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