BREAKING | Calcutta High Court Cancels OBC Certificates Issued In West Bengal After 2010, Scraps OBC Classification Of 37 Communities

The Calcutta High Court on Wednesday cancelled all Other Backward Classes (OBC) certificates issued in West Bengal after 2010. The Court clarified that those who had attained employment on the benefit of the act and were already in service because of such reservation would not be affected by the order.

A division bench of Justices Tapabrata Chakraborty and Rajasekhar Mantha delivered the verdict in a plea challenging the process of granting OBC certificates in the state. The verdict is set to affect 5 Lakh OBC certificates. The Court said:

A class is declared as OBC not only because it is backward, based on scientific and identifiable data, but also on the basis of such class being inadequately represented in the services under the State. Such inadequacy is required to be assessed vis-a-vis the population as a whole including other unreserved classes. However, the pro format published by the Commission and as annexed to the writ petition (WP No.60 of 2011) does not conform to the provisions of the 1993 Act. There are deficiencies galore in the said pro forma.

State Commission acted in undue haste to notify certain religious communities as OBCs in 2010

The judgement of the Court cancelling all OBC certificates from the year 2010, is a blow to the ruling Trinamool Congress government which came to power in the state in 2011, because it virtually invalidates all OBC certificates given out under the incumbent government's regime.

The Court was adjudicating on a plea which challenged certain provisions of the West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies in Services and Posts) Act, 2012, which made reservations in public offices for those belonging to the OBC category.

In making observations on how the Commission acted improperly in connivance with the Chief Minister's mission to extend reservations, the Court opined:

The Commission and State acted in undue haste and with lightning speed in making recommendations for the classification of the 77 classes to make the public announcement of the then Chief Minister a reality. According to the petitioners, the Commission appeared to be in a tearing hurry to fulfil the wishes of the Chief Minister made in a political rally. No proper enquiry was conducted by the Commission inviting application for inclusion in the  lists and even after purported preparation of the list, no notification was issued inviting objections in general from the people at large.

Thus, the authorities have violated the constitutional provisions and had practiced protective discrimination in deviation to the constitutional norms. No data was disclosed on the basis of which it was ascertained that the concerned community is not adequately represented in the services under the Government of West Bengal. The said reports were never published and as such none could avail the opportunity to file any objection to the same, it added.

In its order, the court has struck down 37 classes for reservation as Other Backward Classes (OBC) given under The West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies in Services and Posts) Act, 2012.

State Commission cannot make recommendations under Article 16(4) of the Constitution solely based on religion

The Court pointed out the recommendations for sub-classification of OBCs by the state were made upon bypassing the State commission, and that 41 out of the 42 classes that were recommended for reservation belonged to the Muslim community,

The Court stated that the primary and sole consideration for the Commission had been to make religion-specific recommendations. To curtain and hide such religion-specific recommendations, the Commission has prepared the reports for the ostensible purpose of granting reservation to the backward classes to hide the real purpose behind such recommendations. The purpose was to grant a religion-specific reservation, it stated.

The bench held that while the Commission purports to show by way of such reports, (which however has not been relied upon by the State and Commission before the Court), that it had complied with section 9 of the Act of 1993 read with article 16(4) of the Constitution of India.

This Court is of the view that the selection of 77 classes of Muslims as Backward is an affront to the Muslim Community as a whole. This Court's mind is not free from doubt that the said community has been treated as a commodity for political ends. This is clear from the chain of events that led to the classification of the 77 Classes as OBCs and their inclusion to be treated as a vote bank. Identification of the classes in the aid community as OBCs for electoral gains would leave them at the mercy of the concerned political establishment and may defeat and deny other rights. Such reservation is therefore also an affront to Democracy and the Constitution of India as a whole, it was stated.

It added that the impugned notification, to be valid, would need to be available to the public and in the gazette, and that there was no such endeavour taken by the state government in this case.

Unless the gazette contains the notification and is made available to the public, the notification cannot be said to have been duly published. In the instant case, however, there had been no publication of the notifications and survey reports and as such none could respond and file any objection whatsoever. As a model employer, the State Government must conduct itself with high probity and candour and ensure that the populace do not succumb to any discriminatory practice in the procedural rigmarole, the Court concluded.

Citation: 2024 LiveLaw (Cal) 129

Case: WPO 60 of 2011

Case No: AMAL CHANDRA DAS -VERSUS- THE STATE OF WEST BENGAL AND OTHERS

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