IMPORTANT POINT
A community that has been included in the Reservation List can be taken out only after the State has reached a conclusion that the community is adequately represented in the services of the State.

Headnote:Bihar (Scheduled Castes, Scheduled Tribes and Backward Classes) Reservation Act, 1992—Constitution of India—Article 14—Reservation in professional educational institutions for Extremely Backward Classes in the State of Jharkhand—State of Jharkhand had given 73% reservation for appointments in Government services—As an interim measure, High Court reduced the reservation to 50% and also directed that the same reservations would mutatis mutandis apply to reservation in educational institutions as well—State of Jharkhand issued Notification on 10-10-2002 superseding the earlier Notification whereby quotas were reduced to 50%—Action of the Government amalgamating two classes namely, Backward Classes and Extremely Backward Classes—Reduction of reservation from 18% and 9% respectively to 14% only for the purpose of admission in professional educational institutions—Division Bench of the High Court affirmed decision of the State Government—State has failed to show any new circumstances except for a bald statement that the same was done after careful application of mind and due deliberation by the highest policy making body i.e. Counsel of Ministers—Before taking the decision to amalgamate two classes, relevant factors were not taken into account—Whether order passed by the Division Bench is justified—(No)—Matter is remitted to the State Government for undertaking a deep study.
       Held : The Division Bench did not appreciate that the Full Bench had given the Government the limited liberty to bring down the percentage of reservation from 73% to 50% for an interim purpose and did not give any direction with respect to the amalgamation of categories. In our opinion, the amalgamation of two classes of people for reservation would be unreasonable as two different classes are treated similarly which is in violation of the mandate of Article 14 of the Constitution of India which is to "treat similar similarly and to treat different differently." It is well settled that to treat unequals as equals also violates Article 14 of the Constitution.(Para 21)
       The State has failed to show any new circumstances except for a bald statement that the same was done after careful application of mind and due deliberation by the highest policy making body i.e., the Council of Ministers. There are no materials or empirical data to indicate that the circumstances had been changed and the State has not undertaken any study, research or work. In such circumstances to merely suggest that the council of Ministers had applied their minds and had reached a decision is arbitrary and unreasonable.(Para 22)
       It is also to be noticed that while the Bihar Act applied only to the appointment to posts in services, it had been extended to the admissions in educational institutions in the State by the operation of the Courts order dated 22.8.2002 which enabled the mutatis mutandis application of the reservations in employment to educational institutions as well.(Para 24)
       The communities which are included in the List of Backward Classes and most Backward Classes have been receiving the benefit of reservation after a conscious adoption of the Bihar legislation and categorization by the State of Jharkhand. To say that there has been a complete change in their circumstances in two years so as to exclude them from their special status without any reference to the Backward Castes Commission or a Special Commission which has been specifically appointed for the purpose would be in violation of the guidelines laid down in the Mandal Commissions case.(Para 27)
       The Division Bench failed to notice that the Government did not provide any material on record which would have justified amalgamation of the two classes of people nor were any documents, relevant materials or any reports produced to show a change in circumstances as was alleged by the Government. Before taking the decision to amalgamate two classes, the relevant factors were not taken into account. In fact, the specific reservation for Extremely Backward Classes had been granted on the recommendation of the Backward Commission headed by Shri Mungeri Lal constituted for the said purpose. The said Committee before making recommendation to make reservation separately for Backward Classes and Extremely Backward Classes had kept in mind the economic and social situation as also the necessity for separate reservation. The recommendation is based after a detailed survey. On the other hand, when the amalgamation of the categories took place, there were no material or empirical data to indicate that the circumstances had been changed other than a mere bald statement to the effect. It is settled law that even policy matters have to be tested at the touchstone of arbitrariness and that the present policy is discriminatory and arbitrary. As already noticed, the State of Jharkhand has specifically adopted the Bihar Act and also issued Notifications giving 73% reservation to four categories. This apart, the Full Bench had allowed the State Government only the liberty to reduce the percentage of reservation and not the categories or classes to whom the reservation could be extended to. (Para 28)
       For the aforesaid reasons, we hold that the order dated 16.8.2003 passed by the Division Bench in L.P.A. No. 176 of 2003 is set aside and the matter is remitted to the State Government for undertaking a deep study and research by a special Committee of Experts constituted for the purpose or by appointing an Expert Commission headed by a Retired High Court Judge or body as has been provided for in the Mandal Commissions case to enquire into the recommendations/complaints made over under-inclusion and over-inclusion and make binding recommendations. The State Government is directed to constitute an Expert Commission of a Body within three months from the date of the receipt of this order.(Para 29)

JUDGMENT

Dr. AR. Lakshmanan, J.—Leave granted.

2. The above appeal is directed against the impugned common final judgment and order dated 16.8.2003 of the Division Bench of the High Court of Judicature at Jharkhand, Ranchi passed in L.P.A. No.176 of 2003, whereby the High Court allowed the said appeal of respondent No.1 Jharkhand State Vaishya Federation and set aside the common judgment and order dated 3.3.2003 of the learned single Judge of the High Court and thus upheld the validity of Resolution No. 5800 dated 10.10.2002 of the State Government and thus affirmed the decision of the State Government to amalgamate the two classes i.e. Extremely Backward Class and Backward Class and the reduction of reservation from 12% and 9% respectively to 14% only for the purpose of admission in professional educational institutions.

3. This appeal raises important questions of law with respect to reservation in professional educational institutions for the Extremely Backward Classes in the State of Jharkhand. The State of Jharkhand had given 73% reservation for appointments in Government services adopting the Bihar (Scheduled Castes, Scheduled Tribes and Backward Classes) Reservation Act (Bihar Act No. 3 of 1992) with certain modifications vide Notification No. 3465 of 2001 issued on 3.10.2001. Similarly through Notification No. 3884 of 2001 issued on 5.11.2001, there were four specific categories that were entitled to reservation in professional/technical colleges:

Scheduled Caste–14%

Scheduled Tribe–32%

Extremely Backward Classes–18%

Backward Classes–09%

Total –73%

4. The process of reservations to 73% was challenged before the High Court of Jharkhand on the ground that it was ultra vires the Constitution in a number of writ petitions. Keeping in mind the fact that a similar petition was pending before this Court (VOICE vs. State of Tamil Nadu – S.L.P. (C) No. 13526 of 1993), the Full Bench of the High Court deferred the hearing to await the judgment of this Court. But as an interim measure, the High Court on 22.8.2002 reduced the reservation to 50% with specific directions to be given that any appointment to Government service made in the open category would be subject to the decision of this Court and also directed that the same reservations would mutatis mutandis apply to reservation in educational institutions as well. The Court clarified this order on 30.9.2002 which reads as under:

"The appointments thus to be made in the said 50% categories (as would now correspondingly stand reduced from 73% to 50%) shall, be on proportionate basis, with due reference and regard being had to the percentage of the categories as constituted the sum-total of the original impugned 73%."

5. Accordingly, the State of Jharkhand issued Notification No. 5800 of 2002 on 10.10.2002 superseding the earlier Notification of 5.11.2001 whereby quotas were reduced to 50% in consonance with the High Courts orders.

6. This action by the Government through Notification No. 5800 of 2002 dated 10.10.2002 of amalgamating two classes namely, Backward Classes and Extremely Backward Classes was challenged by the appellants before the High Court of Jharkhand through W.P. (C) Nos. 6220, 6332 and 6545 of 2002. The learned single Judge quashed the Notification. On appeal by the State, the Division Bench allowed the appeal.

7. In response to a number of writ petitions (W.P. Nos. 3696/2002, 4706/2001, 4637/2001 etc.) challenging the validity of 73% reservations with respect to appointments, Full Bench of the High Court through an interim order mandated that the reservation should be limited to only 50% and that the reduction should be done on a proportionate basis with due reference and regard being had to the percentage of categories as constituted the sum total of the impugned order. It also noted that the observations would mutatis mutandis apply to the admission process. This order of Full Bench ( Five Judges) is marked as Annexure P-2.

8. On a petition seeking clarifica

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2006 Supreme(SC) 713

IMPORTANT POINTA community that has been included in the Reservation List can be taken out only after the State has reached a conclusion that the community is adequately represented in the services of the State.

Cases Referred (1)

IMPORTANT POINT
A community that has been included in the Reservation List can be taken out only after the State has reached a conclusion that the community is adequately represented in the services of the State.