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SC Hearing EWS OBC reservation

Oct 07, 2021

DYC J: Please reflect on the basis for the 8 lakh. What excercise has been done by centre to arrive at this. You cannot apply the same criteria as you apply to SEBC. For creamy layer it was to keep out the economically advanced ones.. you file an affidvait

DYC J: you can place any material that you may have

Datar: Office Memorandum was in Jan 17, 2019 and notification was in Jan 14. So unlikely any study was completed here and only adoption was done.

DYC J: You also have to deal with the point on whether SEBC reservation can be granted in Post graduate medical courses.

Adv Choudhary: I have one point...

Justice Chandrachud: we have 45 matters to read for tomorrow. Else we duct some matter on you now.

Matter to be taken up on October 20.

Oct 07, 2021

SG: My only request is that all State’s be allowed to make their submissions before 20th.. Then maybe each State can be allowed to argue for half an hour.

Justice Chandrachud: Okay, we’re just about 12 minutes from lunch, since both you & Mr. Sibal have made this weighty submission, we’ll deliberate over them.

In the meantime, we’ll allow Mr. Divan to introduce his arguments.

Senior Advocate Shyam Divan: This Writ is directed with respect to the OBC reservation introduced in the AIQ. 
The impact in my Petition is seen from the press note Mr. Datar referred to.

Sr. Adv. Divan: The impact covers 2500 seats or posts.

Sr. Adv. Divan reads out press note: My first point is, this entire 50% All India seats was a creation of this Hon'ble Court and we trace the genesis to the judgment in Pradeep Jain & Ors.

50% All India arose in the cotext of domicile requirements. This Court felt that there ought to be 50% seats available and this is how this norm came about, submits Divan.

Sr. Adv. Divan: There are subsequent judgments where there was a decrease in the 50% norm but this was reaffirmed in Saurabh Chaudhary (2003 11 SCC 146).

The Court concluded that domiciliary preference would be 50% and 50% would be all India.

Sr. Adv. Divan brings attention to the judgment in Abhay Nath vs. University of Delhi: This was dealing with SC and STs.

Secondly, the govt. did indeep recognise this as a judicially made norm, approached this Court.

Sr. Adv. Divan reads Abhay Nath vs. University of Delhi.

Sr. Adv. Divan: At this interlocutory stage, the Court shall accept what is laid down in this judgment.

Sr. Adv. Divan: The notice we have impugned is an executive order. This Court may have said this is coming on 29 July 2021, surely this can come next year.

These factors would have weighed if the govt. had approached the Court which I think is a min req.

Sr. Adv. Divan: We first emphasise that this is a norm laid down by this Court which has stood the test of time.

Secondly, this Court has had occassion that when there is an adjudicatory exercise, an executive move cannot nullify.

Sr. Adv. Divan: This Court is reqduired to be a Court which lays down the apt. constitutional principles.

Once those are defined, if they are departed from it has to be done in a procedure. The defying party needs to come and explain its reasons.

Sr. Adv. Divan: The regulations also contemplate "as per the existing scheme" and that cannot be, ought not be departed from.

Sr. Adv. Divan: The principle laid down that the rules of the game cannot be changed at this stage ought to have some traction.

These are our respectful submissions. At this stage, we urge that at least this year..

Justice Chandrachud: This OBC reservation has somewhat of a history, I believe.

There are two issues we have to be careful of: EWS quota comes from a constitutional amendment.

Justice Chandrachud: So far as OBC reservation is concerned comes as a result of a direction of the Madras High Court that the Union implemented leading to the instant notification.

Sr. Adv. Divan: The Madras HC relies heavily on this Court’s judgment in Abhay Nath. This notification at the end of the day is not in implementation.

We are well within our rights to say, it was the Union's duty before implementing something with enormous ramifications to come here, submits Divan.

The State would have to justify its position, that the notification stands the scrutiny of Part III.

Sr. Adv. Divan: The notification ought to be tested on the legal norms set up by this Court. The evolution of law which has emphasised merit at the Post Graduate stage.

Even at the societal level, society requires doctors who have tremendous merit.

Justice Chandrachud: Is there qualitative difference between the reservation for SC & ST, on one hand and OBC, on another.

Once we upset the legal position that SC ST reservations in the AIQ, is there is any ground to make a distinction between OBC?

Sr. Adv. Divan: Having regard to 50%, the logic as we see it was to allow competition and recognising that Abhay Nath was to be considered as applicable law.

But cumulative impact was to be examined as well. This cannot be done by executive notification.

Sr. Adv. Divan: Here we are talking immediately of 2500 post graduate seats which were open and available! This is from the perspective of the Petitioner.

Sr. Adv. Divan: If they take away merit from 2500 seats, thats a factor for consideration. I urge that the Court consider granting me interim relief.

Adv Shrirang Choudhary: New scheme of SEBC reservation has come into place after the 102nd constitutional amendment. Govt is considering if there should be sub categorisation of OBCs.

Choudhary: SEBCs are now identified as mentioned in the presidential list. Rohini commission has recommended that OBC be subcategorised into four categories

Justice Chandrachud: If you see Article 342(1) .. as you have presidential list of SC ST..Now Article 342A is not a list which comes in conflict with All India Quota. AIQ students come from all over India.

Justice Nagarathna: That is a separate list

Choudhary: There has to be revision of the SEBC list. In Mah there are around 1.5 lakh seats of engineering every year as compared to 76000 medical seats all across the country. Thus any reservation will hurt chances of meritorious students to get admission in govt colleges

Choudhary: Students will be forced to join private colleges which charge around 40 lakhs capitation fees

Choudhary: Govt is committed to give due to reserved Category.. then what about general category ?

ASG KM Natraj: There are six factors which disentitles interim relief in this matter: 1) substantial argument is on permissibility of reservation.. all of that is before 5 judge bench. Thus entire issue has to be considered

SC: Is the reference to five judges reported ?

ASG shows a page number of filing 7

ASG: Contention with ref to Indira Sawhney was there and petitioner stated backward class cannot be determined only by economic criteria. This is before the 5 judge bench.

ASG: Interpreting Article 15 with respect to the plea here .. it will be desirable to hear the states before passing an order in this case.

ASG: Till results are announced & eligibility is notified & till roster is not notified, petitioners case doesn’t stand. Reservation is notified before counselling. We are not at that stage at all and no point of changing rules of games.

ASG: Changing rules of the game argument is untenable and without any basis.

ASG: seats provided to will be in addition to the seats reserved for reservation. 2019-20 itself centre has enhanced the number of seats. We could not give effect to this last year and the benefit went to general candidates and should have gone to those entitled under Ar 15(6)

Justice Nagarathna: Are you saying EWS is a separate class compared to OBC?

Justice Chandrachud: so existing was to SC ST OBC so this is in addition?

ASG: Yes we created more seats

Justice Nagarathna: no we are on the percentage

Justice Chandrachud: this 10% EWS cannot operate with SC ST or OBC. What is the meaning of not more than 10 percent in each category. Which categories are these ?

ASG: Suppose there are 500 seats where existing reservation is there we will create more seats more the EWS

ASG: No of seats can be increased and the particular category be included. That is the intent.

Justice Nath: So you are saying there will be 10 percent increase of seats in each category ?

Justice Chandrachud: EWS is not a horizontal reservation, it does not apply to obc, scst

ASG: So far as MDS is concerned for the all India Quota, the counselling has already begun and reservations are in place. It is there in all india Quota and already implemented so far as MDS is concerned

ASG: For central institutions , EWS was introduced in 2019 for UG and for PG in 2020

ASG: DoPT and social justice ministry has to file separate counter. But implementing reservations is a matter of policy.

Justice Chandrachud: what exercise did you do for reaching the 8 lakh figure. Or did you just list what is applicable to OBC?

ASG: these two departments have not been made party. I am not sure

DYC J: as per Indira Sawhney judgment someone who has breached 8 lac limit they are set to pass the social and economic backwardness due to economic advancement. But if they are below they fill the criteria of educationally and socially backwardness and economic backwardness

DYC J: Here we are dealing with pure economic backwardness. We have to know what exercise has Centre done ? Notification specifically adverts to 8 lacs. Now you have an OM of Jan 17 which combines 8 lacs with assets. Are you applying the asset cum income requirement ?

DYC J: If my child wants an EWS reservation when I am a tehsildar then what criteria am i fulfilling, economic , social or educational backwardness ?

DYC J: You just cant say it's a matter of policy when we are asking what is the basis of 8 lakhs for EWS eligibility?

ASG: There was deliberation and with proper noting it was approved by cabinet

SC : We are asking what was the study done ?

SC: You have to demonstrate the data before you and what was the contemporaneous study ?

ASG: I have to file a separate reply regarding this

DYC J: when we recommend members of bar to the bench there is a bench mark of income. Suppose a lawyer earns X may have a substantial practice but that may not be at par with a wealthy lawyer.

DYC J: You cannot say that requirement of 3 lacs in a B state will be EWS qualification for all India. Look at how the cost of practice, fees, and living differs in all states.

Oct 07, 2021

Sr. Adv. Datar: We carried out research. There are no uniform criteria for EWS.

It is also violative of Article 14 since it treats unequals equally. A uniform figure of 8 Lakhs is arbitrary.

Justice B.V. Nagarathna: In the bulletin issued, were the seats reserved in a particular pattern?

Sr. Adv. Datar: I'll just get this clarified.

Sr. Adv. Datar: The notice is based on a report by Maj. Gen. Sinho. It cannot be implemented right now.

Today there is no notification at all, there is just a press note. The Counter does not refer to the office memo of 19’.

Sr. Adv. Datar: In the absence of clear determination of who constitutes EWS, the further carving of 10% should not be permitted.

Sr. Adv. Datar: Because of the SC judgment that a reserved candidate who qualifies on merit can take a general seat. There is a Tamil Nadu Committee that states that students are suffering.

Sr. Adv. Datar: Now what will happen is, if as it is, the window for open category is so small if set a benchmark of 8 Lakhs.

The reasons that J. Rajan also points out interesting reasons.

Sr. Adv. Datar: We are now dealing with PG admissions. Your Lordships have uniformly held that in PG admissions, there is no reservation. I’ll just quote two judgments.

Sr. Adv. Datar takes the Court through Indra Sawhney vs Union of India and K. Duraiswami & Anr. vs. State of Tamil Nadu.

"..that at the super speciality level in particular and even at the Post-Graduate level reservations of the kind known as protective discrimination in favour of those considered to be backward should be avoided as being not permissible." reads Datar.

SupremeCourt: But what about the judgment in Abhay Nath case 2009 SCC 705, it is a three-judge bench.

They said that 50% includes reservation to SC ST students. Lets just see it..

Sr. Adv. Datar: This judgment also requires consideration, yes. We are now dealing with PG students, Lordships caveats an observation that at PG level there should be as less as possible.

Now it will eat into 50%.

Solicitor General Tushar Mehta: Just intercepting.. Subject to Your Lordships pleasure. We feel your Lordship should get assistance from all states. If you may consider issuing notice to all.

Senior Advocate Kapil Sibal: I fully endorse that.

SupremeCourt: What is the percentage of seats allotted to the AIQ?

Datar: 50%

Court: Each state has its own policy. In this case, we are dealing with AIQ, then how are the State's concerned?

SG: No, I am on a slightly different footing, whatever this Court decides will have an implication on States.

Sr. Adv. Sibal: It will impact states since each state has a different demographic.

SG: I am not on a technical contention, whether the petition will lie or not. but the debate will remain incomplete without an imput from the States.

Justice B.V. Nagarathna: When EWS quota speaks of State, each State can also provide for EWS quota irrespective of the AIQ?

Justice Chandrachud: Suppose a particular state wants reservation in a particular college, they will define reservation under EWS.

Sr. Adv. Sibal: This will have large ramifications. This is being heard by a larger bench.

Senior Advocate P. Wilson: It is clear that reservation is to be implemented this year. The Madras High Court judgment was confirmed by this Court so it should be this year.

SupremeCourt: This is on OBC, you heard Mr. Datar he has only argued AIQ.

Oct 07, 2021

Sr. Adv. Datar: If you go by the Sinho report, irrespective of my land holding etc. only if my income is less than 8 Lakhs is the criteria.

Sr. Adv. Datar: Before going further, we have to see what is the basis of this EWS? It came from the Mandal Commission.

Datar takes the Court to the Indra Sawhney vs Union Of India judgment.

Sr. Adv. Datar: This probably gives an explanation of where the 103rd amendment came from.

Datar further submits that while determining economically weaker sections, a scientific system needs to be adopted. Takes the Court through Indra Sawhney.

Sr. Adv. Datar: When you are setting a benchmark of 8 Lakhs, what is the criteria? The counter only states that it is a policy decision.

Prof. Grim says that normally a policy is not reviewable but if there are no reasons to a policy, the Court can go into it.

Oct 07, 2021

Sr. Adv. Datar: Even in the counter they have not produced a report as to how they arrived at a ceiling of 8 Lakhs for determination of EWS.

Sr. Adv. Datar: Now we’ve got a situation where there is a committee and an office memo.

It is not clear what “annual income” means. My only prayer is, till that is clarified, at least in this year EWS should not be implemented.

Senior Adv Datar: counter has been filed and pleadings are complete.

Justice Chandrachud: How long will you take

Datar: 30 minutes to 45 minutes

SC: Let us take couple of small matters first

Union submits that reservation in AIQ seats has already been implemented in the current academic year.

“The counselling commenced on 27.09.2021 and is likely to be completed by 10.11.2021."

Union prays that the Court may be pleased to dismiss the present Writ Petition and also reject prayer for interim relief.

Senior Advocate Arvind Datar: I have circulated written submissions to give the factual background common to all cases.

I’m representing doctors from across the country who are writing NEET. The main grievance is the sudden imposition of 10%...

Sr. Adv. Datar: We only impleaded the Ministry of Health because it is the impugned notice issued by them.

Sr. Adv. Datar: they have said EWS reservation but who constitutes EWS has not been notified in the impugned notice.

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