AIQ seats in TN Medical Colleges: Centre-DMK war in Madras High Court over whether OBC reservation should be 27% or 50%

The hearing before the Madras High Court in the contempt plea moved by the Dravida Munnetra Kazhagam (DMK) over the delay in implementing Other Backward Classes (OBC) reservations for All India Quota (AIQ) seats of medical colleges in Tamil Nadu during 2021-22 took an interesting turn on Tuesday, when the Central government informed that it is proposing to implement only 27% OBC reservation..Appearing for the Centre, Additional Solicitor General R Sankaranarayanan informed that the government had proposed the implementation of reservation in 15% undergraduate and 50% post-graduate AIQ seats for medical colleges as follows:.(i) 15% for Scheduled Castes(ii) 7.5% for Scheduled Tribes(iii) 27% for non-creamy layer OBC candidates(iv) 10% for Economically Weaker Sections and(v) Horizontal reservation of 5% for Persons with Disabilities..“They (the DMK) wanted the State act to be applied. Central government filed affidavit saying we will consider State quota, but it should not breach the 50% … (We have now said that) OBC reservation has to be granted. The Central government has honoured the commitment”, ASG submitted..However, the Centre’s stance that only 27% reservation would be implemented for OBC candidates was fiercely opposed by the DMK, which has contended that OBC candidates should be getting 50% reservation as laid down in 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 (Tamil Nadu Act/ 1993 Act)..Appearing for the DMK, Senior Advocate P Wilson contended that the 27% OBC reservation as outlined in the Central Education Institutions (Reservation in Admission) Act is only applicable to Central government institutions, and not the State’s institutions..Referring to the July 2020 Madras High Court order (rendered by a Bench headed by then Chief Justice AP Sahi), in relation to which the contempt plea was moved, Wilson argued,“The order has not been fully complied with. The order says 1993 Reservation has to be applied… We are grateful that nearly 5,000 candidates would be benefitted (by the order)… But let the fullest applicability of this order be made to the students in Tamil Nadu. That is why we came before this Court … This 35-year fight, as a lighthouse this court has given an order.. Let the entire fruits of the order be available to the … generation. That is what we are fighting for.”.Madras HC directs constitution of Committee to decide on implementation of OBC Reservations in State-surrendered medical seats in TN.Why was the matter sent to the Committee at all? Court.To tackle the confusion, the Bench of Chief Justice Sanjib Banerjee and Justice PD Audikesavalu delved into the Madras High Court’s July 2020 judgment on the issue as well as an October 2020 Supreme Court order to examine whether it would be State’s 50% reservation or the Centre’s 27% reservation that would apply with respect to AIQ medical seats..It was noted that on one hand, the High Court, in its July 2020 judgment, had observed the Tamil Nadu Act cannot be ignored once it is already in place.In this regard, paragraph 103 of the July 2020 order said, “…. once the constitutional mandate enabling the State to frame a law has been crystallised by the framing of a particular law by the State Government, then its applicability vis-a-vis All India quota to the extent the percentage is permissible cannot be ignored.”.Coupled with this, the Supreme Court also made allied observations in its October order, wherein it was stated,“It is no doubt true that the High Court accepted the submissions of the Appellants that the 1993 Act can be made applicable to the All India Quota seats.”.This, the DMK contended, evinced that the Courts have accepted the proposition that the Tamil Nadu’s 50% reservation of OBC candidates should be applied..“The Committee report also says that if 27% has to be implemented pan-India, you have to bring a new law. Tamil Nadu is a pioneer of social justice. 69% was fought for, it is kept in ninth schedule. The seats are from medical colleges belonging to the State government. That is why High Court said you can't ignore the law made by the State govt and the rights have been crystallised. How can they say only 27% applicable? It is only applicable to Central government institutions. The Court said you go and deliberate, but you cannot ignore State law. Supreme Court clearly says in paragraph 8 that you have to implement the 1993 act. There was no dispute at all. How can they come and dispute now?”, Wilson argued..On the other hand, the Centre contended that even the High Court, in its July 2020 order, had recognised that AIQ seats formed a separate class which should not be governed by the principle of domicile. This is why the High Court had ordered the constitution of a committee to ascertain the “extent of reservation that would be desirable in the AIQ seats”, the Centre argued..However, the DMK countered that the Committee was not tasked with fixing the percentage of reservation, and that it was only meant to work out how the reservation should be implemented, from an administrative point of view. .During the hearing, the Court raised oral queries as to why a Committee would have to be formed at all if the percentage of reservation applicable was already in place under the 1993 Act, as contended by the DMK..“If the Court wanted to say the 1993 Act had to be implemented exactly as it is, then where is the question of sending it to the Committee? … Then Committee has no work. What was entrusted was to strike a balance between Central quota and this. Otherwise why would the committee be appointed?”, Chief Justice Banerjee orally remarked..Appears that High Court said 1993 Act should apply: Court.As the discussion progressed, the Court ultimately opined that both the High Court and the Supreme Court appeared to have indicated that it is the 1993 Tamil Nadu Act that should be applied when it comes to the OBC reservation.."Why it was sent to the committee, we don't know… but the High Court has said that 1993 Act has to be applicable … the Supreme Court also recognises what the High Court dictum is. The ratio decidendi in the High Court judgment, the Supreme Court recognized it - i.e. that 1993 Act can be applied to AIQ seats,” the Court orally observed while asking the Centre to get a clarification. .In its interim order, the Bench recorded that both the High Court and Supreme Court orders indicated that the committee would only “work out the modalities for implementation of the reservation for OBC candidates to AIQ seats in this State.”.“If it is a question of implementation, the committee was not tasked with the duty of ascertaining the extent of reservation or the inter se allocation thereof between groups,” the Court said further in its order..It, however, also acknowledged that “yet, there are several paragraphs in the judgment of this court which, despite accepting the Act of 1993 in this State to have a say in the matter, speaks of a balance that requires to be struck,” when it comes to reservation in AIQ seats..The Court noted Union’s stance that the “balance has been struck” by the Committee in indicating two possible alternatives i.e. (i) implementation of State-specific reservation or (ii) implementation of 27%..Given that the first option would breach the 50% rule and may need permission from the Supreme Court as well as entail a deviation from the Centre’s 27% reservation policy, the Central government has adopted the second option, strictly in terms of the Committee’s recommendation, the Court was told..The Bench, however, declined to record a final opinion in the matter in the interim order today and acceded to the Centre’s request for an adjournment till Monday. .The interim order noted that: "The contempt jurisdiction is an equitable mode of execution and this Court cannot leave the issue unresolved merely by saying no contempt has been committed. A judgment has been rendered by this Court and such judgment has to be interpreted to ensure that it is implemented, subject to any order of the Supreme Court in such regard. It does not appear that even the petitioners care too much for the alleged contemners to be hauled up as long as the order of this court of July 27, 2020 Is implemented in letter and spirit.”.Matter to be heard on Monday.Whereas the Court was initially inclined to post the matter later this week, on the ASG’s request it was adjourned till Monday.The arguments today also briefly touched upon whether the EWS reservation would breach the 50% upper limit rule and the Supreme Court’s Maratha reservation judgment.The ASG submitted that the Centre’s stand on the issue is that EWS reservation is done irrespective of caste, and therefore will not breach 50%.Wilson, however, disagreed.“They themselves are breaching the ‘Lakshmana Rekha’ (for 50% upper limit for reservations),” he said..[Read Order]