Nagendra Rai and S.N.Hussain JJ.

1. Petitioner No. 1 is a registered Association formed to look after the welfare of Schedules Tribes in the State of Bihar, petitioner No. 2 is its President and remaining petitioners are other Scheduled Tribe members. They have filed the present writ application for declaring the Bihar Reservation of Vacancies in Post and Services For Scheduled Castes, Schedule Tribes and Other Backward Classes) Amendment Act, 2002 (Bihar Act 17 of 2002) (hereinafter referred to as the Amendment Act) (Annexure-4 to the writ application) as ultra vires of the Constitution and for quashing the resolution contained in memo No. 456 dated 30.9.2002 (Annexure-5 to the writ application), making the same percentage of reservation as prescribed in the Amendment Act applicable with regard to the admissions in the educational institutions also.

2. The admitted fact is that the Government of Bihar issued a resolution on 13.11.1953, whereby 10% of the vacancies in the services were reserved for the Scheduled Tribes. The said resolution was followed by an Act known as the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1992 (Bihar Act No. 3 of 1992). The said Act also contained 10% reservation for the Scheduled Tribes.

3. The State of Bihar was bifurcated in two States i.e. the Bihar and Jharkhand on 15.2.2000 and the reservation Act was amended by Bihar Act 17 of 2002, wherein reservation for Scheduled Tribes was reduced from 10% to 1% and 14% reservation for Scheduled Castes was increased to 16% and for extremely Backward Classes, it was increased from 12% to 18%. 3% reservation was also given to the women of Backward Classes alone instead of economically Backward women as was earmarked earlier in 1992 Act (Annexure-1). Same percentage of reservation of different categories was also provided for admission in the educational institutions by issuance of a notification dated 30.9.2002 as stated above.

4. The case of the petitioners is that the fixation of percentage of reservation on the basis of population is bad and the relevant criterian should have been the adequacy of the representation in the services as well as in admission to the educational institutions regardless of the population. The reservation in question is discriminatory and the provisions of the Amendment Act, as contained in Annexure-4 and the subsequent notification (Annexure-5) are ultra vires and violative of Art. 14 of the Constitution of India. Lastly, it was also submitted that the National Commission for Scheduled Castes and Scheduled Tribes, as constituted under Art. 338 of the Constitution, was not consulted before determining the percentage.

5. The stand of the State, on the other hand, is that the reservations in post and services in the State of Bihar were enforced on the basis of percentage of population of Scheduled Castes and Scheduled Tribes as per 1951 Census. According to the 1951 Census, the population of the Scheduled Castes was 12.5% and that of the Scheduled Tribes was 10.7% and, accordingly, the reservation for the Scheduled Tribes was fixed to 10%. After re-organisation of the State of Bihar into two States, the major population of the Scheduled Tribes fell in the State of Jharkhand and only meagre population of Scheduled Tribes of 5,72,904 (0.89%) remained with Bihar. Taking into consideration the such meagre population, reservation of only 1% has been provided for Scheduled Tribes in Bihar, which is just and rational and, thereafter, a circular dated 30.9.2002 (Annexure-5) was also issued prescribing percentage of reservation of different categories with respect to the admission in the educational institutions. It is in proportion to the population of. the Scheduled Tribes in Bihar. It is neither arbitrary nor violative of Articles 14 and 16 of the Constitution of India. It is further stated that the benefit of reservation of 3% to women of Backwa