SC again slams govt,refuses to stay quashing of sub-quota

The order will have a direct implication on educational institutions like IITs,which will have to ignore the sub-quota provision for admissions. IITs had called 325 candidates from minorities for counselling selected through the sub-quota.

“We are not inclined to grant stay,” a bench comprising justices K S Radhakrishnan and J S Khehar said,questioning the calculation for carving out the sub-quota.

“You are carving out 4.5 per cent sub-quota. Will it not affect other OBCs?” the bench asked referring to the data provided by the government about the ongoing counselling for IITs. It said the effect would “not be marginal”.

While the HRD Ministry also placed before the court documents forming the basis for the sub-quota decision,the bench was of the view that it was neither supported by Constitutional provisions nor by statutory provisions. “Can you make classification on the basis of religion?” it asked.

Unlike the 27 per cent reservation for OBCs in central educational institutions that was supported by constitutional provisions,the December 22,2011,Office Memorandum (OM) on the sub-quota did not have legislative support,the bench said. It also wanted to know from the government as to “whether there was any statutory support for granting 4.5 per cent sub-quota”.

Additional Solicitor General Gourab Banerji said it could be done through executive order by issuing OM as in the Mandal case.

At the outset,the bench also told the Centre that voluminous documents which have been placed before it now should have been produced in the high court. When Banerji said the high court was under the impression that the sub-quota was for all minorities,the bench shot back “it was because that was the reflection in the office memorandum”.

Banerji said that all religious minorities like Buddhists and Zoroastrians are not in the list of the 4.5 per cent sub-quota. He said though the OBCs among the religious minorities are covered under the 27 per cent quota,the sub-quota is for the lowest ranks of Muslims or converts to Christianity.

Banerji also specified that the first cut-off for qualifying for the sub-quota was that the OBCs have to be socially and educationally backward and they have to be religious minorities.

The ASG laboured hard to satisfy the bench that the Centre considered the OM of 1990 which formed the basis for implementing the Mandal Commission recommendation,1993 list of the NCBC and Sachar Committee report before determining the 4.5 per cent sub-quota. He also said that some states like Tamil Nadu and Kerala have carved out a sub-quota for Muslims within the OBC quota.

The ASG asked the apex court to consider his plea to stay the high court order in view of the ongoing counselling for IITs. However,the bench said it was not thus inclined as carving out a sub-quota for minorities would have a bearing on the OBCs.

The court once again questioned the government for not consulting statutory bodies like the National Commission for Minorities and National Commission for Backward Classes (NCBC) in determining the sub-quota.

At the June 11 hearing,the bench had ticked off the government for the way it had handled the “complex” and “sensitive” issue. It had also expressed its “unhappiness” over the Centre blaming the high court when it had itself failed to produce documents to support its case.