Madhya Pradesh's increase of OBC reservation from 14 to 27 per cent is struck down, and the 1983 report it rested on is held too old to carry it
Justices Anand Pathak and Vinay Saraf held OBCs are adequately represented under Article 16(4), struck down the 2019 Amendment Act, and saved appointments made up to 29 September 2022.
On 8 March 2019, six days before counselling for NEET (PG) was to begin, the Government of Madhya Pradesh issued an ordinance raising reservation for Other Backward Classes in public services and higher education from 14 per cent to 27 per cent. An Amendment Act followed. Seven years and forty-six connected petitions later, a Division Bench of the Madhya Pradesh High Court at Jabalpur has struck the Amendment Act down. The reservation, the Court held, goes back to 14 per cent; appointments already made in excess of it up to 29 September 2022 are saved; and the 13 per cent of posts filled under the higher figure after that date must now go to unreserved candidates within three months.
An ordinance in the middle of a counselling cycle
The lead petitioners were MBBS students and candidates for the NEET (PG) examination of 2019, held that January. They had cleared the examination, one of them with an all-India rank of 6,913, and were waiting for counselling to start on 14 March 2019. Ordinance No. 2 of 2019, notified in the gazette on 8 March 2019, raised the OBC share to 27 per cent, and the counselling proceeded on that basis.
The statute being amended was the Madhya Pradesh Lok Seva (Anusuchit Jatiyon, Anusuchit Janjatiyon aur Anya Pichhade Vargon ke Liye Aarakshan) Adhiniyam, 1994, which governs reservation for vacancies in public services in the State. The petitioners challenged both the ordinance and the Amendment Act that followed it, along with a gazette notification of 24 December 2019 and a series of recruitment advertisements and select lists issued on the higher percentage. Over the following years petitions accumulated from candidates across the State's recruitment processes, and from organisations on both sides of the question; the Bench heard them together.
One strand of the challenge went to the form the measure took. An ordinance is for an emergent situation arising when the Legislature is not in session. There was, the petitioners argued, no urgency, no unforeseen contingency and no sudden exigency, and promulgating the measure as an ordinance days before a counselling cycle showed that constitutional discipline had been set aside.
The ceiling, and what it takes to cross it
The substantive argument rested on Indra Sawhney, the Constitution Bench decision of 1992, and on Jaishri Laxmanrao Patil, which reiterated it in 2021. The rule is that reservation may not exceed 50 per cent, and paragraph 810 of Indra Sawhney admits of exceptions only in extraordinary situations. For the petitioners, unless an empirical study is carried out — one that accounts for geographical location, tribal ecosystem and historical reasons — no case is made out for breaching the ceiling.
Counsel took the Court through M. Nagaraj and S.V. Joshi, and through what Jaishri Laxmanrao Patil said about them. The submission was that no Constitution Bench has held that a State wanting to exceed 50 per cent need only produce quantifiable data; on the contrary, M. Nagaraj reiterated the numerical benchmark. Paragraph 122 of that judgment treats the ceiling of 50 per cent, the concept of the creamy layer, and the compelling reasons of backwardness, inadequacy of representation and administrative efficiency as constitutional requirements, without which the structure of equality of opportunity under Article 16 would collapse. Ashoka Kumar Thakur was pressed to the same effect: the cap is a constitutional requirement, and the rule has been followed repeatedly.
There was a further point about how the State had read M. Nagaraj. The State's recommendation and affidavit proceeded on the footing that quantifiable data showing backwardness on educational, economic and social criteria is a good reason for exceeding 50 per cent. That approach, the petitioners said, was expressly held to be a misreading of M. Nagaraj in Jaishri Laxmanrao Patil, where the Backward Classes Commission in Maharashtra and the Bombay High Court had taken the same route.
A 1983 report doing 2019 work
What the State actually relied on became the pivot of the case. Its material was the Mahajan Committee Report of 22 December 1983 and a report of the Dr. B.R. Ambedkar University of Social Sciences dated 27 July 2023. The recommendations of the State Backward Class Commission of 9 June 1997, and again of 2019-2020, were themselves built on the 1983 Mahajan Report rather than on any fresh collection of data.
The petitioners' answer was that a report more than forty years old cannot disclose information relevant to determining backwardness and adequacy of representation as at the date the Amendment Act was passed. Neither of the two reports contained any assessment or conclusion suggesting that OBCs at large fall within the exceptional circumstances contemplated by paragraph 810 of Indra Sawhney. Nor had the State consulted the National Commission for Backward Classes before increasing the quantum, or carried out a contemporaneous survey. The absence of consultation was pressed as fatal.
The figures the Court was shown
Against the claim of inadequate representation, the Court was given numbers. In Central Government services, representation of OBCs stood at 17.74 per cent in 2014-15 and had reached 21.98 per cent by 2022-23. For twenty years, 40 per cent of the Ministers in the State Cabinet have come from the OBC category, and five Chief Ministers have been from that category.
The constitutional point attached to those figures is one of wording. Article 16(4) speaks of adequate representation, not proportionate representation. On the data placed before it from higher education and the public services, the Bench recorded that OBCs are adequately represented within the meaning of Article 16(4), and are very much part of the mainstream of the political, economic and social fabric of the State. On that footing no extraordinary circumstance of the kind described in paragraph 810 of Indra Sawhney exists.
Not whether, but how much
The Bench was careful about what it was deciding. The case, it said, is not about the grant of reservation but about its extent. OBCs are certainly entitled to reservation, and to it at 14 per cent. What was not made out was a case for raising that figure to 27 per cent, and so the ceiling of 50 per cent fixed by the Supreme Court has to be adhered to. The conclusion follows: OBCs are entitled to reservation to the extent of 14 per cent, and not 27 per cent, in public services and in higher education.
The petitions challenging the Amendment Act were allowed and the Amendment Act, 2019 was struck down. The remaining petitions, which sought additional reservation for OBCs together with the economically weaker sections, and horizontal reservation, were treated as decided and dismissed in view of the order.
What happens to the appointments already made
The Bench then dealt with seven years of recruitment conducted under a statute it had just invalidated. Appointments made in pursuance of the Amendment Act up to 29 September 2022, the date on which the General Administration Department of the State clarified the position about interim relief, are saved. OBC candidates appointed in excess of 14 per cent, up to the figure of 27 per cent, between March 2019 and 29 September 2022 continue in their jobs and are not to be removed; those posts are to be subsumed and adjusted in the next three recruitment drives.
For appointments made after 29 September 2022, the position is different. Those are to the extent of 87 per cent only. The remaining 13 per cent of posts are to be filled from the list of unreserved category candidates, so that the whole is made up to 100 per cent. The Madhya Pradesh Public Service Commission, the State Employees Selection Board and any other recruiting agency were directed to do what is needed to give appointments to the 13 per cent of unreserved category candidates within three months as an outer limit, and to declare results henceforth.
Order
The Amendment Act, 2019 was struck down. Reservation for Other Backward Classes in public services and higher education in Madhya Pradesh stands at 14 per cent. Appointments made under the Amendment Act up to 29 September 2022 are saved and those appointed are not to be removed, with the excess posts to be adjusted over the next three recruitment drives. Appointments made after that date are confined to 87 per cent, with the remaining 13 per cent to be filled from unreserved category candidates within three months. All the petitions were disposed of accordingly.