Compliance with the triple test exercise is necessary before providing for reservation of seats for the OBC category in local Government elections.

ORDER :

SLP (C) No. 19756 of 2021

1. This special leave petition questions the order dated 22.10.2021 passed by the Division Bench of the High Court of Judicature at Bombay in Writ Petition No. 11744 of 2021 refusing to grant interim relief.

2. When the matter came up before this Court on 06.12.2021, it was directed that the Maharashtra State Election Commission shall not proceed with the election programme as already notified, providing reservations for OBC category as the triple test compliance required under the decision of three-Judge Bench of this Court in Vikas Kishanrao Gawali vs. State of Maharashtra and Others, (2021) 6 SCC 73 was not done.

3. The State Election Commission was, thus, directed to disregard the election programme to the extent of reservation for OBC category only, being nullity and not to be acted upon.

4. In the subsequent order passed on 15.12.2021, this Court directed the State Election Commission to issue fresh notification and conduct elections for corresponding number of seats as open category, instead of OBC category which were ordered to be cancelled in terms of order dated 06.12.2021.

5. The State Election Commission has now submitted compliance report indicating that pursuant to the order dated 15.12.2021, the election programmes in respect of seats, which were earlier notified as OBC category, have since been conducted as open seats as per the directions given by this Court and the results of those elections are likely to be notified by tomorrow. In that sense, the relief claimed in the writ petition to the extent of prohibiting the State Election Commission to proceed with the election in respect of OBC seats (27 per cent) is worked out.

6. The only issue now remains is about the validity of the ordinance issued by the State of Maharashtra on 23.09.2021 and also the relevant provisions of the enactment in question, in respect of which, the matter needs to proceed further on some other day for hearing.

7. In the meantime, the State of Maharashtra has filed application being I.A. No. 8129 of 2022, urging this Court to permit the State to conduct the remaining election on the basis of information/data already available with the State concerning the OBC Category. Instead of examining the correctness of the data furnished by the State along with the application, the appropriate course for the State is to produce this data and further information as may be available before the State appointed dedicated Commission, who, in turn, can examine the correctness thereof and if deem it appropriate, to make recommendation to the State on the basis of which further steps can be taken by the State or the State Election Commission, as the case may be.

8. Mr. P. Wilson, learned senior counsel appearing for the intervenor had rightly pointed out that in terms of the amendment to Article 342A of the Constitution of India vide insertion of clause (3) therein, the State or Union Territory is obliged to independently prepare a list of socially and educationally backward classes, which can be acted upon for providing reservation to other backward classes, including during the elections of the local Government. Concededly, that list would be independent of the Census undertaken by the Union Government in terms of the obligation under the Census Act, which has been enacted in reference to Seventh Schedule List I Item 69. In other words, the list to be prepared by the State Government or the Union Territory concerning the socially and educationally backward classes in terms of Article 342A(3) of the Constitution of India which has come into effect from 19.08.2021, would be independent of the Census to be done by the Union Government.

9. Be that as it may, the information/data available with the State Government can be furnished to the dedicated Commission, who can examine the efficacy thereof and take appropriate decision as may be warranted, including submitting interim report to the State Government making recommendations, as