Inclusion Of 77 Classes Of Muslims As OBC Was For Vote Bank And Electoral Gains: Calcutta HC While Striking Down OBC Reservations Granted In State Between 2010 And 2012

The Calcutta High Court has struck down the OBC reservations granted by the State of West Bengal between 2010 and 2012. A Division Bench of the High Court has also struck down two orders issued in 2010 and 2012 by the Government Of West Bengal Backward Classes Welfare Department sub-classifying 143 classes and some provisions of the West Bengal Backward Classes (Other than SC and ST) (Reservation in Posts) Act of 2012.

In the Judgment which expressly states that it is prospective, the Court has held that from the date of the pronouncement of the Judgement, the citizens from 114 (77+37) OBC classes cannot be appointed under the State services or derive any other benefit of any reservation for the purposes of Article 16(4) of the Constitution until the Backward Classes Commission and the State conduct fresh exercise for the purposes of Article16(4), in accordance with law.

The Division Bench of Justice Tapabrata Chakraborty and Justice Rajasekhar Mantha quashed executive orders by the State classifying the 42 classes as OBCs in 2010 and one executive order of 2012 classifying the 35 classes as OBCs for the purposes of reservation under 16(4), with prospective effect. The Court clarified that the citizens who are already employed based on the quashed reservations will not be affected by the Judgment.  

There are two separate opinions in the Judgment, the first authored by Justice Rajasekhar Mantha and a concurring opinion by Justice Tapabrata Chakraborty.

Senior Advocates Guru Krishna Kumar and L.K. Gupta appeared for the Petitioners while Advocate General Kishore Datta appeared for the State, DSGs Dhiraj Kr. Trivedi and Billwadal Bhattacharya appeared for the National Commission for Backward Classes while Assistant Advocate General Samrat Sen appeared for the West Bengal Commission for Backward Classes.

"This Court is of the view that the selection of 77 classes of Muslims as Backward is an affront to the Muslim Community as a whole. This Court’s mind is not free from doubt that the said community has been treated as a commodity for political ends. This is clear from the chain of events that led to the classification of the 77 Classes as OBCs and their inclusion to be treated as a vote bank", the Court held on the issue of reservation to Muslims on the basis of religion. 

The Court also held that identification of classes in the aid community as OBCs for electoral gains would leave them at the mercy of the concerned political establishment and may defeat and deny other rights. "Such reservation is therefore also an affront to Democracy and the Constitution of India as a whole", the Court added.

The Court struck down the second part of Section 2(h), Section 16 and Section 5(a) of the West Bengal Backward Classes, (Other than SC and ST) (Reservation in Posts) Act of 2012 while it read down Section 2(f) and the proviso to Section 5(a) of the said Act.

While reservations granted to 35 classes were struck down on account of the striking down of the statute of 2012, 77 classes lost reservation due to the striking down of government orders passed between 2010 and 2012.    

"The services of citizens from the 77 classes and 37 classes (added in the exercise of Section 16) struck down above, who are already in the service of the State, or have already availed the benefit of reservation or have succeded in any selection process in the State, shall not be affected by the reason of this judgment", the Court clarified in the Judgment. 

The Court held that the executive orders classifying 66 classes as OBCs prior to 2010 are not being interfered with since the same were not challenged.    

The Court found that the Commission had made recommendations for reservation based on "religion only".

Criticising the State Commission for its reports, the Court observed, "The real purpose of the Commission was to grant religion-specific reservation, however, the reports have been prepared to press into service the ostensible purpose of granting reservation to the backward classes".

The Court held that no effective public hearings were even notified by the Commission before making its recommendations. The Court noted many deficiencies in the Commission's reports. 

While rejecting the objections of the State to the maintainability of the Writ Petitions, the Court held that "the right to reservation and to continue to enjoy reservation does not crystallize as a right much less a fundamental right, even after the grant of reservation to a class. The said affected classes need not have been impleaded in these proceedings". 

Cause Title: Amal Chandra Das v. The State of West Bengal & Ors. 

Appearance:

Petitioners: Senior Advocates L.K. Gupta, Guru Krishna Kumar, Advocates Subir Sanyal, Samir Pal, Debjani Ray, Bikram Banerjee, Sudipta Dasgupta, Dipa Acharyya, Sinjini Chakraborti, Baibhav Ray,  Arkadeb Biswas, Arka Nandi, Sagarika Goswami,  Saikat Sutradhar, Suryatapa Das, Sohini Dey, Sondwip Sutradhar, Sagar Dey, Sutirtha Nayek, Shalini Ghosh, Shaptarni Raha

Respondents: Dhiraj Kr. Trivedi, Billwadal Bhattacharya, Kumar Jyoti Tewari, Amrita Pandey,  Senior Advocate S. Sen, A. Mondal, A. Ghatak, K. C. Kapas, L. Chatterjee    

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