In the High Court of Andhra Pradesh Date of Judgment : May 28, 2012
In the High Court of Andhra Pradesh
Date of Judgment : May 28, 2012
R. Krishnaiah vs. Union of India & others
The challenge in the present matter related to two Office Memoranda and to a Resolution which related to one of the Office Memoranda. The first Office Memorandum and the accompanying Resolution concerned the Central Educational Institutions (Reservation in Admission) Act, 2006 (the CEI Act). The first OM and the Resolution carved 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 was from the 27% reservation for Other Backward Classes (OBCs) who were entitled to reservation in admission to central educational institutions. In other words, OBCs having 27% reservation had 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.
The principal contention of the petitioners was 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 was 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.
The CEI Act provided 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. Section 3 of the CEI Act provide 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.
The Court observed that CEI Act did 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 (NCBC Act) provide for the functions and powers of the National Commission for Backward Classes (NCBC) in Chapter 3 thereof. Section 9 of the NCBC Act require 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.
The Court observed that the sum and substance of the statutory provisions was that the Central Government prepares lists of "Other Backward Classes" or OBCs after consultation with the NCBC, which is mandatorily required.
The minorities, mentioned in both the OMs and in the Resolution involved in the present matter were those notified by the Central Government as required by Section 2(c) of the National Commission for Minorities Act, 1992 (NCM Act). The minorities so notified through a notification dated 23.10.1993 are:
(4) Buddhists, and
(5) Zoroastrians (Parsis)
Therefore, the effect of the first OM was that a sub-quota of 4.5% had 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 consist 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.
The second OM proceeded on the same lines as the first OM. The only difference being that the 4.5% sub-quota was for the same minorities who are socially and economically backward and was for appointments or posts under the Central Government. The sub-quota was 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 had not been determined under the NCBC Act.
The principal contention of the petitioners was that by providing a sub-quota for minorities, the Central Government had 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 did not save the actions of the Central Government.
Findings on the principal challenge:
The Court agreed with the submission of the petitioners that the subquota was based entirely on religion and should be struck down. The First OM stated that the 4.5% sub-quota was 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 carved out a sub-quota "for minorities". The very use of the words "belonging to minorities" or "for minorities" indicate that the sub-quota had been carved out only on religious lines and not on any other intelligible basis. The identified minorities were Muslims, Christians, Sikhs, Buddhists and Zoroastrians (Parsis) as per the notification issued under the provisions of the NCM Act. Absolutely no empirical evidence was placed before the Court to enable the Court to conclude or to support the requirement of carving out a special class of beneficiaries from the existing backward classes. Absolutely no material was placed before the Court to demonstrate that persons belonging to the religious groups mentioned above were more backward than any other category of backward classes or that they need any preferential treatment as compared to other OBCs.
The Court observed that sub-quota had been created only on grounds of religion and nothing else. This was 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, 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 had exceeded the constitutional boundaries.
The next question was whether the sub-quota could be saved by resorting to Article 15(5) and Article 16(4) of the Constitution.
Absence of any rational classification:
The Court observed that assuming it was 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 was substantial and not illusory (State of Kerala v. N.M. Thomas AIR 1976 SC 490). The Court held that Muslims, Christians, Sikhs, Buddhists and Zoroastrians (Parsis) do not form a homogenous group but a heterogeneous group.
The Court observed that on the basic principles of reasonable or rational classification, the OMs and the Resolution could not be sustained. Disparate groups were sought to be clubbed together on religious lines and without any homogeneity amongst them.
The Court observed that the OM was nothing more than an executive instruction and that an executive instruction could not be a substitute for the "law" postulated by Article 15(5) of the Constitution. That being so, there was no law to sustain the creation of a sub-quota of 4.5% out of the 27% reservation for OBCs.
The Court thus 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.