The main legal point established in the judgment is the requirement to follow the triple test before providing reservation for the OBC category, including the need for a dedicated Commission to conduct empirical inquiry and the proportion of reservation not exceeding 50% of the total seats reserved for SCs/STs/OBCs.

ORDER :

1. Heard learned counsel for the parties.

2. The writ petition essentially assails the provisions inserted/amended vide Maharashtra Ordinance No. 3/2021 permitting reservation for the category of backward class of citizens upto 27% uniformly throughout the State in the concerned local bodies. That issue had received attention of this Court in Vikas Kishanrao Gawali vs. State of Maharashtra and Others, (2021) 6 SCC 73 wherein this Court noted triple test to be followed before provisioning such reservation for OBC category.

3. In paragraph 13 of the said decision, three steps have been noted thus:

“13....(1) to set up a dedicated Commission to conduct contemporaneous rigorous empirical inquiry into the nature and implications of the backwardness qua local bodies, within the State.

(2) to specify the proportion of reservation required to be provisioned local body-wise in light of recommendations of the Commission, so as not to fall foul of over-breadth.

(3) in any case such reservation shall not exceed aggregate of 50 per cent of the total seats reserved in favour of SCs/STs/OBCs taken together. In a given local body, the space for providing such reservation in favour of OBCs may be available at the time of issuing election programme (notifications). However, that could be notified only upon fulfilling the aforementioned preconditions. Admittedly, the first step of establishing dedicated Commission to undertake rigorous empirical inquiry itself remains a mirage. To put it differently, it will not be open to the respondents to justify the reservation for OBCs without fulfilling the triple test, referred to above.”

4. This, in fact, was reiteration of the exposition of the Constitution Bench on the issue of quantum of reservation to be provided for OBCs. In the conclusion, in paragraph 82 of the Constitution Bench judgment in K. Krishna Murthy and Others vs. Union of India and Another, (2010) 7 SCC 202, the Court observed thus:

“82.....(iii) We are not in a position to examine the claims about overbreadth in the quantum of reservations provided for OBCs under the impugned State legislations since there is no contemporaneous empirical data. The onus is on the executive to conduct a rigorous investigation into the patterns of backwardness that act as barriers to political participation which are indeed quite different from the patterns of disadvantages in the matter of access to education and employment. As we have considered and decided only the constitutional validity of Articles 243-D(6) and 243-T(6), it will be open to the petitioners or any aggrieved party to challenge any State legislation enacted in pursuance of the said constitutional provisions before the High Court. We are of the view that the identification of “backward classes” under Article 243-D(6) and Article 243-T(6) should be distinct from the identification of SEBCs for the purpose of Article 15(4) and that of backward classes for the purpose of Article 16(4).”

5. To overcome the decision of this Court, the impugned Ordinance has been issued by the State Government and in compliance thereof, the State Election Commission has already notified the election programme for the concerned local bodies which includes reservation for OBC on lines specified in the provisions mentioned in the impugned Ordinance.

6. The argument of Mr. Shekhar Naphade, learned senior counsel appearing for the State is that the provision inserted vide impugned Ordinance is in conformity with the decision of this Court. It is for providing reservation to category of backward class citizens upto 27% only. We are not impressed by this argument.

7. Without setting up the Commission and collating contemporaneous empirical data to ascertain the extent of reservation required to be provided local body-wise, it is not open for the State Election Commission to provide reservation for OBC category despite the statutory provision in that regard. That is only an enabling provision, but to be given effect to on