New Delhi: The Supreme Court on Wednesday rejected the Centre's petition seeking vacation of its interim order staying the implementation of 27 per cent quota for OBCs in elite educational institutions.Refusing to lift the freeze, a five-judge Constitution Bench ruled that the Central Educational Institutions (Reservation in Admissions) Act 2006 cannot be implemented until the main petitions challenging the validity of the Act is decided.
"We are not going to pass any interim order," the Bench, headed by Chief Justice KG Balakrishnan, said.
The Bench said it will hear the main petition to examine the Constitutional validity of the Centre Educational Institutions (Reservation in Admission) Act 2006 soon.
Earlier, in its last-ditch effort to get the freeze on OBC quota lifted, the Union Government had told the court that it was willing to keep the 'Creamy Layer' out of the purview of the quota Act.
"If the court feels that the Creamy Layer be excluded and says so, the Centre will obey," Solicitor General GE Vahanvati said before the Constitution Bench on Tuesday.
The anti-quota petitioners opposed the Centre's application, contending that it was rushing through with the implementation of the law without addressing the issue of identifying OBCs and excluding the 'Creamy Layer' among them.
At the outset, the Bench questioned the contentions raised by the Centre, asking what was new in its grounds for seeking a vacation of the stay.
"What is the changed circumstance? What is new you are arguing?" asked the Bench, which also comprises Justices Arijit Pasayat, CK Thakker, RV Raveendran and Dalveer Bhandari.
The Centre referred to the recent order of the court in a matter related to quota in Tamil Nadu, where the state government was allowed to provide 69 per cent reservation on the assurance that additional seats would be created to protect the general category.
It said that this fact was discovered after the March 29 order. "That is an unusual ground. You are not aware that the order was passed 14 years ago and it has been extended every consecutive year," the Bench observed.
The Bench reminded the Solicitor General that "whatever contentions the Centre has raised in the application were argued earlier also." Vahanvati said seats had been increased in the educational institutions and that the general category was not going to be affected and the quota of 27 per cent could be staggered over three years.
Senior advocates KK Venugopal, Harish Salve, Rajeev Dhavan, PP Rao, Mukul Rohatgi and MM Lahoty, appearing for the anti-quota petitioners, had a common point that the Centre was rushing through with the implementation of the law without having the data in place and without "excluding the Creamy Layer among the OBCs."
"The government has not done its job," they said, adding that in the three months after the March 29 order, it has failed to address these issues.
It is time that the main petitions challenging the validity of the controversial Act was heard instead of going into the application for vacating the stay, they said.
The petitioners said if the stay was vacated, the Centre would implement the quota not only in Central educational institutions but also in institutions that are directly or indirectly aided by it.
Venugopal questioned the legality of the entire Act, saying the law, which was brought in for the interest of the backward classes, would only benefit a category of them. "If the stay is vacated, a small section will take away the benefit in its entirety," he said. "They will snatch away the benefits leaving the weaker a weaker (section)."
He said reservation was one issue where politicians had one voice and they were averse to addressing the issue of the 'Creamy Layer'. Salve said the Centre was pressing for the law's application without specifying how it was going to increase seats in medical and engineering colleges.
"The Centre has not moved bodies like the Medical Council of India for their approval," he said, alleging that no groundwork was done to increase seats.
The government had mentioned only a handful of institutions where seats had been increased and many of them are for research purposes and not true educational institutions, he said.
Dhavan said the Centre's application was one of reviewing the March 29 order, and this had been rejected twice earlier. Vahanvati refuted this contention, saying the Centre has approached the court for making some interim arrangement and said seats have been increased in some institutions after obtaining the approval of the appropriate authority.
The court wanted to know 'on what basis the appropriate authority applied its mind'. The Bench concluded the day's arguments by asking Vahanvati to file an affidavit giving details about the institutions where seats had been increased.
The court had on two earlier occasions refused to vacate its interim order, saying that data based on a 76-year-old Census cannot be the determining factor for the affirmative action.
"What may have been relevant in the 1931 Census may have some relevance, but cannot be the determinative factor," a bench comprising Justices Arijit Pasayat and LS Panta had said in the March 29 order, disagreeing with the Centre's mode of selecting data for providing a quota under the Act.
Earlier, while putting a halt to the implementation of the law, a two-judge bench had referred the matter to the Chief Justice for allocating it to a larger bench.
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