TMI Blog2020 (9) TMI 1242X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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, it is opined 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. The factors termed as extraordinary and exceptional, justifying reservations in excess of 50 per 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 reservation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Singh, Prashant S. Kenjale, Amit Bhandari, Ashish Gaikwad, Rajesh Tekale, Ramesh Dube, Sachin Patil, Rahul Chitnis, Vaibhav Sugdhare, Akshay Shinde, Geo Joseph, Sudhanshu S. Choudhari, Anil Golegaonkar, Madhu Golegaonkar, Mahesh P. Shinde, Shakul R. Ghatole, Yogesh Kolte, Bhavana Khichi, Bhagwan Gavali, Gunratan Sadvarte, Pawan Kumar Shukla, Pankaj Kumar Singh, Kamal Kumar Pandey, Raj Singh Rana, Premal Krishnan, Rahul Arya, Vivek Singh, Anurag Mankar, Vinayak Bhandari, Ashish Choudhury, Aditya Sidhra, Bharti Tyagi, Amol B. Karande, Mahesh B. Karande, Dilip Annasaheb Taur, Ramesh Dube Patil, Amol Nirmalkumar Suryawanshi, Sandeep Sudhakar Deshmukh, Sindoora V.N.L., Aditi Tripathi, Kanti, Pooja Dhar, Shurtanjaya Bhardwaj, Pallavi Bali, Shivaji M. Jadhav, Aditya P. Khanna, Brij Kishor Sah, Qurratulain, Aditya S. Jadhav, Nicholas Chaudhary, Ajit Pravin Wagh, Prabhleen Kaur, Astha Prasad, Shriram Prahlad Pingle, Sneha Iyer, Abhijit Patil, S.B. Talekar, Vipin Nair, P.B. Suresh, Karthik Jayashankar, Madhavi Ayyapan, Anshuman Bahadur, Rakesh K. Sharma, Rajesh Inamdar, R.F. Totala, Ashutosh Dubey, Rahul Totla, Abhishek Chauhan, Rajshree Dubey, Amit Anand Tiwari, Mary Mitzy, Devyani Gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 warrante ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 earlier, [Indra Sawhney v. Union of India, 1992 Supp. (3) SCC 217 and M. Nagaraj v. Union of India, (2006) 8 SCC 212] 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 premature. 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 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence 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 (102nd 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 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 [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] . 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 (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Research Institute v. State of Madhya Pradesh (2004) 8 SCC 213, 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 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 Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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