The Patna High Court, in the case of Sapna Singh vs The State of Bihar & Anr, has struck down a governmental order granting 50 per cent reservation to the limited extent of exclusion of creamy layer among Other Backward Classes. Apart from this limited provision, the governmental order was noted to stand on the threshold of Articles 14 and 19(1)(g) of the Constitution.
In this case, Rule 159(k)(i) of Bihar Public Works Department Code was challenged as being violative of Article 14, Article 19(1)(g) and Article 38 of the Constitution.
This rule provided that tender notices for public works contracts worth less than Rs 15 lakh need not be published in the newspaper or the internet and 50 per cent of such contracts were for Scheduled Castes, Scheduled Tribes, Extremely Backward Class, Backward Class and women in public works contracts.
A bench comprising Chief Justice Rajendra Menon and Justice Sudhir Singh observed that the term ‘law’ under Article 13 of the Constitution was not restricted to legislation and would also cover governmental orders, inter alia and hence, the said governmental order would be subject to constitutional scrutiny.
Regarding the Article 14 challenge, the court reiterated that Article 14 provides for equality between equals and differential treatment is allowed for people who are not similarly placed. The State has the power to make laws for classifying persons and making differential laws for them. However, there must be a rational basis for this classification. Further, Article 15(4) of the Constitution empowers the government to take positive action plans in addition to providing reservation to the Backward Classes.
The court noted that the order in question is an example of distributive justice aimed at maximising public interest.
However, it reiterated that granting reservation to creamy layer would be against the mandate of the Constitution.
Read the Judgment here.