STATE OF MAHARASHTRA Vs. VIJAY GHOGRE & ORS.

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) The Hon'ble the Chief Justice by order dated 23rd January 2017, has made this Reference in terms of Rule 7 of Chapter I of The Bombay High Court, Appellate Side Rules, which inter alia provides that the point of difference of opinion between Judges of a Division Bench shall be decided in the manner provided for in section 98 of the Code of Civil Procedure or section 392 of the Code of Criminal Procedure as the case may be. Such Reference was necessitated on account of divergent opinions expressed by the Hon'ble Justice Anoop V. Mohta (opinion dated 26th July 2016) and Hon'ble Justice A. A. Sayed (opinion dated 21 st December 2016) in writ petition no. 2797 of 2015 and connected matters.

(3.) In his opinion dated 26th July 2016, Hon'ble Justice Anoop V. Mohta has reversed the MAT's judgment dated 28 th November 2014 which had held the Maharashtra State Public Services (Reservations for Scheduled Castes, Scheduled Tribes, De-Notified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and other Backward Classes) Act 2001 (Reservation Act) and GR dated 25 th May 2004 as ultra vires the Constitution. On the other hand, Hon'ble Justice A. A. Sayed, in his opinion dated 21st December 2016 has held that the GR dated 25th May 2004 is ultra vires the Constitution. On the aspect of constitutional validity of the Reservation Act, Hon'ble Justice A. A. Sayed has held that such question did not legitimately arise in the facts and circumstances and was merely academic. Therefore, the MAT, was not justified in deciding the question of the constitutional validity of the Reservation Act. Apart from such fundamental divergence, the Hon'ble Judges have issued certain consequential directions, which again, are at some variance with each other.