Madras High Court: The Division Bench of Sanjib Banerjee, CJ and P.D. Audikesavalu, J. while addressing the contempt petition, expressed that,
Merely because the immediate lis pertains to the contempt jurisdiction would not imply that this court sheds its plenary authority under Article 226 of the Constitution while considering the manner of implementation of the said order.
Rather than the caste system being wiped away, the present trend seems to perpetuate it by endlessly extending a measure that was to remain only for a short duration to cover the infancy and, possibly, the adolescence of Republic. Though the life of a nation state may not be relatable to the human process of aging, but at over-70, it ought, probably, to be more mature.
Factual Background
Petitioner is stated to be a political party, one which has returned to power in this State following the Assembly elections conducted a few months back. Most major political parties in the State had filed the other petition that came to be decided the Order dated 27-07-2020 (“the said order”).
Petitions that were decided by the said order sought implementation of reservation for Other Backward Classes (OBC) in the All India Quota (AIQ) of the seats surrendered by the State for admission to the under-graduate, post-graduate and diploma medical and dental courses in the State. Reservation implementation was sought from 2020-21.
Request for interim relief, was rejected with the observation that this court was justified in holding that since the selection process for the relevant academic year had commenced, the same could not be disturbed. However, the appeals remain pending and, in such sense, the order of this Court of July 27, 2020, has not attained finality, though there is no impediment to it being implemented in academic year 2021-22.
Analysis, Law and Decision
While addressing the matter, Court observed that,
If a pool of seats is available to candidates from all over the country, irrespective of an individual’s place of residence, the State-wise reservation, which is based on demography of the State, cannot hold good for the entire country as the mix of socially backward classes would differ from region to region even within a State.
Court added that, Ordinarily, reservations pertaining to admission to educational institutions and appointments to government service are provided by statutory enactments or rules under a particular statute.
Difficulty, in the present case, arises in the fact that the present contempt petition arises out of an order which has been carried to the Supreme Court by way of an appeal and an interim order in the appeal observed as to the import of the order dated July 27, 2020
To elaborate more, the Bench added that the matter is of some importance as the careers of not only the prospective all-India candidates in the medical entrance seats surrendered by the State in the AIQ would be affected by the present order, it may also have an all-India impact, subject to what may ultimately be decided by the Supreme Court.
Coming to the question, whether the said order of this Court has been complied with?
Bench noted that:
to the extent that a committee was constituted and the committee made its recommendations, the order has been complied with. However, the order may not have contemplated that neither recommendation of the committee would be accepted and a third alternative would be imposed by the Union, though the order required consultation between several stakeholders to arrive at an informed decision. Equally, the first option indicated by the committee was no option at all, as it was absurd to suggest that the State reservation rules would apply to AIQ seats for admission to the under-graduate, post- graduate and diploma medical and dental courses in the State since that would, ipso facto, take the seats away from the AIQ pool back to the State as only backward classes as notified by the State in its official gazette would be entitled to the reservation and not candidates not resident in the State.
Adding to the above, Court expressed that, it is true that the petition before this Court is one for the perceived breach of a previous order of this court, but if the present petition were to be ineffectively disposed of that would result in another petition, multiplicity of proceedings and the issue being left unresolved.
It may be in the public interest, at times, for courts to be decisive, without being rash, of course.
At least there is a safety net even if this court goes wrong for the matter to be decided at the highest stage; but a decision is called for in the matter in the larger public interest.
Analyzing further, the Bench stated that the AIQ scheme had been introduced for entrance to under-graduate and post-graduate degrees and diploma courses in government-run or aided medical and dental colleges across the country pursuant to orders of the Supreme Court.
To the extent that 27 per cent of the seats available for admission in Central educational institutions is reserved for OBC candidates, other than the creamy layer, and such figure having been arrived at upon empirical studies being conducted, the provision for 27 per cent reservation for OBC candidates, in addition to the approved reservation for scheduled caste and scheduled tribe candidates as indicated in the notification of July 29, 2021, may be permissible, subject to the formal approval of the Supreme Court being obtained in such regard.
Another significant point expressed by the Court was that, if the AIQ seats are thrown open to candidates across the country, there cannot be reservation to one extent in one State and reservation to another extent in another State.
Conclusion
- Since the committee required to be constituted by the order dated July 27, 2020, was constituted and such committee gave its opinion and the Union, or its appropriate agencies, have acted on the basis thereof – albeit not exactly in terms of the recommendations – no case of wilful or deliberate violation of the said order can be said to have been made out.
- The notification of July 29, 2021, issued by the Union as a consequence of the order dated July 27, 2020, appears to be in order insofar as it provides for reservation for scheduled castes, scheduled tribes and OBC categories. The horizontal reservation provided in such notification for persons with disabilities also appears to be in accordance with law.
- The additional reservation provided for economically weaker sections in the notification of July 29, 2021, cannot be permitted, except with the approval of the Supreme Court in such regard.
In view of the above, contempt petition was dropped.
“…entire concept of reservation that appears to have been addressed by the Constituent Assembly while framing the Constitution may have been turned on its head by repeated amendments and the veritable reinvigoration of the caste system – and even extending it to denominations where it does not exist – instead of empowering citizens so that merit may ultimately decide matters as to admission, appointment and promotion.”
[Dravida Munnetra Kazhagam v. Rajesh Bhushan, 2021 SCC OnLine Mad 4851, decided on 25-08-2021]
Advocates before the Court:
For the Petitioner: Mr. P. Wilson, Senior Advocate for M/s. P. Wilson Associates
For the Respondents: Mr. K.M. Nataraj
Additional Solicitor-General of India assisted by Mr. V. Chandrasekaran
Senior Panel Counsel for respondents 1, 2, 4 and 8
: Mr. P. Muthukumar Counsel for the State for respondents 6 and 9
: Ms. Shubharanjini Ananth Standing Counsel for 3rd respondent
: Service awaited for respondents 5 and 7
