1

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

DISTRICT: MEHSANA

(EXTRA ORDINARY ORIGINAL JURISDICTION)

WRIT PETTION (PIL) NO. OF 2017

In the matter of Public

Interest Litigation;

And

In the matter under Articles

14, 15, 15(4), 16, 16(4), 38,
46 and 340 of the Constitution
of India;

And

In the matter of challenge to

the Constitutional
Validity/Vires of the
Notifications issued by the
Union of India with regard to
the inclusion of caste in the
Central reservation list of
the Other Backward Caste (OBC)
for the State of Gujarat;

And

In the matter of seeking

directions the implementation
of the judgments and orders of
the Honble Supreme Court in
the matter of reservations and
to follow the mandate of the
Judgment and orders of the
Honble Supreme Court with
regard to collecting
quantifiable data before
 2

including or excluding any

particular caste in the
Reservation list;

And

In the matter between;

1. Ambalal Kalidas Patel

Age: 67 years, Male,
Having address at: C-21, Arbudanagar Society,
Dharoi Colony Road, Visnagar,
District: Mehsana.

2.Dr. Rajuji Muluji Parmar

Age: 75 years, Male,
Having address at: 1, Lilivadi,
M. N. College Road, Visnagar,
District: Mehsana.

3.Pandit Ketankumar Dineshchandra

Age: 51 years, Male,
Having address at: Jani Wado,
Darbar Road, Visnagar, District: Mehsana.

4.Ashok Chimanlal Patel

Age: 65 years, Male,
Having address at: 35, Shrinagar Society,
Bavla, District: Ahmedabad. Petitioners

Versus

1.The Union of India

Notice to be served upon
The Cabinet Secretary, Government of India,
Cabinet Secretariat, South Black, New Delhi.

2.Ministry of Social Justice and Empowerment

Department
Notice to be served upon The Secretary
Shastri Bhawan, C-Wing,
 3

Dr. Rajendra Prasad Road, New Delhi - 110

011.

3.The State of Gujarat

Notice to be served upon
The Chief Secretary, Government of Gujarat,
Sachivalaya, Gandhinagar.

4.Department of Social Justice & Empowerment

Notice to be served upon
The Secretary
Block No.-5, 8th floor, Sachivalay,
Gandhinagar, Gujarat (India).

5.National Commission for Backward Classes

Notice to be served upon
The Chairperson
Government of India
Trikoot - 1, Bhikaji Cama Place,
New Delhi - 110 066.

6.Other Backward Commission

Through its Chairman,
The State of Gujarat,
Bungalow No.13/A, 14 KH Type,
Sector-19, Gandhinagar. Respondents

To,
The Honble Chief Justice
and The Companion Honble Judges
of the High Court of Gujarat
at Sola, Ahmedabad.

The humble Petition of

the Petitioners above
named;

MOST RESPECTFULLY SHEWETH THAT:-

1.The present petition under Article 226 of the

Constitution of India is being filed by way of

Public Interest Litigation and the Petitioners

have no personal interest. The present Petition

is filed as being aggrieved by the inaction of

the Respondents in reviewing the OBC list and

implementing the Mandal Commission

 4

recommendations and the guidelines issued by the

Honble Supreme Court in the Indra Sawhney Case

regarding the exclusion of advanced/affluent

Castes/Tribes from the scheduled reservation

which has resulted in abuse of the affirmative

action by the advance affluent class of OBCs and

defeated the mandate of the casteless society

under the Constitution thereby, preventing the

benefits to reach the genuinely needs OBC

beneficiaries. The Petition is being filed in the

interest of the public at large being local

resident of District: Mehsana and Ahmedabad.

1.1 The Preamble of the Constitution of India aims to

achieve the objective of securing to its citizens

social, economic and political justice, liberty,

equality and fraternity. It also indicates the

methodology to be followed for reaching this goal

of providing social justice. Article 14 of the

Constitution enjoins upon the State to provide to

all persons equality before law and equal

protection of the laws. The principle of right

to equality is further reiterated in positive

and affirmative terms in Articles 15 and 16.

Article 15(1), prohibits discrimination of any

citizen and under clause (5) of Article 15, the

State is empowered to make special provisions by

law for advancement of any socially and

 5

educationally backward classes of citizens in the

matter of admissions to the educational

institutions. Special care was taken to declare

equality of opportunity in the matter of public

employment through Article 16. Clause (1) of this

Article declares that in the matter of public

employment or appointment to any office under the

State, all citizens of this country shall have

equality of opportunity. At the same time, Clause

(4) declares that nothing in this Article shall

prevent the State from making any provision for

reservation in appointments or posts in favour of

any backward class of citizens which, in the

opinion of the State is not adequately

represented in the services under the State.

1.2 That this Petition raises the following

substantial questions of law of general and

public importance for the kind consideration and

decision of this Honble Court.

(i) What is the scope and nature of power of the

President of India under Article 340 of the

Constitution? Whether the power conferred

hereunder is not in the nature of the power

coupled with the duty to exclude from time to

time respective Castes, Races or Tribes or any

part of them for the purposes of making

 6

available the beneficial provisions of the

Constitution?

(ii) Whether the power under Article 340 is to

specify a respective Castes or Tribes etc.

carries with it the duty to lay down the

principles for the purpose of the exercises of

such powers?

(iii) Whether further inclusion of other

Castes/groups/races/tribes without excluding

socially advanced castes/tribes/from the OBCs

list by the Central and State Govt. amounts

disregard of the interference of Article 340 of

the Constitution?

(iv) Whether the erroneous understanding and

exercises of powers under Articles 340 r/w

Section 11 of the National Commission for

Backward Classes Act, 1993 for not doing

periodic revision of lists by the Central and

State Govt. every succeeding 10 years with a

view to exclude from such lists those classes

who have ceased to be backward classes or for

including in such lists new backward classes

has not led to the frustration of the

objectives of Articles 15(4) and 16 (4)

(equality and equality of opportunity) of the

Constitution?
 7

(v) Whether the respondents is legally correct in

not conducting periodic revisions of lists as

per Section 11 of the National Commission for

Backward Classes Act, 1993 for the exclusion of

affluent castes of the OBCs from the schedule?

Whether the respondents are justified in not

excluding the socially, educationally and

economically advances Castes from the purview

of the list/schedule in spite of the directions

given by the Honble Supreme Court time and

again?

(vi) Whether the non-exclusion of any advanced

castes of persons from the OBCs caste/tribe

from the list/schedule and getting them

assimilated in the society is not against the

basic objective of caste-less society as

envisaged by the framers of the Constitution?

(vii) Whether in view of the reports submitted

by various committee/commissions constituted by

the Union of India and State Governments during

the last sixty eight years of reservation

policy, the objective of

empowerment/advancement of any socially,

economically and educationally backward classes

of citizen being found on such conditions from

time to time has not been frustrated by the

personnel inclusion of non-deprived

 8

Sections/Castes/Tribes in the schedule

mortgaged under Article 340 of the

Constitution?

(viii) Whether the Union of India and State Govt.

does not owe a constitutional duty of equitable

distribution of the benefits of reservation

under Article15(4) and 16(4) of the

Constitution amongst the target groups?

(ix)In case the reservation policy has failed to

achieve its objectives, whether the time has

not come to abolish blanket reservation policy

and evolve a new mechanism in order to uplift

and empower the really marginalized Sections of

the Society?

2.That, the Petitioners are social activist. The

Petitioner No.1 and 2 are the Conveners of Akil

Bhartiya Bin-Anamat Samaj located at Visnagar,

District: Mehsana which is a group of people

formed with an objective to create awareness of

reservation and its consequences. The Petitioner

No.3 and 4 are the members of the said group. The

Petitioner No.1 is a retired LIC Development

Officer and is also engaged in social activities.

The Petitioner No.2 is a retired Professor and

Principal and has also received numerous awards

for achieving excellence in the field of

 9

education. The Petitioner No.2 is also engaged in

social activities. The Petitioner No.3 and 4 are

also engaged in social activities for creating

awareness in societies. It is submitted that, the

Petitioners are a national and citizen of India

and are entitled to invoke fundamental rights

enshrined under the provisions of the

Constitution of India. It is submitted that, the

present petition is preferred under Public

Interest Litigation after gathering various

information and documents from the concerned

departments. It is further submitted that the

Petitioner No.1 to 3 have not filed earlier any

other public interest petition and Petitioner

No.4 had filed earlier one Public Interest

Litigation being Writ Petition (PIL) No.250 of

2016 before this Honble Court. The Petitioners

being aggrieved by the inaction of the

Respondents in not reviewing the OBCs list as per

the clause II of N.C.B.C Act and also for not

implementing the Mandal Commission

recommendations of 1979 regarding exclusion of

advanced/affluent Casts/Tribes from the scheduled

reservation which has resulted in abuse of the

affirmative action by the advance affluent class

of OBCs and defeated the mandate of the Casteless

society under the Constitution thereby,

 10

preventing the benefits to reach to genuinely

needy OBCs beneficiaries. The Petitioners have

their personal source of income and the

litigation cost and other expenses are being

borne by the Petitioners themselves and the

advocate has not taken any professional fees for

the said petition.

2.1 The present petition has been filed by questions

of constitutional reservations, and which is

illegal and against the law laid down by the

Honble Supreme Court of India. The Petition is

purely in public interest and is not at the

instance of any other person or organization. The

Petitioners has applied his mind to the public

interest involved in the petition on hand, and

has therefore, resolved to file the present

petition. The present petition is not motivated

by any other consideration, other than public

interest and is filed pro bono public, for

seeking to implement the judgments and orders of

the Honble Supreme Court of India and the

principles laid down by the various High Courts

in India in its letter and spirit. The petition

seeks action by the respondents, in conformity

with Articles 15, 15(4), 16, 16(4), 38, 46, 335

and 340 of the Constitution of India. The present

 11

petition is not filed against a particular person

or for seeking any personal vengeance.

3.That the Petitioners is filing the present

Petition purely in Public Interest on his own and

not at the instance of any other person or

organization. The expenses pertaining to the said

litigation are being borne by the Petitioners

themselves and till date there are no contempt

proceedings against the Petitioners.

4.The facts of the case in brief are as follows:-

4.1 Genesis: The genesis of the problem of

inequitable distribution of reservations

benefits among the OBCs has been a contentious

issue since reservation policy came into

operation in the country. The framers of the

Constitution were apprehensive about the fair

distribution of the reservation benefits

amongst the OBCs. Their fear was that due to

inequitable distribution, a Vested Interest

Class within the OBCs may emerge as a result

of the special privilege provided to these

communities under the Constitution. On the

other hand, various government studies and

reports eventually found that the benefits were

not percolation down to the real and genuine

beneficiaries. Resultantly, the intent and

 12

purpose of reservation or affirmative action

for depressed or disadvantaged class stands

defeated.

4.2 It is submitted that, during last seventy years

the country has witnessed the gross misuse of

Article 340 by the successive governments

whereby various castes/races or groups/tribes

have been included in the schedule without

making any empirical study and that too for

political consideration and no periodic

revision has been done as per Section 11 of the

NCBC Act, 1993. On the contrary not a single

community/caste/tribe has been excluded from

the OBC list. The Honble Supreme Court on

various occasions has commented very adversely

on the manner these provisions have been abused

for ulterior motives. That till date no steps

have been taken for exclusion of affluent

castes/tribes from the OBCs schedule. However,

the Governments/political parties have been

encouraging inclusion of more and more

castes/tribes in the schedule list instead of

excluding the advance castes/tribes who have

enjoyed the benefits of reservation for a

longer period and have become advanced in all

respects i.e. socially, educationally and

politically etc.
 13

4.3 It is respectfully submitted that in case the

State Governments are not empowered or allowed

to determine as to who is forward and who is

backward and who have and who have no adequate

representation in services under the State

within OBCs for the purpose of giving equal

opportunity in the appointments or posts or for

taking any affirmative action for their

welfare. And if the periodic revision of lists

by the Central and State Govt. is not done

every succeeding 10 years for exclusion of

Castes/tribes who has ceased to be backward

from the OBCs list then the whole objective of

equality and equal opportunity enshrined in

Articles 15(4) and 16(4) of the Constitution

appears to have been defeated.

4.4 That the aforesaid issue with regard to the

problems of caste and class reservations which

are to be dealt by the State of Gujarat and the

Union of India. Inclusions and exclusions in

the reservations list can be done only with the

help of quantifiable data. However, such

figures are not available for the last 70 years

or so since the census reports provided the

results of such caste-wise figures only until

1931.
 14

4.5 The issue of inclusion or exclusion of a

particular caste in reservations can and should

be dealt with by the State of Gujarat and Union

of India, subject however to the propositions

of law which have been already laid down by the

Honble Supreme Court in several cases. The

formation of the neutral body like a backward

classes commission, which can review like the

entire enumeration of other backward classes in

the State of Gujarat. There have been in the

past two such commissions for the State of

Gujarat, namely the Justice Gokulkrishnan

Commission and the Justice Mankad Commission.

The need for such a commission to be again

appointed, is all more apparent, since the

Honble Supreme Court of India has in recent

judgments, emphasized the need for quantifiable

data which is updated and current, before

taking decisions on inclusions and exclusions

in the list of socially and economically

backward classes of people.

4.6 That the relative proportion of backwardness of

caste when compared to others is a thumb rule

for administration, as far as inclusion in the

reservation list is concerned. Relative

backwardness, judged by objective standards

should be the laser beam to adjudge the concept

 15

of inadequacy of reservation. Furthermore it is

trite law that if reservation is to be made in

matter public employment there has to be

collection of quantifiable data with regard

being had to the backwardness and inadequacy of

representation in respect of the posts in a

particular cadre and while doing so, the other

conditions as engrafted under Article 335 of

the Constitution of India relating to the

efficiency of administration have to be

maintained.

4.7 Historical Background:-

That the implementation of the recommendations

of the Mandal Commissions Report was taken in

the year 1990. It was 6th August, 1990 that the

Government of India took the historic decision

to introduce reservation of 27% for Backward

Classes on the basis of the Mandal

Commissions recommendations. This was

announced in the Parliament by the Prime

Minister of India on the 7th August 1990.

Formal orders were issued thereafter in

Office Memorandum No. 36012/31/90-Estt. (SCT)

dated 13th August 1990 providing reservation

for Socially and Educationally Backward

Classes (SEBCs) of 27% of the vacancies

 16

filled by direct recruitment in civil posts

and services under the Central Government and

Public Sector Undertakings and Financial

Institutions for SEBCs. It was also laid down

that the SEBC would comprise in the first

phase the castes and communities which are

common to both the lists in the report of the

Mandal Commission and the State Governments

lists. The Department of Public Enterprises

and the Ministry of Finance were required to

issue similar instructions to all public

sector undertakings and financial

institutions.

The Honble Supreme Court in its land mark

judgment being Writ Petition (Civil) No.930 of

1990 Indira Sawhney and Others Vs Union of

India and Others dated 16.11.1992 directed

the Government of India, State Governments and

Administrations of Union Territories to

constitute a permanent body in the nature of

Commission or Tribunal for entertaining,

examining and making recommendations upon

requests for inclusion and complaints of

over-inclusion and under inclusion in the list

of OBCs. Government of India was also directed

to specify the basis for applying the

relevant and requisite socio-economic

 17

criteria to exclude socially advanced

persons/sections (creamy layer) from other

backward classes. In accordance with the

direction of the Supreme Court regarding the

Socially Advanced Persons/Sections, the

Government of India set up an Expert

Committee on 22nd February, 1993, to

determine the basis, the criteria for

identification of the Socially Advanced

Persons/Sections. The Committee gave its

report on 10th March, 1993. Thereafter, the

Department of Personnel & Training vide

O.M. dated 8th September,1993, incorporated

in the O.M. of 13th August,1990 the rule of

exclusion of Socially Advanced

Persons/Sections from reservation, on the

basis of the recommendations of the Expert

Committee, thus fulfilling the condition laid

down by the Supreme Court for the

implementation of the O.M. of 13th

August,1990. The order contained in the

Resolution dated 10th September, 1993 of the

Ministry of Welfare notified the first phase

lists of Backward Classes for 14 States, on

 18

the basis of the recommendations of the

Expert Committee on Backward Classes.

4.8 Formation of National Commission for Backward

Classes:

In pursuance of the direction of the

Supreme Court, the Government of India

enacted the National Commission for Backward

Classes Act, 1993 (Act No.27 of 1993, for

setting up the National Commission for

Backward Classes at the Centre. Section 3

of the Act provides that the Commission

shall consist of five members, namely, a

Chairperson who is or has been a judge of the

Supreme Court or of a High Court; a social

scientist, two persons who have special

knowledge in matters relating to backward

classes; and a Member-Secretary who is or has

been an officer of the Central Government in

the rank of a Secretary to the Government of

India. The Act came into effect on the 2nd

April 1993. The Government of India

constituted the Commission by its Notification

No.12011/34/BCC(C)/Pt. I dated 14th August

1993 with the first team of five Members with

a tenure of three years.

 19

Section 9(1) of the Act provides that it

shall examine the requests for Inclusion of

any class of citizens as a backward class in

the lists and hear Complaints of over-

Inclusion or under-Inclusion of any backward

class in such lists and tender such advice to

the Central Government as it deems

appropriate. Section 9(2) of the Act further

provides that the advice of the Commission

shall ordinarily be binding upon the Central

Government. Section 11 of the Act also

provides for periodic revision of lists by the

Central Government as under:-

(1) The Central Government may at any

time, and shall, at the expiration of ten

years from the coming into force of this Act

and every succeeding period of ten years

thereafter, undertake revision of the lists

with a view to excluding from such lists those

classes who have ceased to be backward classes

or for including in such lists new backward

classes.

2) The Central Government shall, while

undertaking any revision referred to in

subsection (1), consult the Commission.

 20

The NCBC, after studying the

criteria/indicators framed by the Mandal

Commission and the Commission set up in the

past by different State Governments and other

relevant materials formulated guidelines for

considering requests for inclusions in the

list of Other Backward Classes.

However, till date no such decadal review has

taken by place as replied by NCBC dated

18.04.2016 received under the Right to

Information Act. A copy of the said RTI

Information dated is annexed hereto and marked

as Annexure: A

4.9 Functions of Commission:-

The functions of the Commission are laid

down in section 9 and section 11 of the Act.
Under sub-section (1) of Section 9 of the Act
the Commission shall examine requests for
inclusion of any class of citizens as a
Backward Class in the lists and hear
complaints of over-inclusion or under
inclusion of any Backward Class in such lists
and tender such advice to the Central
Government as it deems appropriate. The term
list in this section refers to lists
prepared by the Government of India from time
to time for purposes of making provision for
the reservation of appointments or posts in
favour of backward classes of citizens which,
in the opinion of that Government, are not
 21

adequately represented in the services under

the Government of India and any local or other
authority within the territory of India or
under the control of the Government of
India. The term backward classes has been
defined in clause (a) of the same section
(section 2) to mean such Backward Classes of
citizens other than the Scheduled Castes and
the Scheduled Tribes as may be specified by the
Central Government in the lists.

Under Section 9(2) of the Act, The advice

of the Commission shall ordinarily be binding
upon the Central Government. This mandatory
provision is based on and incorporates the
directions of the Supreme Court in the Mandal
Judgement, which directed the Government of
India and the State Governments/Union
Territories to constitute a permanent body, in
the shape of a National Commission for Backward
Classes and the State Commissions for Backward
Classes and that the advice tendered by such
bodies shall ordinarily be binding upon the
Government

Section 11 of the Act enjoins upon the

Central Government to undertake revision of the
lists of backward classes at the expiration of
ten years after the Act came into force and
thereafter every succeeding period of ten
years, and enables it to undertake such
revision at any time, with a view to excluding
from such lists those classes who have ceased
to be backward classes or for including in such
lists new backward classes. Under sub-section
(2) of this Section, the Central Government is
 22

required to consult the Commission while under-

taking such revision.

Section 11 of NCBC Act 1993 envisages that the

Central Government may at any time, and shall,
at the expiration of ten years from the coming
into force of this Act and every succeeding
period of ten years thereafter, undertake
revision of the lists with a view to excluding
from such lists those classes who have ceased
to be backward classes or for including in such
lists new backward classes. The Central
Government shall, while undertaking any
revision consult the Commission. However, till
date NCBC has not undertake decadal review.
However, to undertake the work of revision of
Central List of OBCs it was absolutely
necessary to have contemporaneous data about
the social backwardness for which details of
different castes and professions (traditional
occupation of the caste) are necessary.
However, further probing in to the exercise
revealed that this data is not available
readily for OBCs as is has not been collected
separately for OBCs. There is no separate
column for OBCs and they have been included
with Others. Hence, at present there is no
OBC- specific data and socio economic caste
census data.

In the recent Judgement of Ram Singh V/s Union

of India (popularly known as Jat case), the
Supreme Court has very clearly pointed out that
any decision to include/exclude any caste from
the OBC List should be based on CONTEMPORANEOUS
DATA. Detailed and recent caste survey which
 23

can provide us the latest

Socio/Educational/Economic Caste data. This
data can be used by NCBC for the following
purposes:-

i. To include and exclude castes from the List of

OBCs depending upon their Socio-Educational
status.
ii. To undertake the DECADAL REVIEW which is
mandated by the NCBC Act to be undertaken every
ten years but which has not been taken up since
1993.

The salient issues pertinent of the OBCs which

have emerged as the result of the Judgment in
Ram Singh Case are as follows:-

1.Caste is not the sole criteria for determining

backwardness. It is only a starting point;

2.The Honble Supreme Court has been routinely

discouraging identification of a group as
backward solely on the basis of caste alone;

3.For a complete and fool-proof identification of

backward classes of the country, 100% population
has to be surveyed;

4.The data on the basis of which identification of

a backward class is done has to be
contemporaneous data. It cannot be out-dated.

5.State cannot blind itself to the existence of

other forms and instances of backwardness e.g.
Transgenders, Orphans, daily wage workers,
agricultural labourers, Rickshaw-pullers, etc. In
 24

fact, the welfare State should keep an eye out

for new and emerging forms of backwardness in the
society.

6.Mandal Commission has recognized the backward

classes only on the basis of caste at the
beginning but did not consider the other forms of
most depressed and deserving classes based on the
occupation-cum-income such as daily wage workers,
agricultural labourers, rickshawpullers, orphans,
transgenders, etc. Therefore the 9 Judge
Constitution Bench judgment in Indra Sawhney case
followed by the recent smaller bench judgment in
the case of Ram Singh has impressed upon the
Government about the need to identify other such
depressed and deserving classes as backward
classes;

7.Ministry should start the process for conduct of

a decadal review for deleting those who have
crossed the bar and who have since become
elevated above backwardness and also to include
the most deserving and depressed classes;
8.The powers of the Union under Article 16(4)
become limited when there is an enactment of the
specific statutory provisions like the NCBC Act
whose recommendations are required to be
adequately considered by the Union before taking
its final decision;

9.The advice of the NCBC is ordinarily binding on

the Government. Since in the Jat case, the
Ministry has overturned the advice of the NCBC,
Section 15 of the NCBC Act requires that MoSJE
(Ministry of Social Justice and Empowerment)
place the reasons for non-acceptance of the
 25

advice of the NCBC before the Parliament;

4.10 Judgement Writ Petition (Civil) No.930 of 1990

Indira Sawhney Versus Union of India And
others (16.11.1992)

THE FOLLOWING DIRECTIONS ARE GIVEN TO THE

GOVERNMENT OF INDIA, THE STATE GOVTS AND THE
ADMINISTRATION OF UNION TERRITORIES

A) The Government of India, each of the State

Governments and the Administrations of
Union Territories shall, within four
months from today, constitute a permanent
body for entertaining, examining and
recommending upon requests for inclusion
and complaints of over-inclusion and
under-inclusion in the lists of other
backward classes of citizens. The advice
tendered by such body shall ordinarily be
binding upon the Government.

Hence, the Government of Gujarat has

constituted a Other Backward Commission a
permanent body in compliance with the
direction of Honble Supreme Court by
resolution no. SSP/1193/KH-102/A dated
18.03.1993. Copy of the resolution no.
SSP/1193/KH-102/A dated 18.03.1993 is
annexed hereto and marked as Annexure: B
to this Petition.

4.11 It is relevant here to mention that the Honble

Supreme Court of India in a similar matter

being Ram Singh vs. Union of India W.P. (C)

 26

No.274 of 2014 has set aside the decision of

the Central Government to include the caste of

Jats in the Central List of Other Backward

Classes observing that:-

No doubt that in the matter of inclusion in

the Central List of other backward classes,

the exercise undertaken by the State

Governments in respect of the State Lists may

be relevant but what cannot be ignored in the

present case in the very significant fact that

in respect of all the States (except Haryana)

the inclusion of Jats in the OBC Lists was

made over a decade back. A decision as grave

and important as involved in the present case

which impacts the rights of many under

Articles 14 and 16 of the Constitution must be

taken on the basis of contemporaneous inputs

and not on the basis of antiquated data. It

was furthermore observed that the

backwardness; and educational and economic

backwardness may contribute to social

backwardness. But social backwardness is a

distinct concept having its own connotations.

4.12 That the Honble Supreme Court in the above

mentioned matter has also observed that the

terms backward class and socially and

educationally backward classes are not

 27

equivalent and further that in Article 16(4)

the backwardness contemplated is mainly social.

The above interpretation of backwardness in

Indra Sawhney would be binding on numerically

smaller Benches, therefore, understanding a

social class as an identifiable section of

society which may be internally homogenous

backwardness must also cease to be a relative;

possible wrong inclusions cannot be the basis

for further inclusions but the gates would be

opened only to permit entry of the most

distressed. Any other inclusion would be a

serious abdication of the constitutional duty

of the State.

4.13 That in the light of the above mentioned facts

and statements of applicable law, the

requirement of the State to collect

quantifiable data with respect to caste and

class reservation in matter of public

employment is an absolute imperative. Data as a

necessary prelude to reservations is an age old

concept which was propounded in the Indra

Sawhney case reported in (1992) Supp. (3) SCC

217 and the same was enunciated and reiterated

in the case of M. Nagaraj reported in (2006) 8

SCC 212. That it is time that the State of

Gujarat and Union of India ought to prepare it

 28

own opinion on the basis of the material

collected by an independent agency, in the form

of quantifiable data to make decisions on the

caste and class reservation policy prevailing

in the State. It is submitted that, at the peak

of the nationwide agitation over implementation

of the Mandal report, it was the Supreme

Courts intervention and subsequent judgment in

the case of Indra Sawhney that laid the basis

of lasting equilibrium.

4.14 The Petitioners submits that, the Honble

Supreme Court observed in many of the

judgments that owing to historical

conditions, particularly in Hindu Society,

recognition of backwardness has been

associated with caste. Social groups who

would be most deserving must necessarily be a

matter of continuous evolution. New

practices, methods and yardsticks have been

continuously evolved moving away from caste-

centric definition of backwardness. It is

submitted that, the gate would be opened only

to permit entry of the most distressed. Any

other inclusions would be a serious

abdication of the constitutional duty of the

State.
 29

4.15 The Petitioners submits that, the caste may

be a prominent factor for easy determination

of backwardness, but at the same time it

also discourages the identification of a

group as backward solely on the basis of

caste and calls for new practices, method and

yardsticks to be evolved. Class may be a

factor too, since a class in an identifiable

section of society but again it may not be

enough to justify reservations. Social

backwardness has nothing to do with caste or

class.

4.16 The Petitioners submits that, the

progressive advancement of all citizens on

all fronts i.e. social, economic and

educational that makes history an

insufficient guide. It is not the correct way

to keep citing historical wrongs and propose

reservations as a solution to redressing

them.

4.17 The Petitioners submits that, the entire

existing system of reservations and every

established of OBC should be reviewed, since

they were all based on historical wrongs and

antiquated data.
 30

4.18 The Petitioners submits that, the

recommendation of Mandal Commission was

accepted by the government on 08.08.1990 and

appointed as per the direction given by the

Honble Supreme Court. It is submitted that

the commission evolved 11 indicators or

criteria for determining social and

educational backwardness and those 11

indicators were grouped under 3 broad heads

i.e. social, educational and economic. It is

submitted that the criteria is not fulfilled

because of the development in the country. It

is pertinent to note that the criteria which

are used for inclusion of particular caste of

people, same are not applied for the

exclusion of those class of people and

therefore, the respondent state be directed

to supply the exclusion record so that actual

position for applicability of the Act can be

followed in the interest of public at large.

4.19 The Petitioners submits that, pursuant to the

recommendation of the second backward class

commission providing reservations for

socially and educationally backward classes

in the services and educational institutions

under the Government of India, the Government

of India issued a Office Memorandum dated

 31

13.08.1990 and 25.09.1991 providing 27%

reservations which was the subject matter of

the judgment of the Honble Supreme Court

decided on 16.11.1992 in the case Indra

Sawhney and others v/s. Union of India (Writ

Petition No.930 of 1990) and the said

petition was decided by 9 judge bench of the

Honble Supreme Court in the judgment

reported in (1992) SUPP 3 SCC 217 held that

the said Office Memorandum are valid and

enforceable subject to exclusion of socially

advanced members of the sections from the

notified other backward classes.

4.20 The Honble Supreme Court of India gave

directions to the Government of India, the

State of Government and the Administrations

of Union Territories which reads as under:-

(a) The Government of India, each of the State

Governments and the Administrations of Union

Territories shall, within four months from

today, constitute a permanent body for

entertaining, examining and recommending upon

request for inclusion and complaints of over

inclusion in the list of other backward

classes of citizens. The advice tendered by

such body shall ordinarily be binding upon

the Government.
 32

(b) Within four months from today, the Government

of India shall specify the basis, applying

the relevant and requisite socio-economic

criteria to exclude socially advanced

persons/sections from other backward

classes. The implementation of the impugned

Office Memorandum dated 13.08.1990 shall be

subject to exclusion of such socially

advanced persons.

4.21 The Petitioners submits that, the National

Commission for Backward Classes Act, 1993

(hereinafter to be referred as the Act,

1993) came in to force on 02.04.1993 with

the objects and reasons observed in the

judgment delivered by the Honble Apex Court

on 16.11.1992 on matters arising out of

Governments orders on reservations of

appointments or post under the Government of

India in favour of backward classes on

citizens under Article 15 of the Constitution

of India. The Honble Supreme Court inter

alia directed the Government of India to

constitute a permanent body within 4 months

from the date of the judgment for

entertaining and examining and for

recommending upon request made to it for,

inclusion and complaints of over inclusion

 33

and under inclusion in the list of backward

classes of citizens. The Honble Supreme

Court observed that the body so created can

also be consulted by the government in the

matter of periodic revision of list of

backward classes. Its advice/opinion should

ordinarily be binding upon the government.

Wherein Section 2 (C) defines list means

list prepared by the Government of India from

time to time for purposes for making provision

for the reservations of appointments or posts

in favour of backward classes of citizens,

which in the opinion of that Government, are

not adequately represented in the services

under the Government of India and any local or

other authority within the Territory of India

or under the control of the Government of

India.

4.22 The Petitioners submits that, the Government

of India, the Annual report for the year

2014-15 of National Commission for Backward

Classes declares that the judgment lays down

the yardsticks which are to be kept in mind

when deciding about inclusion of new classes

in to the list of OBCs. Not only this, the

judgment has exhorted the Government not to

confine itself to identifying castes as

 34

backward classes but also to keep an eye open

for newer forms of backwardness which are

emerging in the society. Feelings of

historical injustice and possible wrong

inclusions in the past cannot be the basis

for further inclusions. The Annual report

also observed relying upon the judgment of

the Honble Supreme Court in Jats case that

caste is not the sole criteria for

determining backwardness, it is the only a

starting point. For a complete and full proof

identification of backward classes of the

country, 100% population has to be surveyed.

4.23 The Petitioners submits that, by virtue of

resolution issued by the State of Gujarat,

Social Welfare Department vide Resolution

No.SSP/1193/KH-102/A dated 18.03.1993 by

following the guidelines issued by the

Honble Supreme Court of India in the case of

Indra Sawhney and Others formed a permanent

body known as Other Backward Commission for

entertaining, examining and recommending for

inclusion of backward classes of citizens in

the State of Gujarat. It is further submitted

that the said commission was empowered for

inclusion of list of other backward classes

of citizen and also empowered to obtain such

 35

information from the State for the said task

of inclusion of caste in the list of other

backward lists.

4.24 That the Union of India by virtue of various

resolutions included various castes in the

central state list of other backward classes

of citizen. It is also submitted that no

decadal review of the said central list has

been done till date for the exclusion and

inclusion of the caste in view of the Section

11 of the N.C.B.C. Act, therefore, inclusion

of the cast in the said central list clearly

violates that mandate of the Honble Supreme

Court in the case of Indra Sawhney and

others. Copy of the resolution of the Union

of India is annexed hereto and marked as

Annexure: C.

5.The source of information of the facts pleaded is

based on the personal knowledge of the

Petitioners, the information gathered under the

Right to Information Act from other social

activist, the newspaper and media reports, legal

advice and the cases and judgments of various

Honble High Courts in India and Honble Supreme

Court referred to in this Public Interest

Litigation.
 36

6.The Petitioners submits that, the Petitioners

have made many representations before the

authorities with regard to the subject matter of

the present petition. It is pertinent to mention

that, with regard to the representation made by

the Petitioners under their group, various MLA of

the Gujarat State have shown their support for

the representation made by the Petitioner and

also forwarded the said representation on their

letter head with recommendations to the concerned

authorities. That Narayanbhai Lalludas Patel,

M.L.A., Unjha (21) Assembly Constituency through

is letter dated 30.09.16 forwarded the

representation of the Petitioners to the Honble

Prime Minister with recommendations to consider

the representation of the Petitioners and also

forwarded to the Social Justice and Empower

Department, Gujarat State to consider the

representation of the Petitioners. That,

Prahladbhai I. Patel, M.L.A. of 26, Vijapur

(N.G.) constituency through its letter dated

21.09.16 forwarded with recommendations to the

National Commission for Backward Classes to

consider the demands of the Petitioners. That one

Rishikesh Ganeshbhai Patel, M.L.A. of 22,

Visnagar Constituency through it letter dated

20.09.16 forwarded with recommendations the

 37

representations of the Petitioners to N.C.B.C to

consider the same as the demands of the

Petitioners are legitimate and proper. The Chief

Minister Office through its letter dated 19.09.16

forwarded the representations of the Petitioners

to the concerned authorities. Copy of the

representations of the Petitioners is annexed

hereto and marked as Annexure-D Colly to this

Petition.

7.That to the best of knowledge of the Petitioners,

two public interest petition being Writ Petition

(PIL) No.10/2017 and Writ Petition (PIL)

No.83/2017 raising the similar issue is filed

before this Honble Court.

8.That the present Petition has been filed on the

following amongst other grounds:-

(a) That the Union of India and the NCBC has failed

to conduct any periodic review as per Section

11 of the said Act and have failed to exclude

the socially advanced castes/tribes from the

from the purview of the list/schedule in spite

of the directions given by the Honble Supreme

Court.

(b) That it is humbly submitted that the present

petition pertains to the issue of caste and

class reservations with respect to matter of

 38

public employment which has been dealt by the

Honble Supreme Court of India time and again

in a plethora of cases. That it is submitted

that the Apex court has laid down in a series

of landmark judgments in relation to social

justice by interpreting the constitutional

provisions upholding the cherished values of

the Constitution and thereby often has shaped

the course of our national life. The preamble

of our constitution along with Article 14, 15

and 16 essentially provide that people

suffering from social repression and oppression

should not be denied of equality before the law

and equal protection of the laws and equal

opportunity in the matters of public employment

or subjected to any prohibition of

discrimination on grounds of religion, race,

caste, sex or place of birth therefore any step

taken without implementing or following the

procedure as established by the Honble Supreme

Court of India would be clearly in violation of

Articles 14,15 and 16.

(c) That various High Courts of our country and the

Honble Supreme Court have in the cases

mentioned have issued directions with regard to

issue of reservation and the need for

quantifiable date to determine backwardness as

 39

also action which is required to determine

backwardness as also action which is required

to be taken by High Court and the Honble

Supreme Court.

(d) The relevant Constitutional and statutory

provision in the light of which the issue

arising will have to be determined at the

outset.

(e) Article 15 of the Constitution prohibits

discrimination on ground of religion, race,

caste, sex or place of birth. Clause (4) of

Article 15 provides that nothing in this

article or in clause (2) of article 29 shall

prevent the State from making any special

provision for the advancement of any socially

and educationally backward classes of citizens

or for the Scheduled Castes and the Scheduled

Tribes.

(f) Article 16 which provides for equality of

opportunity in matter of public employment

provides in Clause (4) thereof that nothing in

this article shall prevent the State from

making any provision for the reservation of

appointments or posts in favour of any backward

class of citizens which, in the opinion of the

State, is not adequately represented in the

 40

services under the State. Reference to the

provisions of Article 38 and 46 of in Part IV

of the Constitution may also be made. Article

38 of the Constitution enjoins a duty on the

State to endeavour to promote the welfare of

the people by securing and protecting as

effectively as it may a social order by, inter

alia, eliminating inequalities in status,

facilities and opportunities not only amongst

individuals but also amongst groups of people

either residing in different areas or engaged

in different vocations.

(g) That the Honble Supreme Court of India in the

case of Indra Sawhney Vs. Union of India

reported in (1992) Supp. (3) SCC 217: AIR 1993

SC 477 has held that:

Not only should a case be a backward class

for meriting reservations, it should also be

inadequately represented in the services under

the State. The language of Clause (4) makes it

clear that the question whether a backward

class of citizens is not adequately

represented in the services under the State.

This is evident from the fact that the said

requirement is preceded by the words in the

opinion of the state. This opinion can be

formed by the State on its own, i.e., on the

 41

basis of the material through a

Commission/Committee, person or authority. All

that is required is, there must be some

material upon which the opinion is formed.

Indeed, in this matter the court should show

due deference to the opinion of the State,

which in the present context means the

executive .

Therefore, the Apex Court clearly has

stated that the state is empowered to take such

decisions which are required in the current

scenario but only the basis of the collected

quantifiable data which is already there or in

the present case since it is not present the

same can be undertaken with immediate effect.

(h) It is furthermore submitted that, if there are

actually such compelling reasons for a State to

make reservation, it is obligatory on the part

of the State to collect quantifiable data

showing the backwardness of the class and

inadequacy of representation of that class in

public employment lest the enabling provision

could not be enforced. That it is further

submitted that the Honble Supreme Court has

elucidated the above mentioned proposition of

law clearly in the case of M. Nagraj v. Unio of

India (2006) 8 SCC 212. Thus the Honble

 42

Supreme Court has opined that in each case

before making such reservations the collected

quantifiable data has to be put before the

court by the state in order to justify its

action and in the present case since no such

data exists the same is to be gathered with

immediate effect under the aegis of this

Honble Court. Furthermore, in conclusion in

the above said matter the Honble Supreme Court

held that As stated above, the impugned

provision is an enabling provision. The State

is not bound to make reservation for SCs/STs

in matter of promotions. However, if they wish

to exercise their discretion and make such

provisoin, the State has to collect

quantifiable data showing backwardness of the

class and inadequacy of representation of that

class in public employment in addition to

compliance with Article 335. This amply makes

the mandate of the Honble Apex Court to be

followed by the States while making

reservations clear by metes and bounds.

(i) That the NCBC has not decided or clarified any

specific criteria for applicability of the

reservation to OBC under the provisions of the

Act. Hence, it requires an elaborate

investigation and collection of data and

 43

examining the said data in a rational and

scientific way, which is not done in the facts

of the present case.

(j) That, the National Commission for Backward

Classes Act, 1993 came into force on 02.04.1993

on the basis of the guidelines and observations

made by the Honble Supreme Court in the

judgment of Indra Sawhney & Others v/s Union of

India and therefore, NCBC is duty bound to

follow the provisions of the Act and the

guidelines issued by the Honble Supreme Court.

(k) That, Section 11 of N.C.B.C. Act, 1993 pertains

to periodic revision of lists by the Central

Government wherein the Central Government may

at any time and shall at the expiration of 10

years from the coming in to force of this Act

and every succeeding period of 10 years

thereafter, undertake revision of the lists

with a view to excluding from such lists those

classes who have ceased to be backward classes

or for including in such list new backward

classes.

(l) That, as stated hereinabove the State

Government included 39 castes by virtue of

circular issued in 1994 in the OBC Category

 44

without any survey or recommendations of the

OBC Commission.

(m) It is further submitted that, even if

quantifiable data is not collected, the

concerned State can be asked to do so in view

of the order dated 13.07.10 passed by the

Honble Supreme Court in the case of S. B.

Joshi vs. State of Karnataka and Ors. In W.P.

No.259 of 1994 which was decided on 13.07.2010,

wherein the Honble Supreme Court has directed

the State of Karnataka to collect the

quantifiable data and therein after referred

the matter to the Karnataka High Court.

(n) In the light of the above submitted grounds it

can be clearly seen that the Honble Apex Court

in a plethora of judgments, some of them which

have been cited above has clearly issued a

mandate and prescribed the procedure to States

as to the collection of the quantifiable data,

the same therefore should be followed in the

present case. Hence, the respondents have

failed to exclude the socially advanced

castes/tribes from the purview of list/schedule

in spite of the queries raised and directions

given by the Honble Supreme Court.

 45

(o) Because non-exclusion of any advanced

caste/tribe from the list/schedule and get them

assimilated in the society is against the basic

objective of the constitution of caste less

society.

(p) Because during the last seventy years of

reservation policy, the objective envisage by

the framers of the Constitution has not been

achieved and the very purpose of the

reservation policy has been frustrated.

(q) Because the target groups 99% castes have not

at all been benefited during the last seventy

years. Rather it has resulted in creation of a

vested interest class amongst the OBCs. Hence,

the respondents should review the reservation

list so that the genuine cast gets the benefit.

9.That the Petitioners is seeking interim relief on

the following grounds:-

9.1 That on a perusal of the above judgments of the

Honble Supreme Court, the Honble Supreme

Court has clearly given the mandate and the

procedure for states to collect quantifiable

data in order to deal with the situation of

reservation and promotions in the matter of

public employment however a set of people in

order to get their castes included in the

 46

reservation list without following the proper

procedure as laid down by the Honble Apex

Court which is impermissible under law are

causing irreparable loss and to the public at

large.

9.2 That, the guidelines for implementation of

reservation for backward classes given by the

Honble Supreme Court in the reported judgment

(1992) SUPP 3 SCC 217 is not followed by the

respondent authorities.

9.3 Pending final hearing and disposal of this

Petition, this Honble Court be pleased to stay

the implementation of the

resolutions/notifications included castes in

the Central state list of other backward

classes of citizen by the Union of India and

further be pleased to direct the Respondents

not to give any benefit of the said

resolutions/notifications in any recruitment

carried out by the Respondents.

10. The Petitioners have not filed any other

petition either before this Honble Court or the

Honble Supreme Court or before any other Court,

on the same subject matter of this Petition.

11. The Petitioners submits that, the Petitioners

does not have any other alternative efficacious

 47

remedy available at law except by way of this

petition under Article 226 of the Constitution of

India and the reliefs prayed in the Petition, if

granted would be complete.

12. In the premises aforesaid and considering what

is stated above, the Petitioners, most humbly and

respectfully prays that this Honble Court be

pleased to issue a Writ of Mandamus or a Writ in

the nature of Mandamus or any other Writ,

direction or order:-

(a) Directing the respondents to conduct/undertake

the exercise of periodic revision of lists by

the Central Government and the State Government

with a view to exclude from such lists those

classes who have ceased to be backward classes

or for including in such list new backward

classes as per Section 11 of the National

Commission for Backward Classes Act, 1993 and

further be directed to prepare a survey report

as well as the review report about the

development progress for inclusion and exclusion

of classes who are getting the benefit of

reservation under the provision of law, as well

as the method adopted for identification of

backward classes;
 48

(b) Your Lordships may be pleased to the

resolutions/notifications of the Union of India

as ultra vires un constitutional and violative

of article 14, 15 and 16 of the Constitution of

India and also against the reservation policy

and further be pleased to quash and set aside

the impugned resolutions/notifications and

further be pleased to direct the Union of India

to exclude the castes included in the Central

State list as per the said

resolution/notifications;

(c) Directing the respondents to forthwith ensure

that no inclusion or exclusion of any caste or

section is done without following the procedure

laid down by the Honble Supreme Court:

1. Judgment in the case of Ram Singh & Ors.

Versus Union of India in Writ Petition

(Civil) No.274/2014 dated March 17, 2015.

2. Order passed in Writ Petition (Civil)

No.194/2016 in the case of Voice (Consumer

Care Council) versus State of Tamil Nadu

dated January 3, 2011;

3. Order passed in the Writ Petition (Civil)

No.259/1994 in the case of S. V. Joshi and

Ors. Versus State of Karnataka and Ors.

Dated July 13, 2010

 49

And this Honble Court may be pleased to

pas appropriate directions considering the

principles enunciated in the judgments of

the Honble Supreme Court in the cases

of :-

1. M. Nagraj Versus Union of India, reported

in (2006) 8 SCC 212;

2. Indra Sawhney Versus Union of India,

reported in (1992) (Supp.) 3 SCC 217;

3. Suraj Bhan Meena and another versus State

of Rajasthan and Ors. Reported in (2011) 1

SCC 467;

4. U.P. Power Corporation Limited and ors.

Versus Rajesh Kumar and ors. Reported in

(2012) 7 SCC 1;

And further be pleased to direct the

respondent to ensure that steps are taken

with immediate effect to collect through

an independent backward classes

commission, the quantifiable data as

required by the Supreme Court;

Place:

Date: [VISHAL J. DAVE]

ADVOCATE FOR THE PETITIONERS

AFFIDAVIT
 50

I, Ashok Chimanlal Patel, Age: 65 years, Male,

Having address at: 35, Shrinagar Society,
Bavla, District: Ahmedabad, the Petitioner No.4
herein, do hereby state on solemnly affirm and
state as under:-

1.I have understood the contents made in the

memo of petition and I say that what is
stated in paragraph ___ to ___ are the
statements of facts and the same are true to
the best of my personal knowledge and I
belief and I believe the same to be true.

2.The Paragraph No.___ to ___ are the

submission and the same are true to my
information and I believe the same to be true
and the paragraph no.12 is the prayer clause.

3.All the annexures enclosed herewith are the

true copies of their originals.
Solemnly affirmed at Ahmedabad on this ___
day of______, 2017.

[DEPONENT]

Explained & Interpreted

in Gujarati to the deponent

Advocate

Identified by me

Advocate.