Supreme Court Issues Notice On West Bengal Govt Plea Against HC Judgement Quashing OBC Classification Of 77 Communities

The Supreme Court today (on August 05), issued notice in a petition filed by the State of West Bengal against the Calcutta High Court's judgment  which quashed the classification of 77 communities as Other Backward Classes (OBC) given under the West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies in Services and Posts) Act, 2012 and cancelling all Other Backward Classes (OBC) certificates issued in West Bengal after 2010. 

The CJI DY Chandrachud-led bench, comprising Justices JB Pardiwala and Manoj Misra also issued notice on the stay application of the impugned order. The Bench asked the State to file an affidavit explaining the process followed for the classification of 77 communities as OBCs : (1) the nature of the survey; (2) whether there was a lack of consultation with the backward classes commission in respect of any communities in the list of 77 communities designated as OBCs. 

Apart from this, the Court also asked whether any consultation was done by the State for the sub-classification of the OBCs and clarify the nature of the study relied upon. 

At the commencement of the hearing, Senior Advocate Indira Jaising, appearing for the State, submitted that the executive function of the State has been taken away. 

"HC holds this is the prerogative of the commission not the state, the commission is set up in 1993, but that state has put up a law in 2012 on how to classify. . The process is that the first commission identifies these are the OBCs , then state applies its mind.," She submitted. 

She argued about the consequences of striking down the list of reservations. She said that this, in turn, affects NEET as well because there is a reservation for education as well. She also pointed out the language used by the High Court for the Commission. 

"Look at the language used in the order, the retired CJ of the High Court is heading the Commission....all because the community happens to be Muslim...This is the reason they give, that the reservation is done on basis of religion! ....all because they are Muslims, I made this reservation, this is the reasoning given."

Continuniug her argument, she said that there were reports after reports which were also considered, inter-alia, Mandal Commission.In view of this, she stressed getting the interim reliefs. 

Countering this, Senior Advocate Mukul Rohatgi said that the Court should not pursue the case saying that this is an "egregious case". He also submitted that there was no survey done and to support the same, he referred to the High Court judgment. 

The Court said that striking down the list was a radical act as there would be no reservations in the state. When CJI asked as to why the Court has called this fraud on the Constitution, Senior Advocate P.S. Patwalia submitted "that CM first says that 37 classes will be given OBC status, then they are classified under OBC -A. Priority above all other OBCs.". He said that for three castes, there was no survey and the same was analysed by the High Court. Elaborating, he referred to the impugned judgment that observed that the reports did not consider the recommendations of the Commission. 

The Senior advocate, appearing for the respondent, said that no consultation was done with the Commission. At this, Advocate Bansuri Swaraj added  that this sets a strong and dangerous precedent, where the state's politics of appeasement will continue. 

At this, the CJI said that it is dealing with 77 Communities and asked how many of them are on the Central list. He also asked Jaising ,"What is there to indicate there was quantifiable data to show the backwardness of the classes?"

She submitted that the role of the commission is to do identification based on data. When Court asked as to how 7-8 communities where admitted on a single day? Jaising said that there were multiple hearings for six months. 

After hearing the arguments, the Court passed the aforementioned order and  listed the matter for next Friday. 

The Calcutta High Court on May 22, in its impugned Judgement, clarified that those who had attained employment on the benefit of the act and were already in service because of such reservation would not be affected by the order.

In its order, the High Court has struck down 37 classes for reservation as Other Backward Classes (OBC) given under The West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies in Services and Posts) Act, 2012.

A division bench of Justices Tapabrata Chakraborty and Rajasekhar Mantha delivered the verdict in a plea challenging the process of granting OBC certificates in the state. The verdict is set to affect 5 Lakh OBC certificates. The Court said: 

A class is declared as OBC not only because it is backward, based on scientific and identifiable data, but also on the basis of such class being inadequately represented in the services under the State. Such inadequacy is required to be assessed vis-a-vis the population as a whole including other unreserved classes. However, the pro format published by the Commission and as annexed to the writ petition (WP No.60 of 2011) does not conform to the provisions of the 1993 Act. There are deficiencies galore in the said pro forma. 

The Order Of The High Court 

The Court was adjudicating on a plea which challenged certain provisions of the West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies in Services and Posts) Act, 2012, which made reservations in public offices for those belonging to the OBC category.

In making observations on how the Commission acted improperly in connivance with the Chief Minister's mission to extend reservations, the Court opined:

"The Commission and State acted in undue haste and with lightning speed in making recommendations for the classification of the 77 classes to make the public announcement of the then Chief Minister a reality. According to the petitioners, the Commission appeared to be in a tearing hurry to fulfil the wishes of the Chief Minister made in a political rally. No proper enquiry was conducted by the Commission inviting application for inclusion in the lists and even after purported preparation of the list, no notification was issued inviting objections in general from the people at large."  

Thus, the authorities have violated the constitutional provisions and had practiced protective discrimination in deviation to the constitutional norms. No data was disclosed on the basis of which it was ascertained that the concerned community is not adequately represented in the services under the Government of West Bengal. The said reports were never published and as such none could avail the opportunity to file any objection to the same, it added. 

The Court also observed that  the recommendations for sub-classification of OBCs by the state were made upon bypassing the State commission, and that 41 out of the 42 classes that were recommended for reservation belonged to the Muslim community,

The Court stated that the primary and sole consideration for the Commission had been to make religion-specific recommendations. To curtain and hide such religion-specific recommendations, the Commission has prepared the reports for the ostensible purpose of granting reservation to the backward classes to hide the real purpose behind such recommendations. The purpose was to grant a religion-specific reservation, it stated.

The bench held that while the Commission purports to show by way of such reports, (which however has not been relied upon by the State and Commission before the Court), that it had complied with section 9 of the Act of 1993 read with article 16(4) of the Constitution of India.

Case Details : THE STATE OF WEST BENGAL AND ANR. Versus AMAL CHANDRA DAS Diary No. - 27287/2024

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