Calcutta High Court: A batch of PILs were filed challenging the identification and classification of 77 classes as Other Backward Classes (OBCs) in the State of West Bengal which were declared by seven Executive Orders/Memoranda issued between 05-03-2010 and 11-05-2012, by the State along with challenging the constitutional vires of some provisions of West Bengal Backward Classes, (Other than SC and ST) (Reservation in Posts) Act of 2012. Rajasekhar Mantha, J., struck down Several provisions of the West Bengal Backward Classes (Other Than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies and Posts) Act of 2012, especially the sections that allowed the state executive to amend schedules and make reservations independently. The Court also invalidated executive orders issued post-2010 that sub-classified OBCs into categories A and B, affecting their reservation percentages, deeming the actions illegal as they bypassed the mandatory consultation with the commission.
Several Public Interest Litigations (PILs) were filed challenging the identification and classification of 77 classes as Other Backward Classes (OBCs) in the State of West Bengal. These classes were declared OBC by seven Executive Orders/Memoranda issued between March 5, 2010, and May 11, 2012, by the State government. The petitioners not only contest the classification but also challenge the constitutional validity of certain provisions of the West Bengal Backward Classes (Other than SC and ST) (Reservation in Posts) Act of 2012. They argue that the process followed in the classification was flawed and lacked scientific basis, particularly emphasizing concerns about religious categorization and the absence of proper consultation with the West Bengal Commission for Backward Classes.
The genesis of these litigations can be traced back to the landmark judgment in the case of Indra Sawhney v Union of India, 1992 Supp (3) SCC 847, where the process of identifying and classifying Other Backward Classes (OBCs) was clarified. Despite the directive for establishing a Tribunal or Commission to assist in this process, concerns arose in West Bengal regarding the classification of OBCs and the constitutional validity of subsequent executive orders. Allegations of improper consultation, religious bias, and lack of scientific criteria led to multiple PILs challenging the classification and the legal framework underpinning it. These petitions seek judicial intervention to rectify what they perceive as deficiencies in the identification and classification process, striving for fair and equitable representation for backward classes in government employment.
The Court noted that the role of the West Bengal Commission for Backward Classes is to collect materials by survey or other means, hear the parties, and render its advice, based on objective criteria and materials, to the State. The Commission’s advice is binding on the State subject to the disagreement by the latter by providing cogent and justifiable reasons. Section 2(a) and 2(c) of the Act of West Bengal Commission for Backward Classes Act, 1993 (1993 Act) enables the State to provide for reservation, inter alia, for the purposes of Art. 16(4) only in consultation with and with the aid advice and recommendation of the Commission. 354. The consultation with and advice of the Commission must be read into Section 9 of the 1993 Act as mandatory, regardless of whether a citizen or a State makes a request for inclusion or exclusion of a class or complaints of under-inclusion. The Commission comprises experts in social science and backwardness as indicated by section 3(2) of the Act of 1993. It is therefore for the Commission to decide whether it needs any other expert body/organization to supplement its duty. The State must trust the Commission in its expertise. The State cannot rely on any report of anybody or persons, not considered and dealt with by the Commission.
The Court further noted that after the commencement of the West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies and Posts) Act, 2012 only the State Legislature is empowered to make provisions for reservation in the State services thereunder or under Art. 16(4). The State executive, therefore, is no longer permitted either under the Act of 1993 or even 188 under Art. 16(4) to make provisions for reservation for OBCs in State services. 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 other reservation incidents, namely de-reservation and penalties for contravention of the Act of 2012.
The Court observed that 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. The Commission must adopt a fair, transparent and just procedure in identifying Backward Classes in the State. Public advertisement, present time data, survey of the population, detailed scientific survey methods, and comparison with the whole population are some proper methods to be followed. The actual representation of the class in the services of the State and its instrumentalities must be undertaken before making recommendation to the State
The Court directed the following:
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The opinion and advice of the Commission is ordinarily binding on the State legislature, under Section 9 and 11 of the Act of 1993 irrespective whether a request to look into over-inclusion or under inclusion is made by citizens or a body or the State.
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The expressions “Government of West Bengal” and the “Government” in section 2(f) of the Act of 2012 is read down to mean the State of West Bengal in discharge of its Legislative functions having due regard to reports of the Commission under the Act of 1993.
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“and includes such classes as the State Government may, by notification in the Official Gazette, specify from time to time;” is struck down.
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Section 16 of the 2012 Act, is struck down since it empowers the State executive to amend any schedule of the Act of 2012 including Schedule I. Consequently, the 37 classes included in the exercise of Section 16 by the State executive, are struck out from Schedule—I of the Act of 2012.
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Section 5(a) of the Act of 2012, which distributes the percentage of reservation in 10% and 7% to the sub-classified classes is struck down. Consequently, the sub-classified classes listed in the two categories namely OBC-A and OBC-B are struck down from Schedule I of the Act of 2012.
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The proviso to section 5(a) of the Act of 2012 is read down contextually to read the expression State Government to mean the State of West Bengal in exercise of its legislative functions, having due 190 regard to the reports of the the Commission constituted under the Act of 1993.
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The executive orders i.e No. 6309-BCW/MR-84/10 24-09-2010 and No. 1673-BCW/MR-209/11 dated 11-05-2012, issued by the Government of West Bengal Backward Classes Welfare Department, sub-classifying the 143 classes are struck down.
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The executive orders classifying the 66 classes prior to 2010 are not interfered with since the same have not be challenged.
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The executive orders classifying the 42 classes made by the State being Nos. 771- BCW/MR436/1999 dated 05-03-2010, Memo no. 1403- BCW/MR-436/99(1) dated 26-04-2010, Memo no. 1639- BCW/MR-436/1997 dated 14-05-2010, Memo No. 1929- BCW/MR436/99(1) dated 02-06-2010, Memo no. 2317- BCW/MR-436/99 dated 01-07-2010, Memo no. 5045- BCW/MR- 436/99(1) dated 31-08-2010, Memo no. 6305- BCW/MR- 436/99(1) dated 24-09-2010, and the executive order No. 1673-BCW/MR-209/11 dated 11-05-2012, inter alia, classifying the 35 classes for the purposes of reservation under Section 16(4) are quashed, with prospective effect, in view of the illegality of such reports, recommending such classification.
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The Backward Classes Welfare department of the State, in the exercise of powers under Section 11 of the Act of 1993, shall, in consultation with the Commission, place a report before the Legislature, with 191 recommendations, for inclusion of new classes or for exclusion of the remaining classes, in the State List of OBCs.
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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 succeeded in any selection process in the State, shall not be affected by the reason of this judgment.
[Amal Chandra Das v. State of West Bengal, 2024 SCC OnLine Cal 5389, decided on 22-05-2024]
Advocates who appeared in this case :
Mr. L.K. Gupta, Sr. Adv. ; Mr. Guru Krishna Kumar, Sr. Adv. Mr. Subir Sanyal, Adv. ; Mr. Samir Pal, Adv. Ms. Debjani Ray, Adv. ; Mr. Bikram Banerjee, Adv. Mr. Sudipta Dasgupta, Adv. ; Ms. Dipa Acharyya, Adv. Ms. Sinjini Chakraborti, Adv. ; Mr. Baibhav Ray, Adv. Mr. Arkadeb Biswas, Adv. ; Mr. Arka Nandi, Adv. Ms. Sagarika Goswami, Adv. ; Mr. Saikat Sutradhar, Adv. Mr. Suryatapa Das, Adv. : Ms. Sohini Dey, Adv. Mr. Sondwip Sutradhar, Adv. ; Mr. Sagar Dey, Adv. Mr. Sutirtha Nayek, Adv. ; Ms. Shalini Ghosh, Adv. Ms. Shaptarni Raha, Adv. …for the petitioners
Mr. Kishore Datta, Ld. Advocate General Mr. A. Banerjee, Sr. Standing Counsel Mr. Tapan Kumar Mukherjee, Sr. Adv., AGP Mr. A. Mondal, Adv. Ms. I. Banerjee, Adv. Mr. S. Naskar, Adv. …for the State
Mr. Dhiraj Kr. Trivedi, Ld. DSG, Mr. Billwadal Bhattacharya, Ld. DSG, Mr. Kumar Jyoti Tewari, Adv. Ms. Amrita Pandey, Adv. for the respondent Nos. 3 to 5
Mr. S. Sen, Sr. Adv. Mr. A. Mondal, Adv. Mr. A. Ghatak, Adv. ..for the Backward Class Commission
Mr. K. C. Kapas, Adv. Mr. L. Chatterjee, Adv. ..for Nilmadhab Karmakar, Petitioner in WPA 22145 of 2010
