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2019 DIGILAW 2318 (RAJ)

Jahnavi Maheshwari v. Union of India

2019-08-28

ALOK SHARMA

body2019
ORDER : Alok Sharma, J. 1. Despite a copy of the petition having been served on Mr. R.D. Rastogi, ASG appearing for the Union of India on 8.7.2019, shockingly in this petition of great importance where the issue of OBC reservation in admissions to MBBS course in the State quota seats in the State of Rajasthan for the year 2019 is being agitated, reply on behalf of Union of India has not yet been filed. Mr. R.D. Rastogi, ASG submitted that despite over a dozen of e-mails having been sent to the Ministry of Social Justice and Empowerment, Government of India for instructions to file reply to the petition, they have not been forthcoming. 2. Reply on behalf of the State of Rajasthan has been filed and its defence to the petition is primarily based on a view taken by the Division Bench of the Bombay High Court in P.I.L. No. 175/2018 titled Dr. Jishh Laxmnarao Patil vs. The Chief Minister & Another decided on 27.6.2019. 3. Mr. Rajendra Prasad Senior Advocate appearing with Mr. Shobit Tiwari and Mr. Karan Tibrewal for the petitioners submitted that following the insertion of Article 342A as also Clause 26C in Article 366 in the Constitution of India effective 14.8.2018, without a Presidential notification under Article 342A relating to Other Backward Classes (OBCs) in the State of Rajasthan there can be no reservation for the OBCs inter alia in respect of admissions into Medical Colleges on state quota seats. Mr. Rajendra Prasad submitted that in this view of the matter the State stands denuded of its power to notify the socially and educationally backward classes based wherefrom reservation for admissions into the MBBS course in the State in 2019 and thereafter can be made in that category. 4. Mr. R.D. Rastogi, ASG submitted that the judgment of the Bombay High Court in the case of Dr. Jishri Laxmnarao Patil (supra) has held that the State Backward Class Commissions could not be held to be denuded of their power to identify socially and educationally backward classes even subsequent to the 102nd Amendment to the Constitution of India by which Article 342A and Article 366(26C) were inserted into the Constitution. Mr. Jishri Laxmnarao Patil (supra) has held that the State Backward Class Commissions could not be held to be denuded of their power to identify socially and educationally backward classes even subsequent to the 102nd Amendment to the Constitution of India by which Article 342A and Article 366(26C) were inserted into the Constitution. Mr. R.D. Rastogi, submitted that for its conclusion the Bombay High Court has adverted to mandate laid down by the 9 Judges Bench in the case of Indira Sawhney v. Union of India [(1992) 3 SCC 217] wherein it was left to the discretion of the State to identify the socially and economically backward classes through appropriately constituted backward classes commissions. Mr. R.D. Rastogi submitted that the Bombay High Court has held that the 102nd Amendment to the Constitution conferring a constitutional status on the National Backward Class Commission could not be said to result in materially affecting the power of the States to identify such classes for the benefit reservation. Besides, as the Commission under Article 342A of the Constitution of India had neither been constituted nor undertaken any exercise for the identification of the socially and educationally backward classes, a vacuum in the reservation for classes could not be construed for it never was nor could ever have been the intention of Parliament that in the meantime a freeze on reservation for the socially and educationally backward classes till the notification under Article 342A by the President should obtain, Mr. R.D. Rastogi specifically drew the attention of the Court to Para 177 of the aforesaid judgment of the Bombay High court in the case of Dr. Jishri Laxmnarao Patil (supra) where the Court held and declared that the legislative competence of the State was not in any way affected by the Constitution (102nd) Amendment Act, 2018 and State continued to possess the legislative competence to enact a law for admission of economically and socially backward classes in educational institutions in the State or for their appointment in the public services and posts under the State. 5. Mr. Darsh Pareek appearing on behalf of the Advocate General for the respondent-State has adopted the submissions of Mr. R.D. Rastogi. Mr. 5. Mr. Darsh Pareek appearing on behalf of the Advocate General for the respondent-State has adopted the submissions of Mr. R.D. Rastogi. Mr. Darsh Pareek submitted that in the event it was intended by the 102nd Amendment to the Constitution of India that OBC reservations in the States or Union Territory would be on hold till the Presidential notification under Article 342A of the Constitution of India it would have been specifically so stated. That it was not so stated evinces the fact that there was no intention of the Parliament while passing the 102nd Amendment to the Constitution of India to discontinue reservation for the OBCs in educational institutions of the State Government or in employment to State posts which have been in currency for over 30 years. 6. Mr. Angad Mirdha counsel for the respondent-MCI submitted that admissions, to the MBBS courses 2019 have largely been made in terms of the MCI Regulations, and only the last of the admissions in the second mop-up round of counselling at the College level are to be made on or before 31.8.2019. He submitted that in the circumstance any interim order at this stage would disrupt the academic calendar of MBBS Course, 2019 and lead to complete chaos which would obviously be contrary to public interest. 7. Having taking into consideration the respective submissions of counsel for the parties, I am of the considered view that, in the overall facts of the case, no ground for interim relief as prayed for is made out. 8. The stay application is accordingly dismissed. 9. It however goes without saying that the admissions of the OBCs candidates in MBBS Course, 2019 will be subject to the outcome of the writ petition. 10. Let the petition be listed on 4th September, 2019. Reply of the Union of India be filed in the meantime. 11. A copy of this order be furnished to Mr. R.D. Rastogi, ASG for onward transmission to ensure that reply to the petition is filed.