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The court was hearing a plea challenging 27% reservation for OBCs and 10% reservation for EWS in All India Quota (AIQ) for PG Medical courses.

A Supreme Court bench consisting of Justice DY Chandrachud, Vikram Nath and Nagarathna Thursday asked the centre to file an affidavit explaining the process undertaken to arrive at the figure of Rs. 8 lakhs for granting reservation(s) to Economically Weaker Sections (EWS) in Post Graduate Medical entrance.

Prior to hearing the petitioner, the centre, represented by ASG K.M.Natraj, submitted that the States be made parties prior to passing any order and the bench informed the ASG that it will consider the same.

Senior Advocate Arvind Datar, commenced arguments for petitioner and told the bench that Ministry of Health has been impleaded since the impugned notice was issued by them.

He submitted that the notice mentions EWS but does not elaborate on who constitutes EWS, contending that even the counter filed by the centre mentions a ceiling of Rs. 8 lakhs but not how it was arrived at.

He submitted that that there is a committee report which speaks of this threshold and an office memo which mentions it, he urged the bench to not let this reservation be implemented this year at least till this position is clarified.
He said,

“The Sinho Committee report says that the only criteria is the threshold of Rs.8 lakhs  irrespective of land and holding but the office memo specifies various assets and sources of income that constitute Rs.8 lakhs. There has to be some clarity.”

It was argued that the Mandal commission report is the basis for EWS and further submitted that there needs to be a scientific system to determine EWS. He pointed out that the counter states that Rs. 8 lakhs was a policy decision and does not provide any rationale to it and that a uniform figure of Rs. 8 lakhs was arbitrary. He submitted that in the absence of clear determination of who constitutes EWS, the further carving of 10% reservation should not be permitted.

He pointed out that the Supreme Court has consistently held that there should be no reservation in Post Graduate admissions and that it should end with Under Graduation.
Justice Chandrachud then pointed out the court’s judgment in Abhay Nath case which said that 50% reservation in PG should include reservation for SC/ST students as well, Datar pointed out that this reservation will eat into the previously provided 50%. He further argued that examination was to happen in April got postponed owing to the second wave of COVID-19, the notification came after the date of actual examination, this is unfair on the students.

Senior Advocate Shyam Divan, appearing for another petitioner argued that his petition is directed with respect to OBC reservation in AIQ and that it will impact a total of 2500 seats. He contended that the entire 50% AIQ was a creation of the Supreme Court in its judgment of Pradeep Jain & ors which arose in the context of domicile requirements. He said, “There are subsequent judgments where there was a decrease in 50% norm but this was reaffirmed in Saurabh Chaudhary. The court concluded that domiciliary preference would be 50% and 50% would be all India.”

He further argued that Abhay Nath was in the context of SC/STs and not OBCs. He contended that the government recognised the judicial norm and approached the court for the same and given that there was an adjudicatory exercise to lay down the norms, an executive order cannot nullify the court’s adjudication. He said “This court should lay down apt constitutional principles, once these are defined, if they are accepted by the government, they should be departed from in a certain procedure. The defying party needs to explain its reasons.”

Justice Chandrchud pointed out that OBC reservation ha a history and that it came as a result of a direction of Madras High Court to the Union of India. Divan replied saying that the Madras HC judgment relies heavily on this court’s judgment in Abhay Nath and that  they are within their  rights to say that it was centre’s duty to approach the court before implementing something with such ramifications.

ASG Natraj argued that there were 6 factors which disentitle the petitioner from obtaining interim relief, the first factor was that substantial arguments were being made on the permissibility of reservation, and that the issue was pending before a larger bench for consideration. Secondly till the results are announced and the eligibility is notified the petitioners cannot be considered as aggrieved. Reservation is notified before counselling and they were still not at the stage of counselling.

He argued that the seats provided were in addition to the seats reserved for the reservation and that the centre had already added 10% of seats before bringing this to effect. Justice Nagarthna retorted to this asking if EWS was a separate class compared to OBC and if this was in addition to existing SC,ST and OBC seats. ASG replied to this saying if there were 500 seats which are reserved, the centre will create more seats to enable the EWS reservation.

ASG further brought to the court’s notice that in MDS (Dental studied) courses counselling has begun for AIQ seats and the system has already been implemented and at central institution EWS was introduced in 2019 for UG and 2020 for PG .

Justice Chandrachud at this point asked the ASG as to the process that the centre undertook to reach the Rs. 8 lakh figure, the ASG replied saying that DOPT and Ministry of social justice were not parties here so he might not be able to answer these questions without their assistance.

Justice Chandrachud further said, “When we recommend lawyers of the bar to the bench there is a yardstick of income we keep in mind. A lawyer making substantial amount in Mumbai or Delhi is not equivalent to a lawyer making the same amount in Allahabad.  The same way Rs. 8 lakhs cannot be the same in every State.”

The bench asked ASG to reflect on this and permitted the centre to place any material they have in this regard on record.

The matter will now be taken up on October 20.

 

Case Title: Neil Nunes, Madhura Kavishwar Vs Union of India