1. This group of writ petitions/public interest litigations under Article 226 of the Constitution of India challenge two separate Ordinances promulgated by the Governor of Maharashtra on 9 July 2014 providing for reservation of seats for admissions in aided and unaided educational institutions in the State and reservation of appointments/posts in public services under the State as under:-

(i) Separate 16% reservation for the Educationally and Socially Backward Category (ESBC) in which the Maratha community is included, (Maharashtra Ordinance No. XIII of 2014).

(ii) Separate 5% reservation for a newly created Special Backward Category-A (SBC-A) consisting of 50 sub-castes amongst Muslim community specified in the Schedule to the Ordinance, other than the categories of Muslims to whom reservation has already been given under other categories of backward classes and other backward classes, (Maharashtra Ordinance No. XIV of 2014).

Each Ordinance excludes the creamy layer, but the impugned reservations are, over and above the reservations aggregating to 52% reservations already provided by the Maharashtra State Public Services (Reservation for Scheduled Castes/Scheduled Tribes/Denotified Tribes (Vimukta Jatis)/Nomadic Tribes/Special Backward Category/Other Backward Classes) Act, 2001 (for short "the Reservation Act of 2001").

The petitioners have also challenged the State Government Resolution dated 15 July 2014 specifying Maratha community as the only community under Educationally and Socially Backward Category for 16% reservations under the above Ordinance No. XIII of 2014.

2. This group of matters is heard for admission and for interim relief. We may, at the outset, briefly indicate the structure of this order for the benefit of those who do not propose to meander through the entire discussion:

(I) Common Grounds of Challenge

3. While the writ petitions/PILs raise different grounds of challenge to reservations in favour of Maratha community and reservations in favour of Muslim community, there are some common grounds also. The common grounds of challenge are as under:

(i) Promulgation of the impugned Ordinances is a fraud on the Constitution. Article 213(b) permits the Governor to promulgate an Ordinance only to deal with an emergent situation. There was no emergency situation in July 2014 when the Ordinances were issued. Rather, the promulgation was motivated, which is evident from the circumstances that the same were issued on the eve of elections of the Legislative Assembly at Maharashtra.

(ii) Reservations under Article 15(4) and Article 16(4) of the Constitution of India cannot exceed the ceiling limit of 50%, whether for admission to educational institutions or in matters of public employment. The impugned Ordinances, to the extent they increase the percentage of reservations from existing 52% to 73%, are therefore ultra vires the Constitution of India.

Promulgation of impugned Ordinances-whether unconstitutional

4. We will first consider the challenge to the two separate Ordinances on the ground that issuance of these two Ordinances is a fraud on the constitution. It is contended that Article 213(b) permits the Governor to promulgate an Ordinance only to deal with an emergent situation. The matters of reservations in favour of the Marathas and the Muslims are being debated for the last several years, if not decades.

5. Learned counsel for the petitioners have vehemently submitted that the issuance of two separate Ordinances on 9 July 2014 is a fraud on the Constitution. The last report of the Maharashtra State Backward Classes Commission (Justice Bapat Commission) was rendered as far back as in 2008. The Commission has negatived the claim of Maratha community for being treated as socially and educationally backward class. The report of the said Commission is ordinarily binding on the State Government under section 9(2) of the Maharashtra State Commission for Backward Classes Act, 2005 (State BC Commission Act). The exercise unde