. IA No. 201/2022 - EXEMPTION FROM FILING O.T. IA No. 161254/2021 - EXEMPTION FROM FILING O.T. IA No. 160380/2021 - EXEMPTION FROM FILING O.T. IA No. 160377/2021 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES) W.P.(C) No. 1316/2021 (X) Signature Not Verified (FOR ADMISSION Digitally signed by NEETU KHAJURIA Date: 2022.01.18 IA No. 157427/2021 - EXEMPTION FROM FILING O.T. 13:45:27 IST Reason:
IA No. 1261/2022 - INTERVENTION APPLICATION IA No. 157430/2021 - STAY APPLICATION) Date : 17-01-2022 These matters were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE A.M. KHANWILKAR HON'BLE MR. JUSTICE DINESH MAHESHWARI HON'BLE MR. JUSTICE C.T. RAVIKUMAR For Parties Mr. Tushar Mehta, SG Ms. Ruchi Kohli, Adv.
Ms. Vanshaja Shukla, Adv Ms. Swati Gridhyal, Adv Mr. Kanu Agarwal, Adv. Mr. Amrish Kumar Sharma, AOR Ms. Aishwarya Bhati, ASG Ms . Ruchi Kohli, Adv.
Ms. Suhasini Sen, Adv Ms. Swati Gridhyal, Adv Mr. Mhd. Akil, Adv Ms. Archana Pathak Dave, Adv Mr. Vivek K Tankha, Sr. Adv Mr. Ravindra Srivastav Sr. Adv Mr. Sumeer Sodhi, AOR. Mr. Varun Tankha, Adv Ms. Shreya Nair, Adv Mr. Dhruv Wadhwa, Adv Mr. Siddhant Gupta, Adv Mr. Shekhar Naphade, Sr. Adv. Mr. Rahul Chitnis, Adv Mr. Sachin Patil, AOR. Mr. Siddheshwar S. Thombre, Adv Ms. Aishwarya Dash, Adv. Mr. Aaditya A. Pande, Adv. Mr. Geo Joseph, Adv.
Ms. Shwetal Shepal, Adv.
Mr. V. Giri, Sr. Adv.
Mr. Shakul R. Ghatole, Adv. Mr. Firdos T. Mirza, Adv. Mr. Purushottam B. Patil, Adv. Mr. Kishor Lambat, Adv. Ms. Jaikriti S. Jadeja, AOR Mr. Shrirang Varma, Adv Mr. P. Wilson, Sr. Adv. Mr. Arvind S. Avhad, AOR Mr. Rakesh Dwivedi, Sr. Adv. Mr. Siddharth Seth, Adv. Mr. Kartik Seth, Adv.
Ms. Shriya Gilhotra, Adv.
Ms. Garima Saxena, Adv. M/s. Chambers of Kartik Seth, AOR Mr. Kapil Sibal, Sr. Adv. Mr. D.kumanan, AOR Mr. Shyam Divan Sr. Adv. Mr. Maninder Singh Sr. Adv. Mr. Prashant Singh AG Mr. Saurabh Mishra AAG Mr. D.S. Parmar AAG Mr. Bharat Singh AAG Mrs. Mrinal Elker Mazumdar AOR Mr. Manish Yadav Adv.
Mr. K. Parameshwar, Adv Mr. Swapnil B. Kakad Adv Mr. Rahul Joshi, AOR Mr. Hrishikesh S.Chitaley, Adv. Mr. Vijay Kari Singh, Adv. Mr. Chandra Prakash, AOR Mr. Ashish Pandey, Adv Mr. Kshitiz Singh, Adv Mr. Vishwa Pal Singh, AOR Mr. Rajendra Prasad, Adv Ms. Pallavi, Adv Mr. Dinesh Kumar Mudgal, Adv Mr. Arihant Mehta, Adv Mr. Vikas Gothwal, Adv Mr. Sanjiv Saraf, Adv Mr. Praphul Kumar Vohra, Adv Mr. Anand Dilip Landge, AOR Mr. Ajit Kale, Adv.
Ms. Sakshi Ajit Kale, Adv. Mr. Samin Bagwan, Adv.
Mr. Varun K. Chopra, Adv. M/S. VKC Law Offices, AOR Mr. Kailas Bajirao Autade, AOR Mr. Ajit Kadethankar,Adv. For State Election Commission (Maharashtra) Ms. Bharti Tyagi, AOR Mr. Samrat Krishnarao Shinde, AOR Mr. Nikhil Jain, AOR Mr. Suyash Thakur Adv.
Mr. Prateek Mishra Adv Mr. Satya Prakash Adv Mr. Ravi Prakash, AOR Mr. Randhir Kumar Ojha, AOR Mr. Varinder Kumar Sharma, AOR UPON hearing the counsel the Court made the following O R D E R Learned counsel for the State of Maharashtra, on instructions, submits that fresh application has been fled for recall of order dated 15.12.2021.
List that application along with these matters on 19th January, 2022.
(NEETU KHAJURIA) (DIPTI KHURANA) COURT MASTER COURT MASTER
Supreme Court of India
Jaishri Laxmanrao Patil vs The Chief Minister And Ors. on 5 May, 2021
Author: Ashok Bhushan
Bench: Ashok Bhushan, L. Nageswara Rao, S. Abdul Nazeer, Hemant Gupta, S. Ravindra Bhat
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL JURISDICTION
CIVIL APPEAL NO.3123 of 2020
DR. JAISHRI LAXMANRAO PATIL ...APPELLANT(S)
VERSUS
THE CHIEF MINISTER & ORS. ...RESPONDENT(S)
WITH
CIVIL APPEAL NO.3124 of 2020
SANJEET SHUKLA ...APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA ...RESPONDENT(S)
WITH
CIVIL APPEAL NO.3133 of 2020
KRISHNAJI DATTATRAYA MORE ...APPELLANT(S)
VERSUS
DR. JAISHRI LAXMANRAO & ORS. ...RESPONDENT(S)
WITH
CIVIL APPEAL NO.3134 of 2020
MADHUSHRI NANDKISHOR
JETHLIYA & ORS. ...APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA & ORS. ...RESPONDENT(S)
2
WITH
CIVIL APPEAL NO.3131 of 2020
DEVENDRA ROOPCHAND JAIN & ORS. ...APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA & ANR. ...RESPONDENT(S)
WITH
CIVIL APPEAL NO.3129 of 2020
KAMALAKAR SUKHDEO DARODE @ DARWADE ...APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA & ORS. ...RESPONDENT(S)
WITH
WRIT PETITION (C) NO.915 of 2020
DESHMUKH ESHA GIRISH ...APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA & ORS. ...RESPONDENT(S)
WITH
WRIT PETITION (C) NO.504 of 2020
ADITYA BIMAL SHASTRI & ORS. ...APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA & ORS. ...RESPONDENT(S)
WITH
3
WRIT PETITION (C) NO.914 of 2020
DR. AMITA LALIT GUGALE & ORS. ...APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA & ORS. ...RESPONDENT(S)
WITH
CIVIL APPEAL NO.3127 of 2020
SAGAR DAMODAR SARDA & ORS. ...APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA & ORS. ...RESPONDENT(S)
WITH
CIVIL APPEAL NO.3126 of 2020
MOHAMMAD SAYEED NOORI
SHAFI AHMED & ORS. ...APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA & ORS. ...RESPONDENT(S)
WITH
CIVIL APPEAL NO.3125 of 2020
DR. UDAY GOVINDRAJ DHOPLE & ANR. ...APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA & ANR. ...RESPONDENT(S)
WITH
4
CIVIL APPEAL NO.3128 of 2020
VISHNUJI P. MISHRA ...APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA ...RESPONDENT(S)
WITH
CIVIL APPEAL NO.3130 of 2020
RUCHITA JITEN KULKARNI & ORS. ...APPELLANT(S)
VERSUS
THE CHIEF MINISTER & ANR. ...RESPONDENT(S)
WITH
WRIT PETITION (C) NO.938 of 2020
SHIV SANGRAM & ANR. ...APPELLANT(S)
VERSUS
UNION OF INDIA & ANR. ...RESPONDENT(S)
J U D G M E N T
Ashok Bhushan,J.(for himself and S. Abdul Nazeer, J.), L.Nageswara Rao,J. Hemant Gupta,J. and S. Ravindra Bhat have also concurred on Question Nos. 1, 2 and 3.
This Constitution Bench has been constituted to consider questions of seminal importance relating to contours and extent of special provisions for the advancement of socially and educationally backward class (SEBC) of citizens as contemplated under Article 15(4) and contours and extent of provisions of reservation in favour of the backward class citizens under Article 16(4) of the Constitution of India. The challenge/interpretation of the Constitution (102nd Amendment) Act, 2018 is also up for consideration.
2. All the above appeals have been filed challenging the common judgment of the High Court dated 27.06.2019 by which judgment several batches of writ petitions have been decided by the High Court. Different writ petitions were filed before the High Court between the years 2014 to 2019, apart from other challenges following were under challenge:
The Ordinance No. XIII of 2014 dated 09.07.2014 providing 16% reservation to Maratha. The Ordinance No.XIV of 2014 dated 09.07.2014 providing for 5% reservation to 52 Muslim Communities. The Maharashtra State Reservation (of seats for appointment in educational institutions in the State and for appointment or posts for public services under the State) for educationally and socially backward category (ESBC) Act, 2014 and Maharashtra State Socially and Educationally Backward Class (SEBC) (Admission in Educational Institutions in the State and for posts for appointments in public service and posts) Reservation Act, 2018 (hereinafter referred to as the “Act, 2018”).
3. The High Court by the impugned judgment upheld Act, 2018, except to the extent of quantum of reservation provided under Section 4(1)(a), 4(1)(b) over and above 12% and 13% respectively as recommended by Maharashtra State Backward Class Commission. The writ petitions challenging the Ordinance XIII and XIV of 2014 as well as Act, 2014 were dismissed as having become infructuous. Few writ petitions were also allowed and few detagged and other writ petitions have been disposed of.
4. Writ petition under Article 32 of the Constitution of India, namely, Writ Petition(C) No. 938 of 2020 (Shiv Sangram & Anr. vs. Union of India & Anr.) has been filed questioning the Constitution (102nd Amendment) Act, 2018.
5. While issuing notice on 12.07.2019, a three- Judge Bench of this Court directed that the action taken pursuant to the impugned judgment of the High Court shall be subject to the result of the SLP. It was made clear that the judgment of the High Court and the reservation in question shall not have any retrospective effect. The three-Judge Bench after hearing the parties, on 09.09.2020, while granting leave passed following order:
“17. In view of the foregoing, we pass the following orders: -
(A) As the interpretation of the provisions inserted by the Constitution (102nd Amendment) Act, 2018 is a substantial question of law as to the interpretation of the Constitution of India, these Appeals are referred to a larger Bench. These matters shall be placed before Hon’ble The Chief Justice of India for suitable orders.
(B) Admissions to educational institutions for the academic year 2020-21 shall be made without reference to the reservations provided in the Act. We make it clear that the Admissions made to Post-Graduate Medical Courses shall not be altered.
(C) Appointments to public services and posts under the Government shall be made without implementing the reservation as provided in the Act.
Liberty to mention for early hearing. “
6. A Three-Judge Bench referring the matter to Constitution Bench has referred all the appeals and the order contemplated that the matter shall be placed before the Chief Justice for the suitable orders. Referring order although mention that the interpretation of Constitution (One Hundred and Second Amendment) Act, 2018 is substantial question of law as to the interpretation of the Constitution but the reference was not confined to the above question. The learned counsel for the parties have made elaborate submissions in all the appeals as well as the writ petitions filed under Article 32. Elaborate submissions were addressed on the impugned judgment of the High Court. We thus have proceeded to hear the parties and decide all the appeals and writ petitions finally.
7. After appeals being referred to a larger Bench by order dated 09.09.2020, Hon’ble the Chief Justice of India has constituted this Constitution Bench before whom these appeals and writ petitions are listed. This Constitution Bench after hearing learned counsel for the parties passed an order on 08.03.2021 issuing notice to all the States. The Bench by order further directed the States to file brief notes of their submissions.
8. The hearing commenced on 15.03.2021 and concluded on 26.03.2021. At this stage, we may indicate the headings in which we have divided to comprehensively understand the issues, submissions, our consideration, our conclusion and operative part of the judgment. The following are the heads of subjects under which we have treated the entire batch of cases:
(1) Questions Framed.
(2) Background Facts.
(3) Points for consideration before the High Court.
(4) Submissions of the parties.
(5) The 10 grounds urged for referring Indra Sawhney judgment to a larger Bench.
(6) The status of Reservation at the time of Enactment of Act, 2018.
(7) Consideration of 10 grounds urged for revisiting and referring the judgment of Indra Sawhney to a larger Bench.
(8) Principle of Stare Decisis.
(9) Whether Gaikwad Commission Report has made out a case of extra-ordinary situation for grant of separate reservation to Maratha community exceeding 50% limit ?
(10) Whether the Act, 2018 as amended in 2019 granting separate reservation for Maratha community by exceeding the ceiling limit of 50% makes out exceptional circumstances as per the judgment of Indra Sawhney ?
(11) Gaikwad Commission Report – a scrutiny. (12) Whether the data of Marathas in public employment as found out by Gaikwad Commission makes out cases for grant of reservation under Article 16(4) of the Constitution of India to Maratha community ?
(13) Social and Educational Backwardness of Maratha Community.
(14) The Constitution (102nd Amendment) Act, 2018. (15) Conclusions.
(16) Order.
9. On 08.03.2021 the six questions which were proposed to be considered were enumerated in the following manner:
(1)Questions Framed.
“1. Whether judgment in case of Indra Sawhney v. Union of India [1992 Suppl. (3) SCC 217] needs to be referred to larger bench or require re-look by the larger bench in the light of subsequent Constitutional Amendments, judgments and changed social dynamics of the society etc.?
2. Whether Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney’s case?
3. Whether the State Government on the strength of Maharashtra State Backward Commission Report chaired by M.C. Gaikwad has made 12 out a case of existence of extraordinary situation and exceptional circumstances in the State to fall within the exception carved out in the judgment of Indra Sawhney?
4. Whether the Constitution One Hundred and Second Amendment deprives the State Legislature of its power to enact a legislation determining the socially and economically backward classes and conferring the benefits on the said community under its enabling power?
5. Whether, States power to legislate in relation to “any backward class” under Articles 15(4) and 16(4) is anyway abridged by Article 342(A) read with Article 366(26c) of the Constitution of India?
6. Whether, Article 342A of the Constitution abrogates States power to legislate or classify in respect of “any backward class of citizens” and thereby affects the federal policy / structure of the Constitution of India?” (2)Background Facts.
10. We need to first notice certain background facts relevant for the present case and details of various writ petitions filed in the High Court. The “Maratha” is a Hindu community which mainly resides in the State of Maharashtra. After the enforcement of the Constitution of India, the President of India in exercise of power under Article 240 appointed a Commission to investigate the conditions of all such socially and educationally backward classes, known as Kaka Kalelkar Commission, the first National Commission for backward classes. The Kaka Kalelkar Commission submitted its report on 30.03.1955 where it observed - Vol.I “In Maharashtra, besides the Brahman it is the Maratha who claimed to be the ruling community in the villages, and the Prabhu, that dominated all other communities”. Thus, the first Backward Classes Commission did not find Maratha as other backward class community in the State of Bombay.
11. On 01.11.1956, a bilingual State of Bombay under the State Re-organisation Act was formed with the addition of 8 districts of Vidharbha (Madhya Bharat) and 5 districts of Marathwada (Hyderabad State). On 14.08.1961 through Ministry of Home Affairs while declining to act on the Kaka Kalelkar Commission Report informed all the State Governments that they had discretion to choose their own criteria in defining backward classes and it would be open for State Governments to draw its own list of other backward classes. On 14.11.1961 acting on the directives of the Government of India, the Government of Maharashtra appointed B.D.Deshmukh Committee for defining OBC and to take steps for their developments. The B.D. Deshmukh Committee submitted its report on OBC to the Government of Maharashtra on 11.01.1964. It did not find Maratha as backward class. On 13.08.1967, the State of Maharashtra issued unified list of OBC consisting of 180 castes for the entire State which did not include Maratha. At serial No.87, Kunbi was shown. The President of India on 31.12.1979 appointed the second National Backward Classes Commission within the meaning of Article 340 of the Constitution popularly known as Mandal Commission. In the report of second National Backward Classes Commission with regard to the State of Maharashtra while distributing percentage of Indian population by castes and religious groups, estimated other backward classes as 43.70 per cent, whereas in the category of forward Hindu castes and communities the Marathas were included with 2.2 per cent. The population of other backward classes of remaining Hindu Castes groups was estimated as 43.7% and backward non-Hindu classes as 8.40 per cent and total approximate backward class of Hindu including non-Hindu castes was estimated as 52%. At page 56 of volume of report under heading percentage of the castes and religious groups under sub-heading forward Hindu castes and communities following table given:
III. Forward Hindu Castes & Communities S.NO. Group Name Percentage of total population C-1 Brahmins (including Bhumihars 5.52 C-2 Rajputs 3.90 C-3 Marathas 2.21 C-4 Jats 1.00 C-5 Vaishyas-Bania, etc. 1.88 C-6 Kayasthas 1.07 C-7 Other forward Hindu 2.00 castes/groups Total of ‘C’ 17.58
12. The Maratha, thus, was included in forward Hindu caste, by the second National Backward Classes Commission.
13. A request was received by the National Commission for Backward Classes for inclusion of “Maratha” in the Central List of Backward Classes for Maharashtra along with Kunbi as backward class of Maharashtra. The National Commission for Backward Classes conducted public hearing at Mumbai and after hearing Government officials, Chairman of the Maharashtra State Backward Classes Commission submitted a detailed report dated 25.02.1980 holding that Maratha is not a socially and educationally backward class community but a socially advanced and prestigious community. It is useful to refer to paragraph 22 of the report (last paragraph) which is to the following effect:
“22.In view of the above facts and position, the Bench finds that Maratha is not a socially backward community but is a socially advanced and prestigious community and therefore the Request for Inclusion of “Maratha” in the Central List of Backward Classes for Maharashtra along with Kunbi should be rejected. In fact, “Maratha” does not merit inclusion in the Central List of Backward Classes for Maharashtra either jointly with “Kunbi” or under a separate entry of its own.”
14. On 16.11.1992 a nine-Judge Constitution Bench of this Court delivered a judgment in Indra Sawhney v.
Union of India [1992 Suppl. (3) SCC 217] (hereinafter referred to as “Indra Sawhney’s case”), apart from laying down law pertaining to principle of reservation under Constitution this Court also issued directions to the Government of India, each of the State Governments to constitute a permanent body for entertaining, examining and recommending upon on requests for inclusion and complaints of over inclusion of other backward classes of citizens.
15. The Maharashtra State OBC Commission headed by Justice R.M. Bapat submitted a report on 25.07.2008 conclusively recording that Maratha could not be included in the OBC list because it is a forward caste. The report in the end concluded:
“It was agreed with majority that the resolution, stating that it would not be appropriate from social justice perspective to include Maratha community in the 'Other Backward Class' category, has been passed with majority in the commission's meeting convened in Pune on 25/07/2008. And it was agreed with majority that such a recommendation should be sent to the government. The opposite opinion in relation to this has been separately recorded and it has been attached herewith.”
16. The Maharashtra State Other Backward Classes Commission on 03.06.2013 rejected the request of the State Government to review the findings recorded by the State OBC Commission in its report dated 25.07.2008 holding the Maratha caste as forward community. Despite the existence of statutory State OBC Commission, the Government of Maharashtra appointed a special Committee headed by a sitting Minister, Shri Narayan Rane to submit a report on the Maratha Caste. On 26.02.2014 Rane Committee submitted its report to the State and recommended that for the Maratha special reservation under Article 15(4) and 16(4) of the Constitution of India be provided. On 09.07.2014 Maharashtra Ordinance No.XIII of 2014 was promulgated providing for 16% reservation in favour of the Maratha caste. Writ Petition No.2053 of 2014 (Shri Sanjeet Shukla vs. State of Maharashtra) along with other writ petitions were filed where two separate Ordinances promulgated on 09.07.2014 providing for reservation for seats for admissions in aided and non-aided institutions of the State and appointment to the post to public service under the State a separate 16% reservation in which Maratha was included, was challenged. The Government resolution dated 15.07.2014 specifying the Maratha community as the community socially and economically backward entitled for 16% reservation was challenged.
17. The Division Bench of the High Court by an elaborate order considering the relevant materials including the reports of National Backward Classes Commission and State Backward Classes Commission and other materials on record stayed the operation of Maharashtra Ordinance No.XIII of 2014 and Resolution dated 15.07.2014. However, it was directed that in case any admission has already been granted in educational institution till that date based on Ordinance No.XIII of 2014 the same shall not be disturbed and the Students shall allow to complete their respective courses.
18. The SLP(C)Nos.34335 and 34336 were filed in this Court challenging interim order dated 14.11.2014 which SLPs were not entertained by this Court with request to decide the writ petitions at an early date.
19. The Maharashtra Legislature passed the Act, 2014 on 23.12.2014 which received the assent of the Governor on 09.01.2015, and was deemed to have come into force with effect from 09.07.2014. In Writ Petition (C)No. 3151 of 2014 and other connected matters the Division Bench of the Bombay High Court passed an order on 07.04.2015 staying the implementation of the provisions of the Act 1 of 2015 providing 16% reservation to Maratha. The interim order, however, directed that appointment to 16% reservation for Maratha under Act 1 of 2015 in the advertisements already issued shall be made from open merit candidates till final disposal of the writ petition and appointment shall be made subject to the outcome of the writ petition.
20. On 30.06.2017 the State Government made a reference to State Backward Classes Commission to submit a report on the facts and the observation made in the reference to the Government regarding Maratha. On 02.11.2017 Justice M.G. Gaikwad came to be appointed as Chairman of State Backward Classes Commission. On 14.08.2018 the National Commission for Backward Classes (Repeal) Act was passed repealing the National Commission for Backward Classes Act, 1993. On 15.08.2018 the Constitution (102nd Amendment) Act, 2018 was brought into force adding Article 338B, 342A and 366(26C). Article 338, sub-clause (10) was also amended. On 15.11.2018, the State Backward Classes Commission submitted its report on social and educational and economic status of Maratha. The Commission recommended for declaring Maratha caste of citizens as social and economic backward class of citizens with inadequate representation in services. The Commission also opined that looking to the exceptional circumstances and extraordinary situations on declaring Maratha class as SEBC and their consequential entitlement to the reservation benefits, the Government may take decision within the constitutional provisions. The Government after receipt of the above report enacted Act, 2018 which was published on 30.11.2018 and came into force from that day. PIL No.175 of 2018 (Dr. Jaishri Laxmanrao Patil Vs. The Chief Minister and Ors.) and other writ petitions and PILs were filed challenging the Act, 2018. The High Court in the impugned judgment has noticed the pleadings in three writ petitions being PIL No.175 of 2018 giving rise to C.A.No.3123 of 2020, W.P.(LD.) No.4100 of 2018 (Sanjeet Shukla vs. The State of Maharashtra) giving rise to C.A.No.3124 of 2020 and PIL No.4128 of 2018 (Dr. Uday Govindraj Dhople & Anr. vs. The State of Maharashtra & Anr.) giving rise to C.A.No.3125 of 2020. Before us in C.A.No.3123 of 2020 and C.A.No.3124 of 2020 most of the volumes and written submissions have been filed. It shall be sufficient to notice these three Civil Appeals, apart from the details of few other cases which shall be noted hereinafter.
C.A.No.3123 of 2020 (Dr. Jaishri Laxmanrao Patil Vs. The Chief Minister and Ors.)
21. This appeal has been filed against the judgment of the High Court in PIL NO.175 of 2018 filed by Dr. Jaishri Laxmanrao Patil questioning the 16% separate reservation given to Maratha under Act, 2018 published on 30.11.2018. The writ petitioner pleaded that providing reservation to Maratha community to the extent of 16% amounts to breach of Article 14, 16 and 21 of the Constitution of India and also bypassing ceiling of reservation of 50%. Referring to judgment of this Court in Indra Sawhney’s case and law laid down in Mr. Nagraj and others vs. Union of India & Ors. (2006) 8 SCC 212, it was pleaded that the reservation is not permissible beyond 50%. Various grounds had been taken in the writ petition questioning the 16% reservation for Maratha. During the pendency of the writ petition subsequent events occurred resulting into enlarging the scope of the petition, in the writ petition several applications for intervention and impleadment have been filed seeking to justify the Act, 2018. The High Court allowed the applications for intervention and they were directed to be added as party respondents. C.A.No.3124 of 2020 (Sanjeet Shukla vs. The State of Maharashtra)
22. This appeal arises out of the judgment in Writ Petition (C) No.4100 of 2018. In the writ petition an extensive challenge was made to the Backward Classes Commission report which was basis for Act, 2018. The same writ petitioner i.e. Sanjeet Shukla has earlier filed Writ Petition (C) No.3151 of 2014 challenging the Ordinance promulgated by the Government of Maharashtra in the year 2014. The interim order dated 14.11.2014 was passed in the Writ Petition No.3151 of 2014. The petitioner has also pleaded that the Act, 2014 was also stayed by the High court on 07.04.2015. It was pleaded that Maratha community is a powerful community in the State of Maharashtra with proved dominance in Government Service, Co-operatives, Sugar Co- operatives etc. reference of earlier National Backward Class Commission and State Backward Class Commission was made wherein the claim of Maratha to be included in OBC was rejected. The comments have also been made on the aggressive tactics adopted by the Maratha community by agitation, dharna for the grant of reservation to them. It was also pleaded that Act, 2018 is passed without complying with the requirement of Constitution (102nd Amendment) Act, 2018. In the writ petition following prayers have been made:
“(a) Issue a writ, order or direction in the nature of certiorari or any other appropriate writ, order or direction of that nature thereby quashing and striking down Maharashtra State Socially and Educationally Backward (SEBC) Class (Admission in Educational Institutions in the State and for posts for appointments in public service and posts) Reservation Act, 2018, as being invalid and violative of the provisions of the Constitution of India;
(b) During pendency of the petition, this Hon'ble Court be pleased to say to the operation, implementation and effect of the Maharashtra State Socially and Educationally Backward (SEBC) Class (Admission in Educational Institutions in the State and for posts for appointments in public service and posts) Reservation Act, 2018;
b1. during pendency of the present petition, this Hon'ble Court be pleased to issue an appropriate writ, order or direction that no appointments should be made under Maharashtra State Socially and Educationally Backward (SEBC) Class (Admission in Educational Institutions in the State and for posts for appointments in public service and posts) Reservation Act, 2018;
b2. during pendency of the present petition, this Hon'ble Court be pleased to issue an appropriate writ, order or direction of that nature that no posts should be kept vacant by reference to the Maharashtra State Socially and Educationally Backward (SEBC) Class (Admission in Educational Institutions in the State and for posts for appointments in public service and posts) Reservation Act, 2018;
b3. during pendency of the present petition, this Hon'ble Court be pleased to issue an appropriate writ, order or direction of that nature that no advertisements for vacancies should be placed reserving any posts under Maharashtra State Socially and Educationally Backward (SEBC) Class (Admission in Educational Institutions in the State and for posts for appointments in public service and posts) Reservation Act, 2018;
b4. during pendency of the present petition, this Hon'ble Court be pleased to issue an appropriate writ, order or direction of that nature that no admission in educational institutions should be made under reserved category as per Maharashtra State Socially and Educationally Backward (SEBC) Class (Admission in Educational Institutions in the State and for posts for appointments in public service and posts) Reservation Act, 2018;
b5. during pendency Court be pleased to issue an appropriate writ, order or direction of that nature that no Caste Certificates should be issued under Maharashtra State Socially and Educationally Backward (SEBC) Class (Admission in Educational Institutions in the State and for posts for appointments in public service and posts) Reservation Act, 2018;” C.A.No.3125 of 2020 (Dr. Uday Govindraj Dhople & Anr. vs. State of Maharashtra & Anr.)
23. This appeal arises out of Writ Petition (LD.)No.4128 of 2018 filed by Dr. Udai Govindraj Dhople. The writ petition was filed in representative capacity on behalf of the similarly situated medical students/medical aspirants who are adversely affected by the Act, 2018.
24. The writ petitioners seek quashing of Act, 2018 and in the alternative quashing and setting aside Sections 2(j), 3(2), 3(4), 4,5,9(2),10 and 12 of the Act, 2018. The petitioner pleads that reservation system has become a tool of convenience for the Government and politicians in power for their vote bank. It is further pleaded that Maratha was never treated as backward class community and earlier their claim was rejected. It was further pleaded that the impugned enactment seriously prejudices the chances of open candidates in all fields of education as well as in service. It was further pleaded that Gaikwad Commission's report is not based on fiscal data. There was inadequacy of data base. A community which was found not to be backward for last 50 years is now declared as backward class without any change of circumstances. The writ petitioner, pleads that enactment shall have an adverse effect which shall divide the society by caste basis on communal line. The impugned enactment is claimed to be violative of the basic structure and fundamental value of the Constitution capitulated in Article 14, 16 and 19 of the Constitution.
C.A.Nos.3133, 3134 and 3131 of 2020
25. These appeals have been filed by the appellants who were not parties in the PIL No.175 of 2018, against the High Court judgment praying for permission to file SLP which has already been granted.
26. C.A.No.3129 arising out of PIL(ST)No.1949 of 2019 whereby 16% reservation to Maratha under Act, 2018 has been challenged.
27. Writ Petition (C)No.915 of 2020 has been filed under Article 32 of the Constitution of India praying for directing the respondents that all the admission to Post Graduate Medical & Dental Courses in the State of Maharashtra for the academic year 2020-21 shall be made subject to the outcome of the SLP(C)No.15735 of 2019 and connected petitions.
28. Writ Petition (C) No.504 of 2020 filed under Article 32 has been filed seeking mandamus direction to the respondents that provisions of Act, 2018 should not be made applicable to the admission to Post Graduate Medical & Dental Courses in the State of Maharashtra for the academic year 2020-21.
29. Writ Petition (C) No.914 of 2020 filed under Article 32 prays for writ in the nature of certiorari or any other writ or order or direction to hold the impugned Socially and Educationally Backward Classes (SEBC) Act, 2018 as unconstitutional and violative of Article 14, 16 & 19 of the Constitution of India and further Act, 2018 should not be made available to the medical admission process for Post-graduate students for the academic year 2020-21 in the State of Maharashtra.
30. C.A.No.3127 of 2020 arises out of Writ Petition (C)No.4128 of 2018. The prayer of which writ petition has already been noticed by C.A.No.3125 of 2020.
31. C.A.No. 3126 of 2020 has been filed against the impugned judgment of the High Court in Writ Petition (C)No.3846 of 2019 (Mohammad Sayeed Noori Shafi Ahmed & Ors. vs. The State of Maharashtra & Ors.). Writ Petitioners were challenging the Act, 2018 as well as the Maharashtra State Backward Class Commission Report on the Social, Educational, Economic Status of the Marathas and Allied Aspects, 2018. The question was also raised about inaction on the part of the State of Maharashtra in not acting upon the report of Maharashtra State Minority Commission (2011) recommending special reservation to certain Muslim communities and failure to introduce a Bill on the floor of the State Legislature providing for 5% reservation to 52 Muslim communities in Maharashtra.
32. C.A.No.3128 of 2020 arising out of Writ Petition (C) No.4269 of 2018(Vishnuji P. Mishra vs. The State of Maharashtra)wherein similar reliefs have been claimed as in PIL No.175 of 2018.
33. Writ Petition (C) No.938 of 2018 has been filed under Article 32 of the Constitution of India challenging the validity of Constitution (102nd Amendment) Act, 2018. Writ Petition notices that issue regarding Constitution (102nd Amendment) Act, 2018 is pending in SLP(C)No.15737 of 2019(C.A.No.3123 of 2020). The writ petitioner also claimed to have filed an I.A.No.66438 of 2020 for impleadment in SLP(C) No. 15737 of 2019. The petitioner's submission is that if the effect of Constitution (102nd Amendment) Act, 2019 is to take away power of State Legislature with respect to identification of OBC/SEBC, it is obvious that Constitution (102nd Amendment) Act, 2018 has taken away the legislative powers of State Legislature with respect to some areas of law making power. The petitioner, further, submits that the procedure prescribed by the proviso to clause (2) of Article 368 of the Constitution of India has not been followed since no ratification by the legislatures of not less than one-half of the States by Resolution was obtained. In the writ petition following prayers have been made:
“a) This Hon'ble Court be pleased to hold and declare that the 102nd Amendment of the Constitution of India published in the Gazette of India dated 11.08.2018 is unconstitutional being in violation of proviso to clause (2) of Article 368 and also being violative of the right guaranteed under Article 14 and 21 of the Constitution of India.
b) This Hon'ble Court please to issue a writ of mandamus or a writ in the nature of mandamus or any other writ, order or direction directing that the 102nd Amendment of the Constitution of India shall not be enforced hereafter as a result of its being violative of Article 368 as also the basic structure of the Constitution of India and also being violative of Article 14 and 21 of the Constitution of India.”
34. In the writ petitions before the High Court, the State of Maharashtra has filed affidavit in reply dated 16.01.2018 in Writ Petition No.4100 of 2018 supporting the Act, 2018, which has been extensively relied by the High Court in the impugned judgment. The affidavits were also filed by the intervenors and affidavits were filed in support of Chamber Summons. The High Court after perusing the writ petitions, affidavits, applications filed by the interveners, Chamber Summons and supporting other materials and after hearing counsel appearing for the respective parties has broadly capitulated following points for consideration:
(3) Points for consideration before the High Court.
35. “(III) Whether the impugned Act of 2018 is constitutionally invalid on account of lack of legislative competence on the following sub-heads:-
(a) The subsisting interim order passed by the Bombay High Court in Sanjeet Shukla vs. State of Maharashtra (WP 3151/2014) thereby granting stay to a similar enactment and ordinance of the State, which is pending for adjudication before this Court.
(b) The 102nd (Constitution) Amendment, 2018 deprives the State legislature of its power to enact a legislation determining the Socially and Educationally Backward Class and conferring the benefits on the said class in exercise of its enabling power under Article 15(4) and 16(4) of the Constitution.
(C) The limitation of 50% set out by the Constitution bench in Indra Sawhney in form of constitutional principle do not permit reservation in excess of 50%.
(IV) Whether the State has been able to establish the social and educational backwardness and inadequacy of representation of the Maratha community in public employment on the basis of the report of MSBCC under the Chairmanship of Justice Gaikwad on the basis of quantifiable and contemporaneous data ?
(V) Scope of Judicial Review for interference in the findings, conclusions and recommendation of the MSBCC.
(VI) Whether the reservation carved out
for Maratha community by the State
Government in form of impugned legislation satisfies the parameters of reasonable classification under Article 14 of the Constitution ?
(VII) Whether the ceiling of 50% laid down by the Hon'ble Apex Court in case of Indra Sawhney vs. Union of India, is to be taken as a constitutional principle and deviation thereof violates the basic tenet of equality enshrined in the Constitution?
(VIII) Whether the State is able to justify existence of exceptional circumstances or extra-ordinary situation to exceed the permissible limit of 50% within the scope of guiding principles laid down in Indra Sawhney ?
(IX) Whether in the backdrop of the findings, conclusions and recommendations of the MSBCC report, whether the State Government has justified exercise of its enabling power under Article 15(4) and 16(4) of the Constitution ?”
36. The High Court in paragraph 177 of the judgment has summarised its conclusion to the following effect:
“177. In the light of the discussion above, we summarize our conclusions to the points which we have formulated in the proemial of the judgment and deliberated in the judgment. We summarize our conclusions in the same sequence :
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There is no particular law that governs reservation. However, various provisions of the Constitution guarantee a reservation in governmental education institutions (Article 15), government jobs (Article 16), and legislatures (Article 334).
Reservation can involve complex legal procedures as it is primarily a constitutional matter. A government employee involved in a case related to reservation is bound to require assitance from an expert lawyer. Matters related to reservation often pertain to specific rules and regulations governing an organization. Therefore, they are too particular to deal with and demands an expertise of lawyer well-versed with the intricacies of reservation.
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