In OBC reservation case Mr P Wilson senior advocate made the following opening arguments :- The Supreme Court on 13.7.2020 in the SLP filed by one TG Babu has differentiated the Saloni Kumari case pending before it and asked the High court to decide as expeditiously as last date of admission for PG course is 30.7.2020.
The Supreme Court on 13.7.2020 in the SLP filed by one TG Babu has differentiated the Saloni Kumari case pending before it and asked the High court to decide as expeditiously as last date of admission for PG course is 30.7.2020.
By virtue of this green signal given by SC, the Central Govt cannot harp on (a) the jurisdiction of HC to decide the issue relating to reservations in AIQ (b) Bar on hearing the present Writ Petitions due to pendency of Saloni Kumari case before SC on reservation.
He submitted that reservations were given on the basis of populations of OBC in State/ UT and never remained to be the same He read out the list of OBC reservations across the country in 35 (states and UT’s )places.
According to him OBC reservation in AP is 29%, Himachal Pradesh is 12-18% (depending upon posts, Chhattisgarh) , Uttarakhand ,Jharkhand is 14% karnataka is 32%, kerala is 40%, Maharastra, Rajasthan, Sikkim is 21% , Bihar is 33%,Manipur , West Bengal is 17%, Punjab is 12%, Puducherry is 34% , A& N Islands is 38%, Dadra Nagar and Haveli is 5%, J&K is 13% , Assam,NCT Delhi, Goa, Gujarat, Haryana,Odisha,U.P, Chandigarh is 27% and in StateTN is 50%.
He said no OBC reservation are given in Arunachal Pradesh, Megalaya, Nagaland, Tirupura, Lakahadeep.
Thus according to him OBC reservations varies from state to state and is not uniform.
He traced History of All India quota(AIQ) and said that concept of AIQ came in 1984 for the first time when SC in Dr PradeepJain framed a Scheme for All India quota to enable participation of students from all states without any barriers as prior to 1984 only few states had medical colleges.
He argued that the Supreme Court in Dr Pradeep jain case felt that in certain states all the medical seats were wholly reserved on the basis of domicile. In some states, larger institutional preference reservations were given, there by students from other states in whose state there were no medical colleges, had no opportunity at all to do the medical or dental course. Under these circumstances to avoid whole sale reservations by way of domicile or larger institutional preference reservations, the SC in Dr Pradeep Jain case directed that state and central government should contribute 15% of MBBS Seats and 50% of PG /Diploma seats in dental and Medical education to AIQ scheme without any reservations whatsoever . The sc directed Central Govt to conduct common exams for those contributed seats and to fill up with in time schedule fixed.
He quoted series of SC cases which dealt with AIQ on later dates and submitted that the views of SC relating to institutional preferences and domicile preferences were explained by SC periodically. How ever the ratio of contributions viz 15% in MBBS and 50% in PG/ Diploma which were fixed were never unchanged by SC in those cases and remained to be the same.
He submitted that the initial view of SC from 1985 up to 2005 was that no communal reservations whatsoever should be made in those contributed seats from states and Central. However for the first time in Abbaynath case on 31.1.2007 on the basis application filed by Central government seeking to apply reservation of SC/ ST to AIQ seats, the SC permitted to apply reservations including SC/ST. According to MR P. Wilson, the world including SC and ST reservations appearing in the order of SC has to be understood as constitutional reservations and that is the reason when Central Educational Institution Act 2006 came in to force, the central government even without approaching SC gave to 27% OBC ; 5% to Persons with Disability and recently 10% EWS reservations in AIQ seats contributed by Central educational institutions.
He submitted that The view of SC in Abbay Nath case was clarified by SC in Gulshan Prakash case on 2.12.2009 where in SC while holding that if state does not provide any reservations, the reservation applied by central government to AIQ cannot be applied to State seats. In other words no reservations could be applied even to state surrendered seats under AIQ scheme. He said that the present case is converse. What ever reservation state applies to states seats filled by it has to be applied by Central government, when it is filled by it under AIQ scheme .
This made MCI in consultation with Central Government to introduce 2 notifications to Amend Graduate Medical education 1997 Regulations and PG Medical Education Regulations 2000 relating to application of State specific reservations along with concept of common exams for all medical seats. 2 notifications were also introduced by Dental council of India on similar lines. Mr Wilson submitted that by virtue of 4 notifications enabling application of the state specific reservations, the State reservation of 69% under TN reservation Act 45/94 stands automatically applied.
He submitted that the regulations relating to reservations never dealt separately with AIQ and were thus applicable for all Medical and dental seats irrespective of AIQ. He said the word occurring ‘state specific’ is referable to reservation in the state as OBC reservations in 35 places are not uniform. That is the reason regulations use the word’ state specific’.
Mr Wilson submitted that NEET was also introduced in the said 4 notifications regulations . Though all the 4 regulations were challenged and were struck down by Supreme Court in the year 2013, the said judgement was recalled in the year 2016 and therefore the 4 notifications introducing reservations and NEET stand revived and restored and applies with full vigor .
Therefore he said that by introducing amendment in 4 regulations by MCI and DCI, the reservations in all medical and dental seats stands automatically applied according to state specific reservations. He said under these regulations the role of DGHS is to hold counselling for All India Quota and nothing else. He said that DGHS is only an agency and trustee to handle state contributed seats to AIQ and that they cannot choose the reservation of State or Central or to deny the same.
He explained that 27% reservation will apply only to seats in central educational institutions and therefore Central Government in their counter affidavit at Parah 11 undertaking to give state specific reservations on certain restrictions and conditions is without jurisdiction. He relied upon TN Act and said the reservation apply to all state educational institutions . Since MCI and DCI regulations enables state specific reservations , the reservations of that state where seat is located alone would apply. He said that central educational Institutions Act 2006 which grants 27% OBC reservation applies only to Central Educational Institutions and not to State educational Institutions even though a concept of AIQ seat sharing is there.
He submitted that state seat is a state resource as state spends lot of money on infrastructure, staffs, faculty ,and state has responsibilities of maintaining public health. Therefore the state seats carries its reservation given for that seats even though it goes to AIQ. He said that after second round of counselling when state contributed seats are not filled up it by DGHS, it comes back to state to be filled up by the state . He said that the contributed seats are nothing but seats in state medical and dental colleges only. There fore he submitted that ‘character of seat as State seat’ is not lost merely it is handled by DGHS under a scheme.DGHS is only an agent and trustee to handle as per Regulations.
He said that since 2016 after 4 notifications were restored by SC, the DGHS has been denying state specific reservations to the state surrendered seats . He referred to reply affidavit and said that for last 4 years 5457 AIQ UG, PG seats were contributed and that 2729 OBC candidates were deprived in TN. While central government is providing reservation in seats surrendered to AIQ by central educational institutions , it is denying to apply state reservations in state contributed seats and hence it is violation of Art 14 and 15 and MCI regulations.
He submitted that reservation is provided to uplift the community which was historically discriminated and kept from participating in administration and education and the reservations are to cure the injustice done to these communities generations after generations . He said right to reservation backed by reservations laws is fundamental right and therefore the actions of central government denying reservations amounts to big brother attitude. The central government is robbing state seats which are state resources and therefore exemplary cost has to be imposed for denying the OBC candidates of their lawful entitlement for past 4 years.
He relied upon Various judgments relating to reservations and said state has power to make reservations on medical seats and the denial of central government to apply reservations shows that OBC are discriminated even now.
He said it’s a rare occasion where all parties have come on one line including state government opposing central government and therefore there is a seriousness in this issue which central government is not Addressing.
He said that the DGHS in 2016 when they filed counter in Saloni Kumari case undertook to give state specific reservations. But after 4 years same officer who filed counter gives same verbatim undertaking. However no honest steps being taken as per undertaking for last 4 years and due to the actions of Central government thousands of OBC candidates are deprived of with reservations. He said that DGHS has committed breach of trust and confidence the state and people had as it acted defiance to reservation law in the State of TN and acted unilaterally in giving reservations on state surrendered seats as against SC order and reservation laws. He submitted that DGHS is meddling with state AIQ seats for last 4 years and hence prayed to award exemplary cost on central government.
He said that the Central government gave 10% reservations for EWS in a jet speed stopping second counselling while for OBC candidates for last 4 years they are not abiding even by their own affidavit filed before SC.
The Hon’ble first Bench comprising of Chief Justice and Hon’ble Mr Justice Senthil Ramamurthy after hearing all counsel fixed 27.7.202 as date for delivering judgment.
