In a landmark judgement, the Odisha Administrative Tribunal (OAT) has quashed provision of 27 per cent reservation for Socially and Educationally Backward Classes (SEBC) and asked the State Government and the Odisha Public Service Commission (OPSC) not to exceed the reservation limit of 50 per cent in public employment.
A Division Bench comprising OAT Chairman Justice Nityananda Prusty and Administrative Member Dr SN Das ruled that the 27-per cent reservation for SEBC earmarked in the State Reservation Act is not sustainable as it has not been included in the 9th Schedule of the Constitution of India.
While disposing of the case, the tribunal deprecated the State Government for hastily implementing the Odisha Reservation of Posts and Services (Socially and Educationally Backward Classes) Act, 2008 before its inclusion in the 9th Schedule.
On one hand the Act was implemented though there was no whisper about the date from which it was to be given effect, and on other hand after notifying in the State Gazette, the said Act was referred to Union Government for inclusion in the 9th Schedule by way of constitutional amendment.
Neither rule was framed nor were roster points notified to workout the Reservation Act for SEBC till date, a release quoted the OAT Bench as saying.
The Bench quashed the Act while disposing of a case in which Amar Chhatoi, an aspirant for the post of ASO in the State Secretariat and Raj Bhavan, challenged the Act on the basis of an employment notice floated by the OPSC in which applications were invited one year back for filling up 811 posts.
The State took the plea that for providing 27 per cent reservation necessary enactment was made under Article 16(4) and the same is in force as it has not been declared ultra vires by any competent court of law.
The OPSC took the plea that on the basis of requisition from State Government clarifications were sought on the point of exceeding 50 per cent reservation and after receipt of the clarification necessary advertisement was floated.
Applicant’s counsel PK Sinha, a former Government Advocate, referring to law laid down by a nine-judge Bench of the Supreme Court in the historic case of Indra Sawheny, argued that reservation of 27 per cent for SEBC is valid if reservation for SC and ST and SEBC taken together does not exceed 50 per cent.
As there is 38.75-per cent reservation for ST & SC, this 27-per cent reservation for SEBC would lead to total reservation of 65.75 per cent which is contrary to benchmark fixed by the apex court. Notably, an 11.25-per cent reservation for backward classes was introduced in Odisha in the year 1993. It was enhanced to 27 per cent next year.