Maratha quota cannot be given retrospectively: SC

The Times of India: July, 13, 2019

NEW DELHI: A day after the BJP-Shiv Sena government in Maharashtra decided to grant Maratha reservation retrospectively from 2014, the Supreme Court on Friday restrained it from doing so and made it clear that the law, upheld by the Bombay High Court recently, could be not implemented from a back year.

The SC did not stay the Maratha quota either, but made it clear that appointments and admissions under it will be subject to its final decision. A bench of CJI Ranjan Gogoi and justices Deepak Gupta and Aniruddha Bose articulated its views while issuing notice to the state government on appeal filed against the verdict of the Bombay High Court upholding validity of Educationally and Socially Backward Classes (ESBC) Act.

The state government decided to accommodate Maratha community applicants who could not be employed under the 16% quota announced by the erstwhile Congress-NCP government in 2014 after the Bombay high court stayed the quota in the same year. A government resolution (GR) issued on Thursday stated that the reservation will be applied from 2014. The state took the decision after Bombay HC upheld the law and allowed 13% quota for Marathas under the SEBC Act.

Senior advocate Gopal Sankaranarayanan, appearing for one of petitioners challenging the Bombay HC order, brought the recent decision of the state government to the notice of the SC. He said the decision is illegal and violation of law. Taking note of his submission, the bench said the law granting Maratha reservation and the HC order upholding the law cannot be implemented retrospectively.

The state had provided for 16% Maratha reservation in both, education and public jobs. The HC brought it down to 12% for education and 13% for jobs as recommended by a state-appointed Backward Class commission headed by former HC judge M B Gaikwad. Challenging the HC’s June 27 judgement, the petitioner contended that the court misread SC judgements to conclude that there is no stringent ceiling limit of 50% reservations as set out in the 1993 Indra Sawhney case.

The petitioner alleged that the Congress-NCP government in 2014 and then the current regime had enacted the SEBC Act under political pressure, completely disregarding constitutional principles of equality and rule of law.

A group of social workers and academics from Muslim community also challenged the HC order. The petition, filed through advocate Vipin Nair, alleged it is not within the jurisdiction of the state government to decide socially and educationally backward classes and the power vests with the President. It said that the issue of deciding backwardness of a community should be referred to National Commission for Socially and Educationally Backward Classes.

“There is inaction on part of state government in not acting upon the report of Maharashtra State Minority Commission recommending special reservation to certain Muslim communities and failure to introduce a Bill on the floor of the State Legislature providing for 5% reservation to those 52 Muslim communities in Maharashtra which were found backward by the Commission,” the petition said.

“So far the Central List of Other Backward Classes is concerned, clause (2) of Article 342A empowers the Parliament to amend the same. However, Article 342A does not confer any power to the State Legislature or the Executive to deal with the lists prepared by the President which are essentially outside its domain,” it said.

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