Kolkata: Calcutta High Court Wednesday set aside OBC classification of 37 communities under a 2012 law of which it struck down many provisions, while also scrapping all OBC certificates issued in the state after 2010.
The division bench of Justices Tapabrata Chakraborty and Rajasekhar Mantha, however, clarified that those who had already secured employment as a result of the said law — the West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies in Services and Posts) Act, 2012 — would not be affected by the order.
“… from the date of the pronouncement of this judgement, the citizens from the said 77 classes and 37 classes cannot be appointed under the State services or derive any other benefit of any reservation, under the Act of 2012 or any executive order for the purposes,” read the 112-page order, a copy of which is with ThePrint.
It added that it was of the view that the “selection of 77 classes of Muslims as Backward is an affront to the Muslim community as a whole” and that there was no doubt that Muslims had been treated as a “commodity for political ends” or a “vote bank”.
The order was passed on a PIL challenging the process of granting OBC certificates under the 2012 law.
West Bengal Chief Minister Mamata Banerjee, whose Trinamool Congress sees the order as a major blow since nearly all OBC certificates handed out by it since coming to power in the state in 2011 stand virtually scrapped, refused to accept the ruling. Addressing a public meeting Wednesday, Banerjee said she would challenge the order in the Supreme Court.
The Opposition Bharatiya Janata Party (BJP), on the other hand, targeted the ruling BJP with Union Home Minister Amit Shah accusing the state government of granting reservation to several classes of Muslims “without any process” for the sake of its “vote bank politics”.
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Calcutta HC order & its impact
The high court order, a copy of which is with ThePrint, will directly impact 114 communities in West Bengal who will not be able to utilise their OBC certificate to claim reservation in government jobs and state-run educational institutions.
It, however, clarified that the executive order classifying 66 communities as OBC prior to 2010 will not be interfered with since it was not challenged.
The division bench delivered its verdict 12 years after a PIL was filed challenging the legality of distribution of OBC certificates by the state government which the plea said did not conform to the provisions of The West Bengal Commission for Backward Classes Act, 1993.
“The consultation with the Commission is mandatory both for the purposes of sub-classification of the OBCs and determining the percentage of reservation for the Classes or the Sub Classes. The Act of 2012 was enacted to empower only the State Legislature to declare and codify the Reservation in the State services for the other backward classes. It also provides for the other incidents of reservation namely de-reservation and penalties for contravention of the Act of 2012. The Act of 1993 at present stands to compel the State Legislature to consult the Commission before making any inclusion or exclusion of the classes of OBCs,” read the order.
In their plea, the petitioners had claimed that the West Bengal Commission for Backward Classes appeared to be in a “tearing hurry to fulfil the wishes of the Chief Minister (Mamata Banerjee) made in a political rally”.
The petitioners also claimed that the Commission conducted no proper enquiry when inviting applications for inclusion in the state OBC list and even after the preparation of the list, no notification was issued inviting objections from the general public.
According to its order, the high court found that authorities concerned violated constitutional provisions and “practised protective discrimination in deviation to constitutional norms”.
Stating that a class is declared as OBC not only on account of being backward or based on scientific and identifiable data but also if it is found to be inadequately represented in government services, the court found that the state disclosed no data on the basis of which it could be ascertained that the classes in question were not adequately represented in the services.
On the role of the Commission for Backward Classes, the court said it must collect data by survey or other means, hear parties, and render its advice to the state, based on objective criteria. “The advice of the Commission is ordinarily binding upon the State subject to the disagreement by the latter by providing cogent and justifiable reasons,” it added.
It also said that records available in the public domain show that on or about 8 February, 2010, all leading newspapers had carried the West Bengal government’s announcement of 10 percent reservation for the Muslim community. Within six months of the announcement, the Commission recommended inclusion of 42 classes into the state OBC list, of which 41 belonged to Muslim community and following the recommendation, the state immediately included the same in the list.
Thereafter through a memo dated 11 May, 2012, the West Bengal government further included 35 classes into the state OBC list.
The court, therefore, noted that the Commission and the state government “acted in undue haste and with lightning speed in making recommendations for the classification of the 77 classes to make the public announcement of the then Chief Minister a reality”.
The high court has now directed the Commission for Backward Classes and the state government to conduct a fresh exercise for the purposes in accordance with law, and place its recommendations before the state legislature before including or excluding any classes from the OBC list.
Mamata refuses to accept HC order
The Calcutta High Court order came in the middle of a high voltage Lok Sabha battle in the state between the TMC and BJP.
Addressing a public meeting in North 24 Parganas, CM Mamata Banerjee Wednesday rejected the high court order and said she would not allow the high court to “snatch reservations” at BJP’s instigation.
“The PM is dividing Hindus and Muslims. The entire world would condemn his statements. This was the same thing that was done through courts today. Not everyone in the courts is bad. I respect the judiciary. But the person who has given the order saying Muslims must be removed from OBC reservation, I don’t accept their judgment. I will not accept it. OBC reservation will continue. I will move the higher courts if needed,” she said.
Reacting to the high court order, Union Home Minister Amit Shah who was on the campaign trail in West Bengal was quoted as saying that the Mamata Banerjee-led TMC government gave reservations to “a large number of Muslims without any process”.
“The court acted and stayed OBC certificates. Mamata Banerjee is giving reservations to Muslims for her vote bank politics. I welcome the high court order. I want to ask the people of West Bengal, can a constitutional head not obey the HC judgement? What kind of democratic mindset is West Bengal witnessing? Mamata Banerjee has looted reservations,” he added.
(Edited by Amrtansh Arora)
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