Calcutta High Court sets aside OBC classification of 37 communities, cancels OBC certificates

The Calcutta High Court on Wednesday set aside the classification of 37 communities as Other Backward Classes (OBC) under the West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies in Services and Posts) Act, 2012 [Amal Chandra Das vs State of West Bengal]..A division bench of Justices Tapabrata Chakraborty and Rajasekhar Mantha also cancelled the OBC certificates issued under the Act but clarified that the same would not affect those citizens who have already obtained some or the other benefit or job under the 2012 Act. "We strike down the section 16 of the Act of 2012 since it empowers State Executive to amend any schedule of the Act of 2012. Consequently, the 37 classes included under exercise of section 16 are struck out of schedule 1 of the Act of 2012," the Court said while pronouncing the judgment. It also struck down various Executive Orders by which the State classified several communities as OBCs for granting reservations in public service. Further, the bench also ordered the West Bengal Backward Class Welfare Department in consultation with the State Backward Class Commission, to submit a report before the State legislature with recommendation of inclusion of new classes or exclusion of remaining classes in State list of OBCs."The services of citizens from the 37 classes, who are already in the service of the State or have availed any reservation, or have succeeded in selection process of the State shall not be affected," the Court clarified. .It observed that there was a complete lack of legislative policy within 2012 scheme which guides powers of State and ordered the State to lay down a legislative policy before it delegates its authority in classifying any class as OBC."If State desires to exercise discretion under Article 16 (4) of the Constitution of India, it is required to show quantifiable data showing backwardness of the class and inadequacy of representation in public employment. It has to abide by the law laid down by the Supreme Court in various decisions, as it is the rule of law which the society trusts," the Court held. .The judgment was passed in a clutch of petitions challenging the decision of the State government to identify several communities within the Muslim community as OBC.The petitions primarily argued that the decision to identify a total of 77 communities (between 2010 and 2012) through various Executive Orders, was based solely on 'religion' of the citizens. The petitioners contended that the landmark judgment of the Supreme Court in Indra Sawhney disallowed reservation based on religion. It was also highlighted that the State government did not follow the due procedure i.e. to consult the State and National Backward Class Commissions prior to inclusion of more communities within the OBC category.The petitions argued that the State Commission was in a 'tearing hurry' to declare the 77 classes as backward only to fulfil the desire of the then Chief Minister who had, during the 2012 State Assembly elections, declared that Muslims will be given 10 per cent reservation in government jobs.The State defended that its decision was based on research and survey of people from the said communities, which indicated that they were 'socially and economically backward.' It argued that religion may have been the starting point as a matter of obvious consequence, since the majority of the applications filed before the Commission (for including their community in OBC) were from a particular community and the Commission and State cannot be blamed for that.The Court was urged to look at the situation of the Muslim classes in the State and the methodology adopted by the State Commission in support of their recommendations. .Senior Advocates LK Gupta and Guru Krishna Kumar along with Advocates Subir Sanyal, Samir Pal, Debjani Ray, Bikram Banerjee, Sudipta Dasgupta, Dipa Acharyya, Sinjini Chakraborti, Baibhav Ray, Arkadeb Biswas, Arka Nandi, Sagarika Goswami, Saikat Sutradhar, Suryatapa Das, Sohini Dey, Sondwip Sutradhar, Sagar Dey, Sutirtha Nayek, Shalini Ghosh and Shaptarni Raha appeared for the Petitioners. Advocate General Kishore Datta, Senior Standing Counsel A Banerjee and Senior Advocate Tapan Kumar Mukherjee, along with Advocates A Mondal, I Banerjee and S Naskar represented the State. Deputy Solicitor Generals Dhiraj Kr Trivedi and Billwadal Bhattacharya along with Advocates Kumar Jyoti Tewari and Amrita Pandey represented the National Commission for Backward Classes. Senior Advocate S Sen along with Advocates A Mondal and A Ghatak represented the Backward Class Commission. .[Read Judgment]