Jaishri Laxmanrao Patil vs The Chief Minister And Ors. on 9 September, 2020

Supreme Court of India

Jaishri Laxmanrao Patil vs The Chief Minister And Ors. on 9 September, 2020

Author: L. Nageswara Rao

Bench: [ R Bhat], [ N Rao]

                                   Non- Reportable


         IN THE SUPREME COURT OF INDIA
          CIVIL APPELLATE JURISDICTION


           Civil Appeal No. 3123 of 2020
          [@ S.L.P. (C) No. 15737 of 2019]


Dr. Jaishri Laxmanrao Patil   …. Appellant (s)

                     Versus

The Chief Minister & Anr.     .... Respondent(s)

WITH

Civil Appeal No. 3124 of 2020
[@ SLP(C) No. 15701 of 2019]

Civil Appeal No. 3127 of 2020
[@ SLP(C) No. 16550 of 2019]

Civil Appeal No. 3126 of 2020
[@ SLP (C) No. 15991 of 2019]

Civil Appeal No. 3125 of 2020
[@ SLP(C) No. 15946 of 2019]

Civil Appeal No. 3128 of 2020
[@ SLP(C) No. 16650 of 2019]

Civil Appeal No. 3134 of 2020
[@ SLP (C) No. 10754 of 2020]
[@ Diary No(s). 25447 of 2019]

Civil Appeal No. 3131 of 2020

1 | Page
[@ SLP(C) No. 19743 of 2019]

Civil Appeal No. 3130 of 2020
[@ SLP(C) No. 19742 of 2019]

Civil Appeal No. 3129 of 2020
[@ SLP(C) No. 18845 of 2019]

Civil Appeal No. 3132 of 2020
[@ SLP(C) No. 8593 of 2020]

W.P.(C) No.915 of 2020

W.P.(C) No.504 of 2020

W.P.(C) No.914 of 2020

W.P (C) No.938 of 2020

Civil Appeal No. 3133 of 2020
[@ SLP (C) No. 10753 of 2020]
[@ Diary No(s).23905 of 2019]

O R D E R

Leave granted.

1. The Maharashtra State Reservation (of Seats for

admission in Educational Institutions in the State and for

appointments in the Public Services and posts under the

State) for Socially and Educationally Backward Classes

(SEBC) Act, 2018 (hereinafter referred to as “the Act”)

which came into force on 30.11.2018, declared Marathas to

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be a “Socially and Educationally Backward Class”.

Reservations to the extent of 16 per cent of the total seats

in educational institutions including private educational

institutions and 16 per cent of the total appointments in

direct recruitment for public services and posts under the

State, were separately made for “socially and educationally

backward classes” according to Section 4 of the Act. The

constitutional validity of the Act was challenged by filing

Public Interest Litigations in the High Court of Bombay. The

High Court of Bombay upheld the constitutionality of the

Act. However, the High Court reduced the quantum of

reservations provided therein from 16 per cent to 12 per

cent in respect of the educational institutions and from 16

per cent to 13 per cent in respect of public employment.

2. Unsuccessful, the Appellants assailed the correctness

of the judgment of the High Court by filing the above

Appeals. By an order dated 12.07.2019, notice was issued

in the SLPs giving rise to these Appeals. It was made clear

that any action taken pursuant to the judgment of the High

Court shall be subject to the result in the SLPs. In view of

the importance of the issue involved in these Appeals, we

listed the matter for hearing on 27.07.2020. Though the

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learned counsel appearing for the Appellants pressed for

the hearing to commence, the learned counsel appearing

for the Respondents expressed their apprehensions about

the feasibility of hearing the Appeals through Virtual

Hearing. The concern voiced by them was that a large

number of Advocates are appearing and there is

voluminous record to be perused, which makes it difficult

for hearing through Video Conferencing.

3. On 27.07.2020, Mr. Mukul Rohatgi, learned senior

counsel appearing for the State of Maharashtra referred to

a Government Resolution dated 04.05.2020 to submit that

the State Government has taken a decision not to

undertake any type of fresh recruitment process except in

Public Health Department and Department of Medical

Education and Research. Mr. Rohatgi further submitted

that the Appeals have to be heard after the

commencement of physical Courts and the Appellants

cannot have a grievance in view of the decision of the

State Government to not make appointments to public

services and posts. On the contrary, the Appellants

contended that postponement of the hearing of the

Appeals would result in loss of seats for the open category

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candidates in admissions to Educational Institutions for the

current academic year.

4. Relying upon the submissions made on behalf of the

State of Maharashtra that no appointments shall be

made till 15.09.2020, this Court directed the Appeals to

be listed after four weeks from 27.07.2020. We made it

clear that no interference was warranted in Post

Graduate medical admissions as they were at a final

stage. We indicated that on 01.09.2020 that arguments

will be heard on grant of interim relief relating to

admissions to the Under Graduate medical courses.

Interlocutory Applications filed on behalf of the

Respondents for reference of the Appeals to a larger

Bench were directed to be listed for consideration on

25.08.2020.

5. We have heard Mr. Mukul Rohatgi and Mr. P.S.

Patwalia for the State of Maharashtra, Mr. Kapil Sibal, Dr.

Abhishek Manu Singhvi, Mr. C.U. Singh, Mr. P.S.

Narasimha, Mr. Vinay Navare, Mr. Rafique Dada, learned

senior counsel and Mr. Sudhanshu S. Choudhari, learned

advocate, for the applicants and Mr. Arvind P. Datar, Mr.

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Shyam Divan, Mr. Pradeep Sancheti, Mr. B.H. Marlapalle,

Mr. Gopal Sankaranarayanan, Mr. Siddharth Bhatnagar,

and Dr. Gunratan Sadavarte, learned senior counsel, and

Mr. Amit Anand Tiwari, learned counsel, for the

Respondents in the applications. The contention of the

applicants is that there are substantial questions of law

as to the interpretation of the Constitution of India that

arise in these Appeals and, therefore, they should be

referred to a larger Bench. It was submitted that Articles

338-B and 342-A which have been inserted by the

Constitution (102nd Amendment) Act, 2018 fall for

consideration of this Court for the first time. It was

further submitted that there is a need for re-

consideration of the judgment of this Court in Indra

Sawhney v. Union of India1, especially after the

Constitution (103rd) Amendment, 2019 introduced certain

changes to the Constitution of India. According to the

applicants, Indra Sawhney (supra) needs a re-look by a

larger Bench in view of the changing social conditions.

Learned counsel for the applicants contended that

Janhit Abhiyan v. Union of India2, in which the
1 1992 Supp. (3) SCC 217.

2 2020 SCC Online SC 624

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validity of the Constitution (103rd) Amendment, 2019 was

challenged, has already been referred to a Constitution

Bench. State of Punjab v. Davinder Singh,3 which

involves the interpretation of provisions of the

Constitution pertaining to reservations has also been

referred to a larger Bench. Thus, the applicants contend

that these Appeals similarly deserve to be considered by

a larger Bench. In addition, it was contended that the

interplay between Articles 14, 15, 16, 338-B and 342-A of

the Constitution has not been considered by this Court

earlier. On the basis of the above submissions, the

learned counsel appearing for the applicants sought

reference to a larger Bench.

6. On behalf of the Respondents, it was submitted that

the main question that arises for consideration of this

Court is regarding the validity of the Act which provided

for reservations in transgression of the 50 per cent

ceiling limit fixed by Indra Sawhney (supra). The

question of reservations being in excess of 50 per cent

has been considered by larger Benches of this Court

3 2020 SCC OnLine SC 677.

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earlier,4 and hence, there is no necessity for reference of

the Appeals to a larger Bench. It was argued that the

applications for reference to a larger Bench are pre-

mature. The Respondents contended that according to

the proviso to Article 145 (3) of the Constitution of India,

any application for reference can be filed only during the

course of hearing and not at the threshold. State of

Punjab v. Davinder Singh (supra) relates to sub-

classification of Schedule Castes and re-consideration of

the judgment of this Court in E.V. Chinnaih v.

State of Andhra Pradesh.5 As such, the issue involved

in that case is different from the dispute arising in the

present matter. Instances of this Court deciding matters

relating to reservations without reference to larger

Benches have been cited by the learned counsel for the

Respondents.6 Having relied upon the judgment of this

Court in Indra Sawhney (supra) before the High Court,

the Respondents argued that it is not open to the State

4 Indra Sawhney v. Union of India, 1992 Supp. (3) SCC 217 and M. Nagaraj v. Union of
India, (2006) 8 SCC 212.

5 (2005) 1 SCC 394.

6 Nair Service Society v. State of Kerala, (2007) 4 SCC 1, Suraj Bhan Meena v. State of
Rajasthan, (2011) 1 SCC 467, U.P. Power Corporation. v. Rajesh Kumar, (2012) 7 SCC 1,
H.P. S.T. Employees Federation v. H.P. Samanaya Varg Karamchari Kalayan , (2013) 14
SCC 288, Ram Singh v. Union of India, (2015) 4 SCC 697, S. Panneer Selvam v. State of
Tamil Nadu, (2015) 10 SCC 292, Suresh Chand Gautam v. State of U.P., (2016) 11 SCC
113 and B.K. Pavitra v. Union of India, (2017) 4 SCC 420.

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of Maharashtra to now doubt the correctness of the

judgment.

7. In so far as the submission relating to the reference

of these Appeals to a larger Bench on the ground of the

extent of reservations is concerned, we are not in

agreement with the learned counsel for the applicants

that the Appeals warrant reference to a larger Bench.

Undoubtedly, this Court in Indra Sawhney (supra) held

that reservations contemplated in Article 16 (4) should

not exceed 50 per cent except in certain extraordinary

situations. This Court in Indra Sawhney (supra) was of

the opinion that extreme caution has to be exercised and

a special case must be made out for exceeding the limit

of 50 per cent. The ceiling limit of 50 per cent on

reservations has been re-affirmed by this Court in M.

Nagaraj (supra). As the question relating to the

extent of reservation has already been decided by this

Court, it cannot be said that any substantial question of

law as to the interpretation of the Constitution arises in

this case7.

7 See Abdul Rahim Ismail C. Rahimtoola v. State of Bombay , (1960) 1 SCR 285 and Shrimanth
Balasaheb Patil v. Karnataka Legislative Assembly , (2020) 2 SCC 595.

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8. However, we find force in the submissions made on

behalf of the Respondents relating to the Constitution

(102nd Amendment) Act, 2018. One of the issues that

was considered by the High Court at the instance of the

writ petitioners is whether the Constitution (102 nd

Amendment) Act, 2018 affects the competence of the

State Legislature to declare a particular caste to be a

socially and educationally backward class. According to

the writ petitioners in the High Court, the State

Legislature has been denuded of this power after the

Constitution (102nd Amendment) Act, 2018 came into

force. The High Court rejected the said contention and

upheld the legislative competence of the State

Legislature. There is no authoritative pronouncement on

the interpretation of the provisions inserted by the

Constitution (102nd Amendment) Act, 2018. We are

satisfied that interpretation of Articles 338-B and 342-A,

which are inserted by Constitution (102 nd Amendment)

Act, 2018, involves a substantial question of law as to

the interpretation of the Constitution and the

determination of such question is necessary for the

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disposal of the Appeal. Thus, as mandated by Article 145

(3) of the Constitution of India, these Appeals require to

be considered by a larger Bench. In view of our decision

to refer these Appeals to a larger Bench, we do not

consider it necessary to adjudicate on the other points

raised by the applicants.

9. In view of the reference of these Appeals to a larger

Bench, it is necessary to consider the request of the

Appellants for passing interim orders. It was submitted

on behalf of the Appellants that a strong prima facie case

is made out by them as the Act providing reservation in

excess of 50 per cent is contrary to the judgment of this

Court Indra Sawhney (supra) and M. Nagaraj

(supra). It was further asserted that the Marathas have

not been treated as a backward class for a long period of

time and the balance of convenience is in favour of the

General category candidates who would be deprived of a

substantial number of seats in Educational Institutions

and posts in public services if the Act is implemented. It

was further contended by the Appellants that a large

number of public services and posts are sought to be

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filled up and implementation of reservations as provided

in the Act would cause irreparable loss to the General

Category candidates. That apart, admissions made to

Educational Institutions will deprive the meritorious

candidates belonging to the general category of an

opportunity to pursue higher education. It was

contended by the learned counsel for the Appellants that

while making a reference to a larger Bench, this Court

can grant interim orders as has been done in the past in

Ashok Kumar Thakur (8) v. Union of India8 and K.S.

Puttuswamy v. Union of India9, M. Nagaraj v. Union

of India10 and S.V. Joshi v. State of Karnataka.11 It

was urged on behalf of the Appellants that there is no

bar on passing interim orders in spite of the existence of

statute. Reliance was placed on State of Rajasthan v.

Ganga Sahay Sharma,12 wherein this Court refused to

stay the ongoing legislative process creating reservations

for ‘more backward classes’ which included Gujjars, but

restrained the State Government from taking any action

conferring reservation, which will have the effect of
8 2007 (4) SCC 361.

9 2015 (8) SCC 735.

10 I.A. No. 2 in W.P. (C) No. 62/2002 (order dt. 08.04.2002).
11 (2012) 7 SCC 41 at para 9.

12 S.L.P. (C) No. 30936/17.

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exceeding the total reservations beyond 50 per cent. The

Appellants also referred to interim orders passed by the

High Courts of Madhya Pradesh13 and Chhattisgarh14

staying the ordinance and legislation respectively

enacted by the States providing reservations in excess of

50 per cent. The Appellants pleaded that interim orders

made earlier in these Appeals making all admissions and

appointments subject to the result of these Appeals will

not protect the interests of the General Category

candidates as admissions and appointments made on

the basis of the Act will not be reversed.

10. Refuting the submissions made on behalf of the

Appellants, the Respondents contended that ordinarily,

the Court does not pass interim orders staying the

operation of statutory provisions. 15 The Respondents

contended that the Appellants are not entitled to seek

any interim orders in these Appeals which have been

filed against the judgment of the High Court upholding

the Act. Reliance was placed on the judgment of this

Court reported in Health for Millions v. Union of India
13 Ashita Dubey v. State of Madhya Pradesh, WP-1509-2019.
14 Ved Prakash Singh Thakur v. State of Chhattisgarh, W.P.C. No. 3174 of 2019.
15 Bhavesh Parish v. Union of India, (2000) 5 SCC 471, State of U.P. v. Hirendra Pal
Singh, (2011) 5 SCC 305, and Health for Millions v. Union of India, (2014) 14 SCC 496.

13 | P a g e
(supra) in support of the said submission. It was

argued on behalf of the Respondents that once the

matter is referred to a larger Bench, no interim orders

can be passed by the referring court and it should be left

open to the larger Bench to consider any interim relief.

To support this contention, the learned senior counsel for

the State of Maharashtra cited the orders of this Court

reported in Supreme Court Advocates-On-Record

Assn. v. Union of India16, State of Tripura v. Jayanta

Chakraborty17 and Tamil Nadu Medical Officers

Association v. Union of India18. It was also urged on

behalf of the State of Maharashtra that this Court did not

pass any interim order while referring the challenge to

the Constitution (103rd Amendment) Act, 2019 to a larger

Bench.

11. It is no doubt true that the Act providing

reservations has been upheld by the High Court and the

interim relief sought by the Appellants would be contrary

to the provisions of the Act. This Court in Health for

Millions v. Union of India (supra) held that courts

16 (2015) 6 SCC 408.

17 (2018) 1 SCC 146.

18 (2018) 17 SCC 478.

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should be extremely loath to pass interim orders in

matters involving challenge to the constitutionality of a

legislation. However, if the Court is convinced that the

statute is ex-facie un-constitutional and the factors like

balance of convenience, irreparable injury and Public

Interest are in favour of passing an interim order, the

Court can grant interim relief. There is always a

presumption in favour of the constitutional validity of a

legislation. Unless the provision is manifestly unjust or

glaringly un-constitutional, the courts do show judicial

restraint in staying the applicability of the same 19. It is

evident from a perusal of the above judgment that

normally an interim order is not passed to stultify

statutory provisions. However, there is no absolute rule

to restrain interim orders being passed when an

enactment is ex facie un-constitutional or contrary to the

law laid down by this Court.

12. The orders relied upon by the learned counsel for

the State of Maharashtra no doubt reveal that in those

cases, the grant of interim relief was left open for

consideration by the larger Bench. But there is no bar
19 See Bhavesh Parish v. Union of India, (2000) 5 SCC 471.

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per se for the referring Bench to pass interim orders

while sending matters to a larger Bench. In Ashok

Kumar Thakur (8) v. Union of India (supra),

K.S. Puttaswamy v. Union of India (supra),

M. Nagaraj v. Union of India (supra), S.V. Joshi

v. State of Karnataka (supra), P.A. Inamdar v.

State of Maharashtra20, and Modern Dental

College & Research Institute v. State of Madhya

Pradesh21, this Court passed interim orders while

referring the matters to a larger Bench. In view of the

above, we are of the considered opinion that the

referring Court is not disabled from passing interim

orders merely because the matter is referred to a larger

Bench.

13. The main contention of the Appellants before the

High Court was that the Act is contrary to the law laid

down by this Court in Indra Sawhney (supra) as the

reservations provided by the Act are in excess of 50 per

cent. According to the High Court, there is no fetter

placed by Indra Sawhney (supra) on the power of the

20 (2004) 8 SCC 139.

21 (2004) 8 SCC 213.

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State to exceed reservations by more than 50 per cent

in a deserving case. In extraordinary and exceptional

circumstances the State can provide reservations in

relaxation of the rule of 50 per cent. The High Court

observed that the extraordinary situations contemplated

by Indra Sawhney (supra) were not exhaustively set

out. The High Court held that the State was justified in

providing reservation in excess of 50 per cent in view of

the following extraordinary situation and exceptional

circumstances: –

a) The erroneous exclusion of the Maratha community

from reservation contributed to an extraordinary

situation in that the community was deprived of the

benefits flowing from reservations.

b) The Gaikwad Commission found that the Maratha

community is socially, educationally and

economically backward and is not adequately

represented in Government services. Therefore, the

steps taken by the State Government for upliftment

of the Maratha community fall within the

exceptional and extraordinary circumstances.

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c) According to the Gaikwad Commission there is an

extraordinary situation of 85 per cent of the

population of Maharashtra being backward.

Adjusting them in 50 per cent which is the

permissible ceiling limit as per Indra Sawhney

(supra) is not possible. Hence, relaxation of the

rule of 50 per cent is justified in view of the

exceptional circumstances.

14. It is necessary to understand the controversy

relating to ceiling limit of 50 per cent settled by Indra

Sawhney (supra) for deciding the grant of interim

relief. The relevant question posed by Jeevan Reddy, J. is

whether the 50 per cent rule enunciated in M.R. Balaji

v. State of Mysore22 is a binding rule or only a rule of

caution or prudence.

15. After observing that Article 16 (4) should be

balanced against the guarantee of equality enshrined in

Article 16 (1), which is a guarantee held out to every

citizen, it was categorically held that reservations

contemplated in Clause (4) of Article 16 should not

exceed 50 per cent. The relaxation of the strict rule of
22 1963 Supp (1) SCR 439.

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50 per cent can be made in certain extraordinary

situations. People living in far flung and remote areas

not being in the mainstream of national life should be

treated in a different way. In view of the conditions

peculiar to them they are entitled to be given relaxation.

It was made clear that extreme caution has to be

exercised and a special case made out for relaxation of

the rule of 50 per cent. Applying the law laid down by

this Court in Indra Sawhney (supra), we are of the

prima facie opinion that the State of Maharashtra has not

shown any extraordinary situation for providing

reservations to Marathas in excess of 50 per cent.

Maratha community which comprises of 30 per cent of

the population in the State of Maharashtra cannot be

compared to marginalized sections of the society living in

far flung and remote areas. The State has failed to make

out a special case for providing reservation in excess of

50 per cent. Neither has any caution been exercised by

the State in doing so.

16. The factors termed as extraordinary and

exceptional, justifying reservations in excess of 50 per

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cent are those required for the purpose of providing

reservations. The social, educational and economic

backwardness of a community, existence of quantifiable

data relating to inadequacy of representation of the

community in public services and deprivation of the

benefits flowing from reservations to the community are

not exceptional circumstances for providing reservations

in excess of 50 per cent. We are of the prima facie

opinion that the High Court committed an error in

treating the above factors as circumstances which are

extraordinary, warranting relaxation of the strict rule of

50 per cent. Admittedly, reservations provided to the

Maratha community were implemented in educational

institutions for one academic year only. Implementation

of the Act for admissions in educational institutions and

appointments to public posts during the pendency of

these Appeals will cause irreparable loss to the

candidates belonging to the open category. It will be

difficult to cancel the admissions made in the

educational institutions and appointments made to the

public posts by implementing the reservations as per the

Act.

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17. In view of the foregoing, we pass the following

orders: –

(A) As the interpretation of the provisions inserted

by the Constitution (102nd Amendment) Act, 2018 is

a substantial question of law as to the interpretation

of the Constitution of India, these Appeals are

referred to a larger Bench. These matters shall be

placed before Hon’ble The Chief Justice of India for

suitable orders.

(B) Admissions to educational institutions for the

academic year 2020-21 shall be made without

reference to the reservations provided in the Act. We

make it clear that the Admissions made to Post-

Graduate Medical Courses shall not be altered.

(C) Appointments to public services and posts

under the Government shall be made without

implementing the reservation as provided in the Act.

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Liberty to mention for early hearing.

…………………………..J.
[L. NAGESWARA RAO]

………………..……………J.

[HEMANT GUPTA]

…………………………..J.
[S. RAVINDRA BHAT]

New Delhi,
September 09, 2020.

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