Madhya Pradesh High Court Refuses To Vacate Stay On Raising OBC Reservation To 27%

The Madhya Pradesh High Court has refused to vacate a stay order on an ordinance seeking to increase the reservation for Other Backward Classes (OBCs) from 14 per cent to 27 per cent in the State. The state government had moved the Court seeking to vacate the stay which affects the admission to post graduate medical courses.

On hearing both the parties, a Division Bench of Chief Justice Mohammad Rafiq and Justice V K Shukla posted the matter opposing the Ordinance to September 20 for final hearing.

Background

On March 19, 2019, the  the Madhya Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 was promulgated, increasing the reservation of the OBC category from 14% to 27%.

Subsequently, the Ordinance was repealed and replaced with the Madhya Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Amendment Act, 2019, amending Section 4(a) and (b) of the 1994 Act giving effect to the increased per cent of reservation for the OBC category.

The present petition was originally filed challenging the Ordinance; however, after the grant of interim relief, the amendment came and thus, the petition challenges the validity of the 2019 Amendment.

It was the petitioner's case that if the increased 27% is to be considered, the total reservation will go up to 63%, which is constitutionally impermissible.

Ordering a stay on the Ordinance, the Court directed that more than 14% of reservations for the OBC category in admission should not be made. Several other petitions were also filed challenging the same Ordinance and were thus linked with the main petition. The same order mechanically followed in all the other petitions.

Thereby by an order dated January 28, 2020, it was directed that while it is open for the Public Service Commissions to continue with the selection process, the same shall not be finalized, and no appointment shall be made without prior permission of the High Court. On the grounds of parity, the Court ordered that the same order shall mutatis mutandis apply other similarly situated petitions.

However, the Court clarified that the interim order would not be applicable regarding 10% reservation carved out for the economically weaker sections in the General Category as per the 103rd Amendment Act, 2019.

The State has filed the present application for the vacation of the said interim reliefs and the dismissal of the petition.

Submissions & Findings

Solicitor General of India, Mr Tushar Mehta and Advocate General Mr Purushaindra Kaurav argued on behalf of the State seeking to vacate the said interim orders arguing that there is always a presumption concerning the constitutional validity of an enactment. It was argued that until and unless the enactment is declared ultra vires of the Constitution of India, its effect and operation cannot stay.

Mr Mehta also argued that the order staying the effect of the said Ordinance does not record any reasons in support of the same. He submitted that the order dated January 31 2020, has been passed on the suggestion given by the Advocate General. He further proposed that the Court may modify the stay orders in the terms that the appointments to the extent of the increased quota of reservation in favour of the OBC may remain subject to the outcome of the petitions.

Advocate Aditya Sanghi, the lead counsel for the petitioners, opposed the application, arguing that though the reasons have not been elaborated upon in the orders, the Court had heard the matter at quite some length before passing the orders. Moreover, they argued that Article 226(3) could not be invoked at this stage. He prayed before the Court to hear and decide the matter finally.

Noting that the interim orders have been in operation for the past two and a half years, the Court decided to finally hear all the writ petitions instead of vacating the stay orders. Fixing the next date on September 20, 2021, the Court directed the parties to file their written submissions.

Title: Ashita Dubey v. State of Madhya Pradesh & Ors.

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