In a setback to the Centre, the Supreme Court on Wednesday refused to urgently take up the Centre’s plea for vacating the stay on OBC quota in central educational institutions and clarified that its March 29 order was not an ‘advice’ as claimed by some UPA constituents.
Observing that the Centre’s plea was in the nature of a review petition, a Bench headed by Justice Arijit Pasayat posted the matter for Monday when it would hear the parties to decide whether the Centre's plea deserved to be entertained. This means, the application itself would not be heard on that day.
With the court refusing an urgent hearing, time is running out for implementation of 27 per cent OBC quota in central educational institutions (CEIs) from the coming academic session.
The Indian Institutes of Management have already set April 21 deadline failing which they would go ahead with admissions without OBC quota.
Indian Institutes of Technology and All Indian Institute of Medical Sciences too would not be in a position to wait for long as not much time was left for commencement of the new academic session.
“We don’t give advice except under Article 143(1) of the Constitution (on Presidential Reference)”, the Bench said after senior counsel Harish Salve pointed out on behalf of anti-quota petitioners that the government considered the court’s order to be just an advice. “I stopped giving advice on March 21, 1989 (after becoming Judge),” Justice Pasayat added.
Interestingly, the Centre had said in its application that according to one view in certain constituents of the UPA government the judgement may not be construed as an order of stay but only an advice to the government. It urged the court to clarify that the order was not to stay of the implementation of 27 per cent OBC quota in CEIs from next academic session. Alternately, it wanted the court to vacate the stay.
As Solicitor General GE Vahanvati mentioned the Centre’s plea for an urgent hearing, the court said: “First you satisfy us that it is not a review petition”.
Vahanvati said the Centre was ready to give an undertaking that there would be no reduction in the number of seats which was available in the General Category in each central education institution in the last academic year.
But the court was not impressed. “That we have already dealt with… It was argued by Mr Gopal Subramaniam (Additional Solicitor General) and has been rejected…”, it said.
When Vahanvati said that earlier it was an oral submission and now the government was putting it in writing, the court said it did not make any difference.
The Solicitor General also said the Centre was ready to undertake that the policy of reservation would be implemented simultaneously with and limited to the expansion in capacity of CEIs.
Further, students belonging to OBCs and (proportionate increase of seats for ST/SC) shall be admitted only against the increased seats, so that there was no adverse effect on the number of seats in the General Category, he said. But the court reiterated that first it has to be satisfied about the maintainability of the plea.
Citing Article 145(3) of the Constitution, the Centre has said since the case involved substantial questions of law, constitutional framework in regard to separation of powers, it should be heard by five judges. It also expressed its opposition to the exclusion of "creamy layer" from OBC reservation, saying this concept was not applicable to reservation in education.
On the issue of basing the quota law on 1931 census, the Centre said the attack was a misconception and that the 1931 census did not have even a remote connection with the identification of OBCs. “In fact, the identification of classes by the (Mandal) Commission was based on the realities prevailing in 1980 and not in 1931,” it added.