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Wednesday, March 18, 2015

we cannot agree with the view taken by the Union Government that Jats in the 9 (nine) States in question is a backward community so as to be entitled to inclusion in the Central Lists of Other Backward Classes for the States concerned. The view taken by the NCBC to the contrary is adequately supported by good and acceptable reasons which furnished a sound and reasonable basis for further consequential action on the part of the Union Government. In the above situation we cannot hold the notification dated 4.3.2014 to be justified. Accordingly the aforesaid notification bearing No. 63 dated 4.3.2014 including the Jats in the Central List of Other Backward Classes for the States of Bihar, Gujarat, Haryana, Himachal Pradesh, Madhya Pradesh, NCT of Delhi, Bharatpur and Dholpur Districts of Rajasthan, Uttar Pradesh and Uttarakhand is set aside and quashed. The writ petitions are accordingly allowed.

                                 REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                         CIVIL ORIGINAL JURISDICTION
                    WRIT PETITION (CIVIL) NO. 274 OF 2014

RAM SINGH & ORS.                        ...PETITIONER (S)
                                   VERSUS
UNION OF INDIA                          ...RESPONDENT (S)

                                    WITH
                          W.P. (C) No. 261 of 2014,
                          W.P. (C) No.278 of 2014,
                          W.P. (C) No.297 of 2014,
                          W.P. (C) No.298 of 2014,
                          W.P. (C) No.305 of 2014,
                          W.P. (C) No. 357 of 2014
                                      &
                           W.P. (C) No.955 of 2014


                               J U D G M E N T

RANJAN GOGOI, J.

1.    The challenge  in  the  present  group  of  writ  petitions  is  to  a
Notification published in the Gazette of India  dated  04.03.2014  by  which
the Jat Community has been included in the Central List of Backward  Classes
for  the  States  of  Bihar,  Gujarat,  Haryana,  Himachal  Pradesh,  Madhya
Pradesh, NCT of Delhi, Bharatpur and Dholpur districts of  Rajasthan,  Uttar
Pradesh and Uttarakhand.  The said Notification was issued pursuant  to  the
decision taken by the Union Cabinet  on  02.03.2014  to  reject  the  advice
tendered by the National Commission  for  Backward  Classes  (NCBC)  to  the
contrary on the ground that the said advice "did not  adequately  take  into
account the ground realities".

RESUME OF THE CORE FACTS :

2.    Pursuant to several requests received from individuals,  organisations
and associations for inclusion of Jats  in  the  Central  List  of  Backward
Classes for the States of  Haryana,  Rajasthan,  Madhya  Pradesh  and  Uttar
Pradesh, the National Commission for Backward Classes (NCBC)  studied  their
claims and submitted a report on 28.11.1997.  It  recommended  inclusion  in
the Central List only of the Jats of Rajasthan,  except  the  Bharatpur  and
Dhaulpur districts.

3.     The NCBC also examined  the  claim  for  inclusion  of  Jats  in  the
Central List for the State of  Delhi,  and  tendered  its  advice  rejecting
their claim on 25.11.2010.



4.    The significant developments that took place after submission  of  the
aforesaid two reports may be relevant to be taken note of at this stage.

      On 03.05.2011 the National Commission for Backward Classes  (Power  to
Review Advice) Rules, 2011 was notified by the Ministry  of  Social  Justice
and Empowerment.  By virtue of the aforesaid Rules, the NCBC  was  empowered
to review its advice tendered to the Central Government under  Section  9(1)
of the Act.  Rule 4 of the Rules provides that  the  "provision  of  Section
114 and Order 47  of  the  Code  of  Civil  Procedure,  1908  shall  mutatis
mutandis apply to a review undertaken by the Commission."

5.    In a meeting of the  NCBC  held  on  20.06.2011,  a  large  number  of
representations received from the Jat Community for review  of  the  earlier
advice of the NCBC was taken up for  consideration.   It  was  decided  that
consideration of all such representations be deferred till  finalisation  of
the Socio-economic Caste Census (SCC) 2011 which was being conducted by  the
Registrar General of India all over the country  for  enumerating  castewise
population of the country.  However, in a meeting  held  on  19.07.2011  the
NCBC decided to approach the  Indian  Council  of  Social  Science  Research
(ICSSR) to conduct a full-fledged survey in the  States  of  Uttar  Pradesh,
Haryana,  Madhya  Pradesh,  Rajasthan,  Himachal  Pradesh  and  Gujarat   to
ascertain  the  socio-economic  status  of  the  Jat  Community.   The  said
decision was prompted by the necessity to have  adequate  quantifiable  data
to enable the NCBC  to  consider  the  request  of  the  Jat  Community  for
inclusion in the Central List of Other Backward  Classes  in  the  concerned
States.

6.    What happened to the survey entrusted to the ICSSR would not  be  very
relevant except that  in  October  2012  the  NCBC  decided  to  reduce  the
comprehensive survey to a 2% sample  survey  which  work,  once  again,  was
entrusted to the ICSSR.

7.    It appears that in the midst of the aforesaid exercise the  office  of
the Prime  Minister  addressed  a  communication  dated  04.06.2013  to  the
Ministry of Social Justice and Empowerment to the  effect  that  a  decision
has been taken to constitute a Group of Ministers  chaired  by  the  Finance
Minister and comprising, inter alia, of the Home Minister for the  following
purpose:-

(i)   To interact with the representatives of the Jat Community with  regard
to their demand for inclusion and to keep them apprised of the  progress  in
the matter.

(ii)  To monitor the expeditious completion of the survey undertaken by  the
NCBC through the ICSSR and to facilitate an early decision in the matter  by
the NCBC.

8.    The Group  of  Ministers  in  its  meetings  held  on  28.10.2013  and
30.10.2013, upon consideration of the matter,  perceived  that  two  options
were available to it.  The first was to request the NCBC to  reconsider  its
earlier decision of conducting the sample survey and to  tender  its  advice
on the basis of materials  already  available.   The  second  was  that  the
survey work which had already  begun  in  Gujarat  would  be  restricted  to
confirmed list of Jat variants and on  the  basis  of  the  results  of  the
survey done by the ICSSR the NCBC will tender its advice."   Thereafter,  in
a meeting of the Cabinet held on 19.12.2013, decision was taken  to  request
NCBC to go ahead with first option  i.e.  to  tender  its  advice  based  on
existing material.  The cabinet further took the decision that the cases  of
States of Bihar, Uttarakhand and NCT  of  Delhi  be  also  included  in  the
reference made to the NCBC.

9.    On the basis of the aforesaid decision of the cabinet communicated  to
the NCBC, the Commission took the view that as it did  not  have  sufficient
expertise in the matter,  the  ICSSR  be  requested  to  set  up  an  Expert
Committee to conduct an extensive literature survey on the subject in  order
to collect sufficient materials for  the  impending  exercise.   Thereafter,
the NCBC forwarded all reports/documents  received  by  it  in  this  regard
including  representations  for  and  against  the  inclusion  of  the   Jat
Community to the ICSSR.  The expert body constituted by the ICSSR  submitted
its report (hereinafter referred to as the  report  of  the  ICSSR)  in  the
matter which primarily was  based  on  the  reports  of  the  various  State
Commissions submitted to the  respective  State  Governments  in  connection
with the inclusion of the Jat Community in the OBC  list  of  the  concerned
States.  The ICSSR, apparently, did not undertake any  study  of  the  other
materials by way of books/literature/representations.   The  report  of  the
ICSSR, noticeably, did not make any recommendations but  only  set  out  the
existing facts.  The said report of the ICSSR was, thereafter, discussed  by
the NCBC in several of its meetings.   Simultaneously,  the  NCBC  addressed
letters  to  the  State  Governments  for  fixing  public  hearings  in  the
respective State capitals.  As there was no  response  from  the  States  in
this regard, the NCBC  published  notices  for  conducting  public  hearings
fixing  different  dates  for  hearing   the   claims   and   counter-claims
(objections).  The public hearings were to be held in Siri Fort  Auditorium,
New Delhi on two sets of dates in February, 2014.

10.   On conclusion of the public hearings, which appear  to  have  received
what may at best be termed as a  mixed  response,  the  NCBC  submitted  its
advice/opinion/report dated 26.02.2014 to  the  Central  Government  stating
that the Jat Community had not fulfilled the criteria for inclusion  in  the
Central List of OBCs.  It observed that merely belonging to an  agricultural
community cannot confer backward status on the Jats.  It suggested the  need
for a non-caste based identification of backward classes.   The  NCBC  found
that the Jats were not socially backward.  They were also not  educationally
backward.  It similarly rejected the claim of inadequate  representation  in
public employment, finding them  adequately  represented  in  armed  forces,
government services and educational institutions.

11.   Thereafter, the Union Cabinet in a meeting held on 02.03.2014  decided
that the advice tendered by the NCBC did not adequately  take  into  account
the "ground realities."  The Cabinet, therefore, resolved not to accept  the
said advice and instead to include the Jat Community in the Central List  of
Backward Classes  for  the  States  of  Bihar,  Gujarat,  Haryana,  Himachal
Pradesh and NCT of Delhi, Bharatpur  and  Dholpur  districts  of  Rajasthan,
Uttar Pradesh and Uttarakhand.  Thereafter, the impugned  notification  came
to be issued on 04.03.2014.

12.   At this stage it may be relevant to notice the dates on which the  Jat
Community was included in the List of OBCs in the States in  question  which
are set out herein:



"(1)  03.11.1999 State of Rajasthan
      (2)   10.03.2000 State of Uttar Pradesh
      (3)   31.05.2000 NCT of Delhi
      (4)   06.11.2000 State of Bihar
      (5)   24.01.2002 State of Madhya Pradesh
      (6)   16.11.2002 State of Himachal Pradesh
      (7)   22.03.2010 State of Uttarakhand
        (8) 24.01.2013 State of Haryana-As
                             Special OBC
      (9)   Gujarat          Not included"

Relevant Constitutional and Statutory Provisions

13.   The relevant Constitutional and Statutory provisions in the  light  of
which the issues arising will have to be determined may be taken note of  at
the outset:

Article 15  of  the  Constitution  prohibits  discrimination  on  ground  of
religion, race, caste, sex or place of birth.   Clause  (4)  of  Article  15
provides that "nothing in this article or in clause (2) of article 29  shall
prevent the State from making any special provision for the  advancement  of
any socially and educationally backward  classes  of  citizens  or  for  the
Scheduled Castes and the Scheduled Tribes".  Article 16 which  provides  for
equality of opportunity in matters of public employment provides  in  Clause
(4) thereof that "nothing in this  article  shall  prevent  the  State  from
making any provision for the reservation of appointments or posts in  favour
of any backward class of citizens which, in the opinion  of  the  State,  is
not adequately represented in the services under the State".

14.   Reference to the provisions of Article 38 and 46 of in Part IV of  the
Constitution may also be made.  Article 38 of  the  Constitution  enjoins  a
duty on the State to endeavour to promote  the  welfare  of  the  people  by
securing and protecting as effectively as it may a social  order  by,  inter
alia, eliminating inequalities in status, facilities and  opportunities  not
only amongst individuals but also amongst groups of people  either  residing
in different areas or engaged in different vocations. Article 46 casts  upon
the State a duty to promote the educational and economic  interests  of  the
weaker sections of the population particularly of the Scheduled  Castes  and
Scheduled Tribes and to protect such  citizens  from  social  injustice  and
exploitation.  Article 340 of the Constitution envisages the creation  of  a
Commission, inter alia, to investigate the conditions of  the  socially  and
educationally  backward  classes  and  the  difficulties  under  which  such
classes labour; and to make recommendations as to the steps that  should  be
taken to remove such difficulties and improve their conditions etc.

15.   The National Commission of Backward  Classes  Act,  1993  was  enacted
following the decision of this Court in Indra Sawhney & Ors.  Vs.  Union  of
India & Ors.[1]  which  visualised  the  necessity  of  establishment  of  a
permanent/specialised body to which complaints  of  non-inclusion  or  wrong
inclusion of groups, classes and sections in  the  list  of  Other  Backward
Classes can be made from time to time.  In this regard, the  following  part
of the opinion of Justice Jeevan Reddy in Indra Sawhney case (supra) may  be
noticed :-

"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..."
                                                                  (para 847)


16.   The National Commission for Backward  Classes  Act,  1993  (for  short
"the  Act")  contain  provisions  for  the  constitution  of  the   National
Commission For Backward Classes (NCBC), its powers and functions  and  other
allied matters.  The salient features of the Act which will  require  to  be
specifically noticed may be set out hereunder.


Section 2(a) and 2(c) provides as follows:
"2(a) - "backward classes" means such backward  classes  of  citizens  other
than the Scheduled Castes and Scheduled Tribes as may be  specified  by  the
Central Government in the lists;

2(c) - "lists" means lists prepared by the Government of India from time  to
time for purposes of making provision for the  reservation  of  appointments
or posts in favour of backward classes of citizens which, in the opinion  of
that Government,  are not adequately represented in the services  under  the
Government of India and any local or other authority  within  the  territory
of India or under the control of the Government of India".


Section 3 deals with constitution of NCBC.  It provides that the NCBC  shall
consist of the following persons nominated by the Central Government.
A Chairperson, who is or has been a Judge of the Supreme Court or of a  High
Court;
 A social scientist;
Two persons, who have special knowledge  in  matters  relating  to  backward
classes; and
A Member-Secretary, who is or has been an officer of the Central  Government
in the rank of a Secretary to the Government of India.

Sections 9 and 11 of the Act read as under:

"9.  Functions of the Commission

The Commission  shall  examine  requests  for  inclusion  of  any  class  of
citizens as a backward class in the  lists  and  hear  complaints  of  over-
inclusion or under-inclusion of any backward class in such lists and  tender
such advice to the Central Government as it deems appropriate.
The advice of the commission shall ordinarily be binding  upon  the  Central
Government.

11. Periodic Revision of Lists by the Central Government

(1)   The Central Government may at any time, and shall, at  the  expiration
of ten years from the coming into force of this  Act  and  every  succeeding
period of ten years thereafter, undertake revision of the lists with a  view
to excluding from such lists those classes who have ceased  to  be  backward
classes or for including in such lists new backward classes.

(2) The Central Government shall, while undertaking  any  revision  referred
to in sub-section (1), consult the Commission."



17.   Section 8 of the Act empowers the  Commission  to  lay  down  its  own
procedure while Section 10 enumerates the powers  of  the  Commission  while
performing its functions under  Section  9(1)  of  the  Act.   There  is  no
specific provision in the Act  which  empowers  the  Central  Government  to
override the advice/recommendation of the Commission.







Arguments on Behalf of Petitioners

18.   To begin with, learned counsel for the petitioners seeks to  attribute
legal malice to  the  decision  making  process  resultantly  vitiating  the
decision taken by the Union Government.  The manner in  which  the  decision
was taken commencing with the conferment of the review  power  in  the  year
2011 by enactment  of  the  extant  Rules;  the  constitution  of  Group  of
Ministers to oversee the matter; the exercise of the first option  available
and the repeated requests made  by  the  Government  to  the  Commission  to
tender its advice indicate the pre-determined manner in  which  the  Central
Government was proceeding in the matter, it is urged.  The  meeting  of  the
cabinet on a Sunday (2.3.2014);  the  publication  of  the  notification  on
4.3.2014 when the General Elections were  notified  on  the  next  day  i.e.
5.3.2014 has been  mentioned to contend that the  impugned  notification  is
based on wholly extraneous  considerations  and  is  actuated  by  political
motives, namely, to gain electoral advantages.

19.   It is contended that the impugned notification  dated  04.03.2014  has
been issued in derogation of the provisions  of  Section  9(2)  of  the  Act
which provides that "advice of the Commission shall  ordinarily  be  binding
upon the Central Government".  Even in a situation contemplated  by  Section
11 of the Act the views of the NCBC would be equally compulsive and  binding
and should commend for  acceptance  of  the  Central  Government  except  in
situations where there are strong compelling and  overwhelming  reasons  not
to do so.  None of the aforesaid situations do exist in  the  present  case,
it is claimed on behalf of the petitioners.

20.   It is submitted that the earlier reports of the NCBC dated  28.11.1997
and  25.11.2010  were  founded  on  an  elaborate  reasoning  and   upon   a
comprehensive  consideration  of  all  relevant  materials.   Not  only  the
circumstances leading to the submission of the  report  dated  26.2.2014  of
the NCBC make the decision of  the  Union  Government  to  reject  the  same
wholly premeditated, even otherwise, the decision of the Central  Government
to override the advice tendered by the NCBC is not supported by any  reasons
recorded or by notings in the file.  Neither the said decision can  be  said
to be a reasonable or possible conclusion that could have  been  reached  by
the Union Government on the available materials.

21.   The decisions in Barium  Chemicals  Ltd.  Vs.  Company  Law  Board[2];
Rohtas Industries Ltd. Vs. S.D. Agarwal & Ors.[3]; Shri  Sitaram  Sugar  Co.
Ltd. & Anr. Vs. Union of India & Ors.[4] and  Gazi  Saduddin  Vs.  State  of
Maharashtra  &  Anr.[5]   have  been  relied  upon  to  contend   that   the
satisfaction of the Central Government is open to challenge and  within  the
reach of the judicial scrutiny both on grounds of its  legal  fragility  and
ex facie unreasonableness. Learned counsel  for  the  petitioners  has  very
elaborately taken us through the advice/report of the NCBC dated  26.02.2014
to contend that the exhaustive report of the said body  contain  a  detailed
analysis of the  facts  recorded   in  the  reports  of  the  various  State
Commissions.  The said exercise clearly demonstrates that  the  Jats  are  a
forward community in all the States in question.  The contrary view  of  the
Union Government is wholly  unsupported  by  any  adequate,  reasonable  and
relevant grounds or basis.  The decision of the  Union  Government  is  also
not  based  on  any  relevant  quantifiable  data  or  material  to   enable
recognition of the Jat Community as backward within the meaning  of  Article
16(4)  of  the  Constitution.   Learned  counsel  for  the  petitioners  has
elaborately placed the relevant materials on record in respect  of  each  of
the States under consideration and has contended  that  the  said  materials
cannot reasonably sustain the decision to include Jats in the Central  lists
of other Backward Classes of the concerned States.

22.   In reply, the learned Attorney General has argued that  the  power  to
make provisions for reservation by inclusion of the eligible classes in  the
Central lists flow from Article 16(4) of the  Constitution.  The  advice  of
the NCBC, according to the learned  Attorney  General,  would  not  be  very
material inasmuch as even dehors the provisions of the NCBC  Act  the  Union
Government would not be denuded of its powers to add or  subtract  from  the
Central  Lists  of  Other  Backward  Classes.   The  learned  Attorney   has
alternatively contended that the present exercise of inclusion  of  Jats  in
the list  of  Other  Backward  Classes  is  not  pursuant  to  any  exercise
undertaken under Section 9 of the NCBC Act so as to 'bind' the Union to  the
advice tendered by the NCBC.  It  is  also  argued  that  the  inclusion  of
classes or groups in the State OBC Lists will be  a  strong  and  compelling
factor for inclusion of such classes in the Central Lists also  inasmuch  as
the considerations which had weighed with the State Government to include  a
particular class as an other backward class would  always  be  relevant  for
being taken into account for inclusion of the  said  class  in  the  Central
List of Other Backward Classes.  Such a course,  according  to  the  learned
Attorney, is necessary for purposes of consistency and uniformity of  action
by the Union and the States.


23.    Pointing  out  the  facts  antecedent  to  the  submission   of   the
report/advice of the NCBC on 26.2.2014, the  learned  Attorney  General  has
drawn the attention of the Court to the fact that the process  of  tendering
such advice had really commenced in the year 2011 and  the  delay  that  has
occurred is attributable to the NCBC.  The NCBC has  been  vacillating  from
time to time as would be evident  from  its  decisions,  firstly,  to  defer
consideration of the matter till finalisation of  the  Caste  Census  Survey
conducted by the Registrar General of India and thereafter  in  deciding  to
approach the ICSSR for a full survey in the six States and subsequently  its
decision to opt for a 2% sample survey.  It is pointed out that  even  after
the decision to go for a sample survey, nothing  had  happened  for  over  a
year.  It is  only  in  December  2013  after  the  Central  Government  had
'reminded' the NCBC of the matter that the NCBC had decided to  entrust  the
ICSSR  to  carry  out  a  study   based   on   the   available   literature,
books/documents.  There was  no  undue  haste  in  the  process  claims  the
learned  Attorney  General  who  also  points  out  that   timing   of   the
notification i.e. on the eve of the commencement of  the  General  Elections
would not, by itself, be  sufficient  to  hold  the  decision  taken  to  be
vitiated in law or by legal malice.


24.  The learned Attorney  General  has  taken  us  through  the  exhaustive
materials on record i.e.  the  report  dated  26.2.2014  of  the  NCBC;  the
reports of the various State Commissions; and report of the ICSSR  including
the report of the IIPA relied upon by the ICSSR.  It is  submitted,  on  the
basis of the said materials, that there is overwhelming evidence  to  permit
a conclusion to be reached that the Jat Community should be included in  the
Central Lists of Other Backward Classes in the States in  question.   It  is
only  after  such  consideration  that  the  impugned   notification   dated
04.03.2014 came to be issued.  The conduct of the  NCBC  in  entrusting  the
responsibility of carrying out a literature survey to the Expert  Body  i.e.
ICSSR on the ground that the NCBC itself is  not  equipped  to  perform  the
task and, thereafter, in acting as an Appellate  Body  sitting  in  judgment
over the views of the said Expert Body has come in for  sharp  criticism  by
the learned Attorney General. By referring to the  specific  conclusions  of
the NCBC recorded in its report dated  26.02.2014,  it  has  been  contended
that the conclusions reached are wholly  untenable  and  unacceptable  being
contrary to specific findings recorded by the ICSSR or  in  the  reports  of
the State Commissions with  regard  to  the  social,  economic  as  well  as
educational status of the Jats.


25.   The above submission advanced by the  learned  Attorney  General  have
been echoed by the  learned  counsels  appearing  on  behalf  of  the  other
respondents in the writ petitions i.e. Akhil Bharatvarshiya  Jat  Mahasabha,
Jat Aarakshan Sangharsh Samiti and the Jat Sabha Zila, Meerut.  The  limited
scope of judicial review that will be available to this Court to  scrutinise
the decision taken by the Union Government has been  particularly  urged  by
Shri Mohan  Parasaran,  learned  senior  counsel  appearing  for  the  Akhil
Bharatvarshiya Jat Mahasabha.  In so  far  as  Jat  Sabha  Zila,  Meerut  is
concerned, Shri Jayant Bhushan, learned senior  counsel  has  further  urged
that the test for determining social, educational and economic  backwardness
laid down in Indra Sawhney case (supra)  are  fully  satisfied  by  the  Jat
Community so as to make its members eligible for inclusion  in  the  Central
lists of OBCs.


26.   What weight-age the advice/recommendation tendered by the NCBC  should
receive in the  decision  making  by  the  Union  Government  is  a  crucial
determination that this Court is required to make in the present  case.  The
observations  in  Indra  Sawhney  (extracted  above)   and   the   expressed
provisions contained in Section 9 of the NCBC Act clearly indicate that  the
advice tendered by the NCBC is ordinarily binding on the Government  meaning
thereby  that  the  same  can  be  overruled/ignored  only  for  strong  and
compelling reasons which reasons  would  be  expected  to  be  available  in
writing. As the constitution  of  the  NCBC  is  traceable  to  the  opinion
rendered in Indra Sawhney (extracted above) there can be no doubt that  even
when the exercise undertaken by the Central Government is one under  Section
11 of the Act, the views expressed  by  the  NCBC  in  the  process  of  the
consultation mandated by Section 11, would have  a  binding  effect  in  the
normal course.


27.   It will, therefore, be necessary to note what had prevailed  with  the
NCBC in tendering its advice in the instant case  not  to  include  the  Jat
community in the Central Lists of other backward classes in the nine  States
in respect of which the reference was made  to  the  Commission.  A  lengthy
narration is unavoidable for it is only upon setting out the relevant  facts
and circumstances in their proper conspectus that  the  intrinsic  merit  of
the advice tendered by the NCBC can be determined.


28.   The NCBC had  entrusted  the  task  of  the  survey  of  the  relevant
literature to an Expert Committee constituted by the ICSSR.   On  completion
of the task the said Committee had submitted its report  in  the  matter  to
the NCBC.  The State-wise summary of the findings of the Expert Body of  the
ICSSR may be extracted below:


                        SUMMARY OF FINDINGS OF ICSSR


                             BIHAR


"The analysis is based  on  the  Bihar  State  Backward  Classes  Commission
Report (1999) which had recommended the  inclusion  of  Jats  in  State  OBC
list. The estimated population of Jats in Bihar from independent sources  is
about 80 thousand in 1988. Jats reside in selected districts- in  the  State
and there are both Hindu and Muslim Jats. The  Bihar  State  Backward  Class
Commission considered the social,  educational  and  economic  condition  of
both Hindu and Muslim Jats and concluded that the Jat community in Bihar  is
backward. The recommendation of the Bihar State Backward Classes  Commission
is based on the information sought  through  the  questionnaires  filled  by
members of the community  (the  number  of  questionnaire  received  by  the
commission is not specified) and representations  from  the  Jat  community.
Since the report is not based on household survey, "this  committee  is  not
in a position to give facts and figures." The Commission concluded that  the
Jat community in Bihar is not represented at all in the Group  I  and  Group
II jobs in the Government.  They  are  educationally  backward  compared  to
other communities in Bihar and are  primarily  engaged  in  agriculture  and
allied activities."


                             DELHI


"The  estimated  population  of  Jats  in  Delhi  is  around   1.2   million
(independent source). There are two  reports,  one  prepared  by  Delhi  OBC
Commission and another by an Independent researcher,  The  Delhi  state  OBC
Commission report does not have  any  absolute  indicators  on  educatioria1
status, employment structure  etc.  However,  the  Commission  has  reported
indicator on net social standing, net educational standing and net  economic
standing. Or net educational standing, Jats with  composite  score  of  1.17
are behind Gujars (1.34) and Ahirs  (1.22).  On  net  social  standing,  the
composite score of Jats is 17.24, which  is  significantly  lower  than  the
Gujars (27.14) and Ahirs (19.85). On  composite  economic  score,  score  of
Jats is 16.55, lower than Gujars (19.38) but higher than the Ahirs  (14.86).
Thus, with respect to social  and  educational  standing,  Jat  lags  behind
Gujars and Ahirs while  in  case  of  economic  standing,  they  lag  behind
compared to Gujars but ahead of Ahirs. It is to be noted  that  both  Gujars
and Ahirs are included in the Central OBC list."


                             GUJARAT


"In  case  of  Gujarat,  the  estimated  Jat  population  is  0.65   million
(independent source) but there is no documentation available  about  spatial
or religion-wise break-up of Jat  population.  Further,  there  is  lack  of
information on the parameters (social, educational and  economic)  specified
by the NCBC. However, the  Gujarat  government  website  mentions  that  Jat
Muslims are included in the Central OBC list."


                             HARYANA


"One of the states where Jats  have  sizeable  population  is  Haryana.  Our
observations are based on the Haryana State  OBC  Commission  report,  which
recommended  reservation  for  Jats  as  OBC  in  the  state  in  2012.  The
commission based its recommendations  on  a  sponsored  study  conducted  by
Sangwan (2012). The findings of the  study  indicate  that  on  occupational
structure, Jats in Haryana are a landowning community.  Nearly  87%  of  the
Jats are engaged in agriculture. The other economic  activities  pursued  by
Jats include animal husbandry and  trade.  In  government  employment,  Jats
have about 21% share in the total class I & II services in the  state  which
is about four percentage points lower than their share in  population  (25%)
in 2012. However, they lag behind compared to  Bishnoi  and  Brahmins  whose
share in government employment  in  Class  I  &  II  is  higher  than  their
respective population share. The  comparable  figures  for  Ahir/Yadava  and
Gujar (the other two comparable OBC communities with Jats) are not  reported
in Haryana Backward Classes  Commission  Report  2012.  On  the  educational
achievements, more than 12% Jat children in the  age  group  of  6-14  years
never attended school, which is higher than many other backward  castes.  At
the graduation level, Jats have about 6.5% enrolment,  which  is  less  than
average level of 8.3%. At the  postgraduate  level,  enrolment  of  Jats  is
1.71% against the average of 2.26% of the respondents. The  available  data,
therefore, suggests that in Haryana Jats are  land-owning  community.  Their
share in class I & II government service is close to their population  share
but they lag behind in both school and higher education enrolment."


                       HIMACHAL PRADESH


"In case of Himachal Pradesh, the HP State  OBC  Commission  Report  is  the
only available source of information. The Report  is  based  on  hearing  of
about 866 persons conducted  by  the  full  bench  of  the  Commission.  The
Commission estimated the Jat population in Himachal Pradesh is 43, 252.  The
Commission evolved a 25-point criteria based on  NCBC  guidelines.  However,
the Report does not contain any quantitative information about  the  social,
economic and educational status of Jats  vis-a-vis  other  communities.  The
State Commission has recommended for inclusion of  Jats  in  the  State  OBC
list. Data on literacy rate and higher education enrolment of  Jat  children
is lacking in the State Commission  Report.  However,  the  report  observed
that dropout rate of children beyond primary level being high, they are  put
to household work or work as agriculture labour. On share in the  government
service,  the  State  Commission  Report  observed  that  the  incidence  of
representation of Jats In  the  state  services  in  comparison  to  general
average is very low. Similarly, the state commission  report  observes  that
the representation of Jats in the public sector is  negligible.  The  report
of the commission also mentions that most of the members (male,  female  and
children) of this community are depending on agriculture labour  on  a  much
larger scale than  Rajputs  and  Brahmins.  It  is  to  be  noted  that  the
Commission Report does not include  quantitative  information  on  literacy,
occupation and representation in government service on the  basis  of  which
it  has  made  these  recommendations.  The  Commission  came  to  unanimous
conclusion that this community is socially, educationally  and  economically
backward and is fit for inclusion in the State list of OBCs."


                       MADHYA PRADESH


"In case of Madhya Pradesh, in 2002, State Government included Jats  in  the
State OBC list  though  no  details  are  available  on  the  parameters  or
criterion used by the State OBC Commission for the inclusion of Jats in  the
State list. Earlier, in the year 1999, the NCBC had observed that  the  Jats
in Madhya Pradesh are not socially backward and were  not  included  in  the
central OBC list."








                                  RAJASTHAN


"In case of Rajasthan, the available  information  suggests  that  Jats  are
included in both the Central and State OBC list since 1999. But  the  report
of the Rajasthan State OBC Commission has not been made available to  us  by
NCBC.  Therefore,  we  have  based  this  comparative  picture  on  a  study
sponsored by the State Government and conducted by Institute of  Development
Studies, Jaipur. The report of the sponsored  study  was  submitted  to  the
Department of Social Justice and Empowerment, Government of Rajasthan  2012.
The available information shows that more than 91% Jat households own  land,
which is higher than that of Ahir, Gujar and the rest of  OBCs.  Around  29%
of the Jat population in the age group of  7-59  years  is  reported  to  be
illiterate in 2012. This is substantially lower than  several  caste  groups
that are included in the OBC list. Among the Jats, 7.5% households  have  at
least one member who is graduate, which is lower than the  Ahir  and  Charan
communities but somewhat better than the rest of the OBCs. Among  the  Jats,
it is reported that more than 6.8% household have at  least  one  member  in
the government service. This is marginally  lower  than  Ahir,  Vishnoi  and
Charan households but higher than the rest of the  backward  classes.  Thus,
Jats in Rajasthan are better off with  respect  to  ownership  of  land  but
somewhat lag behind with respect to literacy rate, enrolment  in  graduation
and representation in government service."





UTTAR PRADESH AND UTTARAKHAND


"The Jat population is primarily concentrated in western Uttar  Pradesh  and
Uttarakhand. Jat community got included in the State OBC list in  2000.  Our
observations are based on the Social Justice Committee Report  (SJCR)  2001,
which has been prepared after the Jat community was already included in  the
state OBC list by the Uttar Pradesh Government in 2000, The SJCR  population
estimates are based on the Village Panchayat  Family  Register,  Accordingly
the highest population at 19.6% is that of Ahir  followed  by  7.5  %  Kurmi
(different variants) and 3.6% Jats. The comparable socioeconomic  indicators
are available in Singh (2003) that we  use  in  this  report.  Singh  (2003)
shows that about 92% Jat households own  land.  The  figures  for  Ahir  and
Kurmi are 95% and 100%, respectively. Singh (2003) also reports that 89%  of
the workers among the Jats in rural areas  are  engaged  in  primary  sector
activities, which is similar to that  of  Ahir/Yadava  but  lower  than  the
Gujar community. The proportion of those completed graduation and  above  in
the Jat community  is  1.7%  compared  to  3%  for  Yadava.  Similarly,  the
proportion of post-graduate is 0.2% for Jat and 0,7% for  Yadava.  The  data
compiled by SCJR in 2001 from higher  educational  institutions  on  207,000
students indicate that the share of Jats is much less than  their  share  in
the population while that of Ahir and  Kurmi  was  much  higher  than  their
population share. The information compiled by SJCR suggests  that  share  of
Ahir/Yadava is 3: 4% whereas Kurmis have 11.2%  in  professional  education.
Share of Jats is only.0.3% that is way below the share  of  Ahir  and  Kurmi
shares. In the Group A & B Government Employment, the share of Jat  is  5.5%
and 4.3%, respectively, which is slightly higher than  their  share  in  OBC
population. Corresponding figures for Yadava and their variant for  Group  A
& B services is 46% and 42% Of the OBC  which  is  much  higher  than  their
share in the population of OBC  which  is  19.4%.  Similar  differences  are
observed in case of Kurmi and their  variants.  As  far  as  Uttarakhand  is
concerned, no separate report  is  available.  Apparently,  Uttarakhand  has
accepted the list of OBC as that of Uttar Pradesh. Thus,  Jats  are  at  par
compared to OBCs such as Ahir/Yadav as far  as  ownership  of  the  land  is
concerned. However, in case of enrolment in higher and  technical  education
they lag behind Ahir/Yaday. In case  of  representation  in  the  government
service, the share is  proportionate  to  their  population  but  relatively
lower than the Ahir/Yadava and Kurmi."


                 INTER-STATE COMPARISON


"The NCBC has asked this committee to provide inter-state variation  in  the
social, economic and occupational status of Jats  vis--vis  other  backward
class  communities.  Going  by  the  summary  of  the  status  of  different
communities reported from paras 9 to 16 above, the committee is of the  view
that due to lack of comparable quantitative data on the social,  educational
and economic status of Jats and other  backward  class  communities  in  the
nine states, any meaningful comparison is not possible.  However,  based  on
available quantitative and qualitative information, it is the impression  of
the committee that the situation of Jats with respect to ownership  of  land
and  occupation,  education  level  and  representation  in  the  government
service, the Jats from the states of Bihar,  Gujarat  and  Himachal  Pradesh
are worse off compared to the Jats from Delhi, Haryana, Rajasthan and  Uttar
Pradesh and Madhya  Pradesh.  Nevertheless,  these  are  impression  of  the
committee based on the limited comparable data and information."


29.   The report of the Expert Committee constituted by the ICSSR was  based
on a study of eight specific  reports  which  were  sent  by  the  Group  of
Ministers to the NCBC at the  time  of  seeking  a  review  of  the  earlier
decision of  the  NCBC.  The  said  eight  reports,  details  of  which  are
mentioned below, in turn, were forwarded by the Commission to the ICSSR -


 (1) Social Justice Committee Report, Uttar Pradesh (2001)


 (2)  Socio-Economic Status of Farming Communities in Northern India,  Uttar
Pradesh (2003)


 (3)        Caste, Land and Political Power in UP, Uttar Pradesh


 (4)  Justice Gurnam Singh Commission Report, Haryana (1990)


 (5)  Justice K.C. Gupta Report, Haryana (2013)


(6)   Justice Gummanmal Lodha Commission Report, NCT of Delhi (1999)


(7)   Dr. Lipi Mukhopadbyay Report, Delhi (2005)


 (8)  State Backward Classes Commission's Reports of  State  Governments  of
Rajasthan, Madhya Pradesh, Himachal Pradesh and Gujarat.



30.    Apart from the aforesaid eight reports, fifty one representations  in
favour  of  inclusion  of  Jats  in  the  Central  Lists  and  fifty   eight
representations against such  inclusion  received  by  the  NCBC  were  also
forwarded to the ICSSR. On receipt of the report of ICSSR,  the  summary  of
which has been indicated above, the Commission on an extensive study of  the
same and on a further detailed examination of  the  eight  specific  reports
which were referred to it by the Group of Ministers  carried  out  a  State-
wise analysis of the aforesaid materials.  Thereafter it  came  to  specific
findings in respect of each of the States, summary  of  which  findings,  is
indicated below :


                 Relevant Findings in the Report of the NCBC

                                   Haryana


The NCBC found that the report of the State Backward Commission of the  year
2012 (Justice  K.C.  Gupta  Commission  Report)  was  the  primary  document
pertaining to Haryana. The NCBC found certain inherent  flaws  in  the  said
report which, in its view, made the same unworthy  of  acceptance.  Some  of
the reasons recorded by the NCBC for taking the above view are :


Justice K.C. Gupta Commission's report is  primarily  based  on  the  survey
conducted in the year 2012 by Maharishi Dayanand  University  (MDU),  Rohtak
which was a very selective study.


Apart from Justice Gupta, the Commission consisted of  at  least  two  other
persons who belonged to the classes/groups which  were  under  consideration
i.e. Bishnoi and Ror who came to be included in  the  State  List  of  Other
Backward Classes.


The survey undertaken by the MDU, Rohtak was by one Prof. K.S.  Sangwan  who
belong to the Jat community; the Vice-chancellor of the MDU was also a  Jat.
In the public  hearing  conducted  by  the  Commission,  the  aforesaid  two
persons were accused of bias.


The survey undertaken by MDU was  a  comparative  study  of  the  Jats  with
higher castes like Brahmins, Rajputs etc and comparable figures in  relation
to Ahirs, Yadavs, Kurmis and Gujars were not available.  In  the  course  of
the public hearing  it  transpired  that  in  comparison  to  the  aforesaid
communities i.e. Ahirs, Yadavs, Kurmis and Gujars, the Jats  were  superior.



The villages where the survey was undertaken were as  per  details  provided
by the State Commission and not independently undertaken by the MDU.


The representation of the Jats in the Armed Forces was not studied.





31.   The Justice Gurnam Singh Commission Report being of the year 1990  and
having been earlier considered at the time of submission of  the  report  of
the NCBC on 28.11.1997, was not considered appropriate for being  considered
once again.



32.   The NCBC had evolved  a  set  of  guidelines,  criteria,  formats  and
parameters against which all claims  for  inclusion  as  an  other  backward
class are required to be considered.  The said parameters  were  evolved  on
the basis of  the  Mandal  Commission  Report  and  the  judgment  in  Indra
Sawhney.   11 indicators under three broad heads i.e. social,  economic  and
educational, details of which are indicated below, were identified.





A. Social


Castes/Classes considered as socially backward by others.


Castes/Classes which mainly depend on menial labour for their livelihood.


Castes/ Classes where at least 25% females and 10%  males  above  the  State
average get married at an age below 17 years in rural  areas  and  at  least
10% females and 5% males do so, in urban areas.


Castes/Classes where participation of females in work is at least 25%  above
the State average.





 B. Educational


(v)     Castes/Classes where the number of children in the age group  of  5-
15 years who never attended school is at least 25% above the State  average.



(vi)   Castes/Classes where the rate of student drop-out in  the  age  group
of 5-15 years is at least. 25%. above the State average.


 (vii) Castes/Classes amongst whom the  proportion  of  matriculates  is  at
least 25% below the State average.


C. Economic


 (viii) Castes/Classes where the average value of family assets is at  least
25% below the State average.


 (ix) Castes/Classes where the number of families living  in  Kuccha  houses
is at least 25% above the State average.


 (x) Castes/Classes where the source of drinking  water  is  beyond  half  a
kilometer for more than 50% of the households.


(xi) Castes/Classes where the number of households having taken  consumption
loan is at least 25% above the State average.


33.   Relative weight-age to each of  the  parameters  under  the  aforesaid
three broad heads is to be in the proportion  of  3:2:1.  The  Justice  K.C.
Gupta Commission  however  followed  12  Social  indicators,  7  Educational
indicators  and  5  Economic  indicators.  That  apart,  according  to   the
Commission, backwardness that was required to be  determined,  is  primarily
social  backwardness  which,  in   turn,   depended   on   how   the   other
castes/classes perceived whether the Jats were  socially  backward  or  not.
Justice K.C. Gupta Commission  did  not  proceed  in  the  matter  from  the
aforesaid perspective. Further in its report the NCBC found that  indicators
like Infant Mortality Rate, Maternal  Mortality  Rate,  Deliveries  at  Home
etc. had been  considered  to  determine  social  backwardness.  Such  data,
according to the NCBC, are actually Public Health Statistics and are  wholly
irrelevant for determination of social backwardness.


34.   The NCBC in its report also recorded its disagreement with  the  views
of the K.C. Gupta Commission that despite there being 26 (out  of  90)  MLAs
belonging to the Jat community and 4 Members of Parliament (out of 15),  the
Jats have not progressed socially, educationally and economically.  In  this
regard, the NCBC had also recorded that in the course of public  hearing  it
transpired that several Chief Ministers of Haryana who held office for  long
periods of time belong to Jat Community and in fact there has been  a  Prime
Minister of the country who was a Jat (Ch. Charan Singh).


                             Uttar Pradesh


The NCBC in coming to its conclusion with regard to the  claim  of  Jats  of
the State of Uttar Pradesh for inclusion  in  the  Central  Lists  of  other
backward classes relied on three basic documents, namely, -


Social Justice Committee Report popularly known  as  Hukum  Singh  Committee
Report (2001).


Social Economic Booklet on Social economic status of  farming  community  in
Northern India by Shri Ajit Kumar Singh (2003).


Caste and Class in India by K.L.Sharma (1994).





35.   The Hukum Singh Report, being 14 years  old,  was  understood  by  the
NCBC as having serious limitations in  furnishing  current  data.  The  said
committee, in fact, did not undertake any  study  of  the  socio-educational
status of the Jat community. Rather, its primary object was  to  investigate
the facilities extended to SCs/STs and OBCs in the  State  of  U.P.  and  to
propose modification in the  quota  of  reservation  in  the  new  State  of
Uttarakhand and the truncated State of UP. In performing the said  exercise,
the Committee recommended the inclusion of Jats in Schedule  'B'  consisting
of 8 different other backward classes who were to have  the  benefit  of  9%
reservation. No study of the Jats of  UP  as  a  socially,  economically  or
educationally backward group of people was undertaken by the Committee.





36.    The booklet compiled by Shri Ajit Kumar Singh (in the year  2003)  is
based on a small sample survey of 2000 rural  households  selected  from  20
villages spread over 5 districts of Western UP. By its very  nature  it  was
found to be of limited utility. In the said book it is recorded that  "Jats,
Gujars, Kurmis and Yadavs were the main beneficiary of the green  revolution
and have acquired political clout due to their numerical strength. They  are
the main land owning classes now and have progressed educationally  as  well
and are seeking  greater  access  to  government  jobs  through  reservation
politics.  These  intermediate  castes  enjoy  relatively  better   economic
conditions as compared to Lodhs and the motley group of castes called  Other
Backward Castes or OBC, who together form the relatively poorer  section  of
the middle classes  in  the  rural  areas."   The  said  view/findings  were
specifically taken note of by the NCBC while making its recommendations.





37.   The statistics and data available in the book -  Caste  and  Class  in
India by K.L. Sharma are of considerably old vintage.  The book, itself,  is
20 years old. In any case, in the said book it has been recorded  that  "the
intermediate caste in U.P. can be  broadly  divided  into  three  categories
i.e. Jats, Tyagis, Bhumihars, who have  a  considerable  position  in  land,
possess high ritual status and because of their regional  concentration  are
dominant in the politics of  a  few  districts".   The  aforesaid  view  was
specifically taken note of by the NCBC while tendering  its  advice  to  the
Government.


                             Delhi


Two pieces of literature formed the foundation of the  study  undertaken  by
the NCBC with regard to the status of Jats in the State of Delhi. The  first
is  Justice  Gumanmal  Lodha  Commission  Report  which  is  the  State  OBC
Commission Report for Delhi. The survey  undertaken  was  limited  to  about
2500 households belonging to 18 castes out of which 11 were already  in  the
OBC category. The said report  (2002)  was  considered  by  the  NCBC  while
tendering its earlier advice in November,  2010  against  the  inclusion  of
Jats.  The  second  document  is  a  report  prepared  by  one  Prof.   Lipi
Mukhopadhyay on behalf of the  Indian  Institute  of  Public  Administration
(IIPA).  The  said  report  was  prepared  on  the  basis  of  a  structured
questionnaire with topics of relevance to the subject and collected  from  a
total sample of 2000 households. A total of  46  villages  covered  under  5
districts were surveyed. The Lipi Mukhopadhyay  Report  records  the  social
profile of the Jat community in detail, relevant extract  of  which  is  set
out below :


"Jats occupy prominent position in Haryana, western Uttar  Pradesh,  Punjab,
Delhi and eastern Rajasthan,  being  the  largest  group  in  North  Western
India. They are divided into twelve clans and about  three  hundred  gotras.
Though the origin of Jat is shrouded in mystery, they are believed to be  an
Indo-Aryan tribe, connected to the Vedic civilization  (4500  BC-  2500  BC)
that existed along the Saraswati River. Even today the  highest  density  of
Jat population is along the dried beds of Saraswati, starting from  Haryana,
going on to Punjab and ending up in  Rajasthan.  They  play  a.  predominant
role in this, region. Agriculture, soldiering and cattle rearing  have  been
the main occupation of Jats. Jats are brave and hardworking and  independent
minded people. The Jats led a fairly autonomous political life.


Historically, it is argued that the Jats and Rajputs were of one  race.  But
a certain section of the people having risen in  the  social  scale  started
associating themselves as the original Rajputs and  hence  Kshatrias.  These
Rajputs disassociated themselves from the so-called Jats  or  descendent  of
jata of Lord Shiva.


During the survey the overall response in respect to the social  status  was
not very clear. The community  as  a  whole  responded  that  they  are  not
treated well by other castes and considered lowly especially by upper  caste
Hindus like Brahmins and Kshatriyas. They follow a strict  gotra  system  in
their social structure. Simiar to the  Hindu  custom  marriages  within  the
same gotra is not allowed.


Jats in the National Capital Territory of Delhi, as a  community  cannot  be
discriminated into any social structure except the gotra. However  depending
on the social treatment meted out to them this community is  divided.  Hence
different sections of the society feel associated with different castes.  As
comparison to other castes the Jat community as whole is also treated  lowly
and in the  present  situation  especially  by  the  Brahmins  and  also  by
Rajputs. They are not considered as kshatriyas or  of  the  same  status  to
them. There is social stigma like being called gawars or unwise and seen  as
of low status. Apart from the varna system there  is  gotra  division  among
the  Jats  like  Chitania,  Chadel,  Bambolia,  Taporwadia   Nain,   Bahadu,
Ladhowal, Rinwan and many more specially in Punjab and Rajasthan."


In sharp contradiction of the above the Committee also found -


"Half of the Jat community opined  that  they  are  treated  well  by  other
dominant castes like Brahmins and kshatriyas.  It  is  significant  to  note
that these are the people who assumed or  considered  themselves  closer  to
the kshatriyas, so much so that they enjoy the same status as the former.  A
significant 29.7% of the population felt the social  stigma  of  inferiority
by other castes. In fact they said that their standing  in  the  society  is
like the shudras. Others which is about 19.2% said that there is  no  social
discrimination against them."





38.   Insofar as education is concerned, though the literacy  rate  is  high
i.e.  85.7% as against 83.7%  for  the  general  population,  the  level  of
education is mainly high school and drop-out at school level is  very  high.
The economic standard of  the  Jat  community  was,  however,  found  to  be
relatively  better.  The  employment  in  the  government   jobs,   however,
according to the report, was quite low. Only 2.4% Jats engaged  in  high-end
services while 19.1% Jats are engaged in low-end services like  "peons,  DTC
drivers, teachers in primary school etc."


39.   On the basis of the aforesaid report of the IIPA, the NCBC  Commission
recorded, inter alia, the following findings :-


"However, examination of the report of IIPA leaves no manner of  doubt  that
Jats as a class cannot be treated as a backward class. Ethnically, they  are
at a higher level; they are of Indo Aryan Descent; their  educational  level
is high; and social status they command is higher than ordinary shudras.  In
the absence of social and educational backwardness coupled  with  inadequacy
of representation in the services, Article 15(4) and 16(4) do not apply  for
the purpose treating the Jat as backward classes.


 No case is made out for any review of the advice of the NCBC."



Himachal Pradesh


40.   The NCBC took into account that the claim of the  Jats  for  inclusion
in the  State  List  of  OBCs  in  Himachal  Pradesh  had  been  differently
considered at different points of  time  by  the  State  Commission  itself.
While the State Commission had rejected the said claim in the year 1999  and
its recommendations had been accepted by the State Government  in  the  year
2000,  the  Report  of  the  State  Commission  prepared  in  October   2002
recommended inclusion of the Jats who, accordingly, came to be  included  in
the State List.  From the Report of  the  NCBC  it  appears  that  a  public
hearing was conducted by the Commission in Shimla on 17.08.2011 and  on  the
basis of what had transpired and also upon consideration of  the  Report  of
the State Commission prepared in October 2002, the NCBC decided to keep  the
matter pending.  No compulsive material, according to  the  NCBC,  was  laid
before it in  the  course  of  the  present  exercise  so  as  to  enable  a
recommendation in favour of the Jats of Himachal Pradesh to be made by it.



Rajasthan

41.   The NCBC in its report dated 28.11.1997 had recommended the  inclusion
of Jats (excluding Dholpur and Bharatpur districts) in the Central  List  of
other backward classes.  On the basis of the  recommendation  of  the  NCBC,
the Government of India had issued a Notification dated  27.10.1999  to  the
above effect.  Following the said Notification,  the  State  Government  had
also issued a Notification  including  Jats  in  the  State  List  of  other
backward classes  (excluding  the  two  districts).  Thereafter,  the  State
Commission recommended for the removal of the area restriction of  the  Jats
in the two districts which was also accepted by the Government of  Rajasthan
and a Notification dated 10.01.2000 was issued.   It  appears  that  in  the
course of survey undertaken by ICSSR, the report  of  the  State  Commission
for OBCs was not made available.  In the  absence  of  the  said  Report,  a
study sponsored by the State Government and conducted by  the  Institute  of
Development Studies, Jaipur, was considered. On the basis  of  the  findings
recorded by the ICSSR in its report,  (earlier  extracted),  the  Jats  were
found to be better off in regard to ownership of land though in  respect  of
literacy rate and representation in Government service they  were  found  to
be marginally lower than Ahirs, Vishnois and Charans but  better  than  rest
of the OBCs.  In the aforesaid backdrop the  NCBC  came  to  the  conclusion
that on the basis of the materials  available  as  well  as  what  had  been
revealed in the course of the the public hearings  conducted  on  10.02.2014
and 13.02.2014 "the preponderance of  evidence  adduced  by  those  speaking
against the motion was much more than  those  speaking  for."   Under  these
circumstances the NCBC did  not  find  any  reason  to  interfere  with  its
earlier order issued on the subject.

Madhya Pradesh

42.   The State Backward Classes Commission of the State of  Madhya  Pradesh
undertook  a  study  of  Jat  Community  in  the  districts  of  Dewas   and
Hoshangabad in the year 1994.  The findings of the study had indicated  that
the Jats considered  themselves  equal  to  the  Rajputs;  "their  political
situation  is  very  good"  and  so  is  their  social  status.   The  State
Commission therefore did not recommend the inclusion  of  the  Jats  in  the
State List of OBCs. The  said  recommendation  was  approved  by  the  State
Government on 21.12.1999.  Thereafter, on  account  of  the  representations
received by the State Commission, another study  was  conducted  in  January
2002 in a single district of the State i.e. "Harda" district.  Based on  the
aforesaid study, which the NCBC found to be cursory, the  Jats  came  to  be
included in the State List.  The aforesaid materials failed to convince  the
NCBC that it would be justified to include the Jats in the State  of  Madhya
Pradesh in the Central List of Other Backward Classes.

Bihar

43.   The Jat Hindus of 4 districts of Bihar and Jat Muslims in 5  districts
are included in the State List of Other Backward Classes.  In the report  of
the ICSSR it has  been  mentioned  that  the  recommendation  of  the  State
Commission is based on information received  through  questionnaire  (number
not indicated) and not on the basis of any  household  survey.   Considering
the materials made available to it, the NCBC came  to  the  conclusion  that
the recommendation of the State Commission was based on a "flimsy four  page
report" without any formal survey or study.  Furthermore, according  to  the
NCBC nothing was revealed in the course of the public  hearings  to  justify
the inclusion of Jats of  Bihar  in  the  Central  List  of  Other  Backward
Classes.

Uttarakhand

44.    No  separate  report  was  prepared  for  Uttarakhand  by  the  State
Commission and the Jats in the State came to be included in the  State  List
of OBCs merely because the State of Uttarakhand had  accepted  the  list  of
OBCs in the State List of Uttar Pradesh.  In the absence of  an  independent
survey and information, the claims of the Jats of Uttarakhand for  inclusion
in the Central List had been negatived by the NCBC particularly when it  had
recommended that the claims of the Jats in the State of U.P. be rejected.


Gujarat

45.   The Jat Muslims were included in the Central List of OBCs way back  in
the year 1993 but the Jat Hindus had not been  so  included  either  in  the
State List or the Central List.  The cases of Jat  Hindus  in  Gujarat  were
considered by the NCBC in the year 2011  but  in  the  absence  of  relevant
information its decision was deferred  till  the  report  of  the  ICSSR  is
received.  The said report of  the  ICSSR  prepared  on  the  basis  of  the
literature survey mentions (as noted and  extracted  above)  that  there  is
lack of information on the parameters  (social,  educational  and  economic)
specified by the NCBC.  In these circumstances, the claim  of  the  Jats  in
Gujarat was not recommended by the NCBC in its report dated 26.2.2014.
                               Our Conclusions
46.   Undoubtedly, the report dated 26.02.2014 of the NCBC  was  made  on  a
detailed consideration of the various reports of the State Backward  Classes
Commissions; other  available  literature  on  the  subject  and  also  upon
consideration of the findings of the Expert  Committee  constituted  by  the
ICSSR to examine the matter. The decision not  to  recommend  the  Jats  for
inclusion in the Central List of OBCs of the States in  question  cannot  be
said to be based on no materials or unsupported by reasons or  characterized
as decisions arrived at on consideration of matters that are,  in  any  way,
extraneous and irrelevant.  Having  requested  the  ICSSR  to  go  into  the
matter and upon receipt of the report of the  Expert  Committee  constituted
in this regard, the NCBC was under a duty and  obligation  to  consider  the
same and arrive at its own independent decision in the matter, a  duty  cast
upon it by the Act in question. Consideration of the report  of  the  Expert
Body and disagreement with the views expressed  by  the  said  body  cannot,
therefore, amount to sitting in judgment over the views of  the  experts  as
has been sought to be contended  on  behalf  of  the  Union.   In  fact,  as
noticed earlier, the Expert Body of the ICSSR did not  take  any  particular
stand in the matter and did not come up  with  any  positive  recommendation
either in favour or against the inclusion of the Jats in  the  Central  List
of OBCs.  The report of the said Body merely  recited  the  facts  as  found
upon the survey undertaken, leaving the eventual conclusion to be  drawn  by
the NCBC.  It may be possible  that  the  NCBC  upon  consideration  of  the
various materials documented before it had underplayed  and/or  overstressed
parts of the said material.  That is bound  to  happen  in  any  process  of
consideration by any Body or Authority of voluminous  information  that  may
have been laid before it for the purpose of taking of a  decision.  Such  an
approach, by itself, would not make either the decision  making  process  or
the decision taken legally infirm or unsustainable.   Something  more  would
be required in order to  bypass  the  advice  tendered  by  the  NCBC  which
judicially (Indra Sawhney) and statutorily (NCBC Act) would  be  binding  on
the Union Government in the ordinary course. An impossible or perverse  view
would justify exclusion of the advice tendered but that had,  by  no  means,
happened in the present case. The mere possibility of  a  different  opinion
or view would not detract from the binding nature of the advice tendered  by
the NCBC.

47.   Of relevance, at this stage, would be one of  the  arguments  advanced
on behalf of the Union claiming a power to itself to bypass the NCBC and  to
include groups of citizens in the Central List  of  OBCs  on  the  basis  of
Article 16(4) itself.  Undoubtedly, Article 16(4) confers such  a  power  on
the Union but what cannot be overlooked is the  enactment  of  the  specific
statutory provisions constituting a Commission (NCBC) whose  recommendations
in the matter  are  required  to  be  adequately  considered  by  the  Union
Government before taking its final decision.  Surely, the  Union  cannot  be
permitted to discard its self-professed norms which in the present case  are
statutory in character.

48.     Certain other issues arising may be conveniently considered at  this
stage.


One such issue arises  from  the  contentions  advanced  on  behalf  of  the
respondents, particularly on behalf of the Union Government,  that  the  OBC
lists of the concerned States,  by  themselves,  can  furnish  a  reasonable
basis for the  exercise  of  inclusion  in  the  Central  Lists.  The  above
contention is sought to be countenanced by the  further  argument  that  the
Union and the State Governments under  the  constitutional  scheme  have  to
work in tandem and not at cross purposes. While there can be no  doubt  that
in the matter of inclusion in the Central Lists of other  backward  classes,
the exercise undertaken by the State Governments in  respect  of  the  State
Lists may be relevant what cannot be ignored in  the  present  case  is  the
very significant fact that in respect of all  the  States  (except  Haryana)
the inclusion of Jats in the OBC Lists  was  made  over  a  decade  back.  A
decision as grave and important  as  involved  in  the  present  case  which
impacts the rights of many under Articles 14  and  16  of  the  Constitution
must be taken on the basis of contemporaneous inputs and  not  outdated  and
antiquated data. In fact, under Section  11  of  the  Act  revision  of  the
Central Lists is contemplated every ten years. The  said  provision  further
illuminates on the necessity and the relevance of  contemporaneous  data  to
the decision making process.


49.    The  backwardness   contemplated   by   Article   16(4)   is   social
backwardness. This is implicit in the judgment in Indra Sawhney (supra),  as
will be noticed in a later  part  of  the  present  order.  Educational  and
economic backwardness may contribute  to  social  backwardness.  But  social
backwardness  is  a  distinct  concept  having  its  own  connotations.  The
extracts of the Minutes of the Meeting of the Cabinet  held  on  2nd  March,
2014 which had preceded the impugned  notification  dated  4th  March,  2014
tends to overlook the fact  that  crucial  test  for  determination  of  the
entitlement of the Jats to be  included  in  the  Central  Lists  is  social
backwardness. This would be evident from  Para  3  of  the  Minutes  of  the
Cabinet Meeting dated 2nd March, 2014 which is extracted below :


3.    "The ICSSR has observed  that  Jats  in  Haryana  are  a  land  owning
community and while their share in Class  I  &  II  Government  services  is
closer to their population, they  lag  behind  both  in  school  and  higher
educational enrolment. In the National Capital Territory of Delhi, in  terms
of social and educational standing, Jats lag behind as compared  to  Gujars,
who have been included as OBC in  the  Central  List.  Similarly,  in  Uttar
Pradesh  and  Uttarakhand,  in  the  enrolment  in  higher   and   technical
education, Jats lag behind Ahirs/Yadavs.  In  Himachal  Pradesh,  the  State
Commission has come to the conclusion that the Jat  Community  is  socially,
educationally and economically backward and is  fit  for  inclusion  in  the
State list of OBCs. In Rajasthan, too, as regards literacy  rate,  enrolment
in graduation level courses and representation in Government services,  Jats
lag behind."


50.   In so far as Haryana is concerned, the  test  adopted  appears  to  be
educational backwardness. Similarly for the NCT of Delhi  also,  educational
backwardness has been taken into  account  as  the  determining  factor  for
inclusion of Jats along with the fact that the Jats are  behind  the  Gujars
who are already included in the Central Lists of OBCs. Similarly,  in  Uttar
Pradesh and Uttarakhand, the test appears to  be  educational  backwardness;
same is the position with regard to Rajasthan. Though the  States  of  M.P.,
Gujarat and Bihar have also been included in the Central Lists  of  OBCs  by
impugned notification, no apparent  consideration  of  the  cases  of  these
States is reflected in the Minutes of the Cabinet Meeting dated  2nd  March,
2014. Of course, the Cabinet is not expected to record  the  manner  of  its
consideration of each of the States but when it is done so for some  of  the
States, the absence of any mention of the other States  would  be  a  strong
basis to conclude that the States that  do  not  find  any  mention  in  the
Minutes, in fact, did not receive the consideration of the Cabinet, at  all.


51.   A very fundamental and basic test to determine the  authority  of  the
Government's decision in the matter would be to assume  the  advice  of  the
NCBC against the inclusion  of  the  Jats  in  the  Central  List  of  Other
Backward Classes to be wrong and thereafter by  examining,  in  that  light,
whether the decision of the Union Government to the contrary would pass  the
required scrutiny.  Proceeding on that basis what is clear is that save  and
except the State Commission Report in the  case  of  Haryana  (Justice  K.C.
Gupta Commission Report) which was submitted  in  the  year  2012,  all  the
other reports as well as the literature on the subject would be at  least  a
decade old.  The necessary data on which the exercise has  to  be  made,  as
already observed by us,  has  to  be  contemporaneous.  Outdated  statistics
cannot provide  accurate  parameters  for  measuring  backwardness  for  the
purpose of inclusion in  the  list  of  Other  Backward  Classes.   This  is
because  one  may  legitimately  presume  progressive  advancement  of   all
citizens on every front i.e. social,  economic  and  education.   Any  other
view would amount to retrograde governance.   Yet,  surprisingly  the  facts
that stare at us  indicate  a  governmental  affirmation  of  such  negative
governance inasmuch as decade  old  decisions  not  to  treat  the  Jats  as
backward, arrived at on due consideration of the existing ground  realities,
have been reopened, inspite of perceptible  all  round  development  of  the
nation.  This is the basic fallacy inherent  in  the  impugned  governmental
decision  that  has  been  challenged  in  the  present  proceedings.    The
percentage of the OBC population estimated at "not  less  than  52%"  (Indra
Sawhney) certainly must have gone up  considerably  as  over  the  last  two
decades there has been only inclusions in the Central as well as  State  OBC
Lists and hardly any exclusion therefrom. This is  certainly  not  what  has
been envisaged in our Constitutional Scheme.

 52.  In so far as the contemporaneous report for the State  of  Haryana  is
concerned, the discussion that  has  preceded  indicate  adequate  and  good
reasons for the view taken by the NCBC in respect of  the  said  Report  and
not to accept  the  findings  contained  therein.   The  same  would  hardly
require any further reiteration.

53.   Past decisions of this Court in M.R. Balaji  Vs.  State  of  Mysore[6]
and Janaki Prasad Vs. State of Jammu &  Kashmir[7]  had  conflated  the  two
expressions used in Articles 15(4) and 16(4)  and  read  them  synonymously.
It is in Indra Sawhney's case (supra) that this Court held  that  the  terms
"backward class" and "socially and educationally backward classes"  are  not
equivalent and further that in Article 16(4) the  backwardness  contemplated
is mainly  social.   The  above  interpretation  of  backwardness  in  Indra
Sawhney (supra) would be binding on numerically smaller  Benches.   We  may,
therefore, understand a social class as an identifiable section  of  society
which may be  internally  homogenous  (based  on  caste  or  occupation)  or
heterogeneous  (based   on   disability   or   gender   e.g.   transgender).
Backwardness  is  a  manifestation  caused  by  the  presence   of   several
independent  circumstances  which  may  be   social,   cultural,   economic,
educational  or  even   political.     Owing   to   historical   conditions,
particularly  in  Hindu  society,  recognition  of  backwardness  has   been
associated with caste.  Though caste may be a prominent  and  distinguishing
factor for easy determination of backwardness of a social group, this  Court
has been routinely discouraging the identification of a  group  as  backward
solely on the basis of caste.  Article 16(4) as also Article 15(4) lays  the
foundation for affirmative action  by  the  State  to  reach  out  the  most
deserving.  Social groups who would be most deserving must necessarily be  a
matter of continuous evolution.  New practices, methods and yardsticks  have
to be continuously evolved moving away  from  caste  centric  definition  of
backwardness. This alone can enable recognition of newly emerging groups  in
society which would require  palliative  action.   The  recognition  of  the
third gender as a socially and  educationally  backward  class  of  citizens
entitled to affirmative action  of  the  State  under  the  Constitution  in
National Legal Services Authority vs. Union of India[8] is  too  significant
a development to be ignored. In fact it is a path finder,  if  not  a  path-
breaker. It is an important reminder to the State  of  the  high  degree  of
vigilance it must exercise to discover emerging forms of backwardness.   The
State, therefore, cannot blind itself to the existence of  other  forms  and
instances of backwardness.  An affirmative action policy that keeps in  mind
only historical injustice would certainly result in under-protection of  the
most  deserving  backward  class  of  citizens,  which  is  constitutionally
mandated.  It is the identification of these new emerging groups  that  must
engage the attention of the State and  the  constitutional  power  and  duty
must be concentrated to discover such groups rather than  to  enable  groups
of citizens to recover "lost ground" in claiming preference and benefits  on
the basis of historical prejudice.

54.    The perception  of  a  self-proclaimed  socially  backward  class  of
citizens or even the perception of the "advanced classes" as to  the  social
status of the "less fortunates" cannot continue  to  be  a  constitutionally
permissible  yardstick  for  determination  of  backwardness,  both  in  the
context of Articles 15(4) and 16(4) of the Constitution.   Neither  can  any
longer  backwardness  be  a  matter  of  determination  on  the   basis   of
mathematical formulae evolved by taking into account  social,  economic  and
educational indicators. Determination of backwardness must also cease to  be
relative;  possible  wrong  inclusions  cannot  be  the  basis  for  further
inclusions but the gates would be opened only to permit entry  of  the  most
distressed. Any other  inclusion  would  be  a  serious  abdication  of  the
constitutional duty of the State. Judged by the aforesaid standards we  must
hold that inclusion of the politically organized classes (such as  Jats)  in
the list of backward classes mainly, if not solely, on  the  basis  that  on
same parameters other groups who have fared better  have  been  so  included
cannot be affirmed.



55.   For the various reasons indicated above,  we  cannot  agree  with  the
view taken by the Union Government that Jats  in  the  9  (nine)  States  in
question is a backward community so as to be entitled to  inclusion  in  the
Central Lists of Other Backward
Classes for the States concerned.   The  view  taken  by  the  NCBC  to  the
contrary is adequately  supported  by  good  and  acceptable  reasons  which
furnished a sound and reasonable basis for further consequential  action  on
the part of the Union Government.  In the above  situation  we  cannot  hold
the notification dated 4.3.2014 to be justified.  Accordingly the  aforesaid
notification bearing No.  63  dated  4.3.2014  including  the  Jats  in  the
Central List of Other Backward Classes for the  States  of  Bihar,  Gujarat,
Haryana, Himachal Pradesh, Madhya  Pradesh,  NCT  of  Delhi,  Bharatpur  and
Dholpur Districts of Rajasthan, Uttar Pradesh and Uttarakhand is  set  aside
and quashed.  The writ petitions are accordingly allowed.


                            ..............................................J.
                                    [RANJAN GOGOI]


                            ..............................................J.
                                    [ROHINTON FALI NARIMAN]
NEW DELHI,
MARCH 17, 2015.
-----------------------
[1]    1992 Supp (3) SCC 217
[2]    1966 Supp SCR 311
[3]    (1969) 1 SCC 325
[4]    (1990) 3 SCC 223
[5]    (2003) 7 SCC 330
[6]    1963 Suppl. (1) SCR 439
[7]    (1973) 1 SCC 420
[8]    (2014) 5 SCC 438

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