CAPTIN GURVINDER SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) These writ petitions have been filed by the Petitioners assailing the vires of Rajasthan Scheduled Castes, Scheduled Tribes, Backward Classes, Special Backward Classes and Economically Backward Classes (Reservation of Seats in Educational Institutions in the State and of Appointments and Posts in Services under the State) Act, 2008 (hereinafter referred to as "the Act of 2008"). Prayer has also been made to direct the State Government to review the ceiling limit of reservation in favour of SC, ST and OBC of 16%, 12% and 21% respectively.

(2.) Facts are being noticed from Civil Writ Petition No. 13491/2009 wherein the Petitioner No. 4-Samta Andolan, which is a registered society, has submitted that constitutional intent is to reduce the reservation. It is submitted that the foremost requirement for reservation is to collect quantifiable data in overall State relating to the population as well as relating to economical standard of the caste in general and people in that caste in particular. After having collected such datas and further making a comparative statement with respect to other castes in the State only for the purposes of providing upliftment of particular class or caste, reservation can be provided. 100 point roster is being applied and reservation has been increased. The Act of 2008 has been published in the Rajasthan Gazette on 31st July, 2009 under which various castes including Gurjars and Rebaries have been included in the SC/ST, OBC, Special Backward Classes (SBC) and Economically Backward Classes (ECB). While enacting the aforesaid Act of 2008, the State has not relied upon any census conducted in this regard and no exercise at the level of the State was ever done to ascertain whether any particular caste is actually socially backward or not. The Petitioners sought information under the which indicates that no such study has been undertaken by the State Government. It is further averred that so far as Gurjars and Rebaries are concerned, they were included in Other Backward Classes. However, due to political stir, the State Government without examining the issue, came up with the Notification dated 31st July, 2009 notifying the Act of 2008. Now, reservation of seats in educational institutions in the State has been provided to the extent of 68% to SC, ST, OBC, SBC and EBC. 16% for Scheduled Castes, 12% for Scheduled Tribes, 21% for Backward Classes, 5% for Special Backward Classes and 14% for Economically Backward Classes with the rider that persons belonging to the creamy layer shall not be eligible for consideration against the reserved quota of seats in any educational institution in the State. However, provision of creamy layer shall not be applicable to the reservation for the Scheduled Castes and Scheduled Tribes. The aforesaid reservation in service has been provided vide Section 4 of the Act of 2008. As per mandate of the Supreme Court in no quantifiable datas are being collected of various castes or so called backward classes in the State of Rajasthan. In-fact, there was no need for giving any further reservation as by efflux of time, there is upliftment of the persons belonging to backward classes. The Petitioners have applied for furnishing certain datas, but that has not been furnished. However, whatever datas, which have been furnished, indicate that State has no reliable and up-to-date datas regarding representation of the different class or caste in the public employment. Adequate representation does not mean proportionate representation. With the passage of time, most of the tribal population have lost their "tribal" character and does not fulfil the criteria laid down by the Apex Court for providing reservation. All tribal groups have been represented in public employment not only adequately but more than proportionately.

(3.) The State Government has also issued Notification dated 25.8.2009 in exercise of the power conferred under Section 2(b) of the Act of 2008 and has increased the ceiling financial limit for creamy layer from 2.5 lacs to 4.5 lacs. The aforesaid notification is not constitutionally valid as it would not be possible to percolate down the benefit to the needy. The Act is incompatible with the constitutional intentment and is against the mandate of Indra Sawhney V. Union of India, 1992 Supp3 SCC 217. The validity of 77th, 81st and, 85th Amendment was challenged before the Supreme Court in M. Nagaraj's case (supra) and the Apex Court has enumerated the essential criteria that study has to be done for providing reservation. The Apex Court has made it clear that creamy layer is required to be excluded from SC/ST apart from OBC otherwise it would be against the mandate of Article 16(1) of the Constitution. The gap between BPL and ceiling limit of creamy layer is huge. The State ought to have made endeavour to reduce reservation and it has acted contrary to the intentment of the Constitution by enhancing reservation upto 68%.