The 10 per cent reservation provided by Gujarat government in jobs and education for economically weaker section (EWS) from unreserved category is "unconstitutional and violative of Supreme Court order", the high court was told today.
This submission was made in the Gujarat High Court by the lawyers of petitioners who have challenged the validity of the reservation for EWS announced in the wake of Patel quota stir.
A Division Bench of Chief Justice R Subhash Reddy and Justice V M Pancholi heard their submission and later adjourned the hearing.
Lawyer I H Syed said the ordinance (on EWS quota) is a reminder of the Supreme Court's 2000 ruling on similar Government decisions wherein the SC said, "Knowingly they (Governments) violate the rule of law and constitutional mandate and pass the buck to the Court so that the Court strike down the provision."
He said 3 per cent reservation for handicapped, or 2 per cent for sportspersons, cut across all reserved categories and do not encroach upon the unreserved category. On the contrary, 10 per cent EWS reservation encroaches upon the space of unreserved category.
The lawyers said while the Government used the word "reservation" in the ordinance, in its affidavit filed on June 29, it said the provision is not "reservation" but "a further classification in the general, open, unreserved category."
They said the provision violates Constitution as the Article 46, which is about the Directive Principles of the State Policy, does not allow quota beyond 50 per cent cap.
The State Government, in its affidavit before the HC, said the ordinance does not violate provisions of the Constitution nor does it go against the Supreme Court orders.
"The ordinance should be read with Article 46 of Constitution (which states that social justice is required for weaker sections of society) and not with reference to Backward Class quota," the affidavit said.
On May 1, the State issued the ordinance providing 10 per cent reservation to persons from EWS from unreserved category other than the SC, ST and SEBC for admissions in the educational institutions and Government jobs.
The reservation is applicable to persons with annual family income cap of Rs 6 lakh.
Four petitions have been filed in the HC challenging the Government step.
The petitioners submitted before the court that the
reservation violates the Supreme Court's order providing 50 per cent ceiling for quota in the Indra Sawhney vs Union of India case.
They said that additional 10 per cent reservation reduced the number of seats in educational institutions for candidates from unreserved category with annual family income of more than Rs 6 lakh.
They said the provision violates the Constitution as Article 46, which is about the directive principles of state policy, does not allow quota beyond the 50 per cent cap.
The government pleader told the court that the reservation is actually "a further classification in the general, open, unreserved category" and does not violate either Supreme Court order or Constitutional provisions.
The state government, in its affidavit before the HC, said the ordinance does not violate provisions of the Constitution nor does it go against the Supreme Court orders.
"The ordinance should be read with Article 46 of Constitution (which states that social justice is required for weaker sections of society) and not with reference to Backward Class quota," the affidavit said.
On May 1, the state had issued the ordinance providing 10 per cent reservation to persons from economically weaker sections from unreserved category, other than the SC, ST and OBC, for admissions in educational institutions and government jobs.
The reservation is applicable to persons with annual family income cap of Rs 6 lakh.
The BJP government has been facing violent protests led by Hardik Patel and Lalji Patel from the numerically and socially strong Patel community which is seeking reservation in education and government jobs under the OBC category and the odinance was seen as an attempt to pacify them.
The BJP had suffered heavy losses in the rural local bodies polls, which were blamed on the Patel quota stir.
