Contempt Petition No.181 of 2021 such regard. The additions that have been made, therefore, fall for scrutiny. The 27 per cent reservation for OBC is in tune with the Act of 2006 which applies to Central institutions all over the country and also has empirical

be brought, it is the present Bench which would be tasked with the obligation of dealing with the same.
57. Ideally, Parliament may have legislated and extended the ambit of the Act of 2006 to the AIQ seats for admission to the under-graduate, post-graduate and diploma medical and dental courses in the States, subject to obtaining leave from the Supreme Court, if necessary. That may have given a quietus to the matter. Equally, the expression “making any special provision” in Article 15 of the Constitution – or in comparable Article 16 thereof – does not require an enactment and the executive can issue an order that would be regarded as “provision” within the meaning of the said Article. In a sense, the relevant provision can be seen to have been made in the issuance of the notification of July 29, 2021, though it has the proverbial sting in its tail.
58. Such notification provides for 15 per cent reservation for scheduled castes and 7.5 per cent for scheduled tribes, which cannot be contested in view of the Supreme Court judgments in
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such regard. The additions that have been made, therefore, fall for scrutiny. The 27 per cent reservation for OBC is in tune with the Act of 2006 which applies to Central institutions all over the country and also has empirical backing in how the figure of 27 per cent was arrived at. Thus, subject to the decision that may be made by the Supreme Court in Saloni Kumari, the 27 per cent reservation for OBC (other than creamy layer) as suggested by the Union would be acceptable. Similarly, there can be no quarrel with the five per cent horizontal reservation as per the applicable norms for persons with disabilities. That is the mandate of the Rights of Persons with Disabilities Act, 2016 and, in any event, the reservation in such case is horizontal, in the sense that it would apply to all categories reserved and unreserved. The only point for consideration is the additional 10 per cent earmarked for economically weaker sections in the said notification of July 29, 2021. Since it was the Union that set about beating the State with the Indra Sawhney stick in its affidavit filed on April 15, 2021, by the same yardstick the vertical reservation beyond 50 per cent should also go out.
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59. However, in response to this court’s specific query in such regard, despite the initial attempt by the Union to wriggle out of having to offer any justification for the contents of the notification of July 29, 2021, the Union has specifically referred to the amended Article 15 of the Constitution pursuant to the Constitution (One Hundred and Third Amendment) Act, 2019. Though the Union indicates that the issue is pending consideration of the Supreme Court, the Union points out that similar amendments brought in previously into Articles 15 and 16 of the Constitution have passed judicial muster. The Union says that there is no impediment, as on date, to the 10 per cent reservation being provided for economically weaker sections in addition to the 49.5 per cent on account of OBC, SC and ST in view of the specific authority under Article 15(4) of the Constitution.
60. On the face of it, the provision for additional reservation, over and above 50 per cent, permitted by the Constitution (One
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Hundred and Third Amendment) Act, 2019 appears to fall foul of the dictum in Indra Sawhney. It is also possible to read down the dictum in Indra Sawhney to apply in the context of the constitutional provisions then in place. Either way, no conclusive pronouncement in such regard needs to be made at this stage or at this level since the challenge to such amendment is pending consideration before a Constitution Bench.
61. What is undeniable, however, is that the AIQ scheme has been introduced for entrance to under-graduate and post-graduate degrees and diploma courses in government-run or aided medical and dental colleges across the country pursuant to orders of the Supreme Court. Indeed, the appearing parties acknowledge that such scheme is monitored by the Supreme Court. The reservation for scheduled caste and scheduled tribe candidates in the AIQ seats was fixed by an order of the Supreme Court. Thus, it is only to be expected that further reservation in the AIQ seats for admission to the under-graduate, post-graduate and diploma medical and dental
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courses in the State should be only upon the approval of the Supreme Court.
62. To the extent that 27 per cent of the seats available for admission in Central educational institutions is reserved for OBC candidates, other than the creamy layer, and such figure having been arrived at upon empirical studies being conducted, the provision for 27 per cent reservation for OBC candidates, in addition to the approved reservation for scheduled caste and scheduled tribe candidates as indicated in the notification of July 29, 2021, may be permissible, subject to the formal approval of the Supreme Court being obtained in such regard. In a sense, the in-principle approval of the Supreme Court for providing reservation for OBC candidates in AIQ seats for admission to the under-graduate, post-graduate and diploma medical and dental courses in the State is apparent from the order dated October 26, 2020. To such extent, the provision made for 27 per cent reservation in such regard appears to be permissible, since the Supreme Court approved the
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implementation of reservation for OBC candidates beginning academic year 2021-22 by the same order.
63. The appropriate reading of the dictum in Indra Sawhney would be that reservation on the ground of status cannot exceed 50 per cent unless there are exceptional circumstances. If the dictum is confined to vertical reservation, as it should be, it would imply that the cap of 50 per cent ought not to be breached. Notwithstanding the 103rd Amendment to the Constitution not having been made at the time the judgment in Indra Sawhney was pronounced, it is submitted (with due deference to the fact that the issue is pending consideration before the Constitution Bench) there may be a case for horizontal reservation cutting across the unreserved and reserved categories for the economically weaker sections. For one, even if a common reasonable yardstick were to be applied, economically weaker sections would be found to exist across the board. This may suffice to cater to the perceived need for upliftment of the economically weaker sections without there
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being a conflict with the dictum in Indra Sawhney. However, the decision in such regard has to be left for another day and at an exalted level.
64. Though the discussion in this judgment pertains to the State of Tamil Nadu, but it must be noticed that reservation in AIQ seats for admission to the under-graduate, post-graduate and diploma medical and dental courses across the States must be uniform. Logically, if the AIQ seats are thrown open to candidates across the country, there cannot be reservation to one extent in one State and reservation to another extent in another State.
65. However, the inclusion of a further 10 per cent by way of vertical reservation for economically weaker sections would require the approval of the Supreme Court and, to such extent, the reservation for economically weaker sections as indicated in the notification of July 29, 2021 has to be regarded as impermissible till such approval is obtained.
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66. Accordingly, the present lis is decided by holding as follows:
i. Since the committee required to be constituted by the order dated July 27, 2020 was constituted and such committee gave its opinion and the Union, or its appropriate agencies, have acted on the basis thereof – albeit not exactly in terms of the recommendations – no case of wilful or deliberate violation of the said order can be said to have been made out.
ii. The notification of July 29, 2021 issued by the Union as a consequence of the order dated July 27, 2020, appears to be in order insofar as it provides for reservation for scheduled castes, scheduled tribes and OBC categories. The horizontal reservation provided in such notification for persons with disabilities also appears to be in accordance with law.
iii. The additional reservation provided for economically
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weaker sections in the notification of July 29, 2021 cannot be permitted, except with the approval of the Supreme Court in such regard.
67. Contempt Petition No.181 of 2021 is dropped. Sub- Application No.49 of 2021 is closed. There will be no order as to costs.
68. It may, however, be observed as a footnote that the entire concept of reservation that appears to have been addressed by the Constituent Assembly while framing the Constitution may have been turned on its head by repeated amendments and the veritable reinvigoration of the caste system – and even extending it to denominations where it does not exist – instead of empowering citizens so that merit may ultimately decide matters as to admission, appointment and promotion. Rather than the caste system being wiped away, the present trend seems to perpetuate it by endlessly extending a measure that was to remain only for a short duration to cover the infancy and, possibly, the adolescence of
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the Republic. Though the life of a nation state may not be relatable to the human process of aging, but at over-70, it ought, probably, to be more mature.
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Index : Yes sasi/pkn
(S.B., CJ.) (P.D.A., J.) 25.08.2021

Contempt Petition No.181 of 2021
THE HON’BLE CHIEF JUSTICE AND
P.D.AUDIKESAVALU,J. (sasi/pkn)
Contempt Petition No.181 of 2021
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