The Bombay High Court Tuesday refused to grant interim stay on the September 2 Government Resolution (GR) on the implementation of the Hyderabad Gazette to grant Kunbi status to Marathas from the Marathwada region. The court also issued notices to the Maharashtra Government in various pleas challenging the GR and sought its reply in affidavit through the Social Justice and Special Assistance Department within four weeks. The division bench of Chief Justice Shree Chandrashekhar and Justice Gautam A Ankhad passed the order on pleas against the GR which was issued following hectic talks between ministers and Maratha quota activist Manoj Jarange Patil to resolve the quota crisis. The GR mentioned implementing the Hyderabad Gazette, a 1918 order by the then Nizam of Hyderabad. Kunbi is classified as an Other Backward Class (OBC) caste in Maharashtra. Pleas allege discrimination The pleas alleged that the impugned GR was issued due to “political pressure”, and it “arbitrarily extended OBC status to a politically dominant and socially advanced community without sufficient data” in violation of Article 14 of the Constitution and that discriminated against genuine OBC communities by diluting their share of reservation. The petitioners, through Senior Advocate Anil Anturkar and Venkatesh Dhond, also argued that various committees constituted by Maharashtra government and State Backward Class Commissions had made a clear distinction between Marathas and Kunbis, and had observed that the Marathas did not fall within the OBC category. Dhond, appearing for petitioner Maharashtra Mali Samaj Mahasangh, said that they were in no way challenging the inclusion of Maratha-Kunbis or Kunbi-Marathas under OBC, but their apprehension was that through the impugned GR, procedure has been laid down "to (facilitate) the infiltration of other persons belonging to Maratha community in the OBC category and therefore the state's response was necessary to clarify certain aspects of GR.” However, opposing the pleas, Advocate General Birendra Saraf, appearing for the state government, submitted that the petitioners were not the aggrieved persons and they could not challenge the GR based on the grounds indicated in their pleas. May create 'irreversible situation' in civic polls Anturkar, representing the petitioner Kunbi Sena, sought urgent interim relief citing upcoming civic elections in Maharashtra, and said that otherwise ineligible persons may get the benefit of the GR, obtain OBC certificate and contest from seats reserved for the category, which would create an “irreversible situation” if they win. Anturkar also referred to The Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), NT, OBC and SBC (Regulation of Issuance and Verification of) Caste Certificate Act, 2000. He argued that the impugned GR was issued without following mandatory procedure provided in the law pertaining to the government’s rule-making powers. He argued that once the field is occupied by the statute, the government is denuded of its purview to exercise powers under Article 162 (executive power of the state) of the Constitution to issue such a GR. Anturkar claimed the GR was issued by ignoring the constitutional mandate under Article 338B of the Constitution, which provides that the state government shall consult the National Commission for Backward Classes on all major policy decisions affecting the socially and educationally backward classes. The petitioners also argued that the government has opened a “backdoor entry” for a community to get certificates under the OBC category. The court noted that the issue regarding the validity of GR based on provisions of the 2000 Act and rules framed under it, along with the applicability of the provision in Article 338B of the Constitution, can be decided after taking state government's response. The court also said that at present it was "not inclined" to make any observations regarding the executive powers of the state under Article 162 of the Constitution, and the same can be done after a “full-fledged” hearing. “At this stage, we are not elaborating upon issues raised by senior counsel (Anturkar) and would decline interim relief (seeking stay on GR),” the high court noted and posted a hearing for next month.
