27% reservation to OBCs in compliance with court order, no contempt made, Centre tells Madras HC

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Updated: August 19, 2021 2:11 PM

Additional Solicitor General K M Nataraj told the first bench of Chief Justice Sanjib Banerjee and Justice P D Audikesavalu that the 10 per cent reservation for EWS people is a constitutional one.

The bench reserved its orders for August 25.

The Centre told the Madras High Court on Wednesday that its order providing 27 per cent reservation is in full compliance with the latter’s order in July last year on implementation of OBC reservation and submitted that the 10 per cent reservation for economically weaker sections (EWS) is a constitutional one. The court was hearing a contempt application from the ruling DMK, seeking to punish central government officials concerned for not implementing the July 2020 High Court order on implementation of OBC reservation under the All India Quota (AIQ) in medical admissions for 2021-22.

Additional Solicitor General K M Nataraj told the first bench of Chief Justice Sanjib Banerjee and Justice P D Audikesavalu that the 10 per cent reservation for EWS people is a constitutional one and the High Court has no power to comment on it.

If the July 29 this year order of the Union government granting 27 per cent reservation for OBC and 10 per cent to EWS is not acceptable to the DMK, it can only challenge the same before the High Court and cannot claim that the central government has committed contempt and seek to punish the authorities. Instead of pursuing the contempt, the DMK can challenge the particular order, he said and requested the bench to close the contempt application.

DMK senior lawyer P Wilson took the bench through the constitutional provisions of Article 338 (B) (5) and (9) and submitted that the National Commission for Backward Classes (NCBC) has to be consulted for any major policy matters affecting the Backward class members.

Reservation for BCs in the Central government is different from the BCs in the state and the recent amendment made to the Constitution has protected the rights of the states to identify the backward classes.

Since the BCs referred in the Central Educational Institutions Act 2006 is referable for the purposes of filling up of seats in central educational institutions, the same cannot be applied for seats to be filled up in the state medical colleges, Wilson said, adding, the present reservation found in the central government’s court compliance order dated July 29, 2021 is of 15 per cent for SC and 7.5 for ST and the same is traceable to the Central Educational Institutions Act.

At no stretch of imagination the same ratio can be applied in the State medical colleges in Tamil Nadu as the state reservation was 18 per cent for SC and 1 per cent for ST. Even if the 50 per cent cap is applied, as prayed for by the Central government, the same would go against the July 2020 order.
Then the application of 10 per cent reservation for EWS in the existing 49.5 per cent would exceed the cap and total reservation would come to 59.5 per cent. In case if this court accepts the reservation cap and restrict the total permitted reservation as 50 per cent, the same would go against the 69 per cent reservation for OBCs in Tamil Nadu.

As an interim measure, pending challenge to the July 29, 2021 order by the petitioner, the reservation for OBC could be increased from 27 to 31 per cent without prejudice to the rights of all.

All India quota being a court scheme, Wilson submitted that 10 per cent reservation for EWS cannot be applied as no court permission was obtained to do so in the AIQ, that too in the state quota. The Centre has no authority to meddle with the reservation issue, which would be detrimental to the interest of the state.

Hence, the 10 per cent reservation in the State surrendered seats is illegal, he argued.

Responding to the submission made by the ASG, Wilson submitted that the court may grant the liberty to the petitioner to challenge the 2021 order of central government, in case the court comes to a conclusion that no contempt is made out. The bench reserved its orders for August 25.

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