- (1.) HEARD learned counsel for the parties on admission of writ petition, stay application and applications for impleadment as party.
(2.) PETITIONER has preferred this writ petition challenging the constitutional validity of Section3(1), 3(2)(iv) and (v) and Section 4(1), 4(2) (iv) and (v) of the Rajasthan Schedule Caste, Schedule Tribes, Backward Classes, Special Backward Classes and Economically Backward Classes (Reservation of Seats in Educational Institutions in the State and of Appointments and Posts in Services under the State) Act, 2008 (hereinafter referred to as 'the Act of 2008'), whereby 68% reservation has been provided, exceeding the ceiling limit of 50%, in public employment as well as Educational Institutions for candidates belonging to Schedule Caste, Schedule Tribes, backward classes, special backward classes and Economically Backward Classes. The petitioner has also challenged the notification dated 30th November, 2012 (Annex.4), whereby 5% reservation has more been provided for five special backward castes i.e. (I) Banjara, Baldiya, Labana, (II) Gadiya Lohar and Gadoliya, (III) Gujar, Gurjar, (IV) Raika, Rebari (Debasi) and (V) Gadriya (Gadri), Gayari, in special backward classes category, in addition to 49% reservation already provided for S/C, S/T and Backward Classes. . Shri R.D. Rastogi, learned counsel for the petitioner submitted that State Government has already provided reservation in respect of persons belonging to Schedule Caste, Schedule Tribes and Backward classes to the extent of 16%, 12% and 21% respectively, which comes to 49%, now State has further provided reservation of 5%, in addition to above referred 49%, for special backward classes for five particular backward castes as mentioned in Notification dated 30th November, 2012. Therefore, total reservation has come to 54%. Therefore, it has exceeded 50% reservation ceiling limit as provided by the Hon'ble Apex Court in the case of Indra Sawney and Ors. vs. Union of India and Ors. (1992 Supp (3) SCC page 217 and in the case of M. Nagaraj and Ors. vs. Union of India and Ors. ((2206) 8 SCC page 212. He has submitted that this Court in Captain Gurvinder Singh and Ors. Vs. State of Rajasthan (2011 WLC page 586) had directed, as agreed by parties, that let matter be referred to the Rajasthan State Backward Classes Commission (hereinafter referred to as, "Commission ") and the State Government shall place before the Commission the quantifiable data of numerous factors, which is necessary in light of the Apex Court decisions in the case of M. Nagaraj (supra) and Ashoka Kumar Thakur Vs. Union of India and Ors. (2008 (6) SCC page 1. Since collection of quantifiable data was going to consume sufficient time, therefore, a period of one year was granted for completing the exercise. The interim stay order passed in the case was continued and it was further directed that even if, the State decides to enhance the reservation beyond the percentage which was exceeding prior to coming into force the Act of 2008, State Government shall not give effect to the said enhanced reservation for a period of two months. He has submitted that in pursuance of directions of this Court, the matter was considered by Rajasthan State Backward Classes Commission, the State Government did not furnish any quantifiable data before the Commission, but the Commission collected the datas from Institute of Development Study (for short 'IDS') and gave its report in November, 2012. He has submitted that no fresh exercise was done by the Commission. He has also submitted that from the report also, it is clear that there was no data available with the Commission about backwardness and inadequacy of representation of these so called special backward five castes, but still the Commission recommended for the special reservation to these five castes. He also stated that Commission itself has observed in its report that datas furnished by IDS are incomplete and vague. The State Government, without applying its mind, issued a notification making 5% reservation in public posts as well as Educational Institutions for these five castes. He has submitted that from the report itself it is clear that out of 81 total castes, the number of castes were not having any adequate representation in employment etc., but they were not included in special backward class, whereas these five castes were having sufficient representation or adequate representation in public employment and there was no report that they were backward, but still they have been granted 5% reservation due to political reason or under political influence. He has submitted that there was agitation from the persons belonging to Gurjar Samaj and under their pressure the State Government, without applying its mind, has wrongly granted 5% reservation in public employment as well as Educational Institutions vide Notification dated 30th November, 2012. Therefore, the said notification is per se illegal and is liable to be set aside. In support of his submissions, he relied upon Indra Sawney's (supra) and M. Nagaraj's case (supra).
(3.) SHRI R.D. Rastogi, learned counsel for the petitioner also submitted that the notification was issued on 30th November, 2012, but in view of directions given in Captain Gurvinder Singh's case (supra), the same has been made effective after a period of two months from the date of notification, which will expire on 29th January, 2013. Therefore, it is necessary to stay the operation and effect of notification dated 30th November, 2012. He submitted that present matter is fully covered by decision given in Indra Sawney (supra) and M. Nagaraj (supra) as State has crossed its reservation ceiling limit of 50%. Therefore, the writ petition is liable to be admitted for hearing and operation of notification be stayed; otherwise this writ petition will become infructuous.;