S.J. Mukhopadhaya, J.
1. In these cases, the only question arises for determination whether the consolidated reservation for Other Backward Category (OBC for short), including Extreme Backward and Backward Category for admission in Professional/technical and equivalent training Institute, as made vide Resolution bearing Memo No. 5/R-03/2001-5800/ Ranchi, dated 10th October, 2002 is legal, valid and permissible or not.
2. For determination of the issue, it is not necessary to discuss all the facts, except the relevant facts, which are mentioned hereunder.
Prior to reorganization of the State, in the combined State of Bihar, Circulars/ Guidelines and Acts were issued from time to time reserving posts for appointment in Government Services and seats for admission in Professional/technical and equivalent training Institute, while separate quota were fixed for scheduled Castes (SC) and Scheduled Tribes (ST) categories, for OBC separate reservations were made for Extremely Backward Category (EBC) and Backward Category (BC). The castes which fall within one or other category amongst the OBC te., EBC or BC, their lists were enclosed as Annexures 1 and 2.
The following Guidelines/Acts as were issued from time to time for appointment in the services of the State :--
(i) Bihar Reservation for Posts and Services (Scheduled Caste, Scheduled Tribe and Backward Class) Act, 1991 (Bihar Act 3/92).
(ii) Notification No. 5/AA-03/2001-KA-3465/Ranchi, dated 3rd October, 2001, whereby aforesaid Bihar Act was adopted by the State of Bihar with certain amendments.
This Court is not concerned with the aforesaid Acts and Notifications which relate to appointment in the services of the State and having no concern with reservation for admission in Professional/technical and equivalent training Institute.
So far as the reservation for admission in Professional/technical and equivalent training Institute is concerned, the following Resolutions/Notifications have been issued by the State of Bihar, followed by successor State of Jharkhand.
(i) Resolution No, 20 dated 6th February, 1992 (Reference given in Annexure-9 to WP (C) No. 6332/02);
(ii) Resolution No 155 dated 14th February, 1993 (reference given in Annexure-9 of WP (C) No. 6332/92).
By aforesaid resolution, separate reservations were made under Article 15(4) of the Constitution of India for SC; ST: EEC; and BC.
(iii) Resolution bearing Memo No. 7/Niti (reservation)- 06-2001-KA-3884/Ranchi, dated 5th November, 2001 issued by the State of Jharkhand; and
(iv) Resolution circulated vide Memo No. - 5-AA-03/2001- 5800/Rancht, dated 10th October, 2002 issued by the State of Jharkhand.
3. Amongst the aforesaid four guidelines for reservation issued from time to time under Article 15(4) of the Constitution of India for admission in Professional/technical and equivalent training Institute, we are concerned with Item No. (iii) i.e., Resolution No. 3884 dated 5th November, 2001 and Item No. (IV) i.e.. Resolution No. 5800 dated 10th October, 2002 both issued by the State of Jharkhand.
4. By Resolution No. 3884 dated 5th November, 2001, the State of Jharkhand reserved 73% of seats for admission in Professional Technical Institutes and allowed the following quota :--
(1)Scheduled Caste :14%(2)Scheduled Tribe :32%(3)Extremely Backward Category :18%(4)Backward Category :09%
Total :73%
5. The petitioners who belong to EBC, as per aforesaid Resolution No. 3884 dated 5th November, 2001, were expecting admission in one or other Institute against the EBC quota. In fact, one or other petitioner appeared in competitive examination for admission in Professional/technical and equivalent training Institute and claim that their names are appearing in the lists of successful candidates. Some of the candidates were also admitted on the basis of 73% reservation in one or other Professional/technical and equivalent training Institute.
That was the stage when a number of Public Interest writ petitions were preferred before this Court, such as WP (PIL) Nos. 3696/2002; 4706/2002; 4636/2002; 3950/ 2002; and 213/2002, challenging Government jurisdiction to reserve 73% seats for admission in Professional/technical and equivalent training Institute. The Resolution No. 3884/Ranchi, dated 5th November, 2001 was also under challenge.
6. The aforesaid writ petitions were heard by a Special Bench of five Judges of this Court, wherein vide interim order dated 26th August, 2002, the Court permitted to fill up only 50% of posts for appointment in State services and 50% of seats for admission in Professional/technical and equivalent training Institute.
The State of Jharkhand subsequently filed a petition in the aforesaid Public Interest writ petitions seeking modification/clarification of the order dated 22nd August, 2002. It was pleaded that the sentence 'on proportionate basis' occurring in the interim order dated 22nd August, 2002 is creating and causing confusion in the minds of the State authority.
On hearing the parties, the Court made certain clarifications and modified the interim order dated 22nd August, 2002 vide order dated 30th September, 2002 and permitted the State to fix appropriate percentage/quotas with respect to each Individual class and category.
After the aforesaid clarification/ modification of interim order dated 22nd August, 2002, the State of Jharkhand issued impugned Resolution No. 5800/Ranchi, dated 10th October, 2002. The reservation for admission in Professional/technical and equivalent training Institute was reduced to 50%, subject to the final decision of the Court and the quota for one or other category was re-fixed in the following manner :
(a)Scheduled Caste:10%(b)Scheduled Tribe:26%(c)Other Backward Category:14%(include both Extremely Backward Category and Backward Category) Total:
50%
7. In the present cases, the petitioners' grievance is in respect to Clause (c) of Resolution No. 5800/Ranchi, dated 10th October, 2002, whereby both the EBC and BC have been clubbed together and provided with consolidated reservation.
According to the petitioners, the State Government should have fixed separate quota for EBC and BC.
8. The learned Advocate General submitted that the petitioners have no right to claim for separate reservation for EBC and BC. He placed reliance on Article 15(4) of the Constitution of India and relied on one or other Supreme Court's decisions, which I will refer at appropriate stage.
Article 15(4) or 16(4) are enabling provisions conferring discretionary power on the State to make reservation for SC, ST and OBC No duty is imposed on the Government to make such a reservation Refer SBI Scheduled caste/Tribe Association v. SBI, JT 1996 (4) SC 547.
9. In the case of M.R. Balaji v. State of Mysore, AIR 1963 SC 649, the Supreme Court held, as follows :
'In this connection, it is necessary to add that the sub- classification made by the order between Backward Classes and More Backward Classes does not appear to be justified under Article 15(4). Article 15(4) authorises special provision being made for the really Backward Classes. In introducing two categories of Backward Classes what the impugned order, in substance purports to do is to devise measures for the benefit of all the classes of citizens who are less advanced compared to the most advanced classes in the State and that, in our opinion, is not the scope of Article 15(4).'
In the said case, the Supreme Court also made the following observations :
'In our opinion, when the State makes a special provision for the advancement of the weaker sections of society specified in Article 15(4) it has to approach its task objectively and in a rational manner. Undoubtedly, it has to take reasonable and even generous steps to help the advancement of weaker elements, the extent of the problem must be weighed the requirements of the community at large must be borne in mind and a formula must be evolved which would strike a reasonable balance between the several relevant considerations. Therefore, we are satisfied that reservation of 68% directed by the impugned order is plainly inconsistent with Article 15(4).'
10. In view of clear provision of Article 15(4) of Constitution of India and the Supreme Court decision, referred to above, no person can claim any right of reservation in favour of a Class or Category. The State Government is also not bound to make separate reservation for each and every Class or Category.
11. The only question arises whether the impugned Resolution No. 5800/Ranchi, dated 10th October, 2002 is proper or not in the light of interim order passed in WP (PIL) No. 3696/2002 and analogous cases.
12. As noticed above; the reservation for admission in Professional/technical and equivalent training Institute has been made by the State, vide Resolution No. 3884/ Ranchi, dated 5th November, 2001 in favour of the following categories :
(1) Scheduled Caste :
(2) Scheduled Tribe :
(3) Extremely Backward Category :
(4) Backward Category :
13. In WP (PIL) No 3696/2002 and analogous cases, nobody challenged the separate quota fixed in favour of EBC. The only question raised relating to constitutional permissibility to exceed the limits of 50% is so far as reservations are concerned.
In this background, the Special Bench of Jharkhand High Court made the following observations and directions when the interim order on 22nd August, 2002 was passed :
'In so far as the question relating to evolving an interim arrangement in the meanwhile is concerned, a suggestion was mooted from the Court to the learned counsel appearing for all the parties that pending the pronouncement of the Judgment by the Supreme Court in the aforesaid matter, the State be permitted to process, undertake, and complete the appointment to be made in future but subject to the condition that instead of having 73% reservations (as impugned in this petition) 50% of the appointment may be made from out of the Reserved Categories, and 27% of such appointments should be made from out of the candidates belonging to the general (Open) Category. The appointment thus to be made in the said 50% category (as would now correspondingly stand reduced from 73% to 50%) shall be on proportionate basis with due reference and regard being had to the percentage and all the categories as constituted the sum- total of the original impugned 73%.
In so far as the remaining 23% of the appointments quota is concerned, the Court suggested that the same be made on the basis of the merit, irrespective of any Category or Class but such appointments as would be made with, respect to the aforesaid 23% quota are concerned, these shall be Adhoc/ Provisional, subject to the result of this petition which of course in turn shall be based on the judgment of the Supreme Court in the aforesaid case, as and when it is pronounced by their Lordships.
Actually the orders offering appointments to the persons in the aforesaid 23% Category, should clearly state that the appointments offered are Adhoc/ Provisional and that these would be dependent on the result of this petition.
'In so far as admission to all types of Educational Institutions in the State, including all types of technical and Professional Institutions are concerned, the Court suggested that the aforesaid arrangement would mutatis mutandis be applicable to such admission and that the admission to be made against 23% disputed category should be provisional in the sense that these could also abide by the result of the petitions.'
The aforesaid order was modified/clarified on 30th September, 2002 to the following extent :
'As far as we are concerned, we make it clear that while making the aforesaid observations and issuing the hereinabove directions, we had not intended to fix any particular percentage with respect to any class or category constituting the 50% sum total of the reservation. Based on the established norms and applicable parameters accordingly, it shall be open to the State to fix appropriate percentage quotas with respect to each individual class and category, as it may objectively and fairly decide, constituting the sum total of 50%.'
14. From the aforesaid facts, it will be evident that this Court had not stayed Resolution No. 3884/Ranchi, dated 5th November, 2001. Only the percentage of reservation has been brought down. The categories in favour of which the State Government reserved seats, namely, (1) Scheduled Caste; (2) Scheduled Tribe; (3) Extremely Backward Category; (4) Backward Category remained in fact.
15. From the plain reading of impugned Resolution No. 5800/Ranchi, dated iOth October, 2002, it will be evident that the Resolution has been issued giving reference of interim order of this Court dated 22nd August, 2002 read with order dated 30th September, 2002 passed in WP (PIL) No. 3696/2002 and analogous cases. The amendment is sought to be made only in respect to the percentage, the original Resolution No. 3884/Ranchi, dated 5th November, 2001 being still in existence.
16. It is not the case of the respondents that the original Resolution No. 3884/Ranchi. dated 5th November, 2001 has been recalled and the writ petitions i.e., WP (PIL). No. 3696/2002 and analogous cases have become infructuous. Further, it is not the case of the parties that the High Court permitted the State to club together one or other category or interfere with the reservation given in favour of the Extremely Backward Category.
17. In this background, the original Resolution No. 3884/Ranchi, dated 5th November, 2001 being still in existence, the respondents are bound to make separate reservation for the categories, as shown in the said Resolution i.e., (1) Scheduled Caste; (2) Scheduled Tribe; (3) Extremely Backward Category; (4) Backward Category, though it is open to them to determine as to what will be the percentage of individual category, including Extremely Backward Category and Backward Category in the light of the liberty given by this Court on 30th September, 2002 in WP (PIL) No. 3696/2002 and analogous cases.
18. For the reasons aforesaid, the original Resolution No. 3884/Ranchi, dated 5th November, 2001 being still in existence so far as it relates to the 'Reserved Categories' as mentioned therein, the respondents cannot club together the Extremely Backward Category and Backward Category for the purpose of interim arrangement. The Resolution No. 5800/Ranchi, dated, 10th October, 2002 to the extent it clubbed together the Extremely Backward Category and Backward Category at Clause (c) to the aforesaid Resolution is set aside.
19. All these cases are, accordingly, remitted to the State to determine separately as to what will be the percentage of Extremely Backward Category and Backward Category for the purpose of interim arrangement and for admission in Professional/ technical and equivalent training institute, subject to the decision as given in WP (PIL) No. 3696/2002 and analogous cases.
20. On such decision, if one or other petitioner or any other similarly situated person is entitled to derive benefit, can claim it before the appropriate authority.
21. All the writ petitions are allowed with the aforesaid observations and directions.