S. B. MAJMUDAR, J. - (1.) BY an earlier order of this Court dated 5/05/1997, this writ petition was ordered to be placed for final disposal. That is how it has reached final hearing before us. This petition under Article 32 of the Constitution of India is moved by way of public interest litigation by Uttarakhand Jan Morcha through its President and by one Jagmohan who is resident of Barakhan, Village IRA, situtated in Almora district of U. P. The petition is filed against State of U. P. and Union of India. It is the case of writ petitioners that in the State of U. P. there are nine hill districts comprising of Almora, Pithoragarh, Pauri Garhwal, Chamoli, Tehri, Uttarkashi, Nainital, Dehradun and Haridwar and that people of this region, that is Uttarakhand, according to the petitioners, are judicially recognised as socially and educationally backward classes citizens. For supporting this contention reliance is placed on two decisions of this Court in the case of State of Uttar Pradesh v. Pradip Tandon, (1975) 2 SCR 761 : (AIR 1975 SC 563) and in the case of Anil Kumar Gupta v. State of Uttar Pradesh, (JT 1995 (5) SC 505). It is their contention that as the residents of Uttarakhand region are recognised as socially and educationally backward classes they are entitled to the benefit of Articles 15(4) and 16(4) of the Constitution of India and that respondent No. 1-State has already taken a policy decision that in Government services as well as in educational institutions run by the State, 27 per cent reservation will be available to socially and educationally backward classes of citizens. The said submission of the petitioners is based on an earlier Resolution of 1977 of U. P. Government which had been later converted into a statutory scheme of reservation as per the U. P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, (hereinafter referred to as 'Reservation Act'). The petitioners contend that despite this statutory policy of reservation adopted by the first respondent-State which has continued all throughout, the first respondent while granting reservations for admission in colleges imparting medical education in State of U. P. treats the residents of Uttarakhand as entitled to be considered for the benefit of the aforesaid reservation of 27 per cent as socially and educationally backward citizens only from year to year and thus these classes of citizens are kept guessing as to whether this scheme of reservation will be continued from time to time or not. The petitioners contend that this scheme of reservation which has come to stay by the aforesaid statutory enactment must be treated to be available to the Uttarakhand residents not for a limited period but for all the time during which reservation policy reflected by the statutory provisions of the Reservation Act remained in force. They further contend that so far as admissions to agricultural colleges are concerned even this benefit of the reservation is not being granted by the first respondent-State to Uttarakhand residents. This amounts to clear act of discrimination on their part. It is also contended that aforesaid statutory scheme of reservation is not made available to Uttarakhand residents even in Government services, though such benefit necessarily flows from the statutory scheme of reservation as per the aforesaid Reservation Act. For ventilating these grievances the aforesaid petition is moved for enforcement of the fundamental rights of the residents of Uttarakhand as flowing from Articles 15(4) and 16(4) of the Constitution of India. The diverse reliefs have been prayed for as under : (a) to include the entire people of Uttarakhand and hill areas of U. P., comprising the districts of Almora, Pithoragarh, Pauri Garhwal, Chamoli, Tehri, Uttarkashi, Nainital, Dehradun and Haridwar in the list of O. B. C. for the purposes of reservation in services, and admission in educational, technical and medical institutions. (b) to keep in abeyance all orders, notifications and ordinances issued for reservation of O.B.C. in Uttarakhand and hill areas of U. P. subject to the decision of the Apex Court. (c) to make special provision under Articles 15(4) and 16(4) of the Constitution to ensure exemption of tuition fees, free supply of books and uniforms, mid-day meals, special hostel facilities and stipends for the students of Uttarakhand irrespective of caste and creed, for their educational development. (d) to make sufficient provision for the social educational and economic upliftment of Uttarakhand and to create sufficient job opportunities by proper exploitation of natural resources of the region.
(2.) THIS petition is sought to be resisted on behalf of the State. A counter-affidavit in this connection has been filed by one Shri C. K. Tewary, Special Secretary, Uttarakhand Vikas Vibhag, U. P. Government, Lucknow. We shall refer to the relevant averments found in this counter-affidavit at an appropriate place in the latter part of this judgment. During the hearing of this writ petition at an earlier stage a submission was made on behalf of the first respondent-State that the U. P. Government had issued a notification declaring that residents of the hill areas will be treated as socially and educationally backward classes citizens for admission to medical colleges in the State for enabling them to get requisite reservation as per Article 15(4) of the Constitution of India. The parties' counsel were, therefore, directed to produce copies of the said notification by an order of this Court dated 10-11-95. Thereafter the matter stood adjourned from time to time and ulitamtely learned senior counsel for the petitioners submitted before this Court on 18-11-96, that two notifications had been issued by the first respondent-State on 6-11-95 and 17-11-95 in this connection. We will refer to these notifications later on. Relying on these notifications an apprehension was voiced by Shri Satish Chandra, learned senior counsel for the petitioners, that the orders contained in the Government notification of 17th November, 1995, including the residents of hill areas of Uttarakhand in the category of socially and educationally backward classes citizens would be confined only to one year, that is 1995. There were no express words in the Government order to continue the reservation on a long term basis. On this apprehension of Shri Satish Chandra, learned senior counsel for the petitioners, Mr. A. B. Rohtagi, learned senior counsel for the respondent sought some time for getting appropriate clarification from the State. The said clarification was brought on record by additional affidavit on behalf of the State filed by Deepak Rai Vijh, Joint Secretary, Uttranchal Vikas Vibhag, Secretariate, Lucknow, U. P. By the said affidavit it was clarified that the Government Order dated 17-11-95, regarding reservation for Uttarakhand residents for admissions to medical colleges was to continue to remain in force for subsequent years for the combined Pre-Medical Test. i. e., for the years 1996 and 1997. As regards Government Order dated 6-11-95, it was submitted that reservation provision for agricultural courses was under consideration. It is in the light of the aforesaid developments pending this petition that the main grievance put forward by learned senior counsel Shri Satish Chandra for the petitioners will have to be examined. We may note that though various prayers (a) to (d) are put forward in the petition, only prayer (a) was pressed for our consideration. In this connection learned senior counsel for the petitioners raised the following three contentions for our consideration : 1. Despite there being a clear cut statutory scheme of reservation adopted by the first respondent-State pursuant to the Reservation Act, so far as residents of Uttarakhand are concerned though they are being treated as socially and educationally backward citizens, reservations for them in medical colleges in the State of U. P. are being continued from year to year and that the said action of the respondent-State is totally arbitrary and unconsitutional. Consequently the first respondent should be directed to make available the scheme of reservation for Uttarakhand residents without any time-limit so long as statutory scheme of 27 per cent reservation for socially and educationally backward class of citizens as per the Reservation Act continues to operate in the State. 2. Even though residents of Uttarakhand, as held by this Court are to be treated socially and educationally backward citizens, so far as admissions in agricultural courses are concerned that benefit is not being extended to them, though the same class of citizens is granted such benefit periodically, that is, from year to year so far as admissions in medical courses are concerned and that this act on the part of the State is highly discriminatory and unreasonable and is also unconstitutional. 3. Despite the operative statutory scheme of reservation as per the Reservation Act, benefit of 27 per cent reservation for socially and educationally backward class of citizens is not made available to residents of Uttarakhand so far as Government services are concerned. The said act of the first respondent amounts to denial of equal opportunity to this class of citizens and is, therefore, unconstitutional.
(3.) LEARNED senior counsel for the first respondent-State Shri Rohtagi on the other hand tried to resist these contentions and submitted that the statutory scheme of 27 per cent reservation for socially and educationally backward class of citizens is available to the whole class of citizens of U. P. whether they are residing in plains or in hills of Uttarakhand region and that it is true that the State has treated residents of Uttarakhand as socially and educationally backward class of citizens pursuant to the decisions of this Court, but the residents of Uttarakhand cannot be treated to be socially and educationally backward for all times to come. However so long as they are so treated by the State the benefit of 27 per cent reservation will be available to them along with their counterparts residing in the plains. That it has been decided by a Constitution Bench of this Court in Indra Sawhney v. Union of India, 1992 Supp (3) SCC 210 (217) : (1992 AIR SCW 3682), that policy of reservation has to be operated yearwise and there cannot be any such policy in perpetuity. Therefore, the eligibility of residents of Uttarakhand for being treated as socially and educationally backward class of citizens can be reviewed by the State from year to year and that upto year 1997 residents of Uttarakhand have been treated by the State of U. P. as socially and educationally backward class of citizens who would be entitled to be included in the category of citizens to whom 27 per cent reservation is available so far as medical education is concerned. However, for admission to agricultural courses the State is going to decide shortly as to whether that benefit should be made available to the Uttarakhand residents. It is also submitted that for Government services also benefit of reservation of 27 per cent is uniformly made available to all the citizens of the State of U. P. who may fall within the class of socially and educationally backward citizens. So far as Uttarakhand residents are concerned even though they may fall in the same class they cannot be given entire 27 per cent of reservation. Reservation to be given to them wholly depends upon the proportionate percentage of population residing in Uttarakhand areas as compared to their counterparts residing in plains. Mr. Rohtagi, however, made it clear that if any resident of Uttarakhand satisfies the requirement of being treated as socially and educationally backward citizen he would naturally be entitled to be considered for reservation in the quota of 27 per cent reservation for socially and educationally backward class of citizens residing in U. P. and that such a benefit is already available to all such similarly situated citizens in the State and hence the grievance of the petitioners that they are being discriminated against is mere imaginary than real. In the light of the aforesaid rival submissions we now proceed to deal with triple contentions raised by learned senior counsel for the petitioners Shri Satish Chandra. Contention No. 1 ;