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#OBCReservation_case
#Mr_P_Wilson Senior Advocate assisted with #Mr_Richard_Wilson Madras High Court Advocate #Arguments
In OBC reservation case before Hon’ble #Chief_Justice and Hon’ble Mr #Justice_Senthil_Ramamoorthy in the Writ Petition filed by #DMK Party
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1. The #Supreme_Court(SC) on 13.7.2020 in the SLP filed by one TG Babu has differentiated the Saloni Kumari case pending before it and asked the High court to decide the Writ Petition expeditiously.
2. He submitted that by virtue of the green signal given by SC, the #Central Govt #cannot_harp on the objection relating to( a) the jurisdiction of HC to decide the issue relating to reservations in AIQ (b) alleged Bar on hearing the present Writ Petitions due to pendency of Saloni Kumari case before SC on reservation.
3. He submitted that OBC reservations were given on the #basis_of_populations of OBC in each State/ UT. He read out the list of OBC reservations across the country in 35 (states and UT’s )places.
4. According to him OBC reservation in AP is 29%, Himachal Pradesh is 12-18% (depending upon posts), Chhattisgarh, Uttarakhand ,Jharkhand is 14% karnataka is 32%, kerala is 40%, Maharastra, Rajasthan, Sikkim is 21% , Bihar is 33%,Manipur , West Bengal is 17%, Punjab is 12%, Puducherry is 34% , A& N Islands is 38%, Dadra Nagar and Haveli is 5%, J&K is 13% , Assam,NCT Delhi, Goa, Gujarat, Haryana,Odisha,U.P, Chandigarh is 27% and in #State_TamilNadu is 50%.
5. He said no OBC reservation is given in States and UT like Arunachal Pradesh, Megalaya, Nagaland, Tirupura, Lakahadeep.
6. Thus according to him OBC reservations varies from state to state and is #not_uniform.
7. He #traced_History of All India quota(AIQ) and said that concept of AIQ came in the year 1984 for the first time when SC in Dr PradeepJain framed a Scheme for All India quota to enable participation of students cutting across from all states without any barriers as prior to 1984 only few states had medical colleges.
8. He argued that the Supreme Court in Dr Pradeep jain case felt that in certain states all the medical seats were wholly reserved on the basis of domicile. In some states, larger institutional preference reservations were given, there by students from other states in whose state there were no medical colleges had no opportunity to join medical or dental course. Under these circumstances to avoid whole sale reservations by way of domicile or larger institutional preference reservations, the SC in Dr Pradeep Jain case for the first time in the year 1984 formed a scheme and a quota called All India Quota (AIQ) and directed the state and central government to contribute 15% of MBBS Seats and 50% of PG /Diploma seats in Dental and Medical courses to AIQ scheme without any reservations whatsoever . Under the said order, the SC directed Central Govt to conduct common exams for those contributed AIQ seats all over the country and to fill up with in time schedule fixed by SC.This will enable the students participate regardless of the state they belong to.
9. He quoted series of SC cases which dealt with AIQ on later dates and submitted that the views of SC relating to institutional preferences and domicile preferences were explained by SC periodically. How ever the ratio of contributions viz 15% in MBBS and 50% in PG/ Diploma which were fixed for state and central remain unchanged by SC . He said the same percentage of contributions by state and central to. AIQ remained to be the same even till today.
10. He submitted that the initial view of SC from 1985 up to 2005 was that no communal reservations whatsoever should be made applicable in those contributed AIQ seats by states and Central. However for the first time in Abbaynath case on 31.1.2007, on the basis application filed by Central government seeking to apply reservation of SC/ ST to AIQ seats, the SC permitted to apply reservations *including* SC/ST. According to Mr. P.Wilson, the world *including SC and ST* reservations appearing in the order of SC has to be understood as constitutional reservations and that is the reason why when Central Educational Institution Act 2006 came in to force, the central government even without approaching SC under the scheme gave 27% reservations to OBC ; 5% to Persons with Disability and recently 10% EWS reservations in AIQ seats contributed by Central educational institutions.
11. He submitted that the view of SC in #Abbay_Nath_case was clarified by SC in “Gulshan Prakash case” on 2.12.2009 where in SC has held that Abbaynath case clarification relating to reservations applied to Central educational Institutions only . The SC in the said judgment had to deal a case where in Haryana there were no reservations in PG medical seats. Therefore SC held that if state does not provide any reservations, the reservation applied by central government to AIQ cannot be automatically extended to State surrendered seats. In other words no reservations could be applied even to state surrendered seats under AIQ scheme if there is no reservation policy prevails in a state. He said that the present case is converse. What ever reservation state applies to states seats filled by it after AIQ contribution( UG -85% and PG50%) the same reservation has to be applied by Central government on the state surrendered seats, when it fills under AIQ scheme .
12. After the Judgment in Gulshan Prakash case, the MCI in consultation with Central Government pursuant to powers under Section 33 of IMC Act introduced notifications to Amend Graduate Medical education 1997 Regulations and PG Medical Education Regulations 2000 relating to application of State specific reservations along with concept of common exams( NEET) for all medical seats.
13. Like wise 2 #notifications were also introduced by Dental council of India on similar lines for BDS and MDS courses pursuant to powers under Dentist Act 1948.
14. #Mr_Wilson submitted that by virtue of 4 notifications enabling application of the state specific reservations in medical and dental seats, the State reservation of 69% under TN reservation Act 45/94 shall stands automatically applied in all the state medical and dental institutions in TN. Thus all state educational seats in TN had the reservations applied according to Act 45/94.
15. He submitted that the MCI and DCI regulations relating to reservations never dealt separately with AIQ or state quota and these regulations were thus applicable for all Medical and dental seats irrespective of AIQ or state quota. He said the word ‘state specific’ appearing in the 4 notifications is referable to reservation in a state . According to him OBC reservations in 35 places are not uniform and that is the reason as to why the regulations use the word’ state specific’.
16. Mr Wilson submitted that NEET was also introduced in the said 4 notifications in Medical and Dental courses. Though all the 4 regulations were challenged and were struck down by Supreme Court in the year 2013, the said judgement was recalled in the year 2016 and therefore the 4 notifications introducing reservations and NEET stand revived and restored and applies with full vigor and tenor even till today.
17. Therefore he said that by introducing amendment in 4 regulations by MCI and DCI in UG and PG courses, the reservations in all medical and dental seats stands automatically applied according to state specific reservations. He said under these regulations the role of DGHS is to hold counselling for All India Quota and nothing else. He said that DGHS is only an agent and a trustee to handle state contributed seats to AIQ and that they cannot choose the reservation of State or Central or to deny the same.Both DGHS and central government has no power after enabling MCI and DCI regulations granting state specific reservations in all seats without any demarcations.
18. He explained that 27% reservation will apply only to seats in central educational institutions and therefore Central Government in their counter affidavit at Parah 11 undertaking to give state specific reservations with a cap of all reservations with in 50% on state surrendered seats to AIQ on certain restrictions and with conditions is without jurisdiction. He relied upon TN Act and said the reservation apply to all state educational institutions . Since MCI and DCI regulations enables state specific reservations , the reservations of that state where seat is located alone would apply. He said that central educational Institutions Act 2006 which grants 27% OBC reservation applies only to Central Educational Institutions and not to State educational Institutions even though a concept of AIQ seat sharing is there and filling up is done by DGHS. The total reservations granted by central government in central educational institutions is SC 15%; ST 7.5% ; OBC is 27% and EWS is 10%. Thus when central government itself grants more than 50% of reservations, it is not proper to dictate terms to state government to restrict all reservations with in 50% so that Central government will implement reservations in state surrendered seatsAIQ. If that being so it is violating the MCI and DCI regulations which requires state specific reservations. It is also against the concept of federal structure where Central has to respect State. States Reservations in their seats have to be respected and followed.
19. He submitted that state seat is a state resource as state spends lot of money on infrastructure, staffs, faculty ,and state has responsibilities of maintaining public health. Therefore the state seats carries its reservation given for that seats even though it goes to AIQ. He categorically submitted that the state seat doesn’t gets dereserved in the hands of DGHS while it is handling for AIQ and therefore DGHS has to necessarily apply the state’s reservation.He supported his arguments by saying that after second round of counselling when state contributed seats are not filled up by DGHS, it comes back to state to be filled up by the state itself. He said that the contributed seats are nothing but seats in state medical and dental colleges only. Therefore he submitted that ‘character of seat as State seat’ is not lost merely it is handled by DGHS under a scheme . DGHS is only an agent and trustee to handle as per Regulations. There is no magic in the hands of DGHS to dereserve the seat. It will go against constitutional goal of Art 15(4) if DGHS does it which is impermissible under law.
20. He said that since 2016 after 4 notifications were restored by SC, the DGHS has been denying state specific reservations to the state surrendered seats . He referred to reply affidavit and said that for last 4 years 5457 AIQ (UG, PG )seats were contributed by TN and that 2729 OBC candidates were deprived in TN as central government refused to apply reservations in state contributed AIQ seats.While central government is providing reservation in seats surrendered to AIQ by central educational institutions , interestingly it is denying to apply state reservations in state contributed seats . hence the conduct is violation of Art 14 and 15 and MCI regulations.
21. He submitted that reservation is provided to uplift the community which was historically discriminated and which was kept away from participating in administration and education and the reservations are to cure the injustice done to these communities bygone generations after generations . He said right to reservation backed by reservations laws is a fundamental right and therefore the actions of central government denying reservations amounts to violation of constitutional rights and perpetuating discrimination. Besides central government is adopting a big brother attitude. The central government is robbing state seats which are state resources and therefore exemplary cost has to be imposed for denying the OBC candidates of their lawful entitlement for past 4 years.
22. He relied upon Various judgments relating to reservations and said state has power to make reservations on medical seats and the denial of central government to apply reservations shows that OBC are discriminated even now.
23. He said it’s a rare occasion where all parties have come on one line including state government opposing central government and therefore there is a seriousness in this issue which central government is not Addressing.
24. He said that the DGHS in 2016 when they filed counter before SC in Saloni Kumari case undertook to give state specific reservations. But after 4 years same officer who filed counter before Sc gives same verbatim undertaking here in HC. However no honest steps being taken as per undertaking of Central government for last 4 years and due to the actions of Central government thousands of OBC candidates are deprived of with lawful reservations. He said that DGHS has committed breach of trust and the confidence the state and people reposed on it as it acted in defiance to reservation laws in the State of TN and acted unilaterally in giving reservations on state surrendered seats as against SC order and reservation laws. He submitted that DGHS is illegally meddling with state AIQ seats for last 4 years by highhandedly denying reservations. He pointed out if state specific reservations are applied scheduled caste persons will get 3% more in TN in medical and dental seats as state reservation grant 18% as against 15% by Central Act followed by Central government and hence prayed to award exemplary cost on central government.
25. He said that the Central government gave 10% reservations for EWS in a jet speed stopping second PG medical and dental counselling while for OBC candidates for last 4 years they are not abiding even by their own affidavit filed before SC.
26. The Hon’ble first Bench comprising of Chief Justice and Hon’ble Mr Justice Senthil Ramamurthy after hearing elaborate arguments for about 7 hours advanced by all the counsels fixed 27.7.2020 as date for delivering judgment.
