Jan 06, 2022
SG: Please mark this, "in so far as such provisos relate to their admissions in educational Institution" and does not demarcate b/w admission in UG & PG level.
SG: Therefore OBC reservation is constitutionally permitted and it is constitutional imperative as I may use in UG & PG.
SG: Mr Divan relied on Pradip Jain's judgement. My substance is this none of the judgements of your lordship does not even remotely suggest that there cannot be any reservation in PG.
SG: Its not required to be even distinguished also. That's what it says.
SG refers to para 21 of Pradip Jain's judgement.
Judgement is the ratio for what it decides.
SG: This (Pradip Jain's) judgement says that there can be validly made other reservations that is under Art 15.
SG: Your lordships were in that (Pradip Jain's case) considering domicile reservations and institutional preference reservation.
SG: Except this (Pradip Jain's case) there is no other ratio to read this that Supreme Court has prohibited reservation in PG would be reading something in Art 15 which was never intended.
SG: Your lordships were also careful in saying that this was not desirable. Im not for a second arguing for domestic reservation or institutional preference.
There is no reservation in super speciality.
There is an another judgement.
DYC J: Mr SG, please also read last line of para 22 of Pradip Jain's judgement.
So Mr SG, they said that in Super Speciality there would be no reservation in domicile or institutional preference.
SG: This never fell for consideration of this court as to whether there can be any reservation at all.
DYC J: In fact upto the PG level you can have reservation. The last sentence seems to indicate that.
Justice Chandrachud points out that Pradip Jain judgment says that super specialty courses there should be no reservations even on the basis of institutional preference. This means, there can be reservation in other course, Justice Chandrachud surmises.
"This sentence implies that you can have valid reservation up to PG level. The last sentence seems to indicate that", Justice Chandrachud.
SG further refers to a Constitution Bench judgement.
SG: There is another judgement where institutional preference and domicile reservation has been considered.
Pradip Jain's judgement has always been considered.
SG: Only ratio is this and has nothing to do with permissibility of PG reservation.
So far as OBC reservation in all central institutes and Uni is concerned, there is no challenge to the Act pointed at the outset.
SG: They can only challenge the reservation at a particular level only if they challenge the Act and Art 15. Merely by challenging CG's decision dating July 29 which applies that reservation to AIQ, they cannot argue that there can't be any reservation.
SG: 29th July only talks about the particular section.
Now I'll come at my last limb.
SG wrt to contention that there was no study: There was a study, app of mind, consultation b/w the govt but it was only because of your lordships intervention, this (revisiting 8 lakh criteria) study was undertaken.
SG: Please refer to another affidavit dated October 6, 2021.
SG: Before I take your lordships to Pandey Committee report, I want to show the efforts made to come to the present regime.
There is counter affidavit in which SINHO Comm is there.
SG: I just want to show that the present criteria which is there and has been affirmed by Pandey Committee is with application of mind.
SG reads the relevant paras of the affidavit for the same.
DYC J: Mr SG, the 103rd amendment on 14th jan, 2019 and on jan 17, 2019 this notification came. So in 2 days this consultation with Min of Social Justice took place?
SG: I'll ask ASG to find more on it and will answer your lordship's question.
Pandey Committee's report also retains the 8 lakh criteria.
SG: Mr Datar's submission that Pandey Committee has rejected SINHO Comm report is not correct.
We might go into data but what is to be considered is the common sense argument. 8 lakh would mean 70k per month.
SG: We are not trying to find who is poor but the word in Constitution is EWS.
When we read in real life we understand that its impossible for him to compete with others. 70k/ month. We understand the real life context, how costly everything is.
SG: Kindly see SINHO Committee's report. Maj recommendations which is the present regime were decided before the present Govt.
SG (lighter vein): When I refer to statistics I remember a poet who says that data is used by people in the same manner as if a drunkard uses lamppost.
Justice Chandrachud laughs.
Solicitor General in a lighter vein : When talking about statistics, I am reminded of what a Scottish poet said. Using statistics is like a drunken man using a lamp post- more for support than for illumination.
SG: Im not requiring your lordships to take a diff view. When we sit in an exercise, there would always be an intelligent informed mind who would bring up an alternative.
SG: But your lordships is considering is:
1. Whether relevant material has been considered
2. Whether irrelevant material has been considered
SG: 3. Whether there was application of mind
4. Finally if it is so absurd that a person with common sense would not think it.
SG further refers to the various contents of the report.
Both studies (Pandey & Sinho) intended the same target to be considered but came up with varied conclusion.
Any straight jacket rule would not give the intended result.
SG: They (Pandey Report) say that even 8 lakh is also less.
If we live in the real world and not utopian, we will find this also convincing.
SG: They although say that this is also less but then they say that they have to cap is somewhere.
Further the report shows distinction b/w OBC & EWS.
SG: One section was whether EWS & Creamy Layer could have the same limit and they have answered it.
SG reads the distinction b/w EWS & Creamy Layer.
DYC J: Mr SG, in the 1st affidavit where you had said that 8 lakh criteria was justified you had said that this (8 lakh) was based on the OBC creamy layer one.
DYC J: So when you 1st came to court you proceeded on the basis that 8 lakh is what the creamy layer criteria.
Now what you seem to suggest in your affidavit is that SINHO suggested that tax limit is an alternate criteria.
DYC J: Just lets compare that with Pandey Committee report at page 46 where they have got the extract of SINHO.
Lets read that para.
SG reads the referred para in Pandey Committee report.
DYC J: Therefore SINHO Comm said that we could lay our basis of EWS based on Creamy Layer for OBC but they said NO. They further said that income tax limit should be considered.
DYC J: In the 1st affidavit you filed it appears that you follow creamy layer criteria.
Jan 06, 2022
SG: On July 29, when booklet was published. Nobody now needs to file anything further.
SG: Another imp fact on how their would be undue Adv to those who are not entitled to restoration. When this 103rd amendment came, govt took decisions that in all medical colleges let us increase the seats by 125%. Meaning 100 seats they become 125.
SG: This happened in all govt colleges.
When these EWS candidates would be amditted, it would not harm the others who do not get the benefit. They would be accomodated in the additional seats.
SG on constitutionality of 103rd amendment:
Art 15(5) itself provides for it.
SG: Please see article 15(5). At the outset, super speciality does not have any reservation in the country since your lordship has said so in earlier judgements.
SG: We are concerned with NEET examine and counselling nothing has to do with super speciality.
SG: Art 15(5) doesn't distinguish b/w UG & PG when it says states can have reservation for socially and educationally backward class.
Jan 06, 2022
DYC J: So you say that there will be some element of discrimaitnaiton if the reservation is not allowed.
SG: So that game started when the brochure was issued which said that there would be clairfication later.
SG: Further reservation for EWS is already for Gen Category. Also, candidates of AIQ who have registered for counselling and are entitled to EWS reservation have got their certificates. They have filed it with counselling centre.
SG: So there would be no hardships.
DYC J: When were they supposed to file the certificate?
Jan 06, 2022
Datar further reads the content of the SINHO Committee report.
Datar: Please see chapter 8 of the report which is the final chapter and deals with the RECOMMENDATIONS reiterate that do not adopt creamy layer.
Datar: Look at the counter which is filed dated October 26, page 4.
Datar reads the content of the counter affidavit.
Datar: I'll just say what the counter says.
They took a decision on Jan 17 and amendment (103rd CAA) came on 14th Jan.
DYC J: SINHO Comm said that all BPL fam and all those whose income was below the taxable limit was considered as EWS.
Datar: At OBC level, caste level and community level. In mandal commission also economic criteria is one of the factor.
Now the govt has gone back to the creamy layer pattern.
DYC J: We got your point that the paraphrasing in SINHO is not right.
Datar: When there is already a COMM which has presented such an extremely detailed report, there must be compelling reasons to deviate from Sinho Comm.
Datar: Neither Pandey Comm nor the counter has given even one sentence as to what is the reason for rejecting the SINHO Comm. After spending so much time, money & consulting so many persons, you simply say that im adopting creamy layer criteria.
Datar: Now next point, how did they come to 8 lakh.
Datar: Other flaw in Pandey comm report is that there is no study of 8 lakh and agricultural land. Then they themselves say that the residential criteria is flawed.
Datar: Under Explanation to art 15(6)- power under art 15(6) & 16(6) r/w explanation- Central and State Govt can form commission to find who is EWS in general category.
DYC J: Would making EWS reservation in AIQ be deferred? Your point is that now Kerala has formed a committee. If it would be done for every state for determine EWS, what is the basis for that?
Datar: There should be an all India Consensus.
Datar: The govt can argue how all India quota would apply to central institutes.
Now I would like to make submission on 2 points. 1st is income disparity.
Datar: My submission is, when you got in advanced country like India varying from 40k to 4 lakh, taking 8 lakh which is high is arbitrary.
Further I'll adopt Divan's submission as to we cannot change the rules of the game. Further if we change, how are they to be changed.
Datar: In Rural TN Only 1.7% are gen category, else everybody are backward.
In such diversity, it is best to take a flat income.
Datar: Now I'll come to asset category and wind up.
Please see OA and come to 101 of Pandey Report.
Datar: Income tax criteria is completely arbitrary and the asset category is even worse in my humble submissions.
Datar: To keep the 5 acre land criteria for agricultural land is completely arbitrary. In Kerala, it is impossible to have 5 acres of agricultural land.
Datar: Now come to the asset criteria.
DYC J: The asset criteria goes as per the committee's recommendation.
Datar: That's from the next year.
Datar: Your lordships first question was wrt to asset criteria only.
Datar: All the asset criteria has to go because 1000 sq of residential flats in Bombay etc, your lordship knows.
There is complete non application of mind.
Datar: If the criteria is income plus asset, I can say that its X plus Y.
Income is over inclusive, top down approach and deny benefit to the real EWS.
DYC J: That is what the Pandey Comm says is TYPE 2 error (Minimizing the exclusion of deserving ones)
Datar: I'll now refer to Shanti Star Builder's case that has been mentioned in the Pandey Committee report.
Datar: If you go by asset plus income criteria- my friend points out that in 7th pay Commission, salary of class 4 employees in the govt is 18k to 30k and now if you take this into consideration, none of the children will be able to qualify.
Datar: Children who go for tuition classes of NEET have to pay high fees.
The test is proper and appropriate identification. That was also one of the criteria in Mandal.
Datar: Just see what they've done. Look at the discrimination that they've done.
Next year they're going to exclude it.
Datar points out the difference b/w OBC and EWS as mentioned in Pandey Committee report.
I don't know why there's difference. If you're adopting for both, adopt the same.
Datar: Please see what they have said for eliminating asset criteria. The counselling will start now. How will the children get all the compliances?
Datar: I'll again say, let rules of the game not change now.
In Pandey Report they have not mentioned about any study.
For today's counselling:
A. Follow the same criteria and do not change it.
Datar: Further let your lordship issue directions under Art 142 to consider the same to 2.5 lakh if your lordship wants to uphold the same.
Datar concludes his submissions.
Adv Shrirang Choudhary: After 102nd amendment, OBC list has to be identified by the President as per newly inserted Art 342A.
Choudhary: This revision of SEBC was last done in 2016.
Next point is in 2017 Justice Rohini's commission was appointed to look into sub categorisation to ensure equitable separate reservation of deprived classes.
Choudhary: As per the same, almost 2600 castes are to be classified under 4 category from 2%, 6%, 9% and 10%. Total 27% is to be divided in these 4 sub categories.
Choudhary: There is 3rd point that NCBC was set up as per direction in Indira Sawhney and for working the modalities of the committee, the act was enacted in 1993.
Choudhary: There is section 11 of NCBC Act, 1993.
Central List is mandatorily to be revised after every 10 years as per section 11.
This revision has never happened and is pending since 1993.
Choudhary concludes his submission.
Sr Adv Anand Grover: Explanation to Art 15 is the EWS shall be such as may be notified on the basis of family income and other indicators.
My submission is that apart from income, other indicators have not been identified.
Grover: Other Economically sections criteria have been completely ignored.
In their own report, it says that they will apply the criteria prospectively meaning thereby that it is to be applied from next year but that is also not clear.
Grover: They are examining the 8 lakh criteria from past records.
Grover: Vast majority of people are from 0 to 2.5 lakhs and even if income tax limit is now 5 lakhs, more than 80% people are in this range.
With this criteria, if 5 lakh criteria is adopted, vast majority will fall into that.
Grover: 5 lakhs is the basic criteria which should be there and there is no reason as to why 8 lakh criteria has been adopted.
DYC J: Mr Grover what you're saying is that use your 142 power and consider it as 5 lakhs.
Grover concludes his submissions.
Adv Dave for FordaIndia: I just want to flag ground reality. Every year there are 45k doctors who are inducted as PG Doctors into medical workforce.
Adv Dave for FORDA: This year because of the pandemic exam happened late, only 2nd and 3rd year residents are there because 1st years have not joined.
Justice Chandrachud to Dave (for FORDA) : The bench shares your concerns. That's a valid point you're making, not only for the doctors but also for the citizens. Thank you.
SG: Firstly there is no change in the rules of the game. The regime which is subject matter of this challenge is already implemented since 2019 except in AIQ.
SG: Mr Divan's argument that there is change of rules of the game and the goalpost has been changed in factually incorrect.
SG: date of release of booklet of counselling is July 29, 2021.
Please see page 84 of the petition. Please look at the bottom.
SG: What will be the applicable reservation would be informed at the time of counselling. When I give the exam, I have to give my best and do not have to consider reservation.
Even if we take 23 Feb as the date is says that admission shall be as per reservation of PG Seats and clarifies that it is only notificaiton of exam.
Solicitor General : When I appear for an exam, my performance is not based on applicable reservation. I have to give my
best. I can't say since there is 10% reservation, I can perform slightly less.
SG: I want to place position as to what was the position when the notification came. It was not for the first time. There is an act called Central Educational Institution Reservation in Admission Act, 2006 which concerns OBC reservation.
SG: Im not mentioning the entire act but please have a look at glance of statement of object and reasons.
SG reads the statement of the Act referred.
SG: The only purpose of my showing this is right from 2006 the Central Educational Institutions had 27% reservation.
The impugned notification is not for the 1st time.
SG: By the time your lordship came to consider PG Admission etc and my colleague ensured that counselling would not proceed position was that IIT's - all central universities implemented this 27% OBC & 10% EWS because that is the decision taken as back as in Jan 2019.
SG: Its not in dispute that this OBC 27% and EWS 10% is from January 31, 2019.
Thye have already implemented & all admissions have been taken place acc. All UPSC exam are taking place with 27% OBC & 10% EWS.
SG: These are all based on record by relevant point of time based on affidavit.
By the time my colleague ensured this, MDS counselling as also started as per this, because that started early.
SG: Please dont take it as if im arguing that since it has already been implemeted, nothing can be done.
But what im trying to say is that this would result in discrimination.
Bench rises for lunch.
SG would continue with his submissions at 1:30 PM.
Federation of Resident Doctors Association files impleadment application in Supreme Court seeking to join as a party in the case.
Datar: Yesterday I was submitting that as far as 8 lakh was concerned, there was no base at all.
Datar: In the 2nd counter dated 26.10.2021 they have made it clear. Please refer to page 4.
The 1st submission is:
they formed SINHO committee in 2006 which gave its report in 2010.
Datar: The point im making is this that I wanted to show that THIS committee was formed in 2006 & gave its report in 2010. Now this committee consisted of Maj General Dave and have also taken assistance of retired judge of HC.
Datar: The committee did a very exhaustive study with regards to income criteria....
I'll come to the summary of the report.
Datar reads the summary of the Sinho Committee Report.
Datar: The commission had consulted State Govts, political leaders, governors, state commissions.
Datar: They have gone state wise and then they met the CM, Gov.. As to who they met and all.
All im saying is that SINHO Committee is very exhaustive.
No reference to assets, agricultural land has been referred by the SINHO Comm.
Datar: BPL criteria is based on the per capita consumption expenditure.
In 2004/2005 committee says that BPL was 559 per person per month and for rural areas it is 368 per person per month.
Datar: In SINHO Committee examined various parameters to determine the economic backwardness.
Datar: Our submission is that 8 lakhs is a top down approach and not a bottom approach.
Datar: They have said do not adopt creamy layer criteria and have stated that in their report later.