Thread by @LawBeatInd

SupremeCourt to hear plea challenging the amended reservation(s) policy by the Government of India to provide 27% reservation for OBCs and 10% reservation for (EWS) in AIQ scheme for undergraduate and postgraduate medical/dental courses from current academic year 2021-22 onwards.

Natraj, ASG preliminary objection: All the issues are a subject matter of petitions pending before a larger bench. There is also a misjoinder of parties like States, they are not before the court since its AIQ seats

Natraj: DOPT and Social justice department are not made parties.

Datar:The total number of seats as per the counter filed by Govt is 9515 seats.This is the 50% AIQ. The reservation has to be made in this. Sudden imposition of the 10% EWS quota has aggrieved us

Datar: A judgment of this court says imploding UOI is enough. Not Including other parties is not non-joinder

Datar: Initially when the examination was announced 10% EWS quota was absent. But for the second wave, the exams would have been held on schedule. All the petitioners were sent on COVID duty

Datar: They have said EWS reservation but the notice does not mention who is EWS. This Rs.8 lakh limit was formed under a committee report headed by Maj Gen Saini. When we filed this we were not aware of these parameters

Datar: Even in the counter, they have not produced how 8 lakhs was arrived at. An OM lays down many considerations as to how this is arrived at however we were not aware of it.

Datar: We have got a situation where there is a committee report and an OM. The rationale of bringing 8 lakhs is not clear. We don’t know under which provisions the committee was constituted. There is a complete lack of clarity

Datar: There is a commission for Economically backward classes. On which basis this commission is constituted is not known.

DYC: You have press note, OM and a committee report is what you say?

Datar: Yes Milords

Datar: In Mandal OM there is a separate section for reservation for EWS in appointment of posts. EWS could not have been done by OM or Executive order hence indicating how 103rd amendment.

Datar: No scientific parameters taken into account while determining who is EWS, we are completely in the dark about it

Datar: The counter only says 8 lakhs EWS is a policy decision and nothing else. There is no rationale

Datar quotes Peter Grim: “Courts can go into the reasons behind the policy,” If there is no reason, it cannot simply be ignored.

Datar: There is a lot of inconsistency between states as to what is creamy layer.

Justice Nagarathna: What was the information about pattern of reservation in the original bulletin for admission?

Datar: The notice of 29/07 making EWS reservation cannot be implemented now because the explanation to Article 15(5). There is no notification there is just a PIB note and all it refers to is income and not other economic disadvantage.

Datar: Actual number of seats that students from open category gets is approximately 3-4%. The window is as it is so small. The reason in Justice Rajan report in TN says all students take spl classes paying 1-2 lakhs

Justice DYC: There will be a further carve out.

Datar: When the IT limit is 5 lakhs how can EWS be 8 lakhs. Today we have 9515 AIQ seats. Now if we carve out further 10% it will narrow it further. Your lordships have held that there should not be reservation in PG level

Datar: There is a prima facie view that reservation should not continue at PG level, a 10 % EWS reservation will make it even the more difficult

Justice DYC: There is a judgment in Abhay Nath which is likely to be PG which says that 50% should be reserved without any exclusion.

Datar: They classify that 50% reservation in All India Entrance will include reservation of SC ST in Abhay Nath

Datar: This has to wait till you clearly determine EWS and don’t change the rules of the exam after the exam has been announced.

SG Mehta: Lordships must have assistance from States, it needs to be heard after all the parties are heard. Please issue notice

Sibal: I fully endorse that

Justice Nagarathna: The balance 50% goes to the state quota and each state has its own policy of reservation. Now we are concerned with the AIQ, so how are states concerned?

SG: It will become a little wider. Each state has its own policy

Sibal: Each State’s demographics is different. It will impact states

Wilson, Sr.Adv: If the seats are not filled up, they will come back to the State. So States will have to be heard

SG: The debate will remain incomplete without the submissions of the State.

Sr Adv Wilson: The reservation was to be implemented from last year itself as per the order of this court.

Wilson: The notification includes OBC so the challenge is to this aspect as well. So the prayer needs to be modfied.

SG: Pleas consider asking the States to make submissions

Shyam Divan: I am going to confine myself only to the interim prayer

Divan: Results came out on 28th September and the government is now preparing a merit list

Divan: My case is in relation to the OBC reservation in the press note

Divan : The press note states that it impacts 2500 seats of PG

Bench to decide whether States are to be accorded an opportunity at lunch and if need to pass orders after lunch. Matter to continue post lunch

Divan: This entire 50% AIQ was a creation of this court and we trace the genesis of this to Judgment in Pradeep Jain 1984(3)SCC64

Divan: Abhay Nath was dealing with SC/ST. The government recognised that this is a judicially made norm approached this court . First it was confined to SC/ST. The court held that it was a judicial scheme for equal competition

Divan: The impugned notice is an executive instruction. The government should have approached this court to change the percentages laid down by this court in judgments

Divan: This is a norm created by this Court which has stood the test of time. This court has had occasions when there is an adjudicatory exercise an executive decision cannot annul it

Divan: Once constitutional principles are set out by this court, it can be departed from only with the permission of this court.

Divan: The rules of the game cannot be changed belatedly is also our contention. We would urge your lordships to grant the stay we seek.

Justice DYC: Introduction of 27% OBC quota has some history. The petition was filed in Madras HC seeking implementation of 27% reservation AIQ

Justice DYC: The Madras HC ordered a committee which recommended the implementation. So this is in effect a Mandamus issued by Madras HC

Justice DYC: In case of an executive notification overriding the judgment there are 2 aspects. EWS will be dealt with by the constitution. In so far as OBC, it is a direction of Madras HC so its different.

Divan: Madras HC draws heavily from Abhay Nath judgment. This notification is not really an implementation of Madras HC order. Please look at it from the citizen’s stand point, so it has to be tested by legal norms of this court

Divan: Society requires doctors with tremendous merit as we have seen from the services doctors rendered during. Eventually the test will have to it will stand up the constitutional test with regard to part 3 of constitution

Justice DYC: We will have to weigh in the qualitative difference between reservations for SC/ST and OBCs. Is there any ground to make a difference between OBC reservation and SC/ST reservation?

Justice DYC: Can we fault the government for having brought in an executive order making reservation for OBC

Divan: I am on the aspect of cumulative impact. Here we are speaking immediately of 2500 seats PG seats available were taken away from “just” merit, this is the perspective that I am trying to bring in

Advocate Choudhary: While SC/ST have the constitution while OBCs don’t

Natraj, ASG: There are 6 factors
1) Substantial arguments have been advanced with regard to permissibility of reservation. It is pending before a larger bench
2)In interpreting Article 15 by virtue of 103rd amendment it will be desirable to hear states

Natraj: 3) This factor of changing the rules being applicable starts only at the point of counselling and not during the examination. We have not reached that stage ye, the petitioner’s eligibility itself is doubtful

Natraj: The roster will be notified reservation wise only before counselling so the rule of the game hasn’t been changed. In so far as PG is concerned exams were held on 11.09.2021 and the reservation was notified on 28.07.2021

Natraj: Article 15 (6) gives power to 103rd Constitutional amendment, the reservation provided is in addition to the existing seats. In 2019-20 itself the government has enhanced the number of seats, in 2019 for UG, 2020 for PG to accommodate this reservation

Justice Nagarathna : Are EWS a separate class by themselves?

Justice DYC: Article 15(6) mentions that this 10% EWS does not operate to SC/ST and OBC. It is a category open to all.

Natraj: It in addition in each category.

Justic DYC: It provides a maximum

Justice Nath: Are you saying seats in each category will be increased to accommodate EWS?

Natraj: Yes.

Justice DYC: EWS is not a horizontal reservation. It does not apply to SC/ST and OBC.

Natraj: As far as MDS is concerned this EWS is already implemented and noticed in pursuant to the directions issued by this court in Devraj Samantha. This court has accepted it

Natraj: Even in respect of central institutions EWS is implemented in 2019-20 itself for UG. Therefore at present their complaint asking us not to implement this scheme is not tenable

Natraj: With regard to income Social justice and DOPT have to file a counter. The 8 lakh income is a matter of policy and I am told it is based upon the national cost of living index and it was 2014 it was 6.50 lakhs for creamy layer it was increased to 8 in 2017

Justice DYC: Who did the exercise to to arrive at this number? Did you lift it from OBC? In case of OBC someone who has crossed 8 lakh threshold is presumed to have overcome the economic and social barriers

Justice DYC: In the case of EWS, they are from forward community. So there is no social and educational barriers. Can you equate them both ?

Justice DYC: In the notification you say 8 lakhs, in the OM you also include assets. What is the format to obtain the EWS certificate?

Justice DYC: Does the Tehsildar who issue this certificate to consider the exemptions as per the OM?

Natraj : Yes

Justice DYC: We can’t ask the government about the constitutional amendment. But how did you arrive at 8 lakhs? This question we can ask. Who deliberated it

Justice DYC: Please demonstrate the study and data that you considered to arrive at this figure.

Natraj: I can take instructions and file a separate counter for this purpose

Justice DYC: When we recommend members of Bar to HC, you must have an income of X. When the person who earns X in Allahabad, but in Mumbai it may not very substantial because there is a huge difference in scale

Justice DYC: The same way 8 lakhs in Karnataka, Maharashtra and other State is not the same as 8 lakhs in less developed States

Natraj: We considered the national cost of living index.

Justice DYC: Have you looked at the GDP per capita for every State?

Justice DYC: Please reflect on what this is. What is the backwardness for EWS and what exercise has been done. We give you a liberty to file an affidavit. Please place any material you have on this.

Justice DYC: Liberty to implead Ministry of Social justice and empowerment and DOPT

Justice DYC: Matter adjourned to Thursday after reopening of the court