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2017 Supreme(Bom) 1012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
M.S. SONAK, J.
The State of Maharashtra through the Chief Secretary and Another – Petitioners
Versus
Shri Vijay Ghogre and Others – Respondents
Writ Petition Nos. 1590, 2797, 3009 of 2015, 3287 of 2004 with Civil Application Nos. 2301, 2531 of 2015, 161 of 2016 In Writ Petition No. 2797 of 2015
Decided On : 25-07-2017
Mr. Rafique Dada Sr. Advocate/Special Counsel with Mr. A.B. Vagyani Government Pleader, Mr. V.B. Thadani AGP, Ms. G.R. Golatkar – AGP, Mr. P.P. More AAGP and Mr. Rohan Sawant AGP for the Petitioners-State in (AS) WP No. 2797/2015 and for Respondents-State in (AS) WP No. 3009 of 2015.
Mr. A.Y. Sakhare Sr. Advocate with Mr. A.A. Karande for Petitioners in (AS) WP No. 3009/2015 and for Respondent Nos. 16, 17, 19 and 21 in (AS) WP No. 2797/2015.
The issue of the constitutional validity of the Reservation Act was not required to be decided by the MAT and therefore, the MAT's judgment and order dated 28th November 2014, to the extent it strikes down the Reservation Act, is liable to be set aside. The issue of constitutional validity of the Reservation Act is therefore kept open for determination in an appropriate case and on an appropriate occasion. The GR dated 25th May 2004 to the extent it makes provisions for reservations in matters of promotions in favour of De-Notified Tribes (A), Nomadic Tribes (B), Nomadic Tribes (C), Nomadic Tribes (D) and Special Backward Classes is ultra vires Article 16 (4A) of the Constitution and therefore liable to be struck down. The GR dated 25th May 2004 to the extent it makes provisions for reservations in matters of promotions in favour of SC/STs is ultra vires Article 16(4A) of the Constitution for want of adherence to the constitutional imperatives prescribed in M. Nagaraj case and therefore, the same is liable to be struck down.
Headnote:
None
Fact of the Case:
The case involves a reference made by the Hon'ble the Chief Justice to the Bombay High Court, Appellate Side Rules, which provides for the resolution of differences of opinion between Judges of a Division Bench. The reference arose due to divergent opinions expressed by Hon'ble Justice Anoop V. Mohta and Hon'ble Justice A.A. Sayed in writ petition no. 2797 of 2015 and connected matters. The main issues in the case were whether the Maharashtra State Public Services (Reservations for Scheduled Castes, Scheduled Tribes, De-Notified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and Other Backward Classes) Act 2001 (Reservation Act) was intra vires the Constitution, whether the GR dated 25th May 2004 was ultra vires Article 16(4A) of the Constitution in providing reservations for backward class of citizens other than SC/STs, and whether the GR dated 25th May 2004 was ultra vires Article 16(4A) of the Constitution in providing reservations for SC/STs without quantifiable data.
Finding of the Court:
The High Court held that the issue of the constitutional validity of the Reservation Act was not required to be decided by the MAT and therefore, the MAT's judgment and order dated 28th November 2014, to the extent it strikes down the Reservation Act, is liable to be set aside. The issue of constitutional validity of the Reservation Act is therefore kept open for determination in an appropriate case and on an appropriate occasion. The High Court also held that the GR dated 25th May 2004 to the extent it makes provisions for reservations in matters of promotions in favour of De-Notified Tribes (A), Nomadic Tribes (B), Nomadic Tribes (C), Nomadic Tribes (D) and Special Backward Classes is ultra vires Article 16 (4A) of the Constitution and therefore liable to be struck down. The High Court further held that the GR dated 25th May 2004 to the extent it makes provisions for reservations in matters of promotions in favour of SC/STs is ultra vires Article 16(4A) of the Constitution for want of adherence to the constitutional imperatives prescribed in M. Nagaraj case and therefore, the same is liable to be struck down.
Issues: 1. Whether the Reservation Act is indeed intra vires as held in some portions of the opinion dated 26th July 2016 or whether the question of constitutional validity of the Reservation Act was merely academic and therefore, was not required to be decided either by the MAT or this Court, as held in the opinion dated 21st December 2016? 2. Is the GR dated 25th May 2004, to the extent it makes provisions for reservations in matters of promotion in favour of backward class of citizens other than SC/STs ultra vires Article 16(4A) of the Constitution, as held in the opinion dated 21st December 2016? 3. Is the GR dated 25th May 2004, to the extent it makes provisions for reservations in matters of promotion in favour of SC/STs ultra vires Article 16(4A) of the Constitution because there was no quantifiable data before the State to form an opinion that SC/STs were not adequately represented in the services under the State as held in the opinion dated 21st December 2016? 4. Whether, in the facts and circumstances of the cases, directions in clauses (ii), (iii), (iv) and (v) of the opinion dated 21st December 2016 could or were required to be issued?
Ratio Decidendi: 1. The issue of the constitutional validity of the Reservation Act was not required to be decided by the MAT and therefore, the MAT's judgment and order dated 28th November 2014, to the extent it strikes down the Reservation Act, is liable to be set aside. The issue of constitutional validity of the Reservation Act is therefore kept open for determination in an appropriate case and on an appropriate occasion. 2. The GR dated 25th May 2004 to the extent it makes provisions for reservations in matters of promotions in favour of De-Notified Tribes (A), Nomadic Tribes (B), Nomadic Tribes (C), Nomadic Tribes (D) and Special Backward Classes is ultra vires Article 16 (4A) of the Constitution and therefore liable to be struck down. 3. The GR dated 25th May 2004 to the extent it makes provisions for reservations in matters of promotions in favour of SC/STs is ultra vires Article 16(4A) of the Constitution for want of adherence to the constitutional imperatives prescribed in M. Nagaraj case and therefore, the same is liable to be struck down.
Final Decision: The High Court held that the issue of the constitutional validity of the Reservation Act was not required to be decided by the MAT and therefore, the MAT's judgment and order dated 28th November 2014, to the extent it strikes down the Reservation Act, is liable to be set aside. The issue of constitutional validity of the Reservation Act is therefore kept open for determination in an appropriate case and on an appropriate occasion. The High Court also held that the GR dated 25th May 2004 to the extent it makes provisions for reservations in matters of promotions in favour of De-Notified Tribes (A), Nomadic Tribes (B), Nomadic Tribes (C), Nomadic Tribes (D) and Special Backward Classes is ultra vires Article 16 (4A) of the Constitution and therefore liable to be struck down. The High Court further held that the GR dated 25th May 2004 to the extent it makes provisions for reservations in matters of promotions in favour of SC/STs is ultra vires Article 16(4A) of the Constitution for want of adherence to the constitutional imperatives prescribed in M. Nagaraj case and therefore, the same is liable to be struck down.
M.S. SONAK, J.
1. Heard learned counsel for the parties.
2. The Hon'ble the Chief Justice by order dated 23rd January 2017, has made this Reference in terms of Rule 7 of Chapter I of The Bombay High Court, Appellate Side Rules, which inter-alia provides that the point of difference of opinion between Judges of a Division Bench shall be decided in the manner provided for in section 98 of the Code of Civil Procedure or section 392 of the Code of Criminal Procedure as the case may be. Such Reference was necessitated on account of divergent opinions expressed by the Hon'ble Justice Anoop V. Mohta (opinion dated 26th July 2016) and Hon'ble Justice A.A. Sayed (opinion dated 21st December 2016) in writ petition no. 2797 of 2015 and connected matters.
3. In his opinion dated 26th July 2016, Hon'ble Justice Anoop V. Mohta has reversed the MAT's judgment dated 28th November 2014 which had held the Maharashtra State Public Services (Reservations for Scheduled Castes, Scheduled Tribes, De-Notified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and other Backward Classes) Act 2001 (Reservation Act) and GR dated 25th May 2004 as ultra vires the Constitution. On the other hand, Hon'ble Justice A.A. Sayed, in his opinion dated 21st December 2016 has held that the GR dated 25th May 2004 is ultra vires the Constitution. On the aspect of constitutional validity of the Reservation Act, Hon'ble Justice A.A. Sayed has held that such question did not legitimately arise in the facts and circumstances and was merely academic. Therefore, the MAT, was not justified in deciding the question of the constitutional validity of the Reservation Act. Apart from such fundamental divergence, the Hon'ble Judges have issued certain consequential directions, which again, are at some variance with each other.
4. Upon due consideration of the submissions of the learned counsel for the parties and the careful reading and consideration of the divergent opinions, the material points of difference which are stated to arise, can be crystallized as follows:
(i) Whether the Reservation Act is indeed intra vires as held in some portions of the opinion dated 26th July 2016 or whether the question of constitutional validity of the Reservation Act was merely academic and therefore, was not required to be decided either by the MAT or this Court, as held in the opinion dated 21st December 2016?
(ii) Is the GR dated 25th May 2004, to the extent it makes provisions for reservations in matters of promotion in favour of backward class of citizens other than SC/STs ultra vires Article 16(4A) of the Constitution, as held in the opinion dated 21st December 2016?
(iii) Is the GR dated 25th May 2004, to the extent it makes provisions for reservations in matters of promotion in favour of SC/STs ultra vires Article 16(4A) of the Constitution because there was no quantifiable data before the State to form an opinion that SC/STs were not adequately represented in the services under the State as held in the opinion dated 21st December 2016?
(iv) Whether, in the facts and circumstances of the cases, directions in clauses (ii), (iii), (iv) and (v) of the opinion dated 21st December 2016 could or were required to be issued?
5. Mr. Dada, Mr. Sakhare and Mr. Anturkar have reiterated the submissions made by them before the Division Bench. They submit that Ghogre, et al. had no legitimate surviving grievance regards reservations at the stage of initial recruitment. At their behest, MAT was not at all justified in going into the question of constitutional validity of the Reservation Act and striking down the same. They submit that the issues of constitutionality of statutes must never be decided for academic purposes or unless they are absolutely necessary for the purposes of grant or denial of reliefs to the petitioners. In support, they rely upon the decisions of the Hon'ble Supreme Court in Naresh Shridhar Mirajkar and Others vs. State of Maharashtra and Others, 37 AIR 1967 SC 1
