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REVIEW PETITION AGAINST THE ORDER DATED 07.11.2022 PASSED BY THIS HON’BLE COURT IN WRIT PETITION (C) NO.55 OF 2019.

To, THE HON’BLE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUDGES OF THE SUPREME COURT OF INDIA

THE WRIT PETITION OF THE PETITIONER ABOVENAMED.

MOST RESPECTFULLY SHOWETH :

1. That Constitutional validity of 103rd Amendment of the Constitution (One Hundred and Third Amendment) Act, 2019 was challenged before this Hon’ble Court and five judges bench decided this issue by way of four separate judgments with different reasoning. Three judgments upheld the 103rd Amendment of the Constitution (One Hundred and Third Amendment) Act, 2019 by passing the three different judgments with different reasoning but one Judgement passed by the justice Ravindra Bhatt alongwith Chief Justice of India that 103rd Amendment of the Constitution (One Hundred and Third Amendment) Act, 2019 is violate the basic structure of the Constitution on the ground of equality, specially exclusion of the OBC/SC/ST. Justice Ravindra Bhatt view regarding the limitation of 50% is open, because one of the constitutional amendment still pending for consideration and still open. Three separate Judgments passed are (1). … (2)… and (3)…. And giving the reasoning for upholding the constitutional amendment is contrary to the view of two judges (1)….. and (2)….. passed the one separate judgments. So this is the error in the face of records and hence present Review is likely to be allowed in the interest of justice.

2. By the aforesaid amendment, Articles 15 and 16 of the Constitution of India were amended by inserting clause (6), after clause (5), in Article 15 and by inserting clause (6) after clause (5), in Article 16. The newly inserted Articles 15(6) and 16(6) read as under: “15(6). Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,- (a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and (b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category. Explanation.-For the purposes of this Article and Article 16, “economically weaker sections” shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.16(6). Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten percent of the posts in each category.”

3. By virtue of Article 15(6) of the Constitution, States are empowered to make a special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) and to make a special provision relating to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30, in addition to existing reservations and subject to a maximum of ten per cent of the total seats in each category. Similarly, Article 16(6) empowers the State to make any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent of the posts in each category.

4. The above said impugned constitutional amendments are ultra vires as they alter the basic structure of the Constitution of India. The impugned amendments run contrary to the dictum in the majority judgment, in the case of “Indra Sawhney & Ors. V. Union of India & Ors.” The backward class cannot be determined only and exclusively with reference to economic criterion. The reservation of ten per cent of vacancies, in available vacancies/posts, in open competition on the basis of economic criterion will exclude all other classes of those above the demarcating line of such ten per cent seats. Reservation in unaided institutions violates the fundamental right under Article 19(1)(g) of the Constitution. State cannot insist on private educational institutions which receive no-aid from the State to implement the State policy on reservation for granting admission on lesser percentage of marks i.e. on any criterion except merit.

5. That present applicant is General Secretary of M.P.Mahila Congress. In the Madhya Pradesh OBC population is more than 50% but OBC reservation in M.P. State Service & Educational institution only 13%. This is an admitted position in the State of Madhya Pradesh that Schedule Caste community is 16% of the total population and they have got proportionate reservation of 16%, similarly Schedule Tribe are 20% of total population and they have got proportionate reservation of 20%. While OBC community are getting only 14% reservation despite their population are approx.50%. The forward caste population is only 6%. Post the impugned amendment 10% reservation for EWS will be provided to the poor of forward caste. The numbers clearly shows that this reservation of 10% is disproportionate and there is no grounds or justification whatsoever for arriving at this figure of 6%. The 10% reservation provided to the EWS of only forward caste, is breach of equality code amounting to discrimination. Neither the parliamentary debate while passing the impugned amendment nor the majority judgments give insights as to what rational was adopted to come to this figure of 10%. The only ad-hoc commission established in this regard was Sinho Commission. Even this Commission was unable to justified or give any reasoning for provisioning of 10% reservation for EWS category.

6. In the present amendment, OBC/SC/ST are not entitled to take the benefits of the Reservation. This is in violation of the Article 14 and 16 of the Constitution of India.

7. That the adequate representation in the Central Govt. Services of SC/ST/OBC is very important ground for Reservation. When Mandal Commission report was challenged before this Hon’ble Court, then Union of India filed in their Reply that 12.55 % OBC were working in Central Govt. Service and 18.72% SC/ST category were working in Central Govt. Service and Rest of the 69% were working were from the beneficiary group of the present impugned 103rd Amendment. The total population of OBC category was 52% (Pages 433 of Indra Sawhney Judgments). These figures point out towards the fact that SC/ST/OBC are not adequately represented in Govt. Services.

8. To take an example of State of M.P. population of SC/ST/OBC are 86% but they are 49% only in the Govt. Services including PSU. It is very much clear that 51% people are working in the State of M.P. who is beneficiary of the impugned 103rd amendment. SC/ST reservation is in proportion to their population. OBC reservation is approx.50% of their population. While EWS reservation is dis-proportionally far above the need.

9. That in the State of M.P. recently State increased the OBC reservation from 14% to 27% which is now under challenged before the Hon’ble High Court, where State of M.P. filed the Counter Affidavit with data before the High Court of Madhya Pradesh in WP(C) No.5901 of 2019 in which it is mentioned that only 13% OBC community are working in State Services. Percentage of OBC community in the Class 1 and Class 2 in State Services are nominal i.e. less than 1%. In Class 3 and 4 State Services, OBC community are working approx.12% only, in spite of this fact that OBC are more than 51% of total population of the M.P. and Population of SC/St are 36.05 % in M.P.

10. That as per information provided by the 78 ministry of the Central Govt. and their Department & PSU (https://pib.gov.in/Pressreleaseshare.aspx?PRID=1579065),rep-resentation of the SCs, STs and OBCs in the Central Government services as on 01.01.2016, was 17.49%, 8.4% and 21.57% respectively. Meaning thereby total percentage of the SCs, STs and OBC are only 47.46% in Central Government services, despite reservation for so long.

11. That total 89 Secretaries are working in the present Central Govt. out of which 1 Scheduled Castes (SC), 3 Scheduled Tribes Zero Other Backward Classes (OBCs), according to the data compiled by the Ministry of Personnel, Public Grievances. https://theprint.in/india/ governance/of-89-secretaries-in-modi-govt-there-are-just-3-sts-1-dalit-and-no-obcs/271543/

12. That total 49 vice-chancellor of the Central University, Only 1 SC, and 1 ST and 7 OBC vice chancelor, rest of the vice-chancellor belong from the class come in EWS category. http:// timesofindia.indiatimes.com/ articleshow/93441609.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

13. Because out of total 45 central universities, total teachers are 12,373 out of which total SC/ST 568, and OBC are 1740 rest are belong from the class come in EWS category. http:// timesofindia.indiatimes.com /articleshow/93441609.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

14. That the University Grant Commission replied in the RTI application dated 05.01.2018 total vice chancellor are 496 out of which 6 SC, 6 ST and 36 OBC Vice Chancellor, rest 448 are belongs from the category of beneficiary of the EWS.

15. Applicant further respectfully submitted that the concept of the Reservation to give adequate representation in all section of the society, but exclusion of the EWS benefits to the OBC/SC/ST community is violation of the fundamental rights of the OBC/SC/ST category.

16. In the above background petitioner has filed the application for intervention I.A.No.126497 of 2022 for intervention in the present matter, thereafter petitioner also made her submission, but this Hon’ble Court passed the order dated 07.11.2022 in Writ Petition (C) No.55 of 2019 and upheld the 103rd Constitutional Amendment, against which Petitioner is filing present Review Petition on the following GROUNDS :

17. Because this Hon’ble Court of majority view ignored the earlier 81st Constitutional Amendment which by which the Govt. cannot fill-up the vacancies more than 50% in the year on the basis of reservation.

18. Because during the hearing this Hon’ble Court call the data from State of M.P. but Madhya Pradesh intentionally and deliberately have not file the Data and in fact were never present in the hearing post the bench had sought for the data. Then present petitioner had placed the same.

19. That Hon’ble Supreme Court already fixed the maximum limit of Reservation upto 50% in the case of “Indra Sawhney & Ors. V. Union of India & Ors.” 1992 suppl. (3) SCC 217 which was passed by the 9 judges bench and same is binding in nature on the 5 judges bench. The Article 141 of the Constitution of India is the basic structure of the Constitution and hence upholding the 103rd Amendment is error of the face of records

20. Because there are error in the face of records, hence the Review may kindly be allowed in view of the judgment passed by this Hon’ble Court in the case of “Chhajju Ram Vs. Neki & Ors, AIR 1922 PC 112” by which it was held by the Privy Council that anology must be discovered between two grounds specified therein namely; (i) discovery of new and important matter or evidence; and (ii) error apparent on the face of record, before entertaining the review on any other sufficient ground.

21. Though the judgment concurs on the principle of giving reservation on the basis of Economic criteria is the violation of the “Indra Sawhney & Ors. V. Union of India & Ors.” Judgment of para no.799, 859 as under:- A backward class cannot be determined only and exclusively with reference to economic criterion. It may be consideration or basis alongwith and in addition to social backwardness, but it can never be the sole criterion. This is the view uniformly taken by the Supreme Court and also follows from the discussion under Question No.3 above.

22. That the Justice Dinesh Maheshwari further given the finding that Exclusion of SC/ST/OBC from the 103rd Amendment is not violate equality, is complete contrary because yardstick using only economic basis. Therefore the exclusion of the SC/ST/OBC is a violation of the right to equality which the part of the basic structure. If court feels, they can take two benefits then put clock that person have a choice to avail. It is further stated that Such adverse effect, it was argued, could not be characterized as a shocking breach of the equality code or that it affected the identity of the Constitution. It was submitted furthermore, that even in the existing reservation, the SC/ST/OBC candidate belonging to such category, could compete in the quota set apart for their caste or class and not of the quota of each other. Thus, the SC candidates cannot compete in the quota set apart for SC or OBC. This, it was urged is reasonable classification by which unequals are not treated equally

23. That the Justice Dinesh Maheshwari further given the contrary finding that 103rd amendment is not violating the limit of 50%, in fact this is complete violation of the law settled by this Hon’ble Court in Indira “Indra Sawhney & Ors. V. Union of India & Ors.” by 9 judges bench.

24. It is further noted that this issue already settled by the Justice Ravindra Bhatt in para no.176, 177 and 178 that the impugned amendment is violative of the basic structure of the Constitution, I find that there is no need for a specific finding on the 50% cap, or its breach of the basic structure; however I deem it necessary to sound a note of caution, on the consequence of upholding the reservation, thereby, breaching the 50% limit. It is pertinent to note that the breach of the 50% limit is the principal ground of attack, of the 76th Constitutional Amendment 1994 which inserted as Entry 257A – the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services under the State) Act, 1993 in the IXth Schedule. The validity of that enactment – and whether the inclusion by the constitutional amendment, violates basic structure, is directly in issue in a batch of cases pending before this court. The view of the members of this bench constituting the majority – that creation of another class which can be a recipient of up to 10% of the reservation, over and above 50%, which is permitted under Articles 15(4) or 16(4), in my considered opinion, therefore, has a direct bearing on the likely outcome in the challenge in that proceeding. I would therefore sound this cautionary note since this judgment may well seal the fate of the pending litigation – without the benefit of hearing in those proceeding.

25. The last reason why I find myself unpersuaded to agree with the opinion that the impugned amendments by creating a different kind of criteria, have to be viewed separately and that Indra Sawhney was confined to reservations in Articles 15(4) and 16 (4) is because permitting the breach of the 50% rule as it were through this reasoning, becomes a gateway for further infractions whereby which in fact would result in compartmentalization; the rule of reservation could dealt well become rule of equality or the right to equality, could then easily be reduced to right to reservation – leading us back to the days of Champakam Dorairajan. In this regard, the observations of Ambedkar have to be kept in mind that the reservations are to be seen temporary and exceptional or else they would “eat up the rule of equality”

26. That Justice Bela M.Trivedi upholding the 103rd amendment on the ground that Govt. not revisited the Reservation policy, which is contrary to the finding itself. Because One hand Justice Bela M. Trivedi observe that Re-visit is necessary and in other hand Upholding the Reservation. Therefore the finding is error on the fact of records.

27. That Justice Bela M.Trivedi further given finding towards the time limit of Article 15 and 16 of the Constitution but other hand Justice Bela M. Trivedi upholding the 103rd Amendment and allowing the another reservation after seventy five years is itself contradictory in her own version. Therefore, there are error on face of records.

28. That the Justice J.B. Pardiwala also noted that Baba Saheb Ambedkar was to bring social harmony by introducing reservation for only ten years which is incorrect in facts, 15(4) and 16(4) is the sole motive to give adequate representation to all class of the society. So that preamble of the Welfare State will be achieved but above data shows there is no adequate representation and thereafter Govt. is also not review why adequate representation is not achieved through reservation so without review the whole policy reservation cannot be removed.

29. That the Justice Pardiwala finding is the clear error on face of record because on dated 6.11.1992 OBC reservation was given 29 years back.

30. That the has also submitted the data, which clearly shows that larger percentages of backward class members not attained the acceptable standards of education and employment, therefore this finding is also error in the face of records.

31. That the justice Pardiwala observed that the method of identification and the ways of determination of backward classes be reviews, but petitioner should not be suffer if Govt. not review the classification of backward classes. Before bring the 103rd Constitutional Amendment, this review was required to be done by the Govt. This observation is also error in the face of record. Scope of Article 46 165. In my considered opinion, it would be wrong to characterize that the classification made for upliftment of SC/STs for whom special mention is made, is a “classification” for the purpose of upliftment of economically weaker sections, under Article 46, which permits a later classification that excludes them. If anything, the intent of Article 46 is to ensure upliftment of all poor sections: the mention of SC/STs is to remind the state that especially those classes should not be left out. But ironically, that is exactly the result achieved by their exclusion. 166. There can be no debate that Article 46 is an injunction to the State to take all steps to ameliorate the lot of economically weaker sections of the society. That this injunction was not confined to only SCs/STs has been widely accepted. In Indra Sawhney this aspect was recognized and elaborated, by PB Sawant, J. who stated that economic backwardness may not be the result of social backwardness: “481. […] The concept of “weaker sections” in Article 46 has no such limitation. In the first instance, the individuals belonging to the weaker sections may not from a class and they may be weaker as individuals only. Secondly, their weakness may not be the result of past social and educational backwardness or discrimination. Thirdly, even if they belong to an(ii)Scope of Article 46 165. In my considered opinion, it would be wrong to characterize that the classification made for upliftment of SC/STs for whom special mention is made, is a “classification” for the purpose of upliftment of economically weaker sections, under Article 46, which permits a later classification that excludes them. If anything, the intent of Article 46 is to ensure upliftment of all poor sections: the mention of SC/STs is to remind the state that especially those classes should not be left out. But ironically, that is exactly the result achieved by their exclusion. 166. There can be no debate that Article 46 is an injunction to the State to take all steps to ameliorate the lot of economically weaker sections of the society. That this injunction was not confined to only SCs/STs has been widely accepted. In Indra Sawhney this aspect was recognized and elaborated, by PB Sawant, J. who stated that economic backwardness may not be the result of social backwardness: “481. […] The concept of “weaker sections” in Article 46 has no such limitation. In the first instance, the individuals belonging to the weaker sections may not from a class and they may be weaker as individuals only. Secondly, their weakness may not be the result of past social and educational backwardness or discrimination. Thirdly, even if they belong to an(a) That Article 46 comprehends all economically weaker sections of people, including SC/STs and OBC; (b) The mention of SC/STs in Article 46 is a reminder to the state never to ignore them from the reckoning whenever a measure towards economic emancipation under Article 46 is introduced by the State. (c) Article 46 existed from the beginning, and has been resorted to for providing all manner of measures to assist the poorest segments of society, irrespective of whether they are SCs/STs OBCs, such as scholarships, freeships, amenities, and concessions. View taken by the Justice J.B. Pardiwala is contrary to the view of the Justice Ravindra Bhatt and Chief Justice of India.

32. Because the same view has been reiterated in Debi Prasad & Ors Vs. Khelawan & Ors, AIR 1957 All. 67; and Mohammad Hasan Khan Vs. Ahmad Hafis Ahmad Ali Khan & Anr., AIR 1957 Nag. 97. 5. In S. Nagraj & Ors. Vs. State of Karnataka & Anr., 1993 Supp (4) SCC 595, the Hon’ble Apex Court explained the scope of review observing as under:- “Review literally and even judicially means re-examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice

33 Because the expression, `for any other sufficient reason’ in the clause has been given an expanded meaning and a decree or order passed under mis-apprehension of true state of circumstances has been held to be sufficient ground to exercise the power.” The Court further held that the purpose of review is rectification of an order which stems from the fundamental principle that the justice is above all and it is exercised only to correct the error which has occurred by some accident without any blame.

34. Because this Hon’ble court while deciding the review, law settled in the case of “Raja Prithwi Chand Lal Choudhury Vs. Sukhraj Rai & Ors., AIR 1941 FC 1; and Rajunder Narain Rae Vs. Bijai Govind Singh (1836) 1 MOO PC 117. The same view has been reiterated by the Hon’ble Apex Court in Oriental Insurance Co. Ltd. & Anr. Vs. Gokulprasad Maniklal Agarwal & Anr. (1999) 7 SCC 578. 6.

35. Because the Privy Council in Rajah Kotagiri Venkata Subbamma (supra); Chhajju Ram (supra); Bisheshwar Pratap Sahi & Anr. Vs. Parath Nath & Anr, AIR 1934 PC 213; and on judgments of the Hon’ble Supreme Court in M/s. A.C. Estates Vs. M/s. Serajuddin and Co. & Anr., AIR 1966 SC 935; and Moran Mar Basselios Catholicos & Anr. Vs. Most Rev. Mar Poulose Athanasius & Ors., AIR 1954 SC 526. 8. In Sow. Chandra Kanta & Anr. Vs. Sheik Habib, AIR 1975 SC 1500 the Hon’ble Apex Court dismissed a review application observing as under:- “………..thus, making it that a review proceeding virtually amounts to a rehearing. May be ……… a review thereof must be subject to the rules of the game and cannot be lightly entertained. A review of a judgment is a serious subject and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave of error is crept in earlier by judicial fallibility.”

36. That the petitioner accepting the judgments passed by MR.JUSTICE S.RAVINDRA BHAT and Hon’ble Chief Justice.

37. That the petitioner has not filed any Review Petition against the order dated 07.11.2022 passed by this Hon’ble Court in Writ Petition (C) No.55 of 2019.

P R A Y E R

It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to:

(a). review the order dated 07.11.2022 passed by Justice Dinesh Maheshwari, Justice Belam Trivedi and Justice J.B. Pardiwala in Writ Petition (C) No.55 of 2019 and ;

(b). pass such other or further order/s as this Hon’ble Court may deem fit in the facts and circumstances of this case; AND FOR THIS ACT OF KINDNESS THE APPLICANTS AS IN DUTY BOUND SHALL EVER PRAY.

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