HON'BLE THE CHIEF JUSTICE SRI MADAN B. LOKUR AND THE HON'BLE SRI JUSTICE SANJAY
PIL Nos.1 of 2012
28-05-2012
R. Krishnaiah
Union of India, Represented by its Secretary,General Administration
Department, New Delhi & others.
!Name of the petitioner
^Name of the respondent
?Cases referred
1 2004 (5) ALT 634
2 (2008) 6 SCC 1
3 AIR 1969 SC 1
4 1994 Supp (1) SCC 324
5 AIR 1976 SC 490
6 AIR 2005 SC 162
7 (1974) 1 SCC 19
8 2010 (2) ALT 357
9 AIR 1966 SC 1942
10 AIR 1991 SC 1933
11 AIR 1958 Kerala 290
12 AIR 1955 SC 549
13 1995 (2) ALT 1
14 AIR 1993 SC 477
15 See State of Assam v. Basanta Kumar Das, (1973) 1 SCC 461 and D.P. Das v.
Union of India, (2011) 8 SCC 115
ORDER: (Per Hon'ble the Chief Justice Sri Madan B. Lokur)
The challenge in this batch of writ petitions is to two Office Memoranda,
both dated 22.12.2011. There is also challenge to a Resolution dated 22.12.2011
which relates to one of the Office Memoranda.
2. The first Office Memorandum (for short the first OM) and the accompanying
Resolution concern the Central Educational Institutions (Reservation in
Admission) Act, 2006 (hereinafter referred to as 'the CEI Act'). The first OM
and the Resolution carve out, with effect from 1.1.2012, a sub-quota of 4.5% for
socially and educationally backward class of citizens belonging to minorities,
for reservation in admission in some central educational institutions. The
carving out is from the 27% reservation for Other Backward Classes (OBCs) who
are entitled to reservation in admission to central educational institutions.
In other words, OBCs having 27% reservation have been broken up into two
segments: one segment of 22.5% reservation for OBCs and the second or balance
segment of 4.5% reservation for socially and educationally backward class
citizens belonging to minorities.
3. The grievance of the petitioners relates to the following paragraph of the
first OM and the Resolution:
From the first OM:
"The Central Government has decided to carve out, with effect from the 1st
January, 2012 a sub-quota of 4.5 per cent (four point five) for socially and
educationally backward classes of citizens belonging to minorities, as defined
in clause (c) of Section 2 of the National Commission for Minorities Act, 1992
from within the 27 per cent reservation for Other Backward Classes as notified
by the Government in accordance with O.M.No.36012/22/93-Estt. (SCT), dated
8.9.1993 from time to time, referred in the preceding paragraph subject to the
same conditions and restrictions mentioned therein."
From the Resolution:
"Now therefore, the Government of India in the Ministry of Human Resource
Development hereby clarifies that reservations in admission to the educational
institutions as elucidated in its earlier Resolution would continue to apply
subject to a sub-quota of 4.5 per cent (four point five) for minorities, as
defined in clause (c) of Section 2 of the National Commission for Minorities
Act, 1992 out of the 27 per cent reservation for Other Backward Classes, in
accordance with the Office Memorandum as modified by those Ministries referred
to in the third paragraph from time to time, as applicable for the purposes of
implementing reservation in admission to Central Educational Institutions as
defined in the CEI Act, 2006."
4. The second Office Memorandum (for short the second OM) carves out a
similar sub-quota of 4.5% reservation for minorities in appointments and posts
under the Government of India. The paragraph objected to by the petitioners
reads as follows:
"The Government of India had set up the National Commission for Religious and
Linguistic Minorities to suggest criteria for the identification of the socially
and economically backward sections amongst Religious and Linguistic Minorities
and to recommend measures for their welfare, including reservation in Government
employment. The Commission submitted its report to the Government on 10th May,
2007, wherein it had, inter alia, recommended creation of a sub-quota for
minorities from within the reservation of 27% available to OBCs, in Government
employment.
The Government have carefully considered the above recommendation and it has
been decided to carve out a sub-quota of 4.5% for minorities, as defined under
Section 2(c) of the National Commission for Minorities Act, 1992, from within
the 27% reservation for OBCs as notified by the aforesaid O.M. The
castes/communities of the said minorities which are included in the Central list
of OBCs, notified State-wise from time to time by the Ministry of Social Justice
and Empowerment, shall be covered by the said sub-quota."
5. The principal contention of the petitioners is that the sub-quota
reservation is minority religion-based and therefore it is in violation of
Article 15(1) of the Constitution with regard to the first OM and Article 16(2)
of the Constitution with regard to the second OM. It is contended that the sub-
quota reservation is not saved by Article 15(5) of the Constitution with regard
to the first OM nor is it saved by Article 16(4) of the Constitution with regard
to the second OM. We agree with learned counsel for the petitioners.
Statutory Provisions:
6. The CEI Act provides for reservation in admission of students belonging to
the Scheduled Castes, the Scheduled Tribes and Other Backward Classes of
citizens in certain central educational institutions.
7. Section 3 of the CEI Act provides that out of the annual permitted
strength in each branch of study or faculty, 15% of the seats shall be reserved
for the Scheduled Castes, 7.5% of the seats shall be reserved for the Scheduled
Tribes and 27% of the seats shall be reserved for the OBCs. Section 3 of the CEI
Act reads as follows:
"3. Reservation of seats in Central Educational Institutions
The reservation of seats in admission and its extent in a Central
Educational Institution shall be provided in the following manner, namely:
(i) out of the annual permitted strength in each branch of study or faculty,
fifteen per cent seats shall be reserved for the Scheduled Castes;
(ii) out of the annual permitted strength in each branch of study or faculty,
seven and one-half per cent seats shall be reserved for the Scheduled Tribes;
(iii) out of the annual permitted strength in each branch of study or faculty,
twenty-seven per cent seats shall be reserved for the Other Backward Classes."
8. The expression "Other Backward Classes" is defined in Section 2(g) of the
CEI Act as meaning a class or classes of citizens who are socially and
educationally backward and are so determined by the Central Government. Section
2(g) of the CEI Act reads as follows:
"2. Definitions
(g) "Other Backward Classes" means the class or classes of citizens who are
socially and educationally backward, and are so determined by the Central
Government;"
9. The CEI Act does not provide the procedure for determining the "Other
Backward Classes" who are socially and educationally backward. A separate
statute called the National Commission for Backward Classes Act, 1993 (for short
'the NCBC Act') provides for the functions and powers of the National Commission
for Backward Classes (NCBC) in Chapter 3 thereof. Section 9 of the NCBC Act
requires the NCBC to examine requests for inclusion of any class of citizens as
a backward class and to hear complaints of over-inclusion or under-inclusion of
any backward class in the lists prepared by the Central Government.
10. Section 9 of the NCBC Act reads as follows:
"9. Functions of the Commission
(1) 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.
(2) The advice of the Commission shall ordinarily be binding upon the Central
Government."
11. The word "lists" is defined in Section 2(c) of the NCBC Act and this reads
as follows:
"2. Definitions
(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;"
12. Section 11 of the NCBC Act provides for a periodic revision of the lists
by the Central Government and this reads as follows:
"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."
13. We have been informed by learned counsel for the petitioners that no
definitive revision has been undertaken of the lists prepared by the Central
Government nor has the NCBC been consulted in this regard. This may or may not
be correct, but we are not concerned with the revision of lists for the purposes
of these cases.
14. The sum and substance of the above statutory provisions is that the
Central Government prepares lists of "Other Backward Classes" or OBCs after
consultation with the NCBC, which is mandatorily required. That the requirement
is mandatory has been so held by a Full Bench of this Court in T. Muralidhar v.
State of Andhra Pradesh1 in relation to the Andhra Pradesh Commission for
Backward Classes Act, 1993 which is in pari materia with the NCBC Act. The lists
so prepared are important for two purposes, namely, for making reservations of
appointments or posts in favour of OBCs which are not adequately represented in
the services, inter alia, under the Government of India and secondly for
reservation of seats in admission to central educational institutions under the
CEI Act.
15. The minorities, mentioned in both the OMs and in the Resolution that we
are concerned with are those notified by the Central Government as required by
Section 2(c) of the National Commission for Minorities Act, 1992 (hereinafter
referred to as 'the NCM Act'). The minorities so notified through a
notification dated 23.10.1993 are:
(1) Muslims,
(2) Christians,
(3) Sikhs,
(4) Buddhists, and
(5) Zoroastrians (Parsis)
16. Therefore, the effect of the first OM is that a sub-quota of 4.5% has been
carved out from the 27% reservation for the OBCs for admission to some central
educational institutions covered by the CEI Act. That 4.5% quota consists of
socially and educationally backward class citizens who are either Muslims,
Christians, Sikhs, Buddhists or Zoroastrians (Parsis) as per the notification
issued under the NCM Act.
17. The second OM, as mentioned above, proceeds on the same lines as the first
OM. The only difference being that the 4.5% sub-quota is for the same minorities
who are socially and economically backward and is for appointments or posts
under the Central Government. The sub-quota is based on the recommendations of
the National Commission for Religious and Linguistic Minorities (NCRLM), which
submitted its report on 10.5.2007. The sub-quota has not been determined under
the NCBC Act.
18. At this stage, it may be mentioned that the Supreme Court in Ashoka Kumar
Thakur v. Union of India2 upheld the constitutional validity of the CEI Act. By
the same judgment, the Supreme Court also upheld the constitutional validity of
Article 15(5) of the Constitution inserted by the 93rd Amendment to the
Constitution to the extent that it permits reservation for socially and
educationally backward classes in central educational institutions subject to
the exclusion of the creamy layer of OBCs. In this view of the matter, the
scope of our enquiry becomes somewhat limited and we are confined only to
determining whether the sub-quota of 4.5% for the minorities in both the OMs is
constitutionally permissible or not.
Principal submission:
19. The principal contention of learned counsel for the petitioners is that by
providing a sub-quota for minorities, the Central Government has clearly
violated the provisions of Article 15(1) and Article 16(2) of the Constitution.
Article 15(5) and Article 16(4) of the Constitution do not save the actions of
the Central Government.
For convenience, Articles 15(1) and 15(5) of the Constitution are
reproduced hereinbelow:
"15. Prohibition of discrimination on grounds of religion, race, caste, sex or
place of birth
(1) The State shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them.
Xxxxxxx
(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19
shall prevent the State from making any special provision, by law, for the
advancement of any socially and educationally backward classes of citizens or
for the Scheduled Castes or Scheduled Tribes insofar as such special provisions
relate to their admission to educational institutions including private
educational institutions, whether aided or unaided by the State, other than the
minority educational institutions referred to in clause (1) of article 30.
Article 16(2) and Article 16(4) of the Constitution are reproduced hereinbelow:
"16. Equality of opportunity in matters of public employment
(1) xxxxxx.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent,
place of birth, residence or any of them, be ineligible for, or discriminated
against in respect of, any employment or office under the State.
(3) xxxxxx
(4) 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."
20. Generally arguing in support of the OMs, learned Assistant Solicitor
General submits that since they have been issued for the benefit of socially and
educationally backward classes of citizens, or for socially and economically
backward classes of citizens, they should not be struck down. He has drawn our
attention to the contents of the counter affidavit filed on behalf of the
respondents wherein it is stated that both the OMs were issued as per the extant
procedure of the Government of India and, therefore, it would not be correct to
say that they have been issued contrary to law.
21. While specifically dealing with the second OM, learned Assistant Solicitor
General refers to the observations of the NCRLM in its report dated 10.5.2007.
It is stated in Chapter X thereof to the following effect:-
"..............The Commission was of the view that ideally the criteria for
reservation should be socio-economic backwardness and not religion or caste.
Further, Article 16(4) should be the basis for providing reservation benefits to
minority groups who are socially and economically backward. Reservation should
be provided only as a short term, time-bound measure for enabling greater
participation, both in education and employment. As we have mentioned earlier,
the lists of SC/ST and OBC have not been scientifically prepared either on the
basis of a proper survey or reliable data on socio-economic status of a
particular caste or class. Therefore, the entire system of reservation,
including that for SCs/STs and OBCs needs to be overhauled. Reservation as
available to SCs and STs is open-ended as it is available to all belonging to
the category irrespective of income, educational and economic status. OBCs enjoy
27 percent reservation in employment, though creamy layer is excluded. The
norms and methodology adopted, as pointed out in Chapter-VIII is full of
anomalies and hence amenable to large-scale abuse. For this reason, the better
off among the groups take advantage of reservation at the cost of socially and
economically backward and deprived. It is, therefore, necessary to limit
benefits of reservation to the socially and economically backward only. Since
BPL lists are prepared on the basis of social/educational and economic criteria,
they are more scientific. They are also revised periodically. BPL lists
should, therefore, be made eligible for grant of reservation without distinction
on caste, class, group or religion basis."
Findings on the principal challenge:
22. The Constitution Bench held, in no uncertain terms, in Triloknath Tiku v.
State of Jammu & Kashmir3 with reference to Article 16(2) of the Constitution as
follows:
"Article 16 in the first instance by clause (2) prohibits discrimination on the
ground, inter alia, of religion, race, caste, place of birth, residence and
permits an exception to be made in the matter of reservation in favour of
backward classes of citizens. The expression "backward class" is not used as
synonymous with "backward caste" or "backward community". The members of an
entire caste or community may in the social, economic and educational scale of
values at a given time be backward and may on that account be treated as a
backward class, but that is not because they are members of a caste or
community, but because they form a class. In its ordinary connotation the
expression "class" means a homogenous section of the people grouped together
because of certain likenesses or common traits, and who are identifiable by some
common attributes such as status, rank, occupation, residence in a locality,
race, religion and the like. But for the purpose of Art 16 (4) in
determining whether a section forms a class, a test solely based on caste,
community, race, religion, sex, descent, place of birth or residence cannot be
adopted, because it would directly offend the Constitution."
In our opinion, this statement of the law would equally apply to Article 15(1)
of the Constitution.
23. In fact, in R. C. Poudyal v. Union of India4 Justice S.C. Agrawal held (in
paragraph 191 of the Report) in a partly dissenting opinion (with no learned
Judge disagreeing on this issue) that,
"Clause (1) of Article 15 prohibits discrimination by the State against any
citizen on the ground only of religion, race, caste, sex or any of them. Clause
(3), however, permits the State to make special provision for women and
children. Similarly, clause (4) permits the State to make special provision for
the advancement of any socially and educationally backward classes of citizens
or for the Scheduled Castes and the Scheduled Tribes. Clauses (3) and (4) do
not, however, permit making of special provisions in derogation of the
prohibition against discrimination on the ground of religion."
24. Looked at in this light, the nub of the controversy lies in the creation
of a sub-quota for minorities alone - does this offend Article 15(1)
or Article 16(2) of the Constitution? According to the petitioners, the sub-
quota is based entirely on religion and therefore, it should be struck down.
This appears to be so on a plain reading of both the OMs and the Resolution. The
First OM states that the 4.5% sub-quota is carved out of socially and
educationally backward classes of citizens "belonging to minorities" as defined
in Section 2(c) of the NCM Act. The Resolution and the second OM carve out a
sub-quota "for minorities". The very use of the words "belonging to minorities"
or "for minorities" indicates to us that the sub-quota has been carved out only
on religious lines and not on any other intelligible basis. The identified
minorities are Muslims, Christians, Sikhs, Buddhists and Zoroastrians (Parsis)
as per the notification issued under the provisions of the NCM Act. Absolutely
no empirical evidence is placed before us to enable us to conclude or to support
the requirement of carving out a special class of beneficiaries from the
existing backward classes. Absolutely no material is placed before us to
demonstrate that persons belonging to the religious groups mentioned above are
more backward than any other category of backward classes or that they need any
preferential treatment as compared to other OBCs.
25. In the absence of any material before us (and we must emphasize this), and
on the plain language of the OMs, it seems to us quite clear that the sub-quota
has been created only on grounds of religion and nothing else. This is clearly
impermissible in view of the specific language of Article 15(1) of the
Constitution as well as Article 16(2) of the Constitution. In the absence of
any factual basis, it seems to us that by making a special provision for
religious minorities with regard to admission in some central educational
institutions and with regard to employment in appointments and posts under it,
the Central Government has exceeded the constitutional boundaries. Ex facie,
the petitioners must succeed on this basic ground of challenge.
26. The next question is whether the sub-quota can be saved by resorting to
Article 15(5) and Article 16(4) of the Constitution.
Absence of any rational classification:
27. Assuming it is permissible to identify different categories only on the
ground of religion, for such a classification to be constitutionally
permissible, it must rest upon a distinction that is substantial and not
illusory (State of Kerala v. N.M. Thomas)5.
28. In E.V. Chinnaiah v. State of A.P.6 the Supreme Court approved the above
principle and quoted the following passage from State of Jammu and Kashmir v.
Triloki Nath Khosa7 :-
"Classification, however, is fraught with the danger that it may produce
artificial inequalities and therefore, the right to classify is hedged in with
salient restraints; or else, the guarantee of equality will be submerged in
class legislation masquerading as laws meant to govern well marked classes
characterized by different and distinct attainments. Classification, therefore,
must be truly founded on substantial differences which distinguish persons
grouped together from those left out of the group and such differential
attributes must bear a just and rational relation to the object sought to be
achieved."
29. The question that arises in this context is whether the groups clubbed
together by the OMs are homogenous or not. Clubbing certain minorities such as
Muslims, Christians, Sikhs, Buddhists and Zoroastrians (Parsis) into one group
does not per se lead to any conclusion of homogeneity among them - on the
contrary, the presumption is of diversity. The presumption is confirmed by the
report of the NCRLM which brings out the heterogeneity among the various
minorities. For example, the literacy rate amongst these religious communities
shows a variation between 59.1% and 80.3% (other than Zoroastrians). Similarly,
the educational levels of these religious communities shows a wide variation at
all levels, starting from the primary level going up to the graduation level.
Finally, economic indicators such as housing, lighting, availability of drinking
water, availability of toilet facilities and occupation figures also show a wide
variation in the economic field among these religious minorities.
30. In T. Muralidhar Rao v. State of Andhra Pradesh8 a Bench of seven learned
Judges of this Court concluded in paragraph 204(c) of the Report as follows:
"Where the petitioner presents a prima facie case of hostile or invidious
discrimination in a factual matrix where the monopoly of information/material is
with the State, the burden of justifying the apparent discriminatory State
action as falling within the constitutionally permitted area of classification
{in this case, for affirmative action under Articles 14, 15 (4) and 16 (4)}
shifts to the State."
31. During the course of his submissions, the learned Assistant Solicitor
General did not advert to this aspect of the matter and even the counter
affidavit filed by the respondents does not enlighten us on this issue at all.
In fact, we must express our anguish at the rather casual manner in which the
entire issue is taken by the Central Government. No evidence has been shown to
us by the learned Assistant Solicitor General to justify the classification of
these religious minorities as a homogenous group or as more backward classes
deserving of some special treatment. We must, therefore, hold that Muslims,
Christians, Sikhs, Buddhists and Zoroastrians (Parsis) do not form a homogenous
group but a heterogeneous group.
32. We may add that the report of the NCRLM, on which the learned Assistant
Solicitor General places reliance completely defeats his argument. The NCRLM
has stated in the passage quoted above that "the lists of SC/ST and OBC have not
been scientifically prepared either on the basis of a proper survey or reliable
data on socio-economic status of a particular caste or class. Therefore, the
entire system of reservation, including that for SC/STs and OBCs needs to be
overhauled." This being the position, we find it difficult to appreciate any
rational basis for the Central Government in making the classification for
preferential treatment between non-minorities and minorities.
33. On the basic principles of reasonable or rational classification, the OMs
and the Resolution cannot be sustained. Disparate groups are sought to be
clubbed together on religious lines and without any homogeneity amongst them.
Other challenges to the first OM:
34. The first contention of learned counsel for the petitioners under this
sub-heading is that the Government of India has not followed the mandatory
procedure prescribed by the NCBC Act for identifying a backward class of persons
for preferential treatment.
35. In B.N. Nagarajan v. State of Mysore9, the Supreme Court observed as
follows:
"...........It is hardly necessary to mention that if there is a statutory rule
or an act on the matter, the executive must abide by that act or rule and it
cannot in exercise of the executive power under Art. 162 of the Constitution
ignore or act contrary to that rule or act."
36. Similarly, in State of Sikkim v. Dorjee Tshering Bhutia10, the Supreme
Court held in paragraph 15 of the Report:
"The executive power of the State cannot be exercised in the field which is
already occupied by the laws made by the legislature. It is settled law that any
order, instruction, direction or notification issued in exercise of the
executive power of the State which is contrary to any statutory provisions, is
without jurisdiction and is a nullity.........................."
37. Reference may also be made to Rev. Fr. Joseph Valamangalam v. State of
Kerala11 in which the High Court relied upon Ram Jawaya v. State of Punjab12 to
the effect that:-
".................ordinarily the executive power connotes the residue of
governmental functions that remain after legislative and judicial functions are
taken away and the executive powers of a State upon which the State Legislature
is competent to legislate and are not confined to matters over which legislation
has already been passed. ...."
38. The aforesaid decisions, and others, were considered by a Full Bench of
this Court in A.P. State Backward Class Welfare Association v. A.P. State.
Backward Classes Welfare Department13 and it was held with reference to the A.P.
Commission for Backward Classes Act, 1993 that backward classes can only be
identified in accordance with the procedure prescribed under the A.P. Commission
for Backward Classes Act, 1993 and not otherwise. This was affirmed in T.
Muralidhar. The principle laid down by these decisions is equally applicable to
NCBC Act, which is pari materia with the A.P. Commission for Backward Classes
Act, 1993.
39. It is true that the Supreme Court has permitted the sub-classification of
backward classes into more backward classes. Indeed, in Indra Sawhney v. Union
of India14 it is held that there is no constitutional bar to the classification
of backward classes into backward classes and more backward classes for the
purposes of Article 16(4) of the Constitution. But the fact remains that there
is a statutorily prescribed mode for identifying backward classes, namely
through the NCBC Act, and therefore that procedure must mandatorily be followed.
The Central Government cannot unilaterally add to the list of backward classes
nor can it cull out a more backward class from the list, without reference to
the NCBC.
40. In the case at hand, what the Central Government has essentially done is
to cull out religious minorities - Muslims, Christians, Sikhs, Buddhists and
Zoroastrians (Parsis) and "designate" them as more backward amongst the Other
Backward Classes. In view of the law laid down, in our opinion, one of the
reasons why the OMs should be struck down is that while issuing them, the NCBC
has been totally ignored and by-passed by the Central Government in culling out
some categories of citizens from the generic class of OBCs. This is
impermissible. The statutory function of the NCBC (under Section 9(1) of the
NCBC Act) is to examine requests for inclusion of any class of citizens as a
backward class, formulate a list of backward classes and advise the Central
Government in this regard. This statutory function cannot be given a go-bye -
the NCBC Act does not provide for it. On the contrary, in terms of Section
9(2) of the NCBC Act, the advice of the NCBC shall ordinarily be binding upon
the Central Government. It is only thereafter that the Central Government may
prepare lists for the Scheduled Castes, the Scheduled Tribes and Other Backward
Classes for making provision for reservations.
41. Section 11 of the NCBC Act provides for the periodic revision of lists by
the Central Government. In essence, therefore, a reading of Section 9 and
Section 11 of the NCBC Act indicates that the statute occupies the legislative
field and the Central Government cannot, unilaterally, issue an OM identifying a
backward class of citizens for inclusion in the lists to be prepared by it or to
identify a backward class of citizens already included in the list for any
preferential treatment. As mentioned above, the advice of the NCBC is
mandatorily required to be taken and since that has not been taken, the
procedure adopted by the Central Government while issuing the first OM is
clearly faulty. For this reason and applying the law laid down by the Supreme
Court, the portion of the first OM objected to by the petitioners ought to be
struck down.
42. The second contention of learned counsel for the petitioners is that the
OMs ought to be struck down because there is absolutely no indication whatsoever
of the basis on which a sub-quota of 4.5% has been carved out from the 27%
reservation for OBCs. In response, the only basis indicated in the counter
affidavit is that as per the report of the Mandal Commission, 52% of the total
population consists of OBCs as per the caste census held in 1931. It is stated
that out of 52% of the OBCs, the non-Hindu population constitutes 8.4% thereof
and that can be taken to be the minority communities. Therefore, from the 27%
reservation for OBCs, the pro-rata minority communities work out to
approximately 4.5%. Unfortunately, it seems to us that the huge demographic
changes that have taken place have not been considered by the Central
Government.
43. According to the petitioners, if the classification is made on the basis
of the castes/communities identified by the Mandal Commission (and not on the
basis of the population), then as per the report of the NCRLM dated 10.5.2007,
the OBC lists contain a total of 2,150 castes and communities, out of which 76
are minority communities. On the basis of community representation the
minority OBCs would be entitled to a sub-quota of 0.95% and not 4.5%.
44. Therefore, we have two different methods for determination of a sub-quota
for minorities within the 27% reservation for OBCs. Out of the two, we may have
to accept the method adopted by the Central Government, but the NCBC ought to
have been consulted in this regard in terms of Section 9 and Section 11 of the
NCBC Act, and it has not been so consulted. There is no explanation for this,
nor is there any explanation why more recent census figures have been ignored.
45. The third contention of learned counsel for the petitioners (with
reference to the first OM) is that Article 15(5) of the Constitution requires
that a special provision for the advancement of any socially and educationally
backward class of citizens shall be made "by law". Such a law has not been
enacted. It is not the contention of the learned Assistant Solicitor General
that the first OM is "law" within the meaning of Article 15(5) of the
Constitution. We are of the view that the OM is nothing more than an executive
instruction and that an executive instruction15 cannot be a substitute for the
"law" postulated by Article 15(5) of the Constitution. That being so, there is
no law to sustain the creation of a sub-quota of 4.5% out of the 27% reservation
for OBCs. The third contention must also be accepted.
Other challenges to the second OM:
46. The second OM has purportedly been issued consequent to the report
submitted by the NCRLM. By itself, this does not sanctify the second OM. The
NCRLM is not a statutory body and consultation with it is as efficacious or non-
efficacious a consultation as with any third party and has no relevance to the
provisions of the NCBC Act. The report may be useful per se but it has no
relevance to Article 16(4) of the Constitution.
47. This is clear from the terms of reference of the NCRLM which are quite
different from what Article 16(4) of the Constitution requires. The terms of
reference of the NCRLM read as follows:-
"(a) to suggest criteria for identification of socially and economically
backward sections among religious and linguistic minorities;
(b) to recommend measures for welfare of socially and economically backward
sections among religious and linguistic minorities, including reservation in
education and government employment;
(c) to suggest the necessary constitutional, legal and administrative
modalities, as required for the implementation of their recommendations; and to
present a Report of their deliberations and recommendations."
48. In its report, the NCRLM has considered the criteria for social and
economic backwardness amongst religious and linguistic minorities while Article
16(4) of the Constitution requires consideration of inadequate representation in
the services of the State. The application of mind by the NCRLM is to a
completely different issue altogether and, therefore, by relying solely on the
report of the NCRLM, the Central Government has failed to apply its mind to the
constitutional requirements. This makes it difficult to accept the contention of
the learned Assistant Solicitor General that the carving out of a sub-quota is
procedurally correct or with due authority of law. In our opinion, reliance on
the report of the NCRLM is misplaced and inappropriate.
49. Additionally, on facts, the learned Assistant Solicitor General has not
shown us any material in the report of the NCRLM to the effect that there is
inadequate representation of a section of backward classes in employment under
the State as per the requirement of Article 16(4) of the Constitution. Indeed,
the terms of reference of the NCRLM does not postulate such a discussion. In the
absence of any empirical evidence, it is not possible to accept the view that
some minority communities are inadequately represented in appointments and posts
under the Central Government.
Conclusion:
50. We have, therefore, no option but to set aside the carving out of a sub-
quota of 4.5% in favour of backward classes belonging to minorities out of the
27% reservation for OBCs in both the OMs dated 22.12.2011 and the Resolution
dated 22.12.2011. We do so accordingly.
51. The writ petitions are allowed. No costs.
_______________________
MADAN B. LOKUR, C.J.
__________________
SANJAY KUMAR, J.
28th May, 2012.
