1 1. D.B.Civil Writ Petition No.13491/2009 Captin Gurvinder Singh & ors. V/s State of Rajasthan 2. D.B.Civil Writ Petition No.12810/2009 G.Sharma V/s State of Rajasthan 3. D.B.Civil Writ Petition No.13884/2009 All India Equality Forum V/s State of Rajasthan & anr. 22.12.2010 Hon'ble the Chief Justice Mr.Arun Mishra Hon'ble Mr.Justice Mahesh Bhagwati Mr.S.P.Sharma ) Mr.Shobhit Tiwari )-for the petitioners. Mr.Sandeep Singh ) Mr.P.P.Rao, Senior Counsel ) Mr.G.S.Bapna, Advocate General ) Mr.V.Garg ) Mr.Sarvesh Jain )-for respondents. Mr.Praveen Poswal for ) Mr.V.S.Gurjar ) Mr.R.R.Baisla ) Reportable 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 2 Government to review the ceiling limit of reservation in favour of SC, ST and OBC of 16%, 12% and 21% respectively. 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 Right to Information Act 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 3 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 M.Nagaraj & ors. V/s Union of India and ors. ((2006) 8 SCC 212), 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 4 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. 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/s Union of India (1992 Supp (3) 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%. In the return filed by the State Government, it is contended that the State of Rajasthan has separated Gurjar community from Other Backward 5 Classes and had separately given 5% reservation to Gurjars, Gadia Lohars, Banjaras and Raikas as Special Backward Classes (SBC). Under the Act of 2008, provision for reservation to the extent of 14% for Economically Backward Classes (EBC) had been made. Due to the aforesaid provision, reservation has exceeded to the extent of 68%. Gurjar community has been held as most backward caste/class by the Backward Class Commission headed by Kaka Kalekar. Other cognate communities are not adequately represented in the services of the State. The Committee headed by Justice J.R.Chopra was appointed looking to the demand of Gurjars to grant them status as Scheduled Tribe. The Commission has found that Gurjars are inadequately represented in the services of the State and they are socially and educationally backward. Gurjars, Gadia Lohars, Banjaras and Raikas are the communities, which are dependent upon villiage commons for their livelihood. They are also being nomadic communities at times. Considering the report of the Committee, positive and proactive action has been taken by the State. A case had been made out to exceed reservation beyond 50% considering the peculiar situation. The Act of 2008 has been enacted with a view to uplift Gurjars, Gadia Lohars, Banjaras and Raikas. Mandate of Indra Sawhney (supra) and M.Nagaraj (supra) has not been violated. The Committee employed the following criteria for identifying the special backward class:- (i) Low social position in the traditional caste hierarchy. (ii) General educational advancement among 6 the major section of caste/community. (iii) Inadequate representation in government service. (iv) Inadequate representation in the field of trade, commerce and industry.” In Chapter-V of the report, the Committee examined the status of the Gurjars. The petitions cannot be said to be maintainable. The action is intended to bring equality. The petitions being meritless deserve dismissal. Rejoinder has been filed by the petitioners pointing out that in Rajasthan, no Committee has been formed and Kaka Kalekar Commission was a Commission for All India and there was no commission specifically for the State of Rajasthan. Datas have not been collected for increasing the extent of reservation. Increase in reservation is politically motivated. Reliance has also been placed on the decision of the Apex Court in Suraj Bhan Meena & Anr. V/s State of Rajasthan & ors. (Special Leave Petition (Civil) No.6385 of 2010 decided on 7.12.2010) in which decision in the case of M.Nagaraj (supra) was relied upon and the judgment of this Court quashing Notifications dated 28.12.2002 and 25.4.2008 issued by the State of Rajasthan was upheld on the ground that no exercise was undertaken in terms of Article 16(4-A) to acquire quantifiable data regarding the inadequacy of representation of the Scheduled Castes and Scheduled Tribes communities in public services. The point of reference to Chopra Committee is whether Gurjars should be included in ST category with which 7 Chopra Committee did not agree. Thus, no study was undertaken by Chopra Committee with respect to Gurjar belonging to Special Backward Classes particularly when Gurjars were already covered under the category of OBC. There was no rhyme or reason to provide them special status by including them in Special Backward Classes without undertaking requisite study. Mr.S.P.Sharma, Mr.Shobhit Tiwari amd Mr.Sandeep Singh, learned counsel appearing on behalf of the petitioners have submitted that the provisions of Sections 3 and 4 of the Act of 2008 are illegal and arbitrary, inasmuch as, reservation has been enhanced upto 68% without undertaking requisite study and collecting quantifiable datas and without considering the criteria laid down by the Apex Court in M.Nagaraj's case (supra). The Act of 2008 could not have been enacted without undertaking any study. Notification has also been issued with respect to enhancement of financial limit of creamy layer in the Other Backward Classes from 2.5 lacs to 4.5 lacs. The effect of notification would be detrimental even to the Other backward classes and benefit is going to be usurp by higher income group. There was no rhyme or reason behind increasing the income from 2.5 lacs to 4.5 lacs for being creamy layer. Reliance has also been placed on the decision of the Apex Court in the case of S.V.Joshi & ors.V/s State of Karnataka & ors. (Writ Petition (Civil) No.259 of 1994 decided on 13th July, 2010). In any case, the reservation could not have been exceeded 50% and efforts should have been made to reduce it by undergoing requisite study. Gurjars are already included in the Other Backward 8 Classes and Chopra Committee has opined that they could not have been treated as Members of ST category, there was no reason for creating Special Backward Class for Gurjars, Gadia Lohars, Banjaras and Raikas. Point of reference to Chopra Committee was not for creating Special Backward Class, no such category could have been created. The reservation which has been provided to the Economically Backward Classes (EBC) and to the extent of 14% is also impermissible and suffers from the same vice and is clearly hit by the decisions of the Apex Court in the cases of M.Nagaraj (supra), Indra Sawhney (supra) and Ashoka Kumar Thakur V/s Union of India and ors. ((2008) 6 SCC 1). Mr.P.P.Rao, learned Senior Counsel appearing with Mr.G.S.Bapna, Advocate General on behalf of the State submitted that the Act of 2008 has been enacted considering the down-trodden status of Gurjars, Gadia Lohars, Banjaras and Raikas and in order to bring about equality and duly considering the representation in the State services and taking into account the report of the Chopra Committee, though the point referred to Chopra Committee was with respect to whether Gurjars could be treated as tribal persons for inclusion in Scheduled Tribes, but observations have been made in report that Gurjars are most backward class. It is further submitted that in the case of S.V.Joshi (supra), the Apex Court has only directed to collect quantifiable data, but the Act has not been struck down. In case this Court directs further quantifiable datas to be collected, they are ready to do so. However, their action is 9 justified in the prevailing backwardness of the aforesaid castes-Gurjars, Gadia Lohars, Banjaras and Raikas. After hearing the learned counsel for the parties at length and after going through the materials placed on record, it could not be disputed that there is a need to identify and collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in the public employment, keeping in mind maintenance of efficiency in administration. Reservation has to be decided on facts of each case. In the instant case, it could not be disputed at bar that the State has not undertaken any study nor collected quantifiable datas before enhancing reservation upto 68%. Thus, the Act of 2008, which has been enacted so as to enhance the reservation upto 68% could not be said to be justified. The Apex Court in the case of Suraj Bhan (supra) has observed:- 44. The vital issue which fell for determination was whether by virtue of the implementation of the Constitutional Amendments, the power of Parliament was enlarged to such an extent so as to ignore all constitutional limitations and requirements. Applying the "width" test and "identity" test, the Constitution Bench held that firstly it is the width of the power under the impugned amendments introducing amended Articles 16(4-A) and 16(4-B) that had to be tested. Applying the said tests, the Constitution Bench, after referring to the various decisions of this Court on the subject, came to the conclusion that the Court has to be satisfied that the State had exercised its power in making reservation for Scheduled Castes and Scheduled Tribes candidates in accordance with the mandate of Article 335 of the Constitution, for which the State concerned would have to place before the Court the requisite quantifiable data in each case and to satisfy the Court that such reservation 10 became necessary on account of inadequacy of representation of Scheduled Castes and Scheduled Tribes candidates in a particular class or classes of posts, without affecting the general efficiency of service. The Constitution Bench went on to observe that the Constitutional equality is inherent in the rule of law. However, it's reach is limited because its primary concern is not with efficiency of the public law, but with its enforcement and application. The Constitution Bench also observed that the width of the power and the power to amend together with its limitations, would have to be found in the Constitution itself. It was held that the extension of reservation would depend on the facts of each case. In case the reservation was excessive, it would have to be struck down. It was further held that the impugned Constitution Amendments, introducing Article 16(4-A) and 16(4- B), had been inserted and flow from Article 16 (4), but they do not alter the structure of Article 16(4) of the Constitution. They do not wipe out any of the Constitutional requirements such as ceiling limit and the concept of creamy layer on one hand and Scheduled Castes and Scheduled Tribes on the other hand, as was held in Indra Sawhney's case (supra). Ultimately, after the entire exercise, the Constitution Bench held that the State is not bound to make reservation for Scheduled Castes and Scheduled Tribes candidates in matters of promotion but if it wished, it could collect quantifiable data touching backwardness of the applicants and inadequacy of representation of that class in public employment for the purpose of compliance with Article 335 of the Constitution. 45. In effect, what has been decided in M.Nagaraj's case (supra) is part recognition of the views expressed in Virpal Singh Chauhan's case (supra), but at the same time upholding the validity of the 77th, 81st, 82nd and 85th amendments on the ground that the concepts of "catch-up" rule and "consequential seniority" are judicially evolved concepts and could not be elevated to the status of a constitutional principle so as to place them beyond the amending power of the Parliament. Accordingly, while upholding the validity of the said amendments, the Constitution Bench added that, in any event, the requirement of Articles 16(4-A) and 16(4-B) would have to be maintained and that in order to provide for reservation, if at all, the tests indicated in Article 16(4-A) and 16 (4-B) would have to be satisfied, which could only be achieved after an inquiry as to identity. 46. The position after the decision in M. Nagaraj's case (supra) is that reservation of 11 posts in promotion is dependent on the inadequacy of representation of members of the Scheduled Castes and Scheduled Tribes and Backward Classes and subject to the condition of ascertaining as to whether such reservation was at all required. The view of the High Court is based on the decision in M.Nagaraj's case (supra) as no exercise was undertaken in terms of Article 16(4- A) to acquire quantifiable data regarding the inadequacy of representation of the Schedule Castes and Scheduled Tribes communities in public services. The Rajasthan High Court has rightly quashed the notifications dated 28.12.2002 and 25.4.2008 issued by the State of Rajasthan providing for consequential seniority and promotion to the members of the Scheduled Castes and Scheduled Tribes communities and the same does not call for any interference. Accordingly, the claim of Petitioners Suraj Bhan Meena and Sriram Choradia in Special Leave Petition (Civil) No.6385 of 2010 will be subject to the conditions laid down in M.Nagaraj's case (supra) and is disposed of accordingly. Consequently, Special Leave Petition (C)Nos.7716, 7717, 7826 and 7838 of 2010, filed by the State of Rajasthan, are also dismissed.” Reliance has been placed by the Apex Court on the decision in M.Nagaraj (supra) to hold that such study and collection of quantifiable data is necessary before making provision for reservation in the matter of providing accelerated promotion also. In M.Nagaraj (supra), the Apex Court has laid down the extent of reservation thus: “55. Word of caution against excess reservation was first pointed out in G.M., S.Rly v. Rangachari, Gajendragadkar, J. giving the majority judgment said that reservation under Article 16(4) is intended merely to give adequate representation to backward communities. It cannot be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other employees. A reasonable balance must be struck between the claims of backward classes and claims of other employees as well as the requirement of efficiency of administration. 56. However, the question of extent of reservation was not directly involved in Rangachari. It was directly involved in M.R. Balaji v. State of Mysore with reference to Article 15(4). In this case, 60% 12 reservation under Article 15(4) was struck down as excessive and unconstitutional. Gajendragadkar, J. observed that special provision should be less than 50 per cent, how much less would depend on the relevant prevailing circumstances of each case. 57. But in State of Kerala v. N.M. Thomas Krishna Iyer, J. expressed his concurrence with the views of Fazal Ali, J. who said that although reservation cannot be so excessive as to destroy the principle of equality of opportunity under clause (1) of Article 16, yet it should be noted that the Constitution itself does not put any bar on the power of the Government under Article 16 (4). If a State has 80% population which is backward then it would be meaningless to say that reservation should not cross 50%. 58. However, in Indra Sawhney the majority held that the rule of 50% laid down in Balaji was a binding rule and not a mere rule of prudence. 59. Giving the judgment of the Court in Indra Sawhney, Jeevan Reddy, J. stated that Article 16(4) speaks of adequate representation not proportionate representation although proportion of population of backward classes to the total population would certainly be relevant. He further pointed out that Article 16(4) which protects interests of certain sections of society has to be balanced against Article 16(1) which protects the interests of every citizen of the entire society. They should be harmonised because they are restatements of the principle of equality under Article 14. (emphasis added).” With respect to study necessary for reservation, the Apex Court has laid down that there is a need of maintenance of efficiency in administration and there are numerous factors which have to be considered and Chopra Committee has not gone into all these aspects. The Apex Court held thus: “46.The point which we are emphasizing is that ultimately the present controversy is regarding the exercise of the power by the State Government depending upon the fact- situation in each case. Therefore, 'vesting of the power' by an enabling provision may be constitutionally valid and yet 'exercise of the power' by the State in 13 a given case may be arbitrary, particularly, if the State fails to identify and measure backwardness and inadequacy keeping in mind the efficiency of service as required under Article 335. 107.It is important to bear in mind the nature of constitutional amendments. They are curative by nature. Article 16(4) provides for reservation for backward classes in cases of inadequate representation in public employment. Article 16(4) is enacted as a remedy for the past historical discriminations against a social class. The object in enacting the enabling provisions like Articles 16(4), 16 (4A) and 16(4B) is that the State is empowered to identify and recognize the compelling interests. If the State has quantifiable data to show backwardness and inadequacy then the State can make reservations in promotions keeping in mind maintenance of efficiency which is held to be a constitutional limitation on the discretion of the State in making reservation as indicated by Article 335. As stated above, the concepts of efficiency, backwardness, inadequacy of representation are required to be identified and measured. That exercise depends on availability of data. That exercise depends on numerous factors. It is for this reason that enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimize these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment. This is amply demonstrated by the various decisions of this Court discussed hereinabove. Therefore, there is a basic difference between 'equality in law' and 'equality in fact' (See: 'Affirmative Action' by William Darity). If Articles 16 (4A) and 16(4B) flow from Article 16(4) and if Article 16(4) is an enabling provision then Articles 16(4A) and 16(4B) are also enabling provisions. As long as the boundaries mentioned in Article 16(4), namely, backwardness, inadequacy and efficiency of administration are retained in Articles 16(4A) and 16(4B) as controlling factors, we cannot attribute constitutional invalidity to these enabling provisions. However, when the State fails to identify and implement the controlling factors then excessiveness comes in, which is to be decided on the facts of each case. In a given case, where excessiveness results in reverse discrimination, this Court has to examine individual cases and decide the matter in accordance with law. This is the theory of 'guided power'. We may once again 14 repeat that equality is not violated by mere conferment of power but it is breached by arbitrary exercise of the power conferred. 117. The test for judging the width of the power and the test for adjudicating the exercise of power by the concerned State are two different tests which warrant two different judicial approaches. In the present case, as stated above, we are required to test the width of the power under the impugned amendments. Therefore, we have to apply "the width test". In applying "the width test" we have to see whether the impugned amendments obliterate the constitutional limitations mentioned in Article 16(4), namely, backwardness and inadequacy of representation. As stated above, these limitations are not obliterated by the impugned amendments. However, the question still remains whether the State concerned has identified and valued the circumstances justifying it to make reservation. This question has to be decided case-wise. There are numerous petitions pending in this Court in which reservations made under State enactments have been challenged as excessive. The extent of reservation has to be decided on facts of each case. The judgment in Indra Sawhney does not deal with constitutional amendments. In our present judgment, we are upholding the validity of the constitutional amendments subject to the limitations. Therefore, in each case the Court has got to be satisfied that the State has exercised its opinion in making reservations in promotions for