RAM SINGH Vs UOI
Bench: RANJAN GOGOI,ROHINTON FALI NARIMAN
Case number: W.P.(C) No.-000274-000274 / 2014
Diary number: 8949 / 2014
Advocates: RAKESH KUMAR-I Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 274 OF 2014
RAM SINGH & ORS. ...PETITIONER (S) VERSUS
UNION OF INDIA ...RESPONDENT (S)
WITH W.P. (C) No. 261 of 2014, W.P. (C) No.278 of 2014, W.P. (C) No.297 of 2014, W.P. (C) No.298 of 2014, W.P. (C) No.305 of 2014, W.P. (C) No. 357 of 2014
& W.P. (C) No.955 of 2014
J U D G M E N T
RANJAN GOGOI, J.
1. The challenge in the present group of writ petitions is to
a Notification published in the Gazette of India dated
04.03.2014 by which the Jat Community has been included
in the Central List of Backward Classes for the States of
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Bihar, Gujarat, Haryana, Himachal Pradesh, Madhya Pradesh,
NCT of Delhi, Bharatpur and Dholpur districts of Rajasthan,
Uttar Pradesh and Uttarakhand. The said Notification was
issued pursuant to the decision taken by the Union Cabinet
on 02.03.2014 to reject the advice tendered by the National
Commission for Backward Classes (NCBC) to the contrary on
the ground that the said advice “did not adequately take into
account the ground realities”.
RESUME OF THE CORE FACTS :
2. Pursuant to several requests received from individuals,
organisations and associations for inclusion of Jats in the
Central List of Backward Classes for the States of Haryana,
Rajasthan, Madhya Pradesh and Uttar Pradesh, the National
Commission for Backward Classes (NCBC) studied their
claims and submitted a report on 28.11.1997. It
recommended inclusion in the Central List only of the Jats of
Rajasthan, except the Bharatpur and Dhaulpur districts.
3. The NCBC also examined the claim for inclusion of Jats
in the Central List for the State of Delhi, and tendered its
advice rejecting their claim on 25.11.2010.
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4. The significant developments that took place after
submission of the aforesaid two reports may be relevant to
be taken note of at this stage.
On 03.05.2011 the National Commission for Backward
Classes (Power to Review Advice) Rules, 2011 was notified
by the Ministry of Social Justice and Empowerment. By
virtue of the aforesaid Rules, the NCBC was empowered to
review its advice tendered to the Central Government under
Section 9(1) of the Act. Rule 4 of the Rules provides that the
“provision of Section 114 and Order 47 of the Code of Civil
Procedure, 1908 shall mutatis mutandis apply to a review
undertaken by the Commission.”
5. In a meeting of the NCBC held on 20.06.2011, a large
number of representations received from the Jat Community
for review of the earlier advice of the NCBC was taken up for
consideration. It was decided that consideration of all such
representations be deferred till finalisation of the Socio-
economic Caste Census (SCC) 2011 which was being
conducted by the Registrar General of India all over the
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country for enumerating castewise population of the country.
However, in a meeting held on 19.07.2011 the NCBC decided
to approach the Indian Council of Social Science Research
(ICSSR) to conduct a full-fledged survey in the States of Uttar
Pradesh, Haryana, Madhya Pradesh, Rajasthan, Himachal
Pradesh and Gujarat to ascertain the socio-economic status
of the Jat Community. The said decision was prompted by
the necessity to have adequate quantifiable data to enable
the NCBC to consider the request of the Jat Community for
inclusion in the Central List of Other Backward Classes in the
concerned States.
6. What happened to the survey entrusted to the ICSSR
would not be very relevant except that in October 2012 the
NCBC decided to reduce the comprehensive survey to a 2%
sample survey which work, once again, was entrusted to the
ICSSR.
7. It appears that in the midst of the aforesaid exercise
the office of the Prime Minister addressed a communication
dated 04.06.2013 to the Ministry of Social Justice and
Empowerment to the effect that a decision has been taken
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to constitute a Group of Ministers chaired by the Finance
Minister and comprising, inter alia, of the Home Minister for
the following purpose:-
(i) To interact with the representatives of the Jat Community with regard to their demand for inclusion and to keep them apprised of the progress in the matter.
(ii) To monitor the expeditious completion of the survey undertaken by the NCBC through the ICSSR and to facilitate an early decision in the matter by the NCBC.
8. The Group of Ministers in its meetings held on
28.10.2013 and 30.10.2013, upon consideration of the
matter, perceived that two options were available to it. The
first was to request the NCBC to reconsider its earlier
decision of conducting the sample survey and to tender its
advice on the basis of materials already available. The
second was that the survey work which had already begun in
Gujarat would be restricted to confirmed list of Jat variants
and on the basis of the results of the survey done by the
ICSSR the NCBC will tender its advice.” Thereafter, in a
meeting of the Cabinet held on 19.12.2013, decision was
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taken to request NCBC to go ahead with first option i.e. to
tender its advice based on existing material. The cabinet
further took the decision that the cases of States of Bihar,
Uttarakhand and NCT of Delhi be also included in the
reference made to the NCBC.
9. On the basis of the aforesaid decision of the cabinet
communicated to the NCBC, the Commission took the view
that as it did not have sufficient expertise in the matter, the
ICSSR be requested to set up an Expert Committee to
conduct an extensive literature survey on the subject in
order to collect sufficient materials for the impending
exercise. Thereafter, the NCBC forwarded all
reports/documents received by it in this regard including
representations for and against the inclusion of the Jat
Community to the ICSSR. The expert body constituted by
the ICSSR submitted its report (hereinafter referred to as the
report of the ICSSR) in the matter which primarily was based
on the reports of the various State Commissions submitted
to the respective State Governments in connection with the
inclusion of the Jat Community in the OBC list of the
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concerned States. The ICSSR, apparently, did not undertake
any study of the other materials by way of
books/literature/representations. The report of the ICSSR,
noticeably, did not make any recommendations but only set
out the existing facts. The said report of the ICSSR was,
thereafter, discussed by the NCBC in several of its meetings.
Simultaneously, the NCBC addressed letters to the State
Governments for fixing public hearings in the respective
State capitals. As there was no response from the States in
this regard, the NCBC published notices for conducting
public hearings fixing different dates for hearing the claims
and counter-claims (objections). The public hearings were to
be held in Siri Fort Auditorium, New Delhi on two sets of
dates in February, 2014.
10. On conclusion of the public hearings, which appear to
have received what may at best be termed as a mixed
response, the NCBC submitted its advice/opinion/report
dated 26.02.2014 to the Central Government stating that the
Jat Community had not fulfilled the criteria for inclusion in
the Central List of OBCs. It observed that merely belonging
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to an agricultural community cannot confer backward status
on the Jats. It suggested the need for a non-caste based
identification of backward classes. The NCBC found that the
Jats were not socially backward. They were also not
educationally backward. It similarly rejected the claim of
inadequate representation in public employment, finding
them adequately represented in armed forces, government
services and educational institutions.
11. Thereafter, the Union Cabinet in a meeting held on
02.03.2014 decided that the advice tendered by the NCBC
did not adequately take into account the “ground realities.”
The Cabinet, therefore, resolved not to accept the said
advice and instead to include the Jat Community in the
Central List of Backward Classes for the States of Bihar,
Gujarat, Haryana, Himachal Pradesh and NCT of Delhi,
Bharatpur and Dholpur districts of Rajasthan, Uttar Pradesh
and Uttarakhand. Thereafter, the impugned notification
came to be issued on 04.03.2014.
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12. At this stage it may be relevant to notice the dates on
which the Jat Community was included in the List of OBCs in
the States in question which are set out herein:
“(1) 03.11.1999 State of Rajasthan (2) 10.03.2000 State of Uttar Pradesh (3) 31.05.2000 NCT of Delhi (4) 06.11.2000 State of Bihar (5) 24.01.2002 State of Madhya Pradesh (6) 16.11.2002 State of Himachal Pradesh (7) 22.03.2010 State of Uttarakhand
(8) 24.01.2013 State of Haryana-As Special OBC
(9) Gujarat Not included”
Relevant Constitutional and Statutory Provisions
13. The relevant Constitutional and Statutory provisions in
the light of which the issues arising will have to be
determined may be taken note of at the outset:
Article 15 of the Constitution prohibits discrimination on
ground of religion, race, caste, sex or place of birth. Clause
(4) of Article 15 provides that “nothing in this article or in
clause (2) of article 29 shall prevent the State from making
any special provision for the advancement of any socially
and educationally backward classes of citizens or for the
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Scheduled Castes and the Scheduled Tribes”. Article 16
which provides for equality of opportunity in matters of
public employment provides in Clause (4) thereof that
“nothing in this article shall prevent the State from making
any provision for the reservation of appointments or posts in
favour of any backward class of citizens which, in the opinion
of the State, is not adequately represented in the services
under the State”.
14. Reference to the provisions of Article 38 and 46 of in
Part IV of the Constitution may also be made. Article 38 of
the Constitution enjoins a duty on the State to endeavour to
promote the welfare of the people by securing and
protecting as effectively as it may a social order by, inter
alia, eliminating inequalities in status, facilities and
opportunities not only amongst individuals but also amongst
groups of people either residing in different areas or
engaged in different vocations. Article 46 casts upon the
State a duty to promote the educational and economic
interests of the weaker sections of the population
particularly of the Scheduled Castes and Scheduled Tribes
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and to protect such citizens from social injustice and
exploitation. Article 340 of the Constitution envisages the
creation of a Commission, inter alia, to investigate the
conditions of the socially and educationally backward classes
and the difficulties under which such classes labour; and to
make recommendations as to the steps that should be taken
to remove such difficulties and improve their conditions etc.
15. The National Commission of Backward Classes Act,
1993 was enacted following the decision of this Court in
Indra Sawhney & Ors. Vs. Union of India & Ors.1 which
visualised the necessity of establishment of a
permanent/specialised body to which complaints of non-
inclusion or wrong inclusion of groups, classes and sections
in the list of Other Backward Classes can be made from time
to time. In this regard, the following part of the opinion of
Justice Jeevan Reddy in Indra Sawhney case (supra) may
be noticed :-
“We are of the considered view that there ought to be a permanent body, in the nature of a Commission or Tribunal, to which complaints of wrong inclusion or non-inclusion of groups, classes and sections in the lists of Other Backward Classes
1 1992 Supp (3) SCC 217
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can be made. Such body must be empowered to examine complaints of the said nature and pass appropriate orders. Its advice/opinion should ordinarily be binding upon the Government. Where, however, the Government does not agree with its recommendation, it must record its reasons therefor. Even if any new class/group is proposed to be included among the other backward classes, such matter must also be referred to the said body in the first instance and action taken on the basis of its recommendation. The body must be composed of experts in the field, both official and non-official, and must be vested with the necessary powers to make a proper and effective inquiry. It is equally desirable that each State constitutes such a body, which step would go a long way in redressing genuine grievances. Such a body can be created under Clause (4) of Article 16 itself - or under Article 16(4) read with Article 340 - as a concomitant of the power to identify and specify backward class of citizens, in whose favour reservations are to be provided. We direct that such a body be constituted both at Central level and at the level of the States within four months from today. They should become immediately operational and be in a position to entertain and examine forthwith complaints and matters of the nature aforementioned, if any, received. It should be open to the Government of India and the respective State Governments to devise the procedure to be followed by such body. The body or bodies so created can also be consulted in the matter of periodic revision of lists of O.B.Cs…”
(para 847)
16. The National Commission for Backward Classes Act,
1993 (for short “the Act”) contain provisions for the
constitution of the National Commission For Backward
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Classes (NCBC), its powers and functions and other allied
matters. The salient features of the Act which will require to
be specifically noticed may be set out hereunder.
Section 2(a) and 2(c) provides as follows:
“2(a) – “backward classes” means such backward classes of citizens other than the Scheduled Castes and Scheduled Tribes as may be specified by the Central Government in the lists;
2(c) – “lists” means lists prepared by the Government of India from time to time for purposes of making provision for the reservation of appointments or posts in favour of backward classes of citizens which, in the opinion of that Government, are not adequately represented in the services under the Government of India and any local or other authority within the territory of India or under the control of the Government of India”.
Section 3 deals with constitution of NCBC. It provides
that the NCBC shall consist of the following persons
nominated by the Central Government.
(a) A Chairperson, who is or has been a Judge of the Supreme Court or of a High Court;
(b) A social scientist; (c) Two persons, who have special knowledge in
matters relating to backward classes; and
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(d) A Member-Secretary, who is or has been an officer of the Central Government in the rank of a Secretary to the Government of India.
Sections 9 and 11 of the Act read as under:
“9. Functions of the Commission
(1) The Commission shall examine requests for inclusion of any class of citizens as a backward class in the lists and hear complaints of over-inclusion or under- inclusion of any backward class in such lists and tender such advice to the Central Government as it deems appropriate.
(2) The advice of the commission shall ordinarily be binding upon the Central Government.
11. Periodic Revision of Lists by the Central Government
(1) The Central Government may at any time, and shall, at the expiration of ten years from the coming into force of this Act and every succeeding period of ten years thereafter, undertake revision of the lists with a view to excluding from such lists those classes who have ceased to be backward classes or for including in such lists new backward classes.
(2) The Central Government shall, while undertaking any revision referred to in sub- section (1), consult the Commission.”
17. Section 8 of the Act empowers the Commission to lay
down its own procedure while Section 10 enumerates the
powers of the Commission while performing its functions
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under Section 9(1) of the Act. There is no specific provision
in the Act which empowers the Central Government to
override the advice/recommendation of the Commission.
Arguments on Behalf of Petitioners
18. To begin with, learned counsel for the petitioners seeks
to attribute legal malice to the decision making process
resultantly vitiating the decision taken by the Union
Government. The manner in which the decision was taken
commencing with the conferment of the review power in the
year 2011 by enactment of the extant Rules; the constitution
of Group of Ministers to oversee the matter; the exercise of
the first option available and the repeated requests made by
the Government to the Commission to tender its advice
indicate the pre-determined manner in which the Central
Government was proceeding in the matter, it is urged. The
meeting of the cabinet on a Sunday (2.3.2014); the
publication of the notification on 4.3.2014 when the General
Elections were notified on the next day i.e. 5.3.2014 has
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been mentioned to contend that the impugned notification
is based on wholly extraneous considerations and is
actuated by political motives, namely, to gain electoral
advantages.
19. It is contended that the impugned notification dated
04.03.2014 has been issued in derogation of the provisions
of Section 9(2) of the Act which provides that “advice of the
Commission shall ordinarily be binding upon the Central
Government”. Even in a situation contemplated by Section
11 of the Act the views of the NCBC would be equally
compulsive and binding and should commend for acceptance
of the Central Government except in situations where there
are strong compelling and overwhelming reasons not to do
so. None of the aforesaid situations do exist in the present
case, it is claimed on behalf of the petitioners.
20. It is submitted that the earlier reports of the NCBC
dated 28.11.1997 and 25.11.2010 were founded on an
elaborate reasoning and upon a comprehensive
consideration of all relevant materials. Not only the
circumstances leading to the submission of the report dated
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26.2.2014 of the NCBC make the decision of the Union
Government to reject the same wholly premeditated, even
otherwise, the decision of the Central Government to
override the advice tendered by the NCBC is not supported
by any reasons recorded or by notings in the file. Neither
the said decision can be said to be a reasonable or possible
conclusion that could have been reached by the Union
Government on the available materials.
21. The decisions in Barium Chemicals Ltd. Vs.
Company Law Board2; Rohtas Industries Ltd. Vs. S.D.
Agarwal & Ors.3; Shri Sitaram Sugar Co. Ltd. & Anr. Vs.
Union of India & Ors.4 and Gazi Saduddin Vs. State of
Maharashtra & Anr.5 have been relied upon to contend
that the satisfaction of the Central Government is open to
challenge and within the reach of the judicial scrutiny both
on grounds of its legal fragility and ex facie
unreasonableness. Learned counsel for the petitioners has
very elaborately taken us through the advice/report of the
NCBC dated 26.02.2014 to contend that the exhaustive 2 1966 Supp SCR 311 3 (1969) 1 SCC 325 4 (1990) 3 SCC 223 5 (2003) 7 SCC 330
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report of the said body contain a detailed analysis of the
facts recorded in the reports of the various State
Commissions. The said exercise clearly demonstrates that
the Jats are a forward community in all the States in
question. The contrary view of the Union Government is
wholly unsupported by any adequate, reasonable and
relevant grounds or basis. The decision of the Union
Government is also not based on any relevant quantifiable
data or material to enable recognition of the Jat Community
as backward within the meaning of Article 16(4) of the
Constitution. Learned counsel for the petitioners has
elaborately placed the relevant materials on record in
respect of each of the States under consideration and has
contended that the said materials cannot reasonably sustain
the decision to include Jats in the Central lists of other
Backward Classes of the concerned States.
22. In reply, the learned Attorney General has argued that
the power to make provisions for reservation by inclusion of
the eligible classes in the Central lists flow from Article 16(4)
of the Constitution. The advice of the NCBC, according to the
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learned Attorney General, would not be very material
inasmuch as even dehors the provisions of the NCBC Act the
Union Government would not be denuded of its powers to
add or subtract from the Central Lists of Other Backward
Classes. The learned Attorney has alternatively contended
that the present exercise of inclusion of Jats in the list of
Other Backward Classes is not pursuant to any exercise
undertaken under Section 9 of the NCBC Act so as to ‘bind’
the Union to the advice tendered by the NCBC. It is also
argued that the inclusion of classes or groups in the State
OBC Lists will be a strong and compelling factor for inclusion
of such classes in the Central Lists also inasmuch as the
considerations which had weighed with the State
Government to include a particular class as an other
backward class would always be relevant for being taken
into account for inclusion of the said class in the Central List
of Other Backward Classes. Such a course, according to the
learned Attorney, is necessary for purposes of consistency
and uniformity of action by the Union and the States.
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23. Pointing out the facts antecedent to the submission of
the report/advice of the NCBC on 26.2.2014, the learned
Attorney General has drawn the attention of the Court to the
fact that the process of tendering such advice had really
commenced in the year 2011 and the delay that has
occurred is attributable to the NCBC. The NCBC has been
vacillating from time to time as would be evident from its
decisions, firstly, to defer consideration of the matter till
finalisation of the Caste Census Survey conducted by the
Registrar General of India and thereafter in deciding to
approach the ICSSR for a full survey in the six States and
subsequently its decision to opt for a 2% sample survey. It is
pointed out that even after the decision to go for a sample
survey, nothing had happened for over a year. It is only in
December 2013 after the Central Government had
‘reminded’ the NCBC of the matter that the NCBC had
decided to entrust the ICSSR to carry out a study based on
the available literature, books/documents. There was no
undue haste in the process claims the learned Attorney
General who also points out that timing of the notification
i.e. on the eve of the commencement of the General
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Elections would not, by itself, be sufficient to hold the
decision taken to be vitiated in law or by legal malice.
24. The learned Attorney General has taken us through the
exhaustive materials on record i.e. the report dated
26.2.2014 of the NCBC; the reports of the various State
Commissions; and report of the ICSSR including the report of
the IIPA relied upon by the ICSSR. It is submitted, on the
basis of the said materials, that there is overwhelming
evidence to permit a conclusion to be reached that the Jat
Community should be included in the Central Lists of Other
Backward Classes in the States in question. It is only after
such consideration that the impugned notification dated
04.03.2014 came to be issued. The conduct of the NCBC in
entrusting the responsibility of carrying out a literature
survey to the Expert Body i.e. ICSSR on the ground that the
NCBC itself is not equipped to perform the task and,
thereafter, in acting as an Appellate Body sitting in judgment
over the views of the said Expert Body has come in for sharp
criticism by the learned Attorney General. By referring to the
specific conclusions of the NCBC recorded in its report dated
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26.02.2014, it has been contended that the conclusions
reached are wholly untenable and unacceptable being
contrary to specific findings recorded by the ICSSR or in the
reports of the State Commissions with regard to the social,
economic as well as educational status of the Jats.
25. The above submission advanced by the learned
Attorney General have been echoed by the learned counsels
appearing on behalf of the other respondents in the writ
petitions i.e. Akhil Bharatvarshiya Jat Mahasabha, Jat
Aarakshan Sangharsh Samiti and the Jat Sabha Zila, Meerut.
The limited scope of judicial review that will be available to
this Court to scrutinise the decision taken by the Union
Government has been particularly urged by Shri Mohan
Parasaran, learned senior counsel appearing for the Akhil
Bharatvarshiya Jat Mahasabha. In so far as Jat Sabha Zila,
Meerut is concerned, Shri Jayant Bhushan, learned senior
counsel has further urged that the test for determining
social, educational and economic backwardness laid down in
Indra Sawhney case (supra) are fully satisfied by the Jat
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Community so as to make its members eligible for inclusion
in the Central lists of OBCs.
26. What weight-age the advice/recommendation tendered
by the NCBC should receive in the decision making by the
Union Government is a crucial determination that this Court
is required to make in the present case. The observations in
Indra Sawhney (extracted above) and the expressed
provisions contained in Section 9 of the NCBC Act clearly
indicate that the advice tendered by the NCBC is ordinarily
binding on the Government meaning thereby that the same
can be overruled/ignored only for strong and compelling
reasons which reasons would be expected to be available in
writing. As the constitution of the NCBC is traceable to the
opinion rendered in Indra Sawhney (extracted above) there
can be no doubt that even when the exercise undertaken by
the Central Government is one under Section 11 of the Act,
the views expressed by the NCBC in the process of the
consultation mandated by Section 11, would have a binding
effect in the normal course.
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27. It will, therefore, be necessary to note what had
prevailed with the NCBC in tendering its advice in the instant
case not to include the Jat community in the Central Lists of
other backward classes in the nine States in respect of which
the reference was made to the Commission. A lengthy
narration is unavoidable for it is only upon setting out the
relevant facts and circumstances in their proper conspectus
that the intrinsic merit of the advice tendered by the NCBC
can be determined.
28. The NCBC had entrusted the task of the survey of the
relevant literature to an Expert Committee constituted by
the ICSSR. On completion of the task the said Committee
had submitted its report in the matter to the NCBC. The
State-wise summary of the findings of the Expert Body of the
ICSSR may be extracted below:
SUMMARY OF FINDINGS OF ICSSR
BIHAR
“The analysis is based on the Bihar State Backward Classes Commission Report (1999) which had recommended the inclusion of Jats in State OBC list. The estimated population of Jats in Bihar from independent sources is about 80
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thousand in 1988. Jats reside in selected districts- in the State and there are both Hindu and Muslim Jats. The Bihar State Backward Class Commission considered the social, educational and economic condition of both Hindu and Muslim Jats and concluded that the Jat community in Bihar is backward. The recommendation of the Bihar State Backward Classes Commission is based on the information sought through the questionnaires filled by members of the community (the number of questionnaire received by the commission is not specified) and representations from the Jat community. Since the report is not based on household survey, “this committee is not in a position to give facts and figures.” The Commission concluded that the Jat community in Bihar is not represented at all in the Group I and Group II jobs in the Government. They are educationally backward compared to other communities in Bihar and are primarily engaged in agriculture and allied activities.”
DELHI
“The estimated population of Jats in Delhi is around 1.2 million (independent source). There are two reports, one prepared by Delhi OBC Commission and another by an Independent researcher, The Delhi state OBC Commission report does not have any absolute indicators on educatioria1 status, employment structure etc. However, the Commission has reported indicator on net social standing, net educational standing and net economic standing. Or net
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educational standing, Jats with composite score of 1.17 are behind Gujars (1.34) and Ahirs (1.22). On net social standing, the composite score of Jats is 17.24, which is significantly lower than the Gujars (27.14) and Ahirs (19.85). On composite economic score, score of Jats is 16.55, lower than Gujars (19.38) but higher than the Ahirs (14.86). Thus, with respect to social and educational standing, Jat lags behind Gujars and Ahirs while in case of economic standing, they lag behind compared to Gujars but ahead of Ahirs. It is to be noted that both Gujars and Ahirs are included in the Central OBC list.”
GUJARAT
“In case of Gujarat, the estimated Jat population is 0.65 million (independent source) but there is no documentation available about spatial or religion-wise break-up of Jat population. Further, there is lack of information on the parameters (social, educational and economic) specified by the NCBC. However, the Gujarat government website mentions that Jat Muslims are included in the Central OBC list.”
HARYANA
“One of the states where Jats have sizeable population is Haryana. Our observations are based on the Haryana State OBC Commission report, which recommended reservation for Jats as OBC in the state in 2012. The commission based its recommendations on a sponsored study conducted by
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Sangwan (2012). The findings of the study indicate that on occupational structure, Jats in Haryana are a landowning community. Nearly 87% of the Jats are engaged in agriculture. The other economic activities pursued by Jats include animal husbandry and trade. In government employment, Jats have about 21% share in the total class I & II services in the state which is about four percentage points lower than their share in population (25%) in 2012. However, they lag behind compared to Bishnoi and Brahmins whose share in government employment in Class I & II is higher than their respective population share. The comparable figures for Ahir/Yadava and Gujar (the other two comparable OBC communities with Jats) are not reported in Haryana Backward Classes Commission Report 2012. On the educational achievements, more than 12% Jat children in the age group of 6-14 years never attended school, which is higher than many other backward castes. At the graduation level, Jats have about 6.5% enrolment, which is less than average level of 8.3%. At the postgraduate level, enrolment of Jats is 1.71% against the average of 2.26% of the respondents. The available data, therefore, suggests that in Haryana Jats are land-owning community. Their share in class I & II government service is close to their population share but they lag behind in both school and higher education enrolment.”
HIMACHAL PRADESH
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“In case of Himachal Pradesh, the HP State OBC Commission Report is the only available source of information. The Report is based on hearing of about 866 persons conducted by the full bench of the Commission. The Commission estimated the Jat population in Himachal Pradesh is 43, 252. The Commission evolved a 25-point criteria based on NCBC guidelines. However, the Report does not contain any quantitative information about the social, economic and educational status of Jats vis-a-vis other communities. The State Commission has recommended for inclusion of Jats in the State OBC list. Data on literacy rate and higher education enrolment of Jat children is lacking in the State Commission Report. However, the report observed that dropout rate of children beyond primary level being high, they are put to household work or work as agriculture labour. On share in the government service, the State Commission Report observed that the incidence of representation of Jats In the state services in comparison to general average is very low. Similarly, the state commission report observes that the representation of Jats in the public sector is negligible. The report of the commission also mentions that most of the members (male, female and children) of this community are depending on agriculture labour on a much larger scale than Rajputs and Brahmins. It is to be noted that the Commission Report does not include quantitative information on literacy, occupation and representation in government service on the basis of
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which it has made these recommendations. The Commission came to unanimous conclusion that this community is socially, educationally and economically backward and is fit for inclusion in the State list of OBCs.”
MADHYA PRADESH
“In case of Madhya Pradesh, in 2002, State Government included Jats in the State OBC list though no details are available on the parameters or criterion used by the State OBC Commission for the inclusion of Jats in the State list. Earlier, in the year 1999, the NCBC had observed that the Jats in Madhya Pradesh are not socially backward and were not included in the central OBC list.”
RAJASTHAN
“In case of Rajasthan, the available information suggests that Jats are included in both the Central and State OBC list since 1999. But the report of the Rajasthan State OBC Commission has not been made available to us by NCBC. Therefore, we have based this comparative picture on a study sponsored by the State Government and conducted by Institute of Development Studies, Jaipur. The report of the sponsored study was submitted to the Department of Social Justice and Empowerment, Government of Rajasthan 2012.
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The available information shows that more than 91% Jat households own land, which is higher than that of Ahir, Gujar and the rest of OBCs. Around 29% of the Jat population in the age group of 7-59 years is reported to be illiterate in 2012. This is substantially lower than several caste groups that are included in the OBC list. Among the Jats, 7.5% households have at least one member who is graduate, which is lower than the Ahir and Charan communities but somewhat better than the rest of the OBCs. Among the Jats, it is reported that more than 6.8% household have at least one member in the government service. This is marginally lower than Ahir, Vishnoi and Charan households but higher than the rest of the backward classes. Thus, Jats in Rajasthan are better off with respect to ownership of land but somewhat lag behind with respect to literacy rate, enrolment in graduation and representation in government service.”
UTTAR PRADESH AND UTTARAKHAND
“The Jat population is primarily concentrated in western Uttar Pradesh and Uttarakhand. Jat community got included in the State OBC list in 2000. Our observations are based on the Social Justice Committee Report (SJCR) 2001, which has been prepared after the Jat community was already included in the state OBC list by the Uttar Pradesh Government in 2000, The SJCR population estimates are based on the
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Village Panchayat Family Register, Accordingly the highest population at 19.6% is that of Ahir followed by 7.5 % Kurmi (different variants) and 3.6% Jats. The comparable socioeconomic indicators are available in Singh (2003) that we use in this report. Singh (2003) shows that about 92% Jat households own land. The figures for Ahir and Kurmi are 95% and 100%, respectively. Singh (2003) also reports that 89% of the workers among the Jats in rural areas are engaged in primary sector activities, which is similar to that of Ahir/Yadava but lower than the Gujar community. The proportion of those completed graduation and above in the Jat community is 1.7% compared to 3% for Yadava. Similarly, the proportion of post-graduate is 0.2% for Jat and 0,7% for Yadava. The data compiled by SCJR in 2001 from higher educational institutions on 207,000 students indicate that the share of Jats is much less than their share in the population while that of Ahir and Kurmi was much higher than their population share. The information compiled by SJCR suggests that share of Ahir/Yadava is 3: 4% whereas Kurmis have 11.2% in professional education. Share of Jats is only.0.3% that is way below the share of Ahir and Kurmi shares. In the Group A & B Government Employment, the share of Jat is 5.5% and 4.3%, respectively, which is slightly higher than their share in OBC population. Corresponding figures for Yadava and their variant for Group A & B services is 46% and 42% Of the OBC which is much higher than their share
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in the population of OBC which is 19.4%. Similar differences are observed in case of Kurmi and their variants. As far as Uttarakhand is concerned, no separate report is available. Apparently, Uttarakhand has accepted the list of OBC as that of Uttar Pradesh. Thus, Jats are at par compared to OBCs such as Ahir/Yadav as far as ownership of the land is concerned. However, in case of enrolment in higher and technical education they lag behind Ahir/Yaday. In case of representation in the government service, the share is proportionate to their population but relatively lower than the Ahir/Yadava and Kurmi.”
INTER-STATE COMPARISON
“The NCBC has asked this committee to provide inter-state variation in the social, economic and occupational status of Jats vis-à-vis other backward class communities. Going by the summary of the status of different communities reported from paras 9 to 16 above, the committee is of the view that due to lack of comparable quantitative data on the social, educational and economic status of Jats and other backward class communities in the nine states, any meaningful comparison is not possible. However, based on available quantitative and qualitative information, it is the impression of the committee that the situation of Jats with respect to ownership of land and occupation, education level and representation in the government service, the Jats from the states of Bihar, Gujarat and Himachal Pradesh are worse off compared to the Jats
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from Delhi, Haryana, Rajasthan and Uttar Pradesh and Madhya Pradesh. Nevertheless, these are impression of the committee based on the limited comparable data and information.”
29. The report of the Expert Committee constituted by the
ICSSR was based on a study of eight specific reports which
were sent by the Group of Ministers to the NCBC at the time
of seeking a review of the earlier decision of the NCBC. The
said eight reports, details of which are mentioned below, in
turn, were forwarded by the Commission to the ICSSR –
(1) Social Justice Committee Report, Uttar Pradesh (2001)
(2) Socio-Economic Status of Farming Communities in Northern India, Uttar Pradesh (2003)
(3) Caste, Land and Political Power in UP, Uttar Pradesh
(4) Justice Gurnam Singh Commission Report, Haryana (1990)
(5) Justice K.C. Gupta Report, Haryana (2013)
(6) Justice Gummanmal Lodha Commission Report, NCT of Delhi (1999)
(7) Dr. Lipi Mukhopadbyay Report, Delhi (2005)
(8) State Backward Classes Commission's Reports of State Governments of Rajasthan, Madhya Pradesh, Himachal Pradesh and Gujarat.
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30. Apart from the aforesaid eight reports, fifty one
representations in favour of inclusion of Jats in the Central
Lists and fifty eight representations against such inclusion
received by the NCBC were also forwarded to the ICSSR. On
receipt of the report of ICSSR, the summary of which has
been indicated above, the Commission on an extensive
study of the same and on a further detailed examination of
the eight specific reports which were referred to it by the
Group of Ministers carried out a State-wise analysis of the
aforesaid materials. Thereafter it came to specific findings
in respect of each of the States, summary of which findings,
is indicated below :
Relevant Findings in the Report of the NCBC
Haryana
The NCBC found that the report of the State Backward
Commission of the year 2012 (Justice K.C. Gupta Commission
Report) was the primary document pertaining to Haryana.
The NCBC found certain inherent flaws in the said report
which, in its view, made the same unworthy of acceptance.
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Some of the reasons recorded by the NCBC for taking the
above view are :
1) Justice K.C. Gupta Commission’s report is primarily
based on the survey conducted in the year 2012 by
Maharishi Dayanand University (MDU), Rohtak which
was a very selective study.
2) Apart from Justice Gupta, the Commission consisted of
at least two other persons who belonged to the
classes/groups which were under consideration i.e.
Bishnoi and Ror who came to be included in the State
List of Other Backward Classes.
3) The survey undertaken by the MDU, Rohtak was by one
Prof. K.S. Sangwan who belong to the Jat community;
the Vice-chancellor of the MDU was also a Jat. In the
public hearing conducted by the Commission, the
aforesaid two persons were accused of bias.
4) The survey undertaken by MDU was a comparative
study of the Jats with higher castes like Brahmins,
Rajputs etc and comparable figures in relation to Ahirs,
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Yadavs, Kurmis and Gujars were not available. In the
course of the public hearing it transpired that in
comparison to the aforesaid communities i.e. Ahirs,
Yadavs, Kurmis and Gujars, the Jats were superior.
5) The villages where the survey was undertaken were as
per details provided by the State Commission and not
independently undertaken by the MDU.
6) The representation of the Jats in the Armed Forces was
not studied.
31. The Justice Gurnam Singh Commission Report being of
the year 1990 and having been earlier considered at the
time of submission of the report of the NCBC on 28.11.1997,
was not considered appropriate for being considered once
again.
32. The NCBC had evolved a set of guidelines, criteria,
formats and parameters against which all claims for
inclusion as an other backward class are required to be
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considered. The said parameters were evolved on the basis
of the Mandal Commission Report and the judgment in
Indra Sawhney. 11 indicators under three broad heads
i.e. social, economic and educational, details of which are
indicated below, were identified.
A. Social
(i) Castes/Classes considered as socially backward by
others.
(ii) Castes/Classes which mainly depend on menial labour
for their livelihood.
(iii) Castes/ Classes where at least 25% females and 10%
males above the State average get married at an age
below 17 years in rural areas and at least 10% females
and 5% males do so, in urban areas.
(iv) Castes/Classes where participation of females in work
is at least 25% above the State average.
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B. Educational
(v) Castes/Classes where the number of children in the
age group of 5-15 years who never attended school is
at least 25% above the State average.
(vi) Castes/Classes where the rate of student drop-out in
the age group of 5-15 years is at least. 25%. above the
State average.
(vii) Castes/Classes amongst whom the proportion of
matriculates is at least 25% below the State average.
C. Economic
(viii) Castes/Classes where the average value of family
assets is at least 25% below the State average.
(ix) Castes/Classes where the number of families living in
Kuccha houses is at least 25% above the State average.
(x) Castes/Classes where the source of drinking water is
beyond half a kilometer for more than 50% of the
households.
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(xi) Castes/Classes where the number of households having
taken consumption loan is at least 25% above the State
average.
33. Relative weight-age to each of the parameters under
the aforesaid three broad heads is to be in the proportion of
3:2:1. The Justice K.C. Gupta Commission however followed
12 Social indicators, 7 Educational indicators and 5 Economic
indicators. That apart, according to the Commission,
backwardness that was required to be determined, is
primarily social backwardness which, in turn, depended on
how the other castes/classes perceived whether the Jats
were socially backward or not. Justice K.C. Gupta
Commission did not proceed in the matter from the aforesaid
perspective. Further in its report the NCBC found that
indicators like Infant Mortality Rate, Maternal Mortality Rate,
Deliveries at Home etc. had been considered to determine
social backwardness. Such data, according to the NCBC, are
actually Public Health Statistics and are wholly irrelevant for
determination of social backwardness.
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34. The NCBC in its report also recorded its disagreement
with the views of the K.C. Gupta Commission that despite
there being 26 (out of 90) MLAs belonging to the Jat
community and 4 Members of Parliament (out of 15), the Jats
have not progressed socially, educationally and
economically. In this regard, the NCBC had also recorded
that in the course of public hearing it transpired that several
Chief Ministers of Haryana who held office for long periods of
time belong to Jat Community and in fact there has been a
Prime Minister of the country who was a Jat (Ch. Charan
Singh).
Uttar Pradesh
The NCBC in coming to its conclusion with regard to the
claim of Jats of the State of Uttar Pradesh for inclusion in the
Central Lists of other backward classes relied on three basic
documents, namely, -
(i) Social Justice Committee Report popularly known as
Hukum Singh Committee Report (2001).
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(ii) Social Economic Booklet on Social economic status of
farming community in Northern India by Shri Ajit
Kumar Singh (2003).
(iii) Caste and Class in India by K.L.Sharma (1994).
35. The Hukum Singh Report, being 14 years old, was
understood by the NCBC as having serious limitations in
furnishing current data. The said committee, in fact, did not
undertake any study of the socio-educational status of the
Jat community. Rather, its primary object was to investigate
the facilities extended to SCs/STs and OBCs in the State of
U.P. and to propose modification in the quota of reservation
in the new State of Uttarakhand and the truncated State of
UP. In performing the said exercise, the Committee
recommended the inclusion of Jats in Schedule ‘B’
consisting of 8 different other backward classes who were to
have the benefit of 9% reservation. No study of the Jats of
UP as a socially, economically or educationally backward
group of people was undertaken by the Committee.
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36. The booklet compiled by Shri Ajit Kumar Singh (in the
year 2003) is based on a small sample survey of 2000 rural
households selected from 20 villages spread over 5 districts
of Western UP. By its very nature it was found to be of
limited utility. In the said book it is recorded that “Jats,
Gujars, Kurmis and Yadavs were the main beneficiary
of the green revolution and have acquired political
clout due to their numerical strength. They are the
main land owning classes now and have progressed
educationally as well and are seeking greater access
to government jobs through reservation politics.
These intermediate castes enjoy relatively better
economic conditions as compared to Lodhs and the
motley group of castes called Other Backward Castes
or OBC, who together form the relatively poorer
section of the middle classes in the rural areas.” The
said view/findings were specifically taken note of by the
NCBC while making its recommendations.
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37. The statistics and data available in the book – Caste
and Class in India by K.L. Sharma are of considerably old
vintage. The book, itself, is 20 years old. In any case, in the
said book it has been recorded that “the intermediate
caste in U.P. can be broadly divided into three
categories i.e. Jats, Tyagis, Bhumihars, who have a
considerable position in land, possess high ritual
status and because of their regional concentration
are dominant in the politics of a few districts”. The
aforesaid view was specifically taken note of by the NCBC
while tendering its advice to the Government.
Delhi
Two pieces of literature formed the foundation of the study
undertaken by the NCBC with regard to the status of Jats in
the State of Delhi. The first is Justice Gumanmal Lodha
Commission Report which is the State OBC Commission
Report for Delhi. The survey undertaken was limited to about
2500 households belonging to 18 castes out of which 11
were already in the OBC category. The said report (2002)
was considered by the NCBC while tendering its earlier
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advice in November, 2010 against the inclusion of Jats. The
second document is a report prepared by one Prof. Lipi
Mukhopadhyay on behalf of the Indian Institute of Public
Administration (IIPA). The said report was prepared on the
basis of a structured questionnaire with topics of relevance
to the subject and collected from a total sample of 2000
households. A total of 46 villages covered under 5 districts
were surveyed. The Lipi Mukhopadhyay Report records the
social profile of the Jat community in detail, relevant extract
of which is set out below :
“Jats occupy prominent position in Haryana, western Uttar Pradesh, Punjab, Delhi and eastern Rajasthan, being the largest group in North Western India. They are divided into twelve clans and about three hundred gotras. Though the origin of Jat is shrouded in mystery, they are believed to be an Indo- Aryan tribe, connected to the Vedic civilization (4500 BC- 2500 BC) that existed along the Saraswati River. Even today the highest density of Jat population is along the dried beds of Saraswati, starting from Haryana, going on to Punjab and ending up in Rajasthan. They play a. predominant role in
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this, region. Agriculture, soldiering and cattle rearing have been the main occupation of Jats. Jats are brave and hardworking and independent minded people. The Jats led a fairly autonomous political life.
Historically, it is argued that the Jats and Rajputs were of one race. But a certain section of the people having risen in the social scale started associating themselves as the original Rajputs and hence Kshatrias. These Rajputs disassociated themselves from the so-called Jats or descendent of jata of Lord Shiva.
During the survey the overall response in respect to the social status was not very clear. The community as a whole responded that they are not treated well by other castes and considered lowly especially by upper caste Hindus like Brahmins and Kshatriyas. They follow a strict gotra system in their social structure. Simiar to the Hindu custom marriages within the same gotra is not allowed.
Jats in the National Capital Territory of Delhi, as a community cannot be discriminated into any social structure
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except the gotra. However depending on the social treatment meted out to them this community is divided. Hence different sections of the society feel associated with different castes. As comparison to other castes the Jat community as whole is also treated lowly and in the present situation especially by the Brahmins and also by Rajputs. They are not considered as kshatriyas or of the same status to them. There is social stigma like being called gawars or unwise and seen as of low status. Apart from the varna system there is gotra division among the Jats like Chitania, Chadel, Bambolia, Taporwadia Nain, Bahadu, Ladhowal, Rinwan and many more specially in Punjab and Rajasthan.”
In sharp contradiction of the above the Committee also
found -
“Half of the Jat community opined that
they are treated well by other dominant
castes like Brahmins and kshatriyas. It is
significant to note that these are the people
who assumed or considered themselves
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closer to the kshatriyas, so much so that
they enjoy the same status as the former. A
significant 29.7% of the population felt the
social stigma of inferiority by other castes. In
fact they said that their standing in the
society is like the shudras. Others which is
about 19.2% said that there is no social
discrimination against them.”
38. Insofar as education is concerned, though the literacy
rate is high i.e. 85.7% as against 83.7% for the general
population, the level of education is mainly high school and
drop-out at school level is very high. The economic standard
of the Jat community was, however, found to be relatively
better. The employment in the government jobs, however,
according to the report, was quite low. Only 2.4% Jats
engaged in high-end services while 19.1% Jats are engaged
in low-end services like “peons, DTC drivers, teachers in
primary school etc.”
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39. On the basis of the aforesaid report of the IIPA, the
NCBC Commission recorded, inter alia, the following
findings :-
“However, examination of the report of IIPA
leaves no manner of doubt that Jats as a
class cannot be treated as a backward class.
Ethnically, they are at a higher level; they
are of Indo Aryan Descent; their educational
level is high; and social status they
command is higher than ordinary shudras. In
the absence of social and educational
backwardness coupled with inadequacy of
representation in the services, Article 15(4)
and 16(4) do not apply for the purpose
treating the Jat as backward classes.
No case is made out for any review of
the advice of the NCBC.”
Himachal Pradesh
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40. The NCBC took into account that the claim of the Jats
for inclusion in the State List of OBCs in Himachal Pradesh
had been differently considered at different points of time by
the State Commission itself. While the State Commission
had rejected the said claim in the year 1999 and its
recommendations had been accepted by the State
Government in the year 2000, the Report of the State
Commission prepared in October 2002 recommended
inclusion of the Jats who, accordingly, came to be included in
the State List. From the Report of the NCBC it appears that a
public hearing was conducted by the Commission in Shimla
on 17.08.2011 and on the basis of what had transpired and
also upon consideration of the Report of the State
Commission prepared in October 2002, the NCBC decided to
keep the matter pending. No compulsive material,
according to the NCBC, was laid before it in the course of the
present exercise so as to enable a recommendation in favour
of the Jats of Himachal Pradesh to be made by it.
Rajasthan
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41. The NCBC in its report dated 28.11.1997 had
recommended the inclusion of Jats (excluding Dholpur and
Bharatpur districts) in the Central List of other backward
classes. On the basis of the recommendation of the NCBC,
the Government of India had issued a Notification dated
27.10.1999 to the above effect. Following the said
Notification, the State Government had also issued a
Notification including Jats in the State List of other backward
classes (excluding the two districts). Thereafter, the State
Commission recommended for the removal of the area
restriction of the Jats in the two districts which was also
accepted by the Government of Rajasthan and a Notification
dated 10.01.2000 was issued. It appears that in the course
of survey undertaken by ICSSR, the report of the State
Commission for OBCs was not made available. In the
absence of the said Report, a study sponsored by the State
Government and conducted by the Institute of Development
Studies, Jaipur, was considered. On the basis of the findings
recorded by the ICSSR in its report, (earlier extracted), the
Jats were found to be better off in regard to ownership of
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land though in respect of literacy rate and representation in
Government service they were found to be marginally lower
than Ahirs, Vishnois and Charans but better than rest of the
OBCs. In the aforesaid backdrop the NCBC came to the
conclusion that on the basis of the materials available as
well as what had been revealed in the course of the the
public hearings conducted on 10.02.2014 and 13.02.2014
“the preponderance of evidence adduced by those
speaking against the motion was much more than
those speaking for.” Under these circumstances the NCBC
did not find any reason to interfere with its earlier order
issued on the subject.
Madhya Pradesh
42. The State Backward Classes Commission of the State of
Madhya Pradesh undertook a study of Jat Community in the
districts of Dewas and Hoshangabad in the year 1994. The
findings of the study had indicated that the Jats considered
themselves equal to the Rajputs; “their political situation is
very good” and so is their social status. The State
Commission therefore did not recommend the inclusion of
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the Jats in the State List of OBCs. The said recommendation
was approved by the State Government on 21.12.1999.
Thereafter, on account of the representations received by
the State Commission, another study was conducted in
January 2002 in a single district of the State i.e. “Harda”
district. Based on the aforesaid study, which the NCBC
found to be cursory, the Jats came to be included in the
State List. The aforesaid materials failed to convince the
NCBC that it would be justified to include the Jats in the State
of Madhya Pradesh in the Central List of Other Backward
Classes.
Bihar
43. The Jat Hindus of 4 districts of Bihar and Jat Muslims in
5 districts are included in the State List of Other Backward
Classes. In the report of the ICSSR it has been mentioned
that the recommendation of the State Commission is based
on information received through questionnaire (number not
indicated) and not on the basis of any household survey.
Considering the materials made available to it, the NCBC
came to the conclusion that the recommendation of the
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State Commission was based on a “flimsy four page report”
without any formal survey or study. Furthermore, according
to the NCBC nothing was revealed in the course of the public
hearings to justify the inclusion of Jats of Bihar in the Central
List of Other Backward Classes.
Uttarakhand
44. No separate report was prepared for Uttarakhand by
the State Commission and the Jats in the State came to be
included in the State List of OBCs merely because the State
of Uttarakhand had accepted the list of OBCs in the State
List of Uttar Pradesh. In the absence of an independent
survey and information, the claims of the Jats of Uttarakhand
for inclusion in the Central List had been negatived by the
NCBC particularly when it had recommended that the claims
of the Jats in the State of U.P. be rejected.
Gujarat
45. The Jat Muslims were included in the Central List of
OBCs way back in the year 1993 but the Jat Hindus had not
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been so included either in the State List or the Central List.
The cases of Jat Hindus in Gujarat were considered by the
NCBC in the year 2011 but in the absence of relevant
information its decision was deferred till the report of the
ICSSR is received. The said report of the ICSSR prepared on
the basis of the literature survey mentions (as noted and
extracted above) that there is lack of information on the
parameters (social, educational and economic) specified by
the NCBC. In these circumstances, the claim of the Jats in
Gujarat was not recommended by the NCBC in its report
dated 26.2.2014.
Our Conclusions
46. Undoubtedly, the report dated 26.02.2014 of the NCBC
was made on a detailed consideration of the various reports
of the State Backward Classes Commissions; other available
literature on the subject and also upon consideration of the
findings of the Expert Committee constituted by the ICSSR to
examine the matter. The decision not to recommend the Jats
for inclusion in the Central List of OBCs of the States in
question cannot be said to be based on no materials or
unsupported by reasons or characterized as decisions
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arrived at on consideration of matters that are, in any way,
extraneous and irrelevant. Having requested the ICSSR to
go into the matter and upon receipt of the report of the
Expert Committee constituted in this regard, the NCBC was
under a duty and obligation to consider the same and arrive
at its own independent decision in the matter, a duty cast
upon it by the Act in question. Consideration of the report of
the Expert Body and disagreement with the views expressed
by the said body cannot, therefore, amount to sitting in
judgment over the views of the experts as has been sought
to be contended on behalf of the Union. In fact, as noticed
earlier, the Expert Body of the ICSSR did not take any
particular stand in the matter and did not come up with any
positive recommendation either in favour or against the
inclusion of the Jats in the Central List of OBCs. The report of
the said Body merely recited the facts as found upon the
survey undertaken, leaving the eventual conclusion to be
drawn by the NCBC. It may be possible that the NCBC upon
consideration of the various materials documented before it
had underplayed and/or overstressed parts of the said
material. That is bound to happen in any process of
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consideration by any Body or Authority of voluminous
information that may have been laid before it for the
purpose of taking of a decision. Such an approach, by itself,
would not make either the decision making process or the
decision taken legally infirm or unsustainable. Something
more would be required in order to bypass the advice
tendered by the NCBC which judicially (Indra Sawhney) and
statutorily (NCBC Act) would be binding on the Union
Government in the ordinary course. An impossible or
perverse view would justify exclusion of the advice tendered
but that had, by no means, happened in the present case.
The mere possibility of a different opinion or view would not
detract from the binding nature of the advice tendered by
the NCBC.
47. Of relevance, at this stage, would be one of the
arguments advanced on behalf of the Union claiming a
power to itself to bypass the NCBC and to include groups of
citizens in the Central List of OBCs on the basis of Article
16(4) itself. Undoubtedly, Article 16(4) confers such a power
on the Union but what cannot be overlooked is the
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enactment of the specific statutory provisions constituting a
Commission (NCBC) whose recommendations in the matter
are required to be adequately considered by the Union
Government before taking its final decision. Surely, the
Union cannot be permitted to discard its self-professed
norms which in the present case are statutory in character.
48. Certain other issues arising may be conveniently
considered at this stage.
One such issue arises from the contentions advanced
on behalf of the respondents, particularly on behalf of the
Union Government, that the OBC lists of the concerned
States, by themselves, can furnish a reasonable basis for
the exercise of inclusion in the Central Lists. The above
contention is sought to be countenanced by the further
argument that the Union and the State Governments under
the constitutional scheme have to work in tandem and not
at cross purposes. While there can be no doubt that in the
matter of inclusion in the Central Lists of other backward
classes, the exercise undertaken by the State Governments
in respect of the State Lists may be relevant what cannot be
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ignored in the present case is the very significant fact that
in respect of all the States (except Haryana) the inclusion of
Jats in the OBC Lists was made over a decade back. A
decision as grave and important as involved in the present
case which impacts the rights of many under Articles 14 and
16 of the Constitution must be taken on the basis of
contemporaneous inputs and not outdated and antiquated
data. In fact, under Section 11 of the Act revision of the
Central Lists is contemplated every ten years. The said
provision further illuminates on the necessity and the
relevance of contemporaneous data to the decision making
process.
49. The backwardness contemplated by Article 16(4) is
social backwardness. This is implicit in the judgment in
Indra Sawhney (supra), as will be noticed in a later part of
the present order. Educational and economic backwardness
may contribute to social backwardness. But social
backwardness is a distinct concept having its own
connotations. The extracts of the Minutes of the Meeting of
the Cabinet held on 2nd March, 2014 which had preceded
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the impugned notification dated 4th March, 2014 tends to
overlook the fact that crucial test for determination of the
entitlement of the Jats to be included in the Central Lists is
social backwardness. This would be evident from Para 3 of
the Minutes of the Cabinet Meeting dated 2nd March, 2014
which is extracted below :
3. “The ICSSR has observed that Jats in Haryana are a land owning community and while their share in Class I & II Government services is closer to their population, they lag behind both in school and higher educational enrolment. In the National Capital Territory of Delhi, in terms of social and educational standing, Jats lag behind as compared to Gujars, who have been included as OBC in the Central List. Similarly, in Uttar Pradesh and Uttarakhand, in the enrolment in higher and technical education, Jats lag behind Ahirs/Yadavs. In Himachal Pradesh, the State Commission has come to the conclusion that the Jat Community is socially, educationally and economically backward and is fit for inclusion in the State list of OBCs. In Rajasthan, too, as regards literacy rate,
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enrolment in graduation level courses and representation in Government services, Jats lag behind.”
50. In so far as Haryana is concerned, the test adopted
appears to be educational backwardness. Similarly for the
NCT of Delhi also, educational backwardness has been
taken into account as the determining factor for inclusion of
Jats along with the fact that the Jats are behind the Gujars
who are already included in the Central Lists of OBCs.
Similarly, in Uttar Pradesh and Uttarakhand, the test
appears to be educational backwardness; same is the
position with regard to Rajasthan. Though the States of M.P.,
Gujarat and Bihar have also been included in the Central
Lists of OBCs by impugned notification, no apparent
consideration of the cases of these States is reflected in the
Minutes of the Cabinet Meeting dated 2nd March, 2014. Of
course, the Cabinet is not expected to record the manner of
its consideration of each of the States but when it is done so
for some of the States, the absence of any mention of the
other States would be a strong basis to conclude that the
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States that do not find any mention in the Minutes, in fact,
did not receive the consideration of the Cabinet, at all.
51. A very fundamental and basic test to determine the
authority of the Government’s decision in the matter would
be to assume the advice of the NCBC against the inclusion of
the Jats in the Central List of Other Backward Classes to be
wrong and thereafter by examining, in that light, whether
the decision of the Union Government to the contrary would
pass the required scrutiny. Proceeding on that basis what is
clear is that save and except the State Commission Report in
the case of Haryana (Justice K.C. Gupta Commission Report)
which was submitted in the year 2012, all the other reports
as well as the literature on the subject would be at least a
decade old. The necessary data on which the exercise has
to be made, as already observed by us, has to be
contemporaneous. Outdated statistics cannot provide
accurate parameters for measuring backwardness for the
purpose of inclusion in the list of Other Backward Classes.
This is because one may legitimately presume progressive
advancement of all citizens on every front i.e. social,
economic and education. Any other view would amount to
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retrograde governance. Yet, surprisingly the facts that stare
at us indicate a governmental affirmation of such negative
governance inasmuch as decade old decisions not to treat
the Jats as backward, arrived at on due consideration of the
existing ground realities, have been reopened, inspite of
perceptible all round development of the nation. This is the
basic fallacy inherent in the impugned governmental
decision that has been challenged in the present
proceedings. The percentage of the OBC population
estimated at “not less than 52%” (Indra Sawhney)
certainly must have gone up considerably as over the last
two decades there has been only inclusions in the Central as
well as State OBC Lists and hardly any exclusion therefrom.
This is certainly not what has been envisaged in our
Constitutional Scheme.
52. In so far as the contemporaneous report for the State of
Haryana is concerned, the discussion that has preceded
indicate adequate and good reasons for the view taken by
the NCBC in respect of the said Report and not to accept the
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findings contained therein. The same would hardly require
any further reiteration.
53. Past decisions of this Court in M.R. Balaji Vs. State of
Mysore6 and Janaki Prasad Vs. State of Jammu &
Kashmir7 had conflated the two expressions used in Articles
15(4) and 16(4) and read them synonymously. It is in Indra
Sawhney’s case (supra) that this Court held that the terms
“backward class” and “socially and educationally backward
classes” are not equivalent and further that in Article 16(4)
the backwardness contemplated is mainly social. The above
interpretation of backwardness in Indra Sawhney (supra)
would be binding on numerically smaller Benches. We may,
therefore, understand a social class as an identifiable section
of society which may be internally homogenous (based on
caste or occupation) or heterogeneous (based on disability
or gender e.g. transgender). Backwardness is a
manifestation caused by the presence of several
independent circumstances which may be social, cultural,
economic, educational or even political. Owing to historical
6 1963 Suppl. (1) SCR 439 7 (1973) 1 SCC 420
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conditions, particularly in Hindu society, recognition of
backwardness has been associated with caste. Though
caste may be a prominent and distinguishing factor for easy
determination of backwardness of a social group, this Court
has been routinely discouraging the identification of a group
as backward solely on the basis of caste. Article 16(4) as
also Article 15(4) lays the foundation for affirmative action
by the State to reach out the most deserving. Social groups
who would be most deserving must necessarily be a matter
of continuous evolution. New practices, methods and
yardsticks have to be continuously evolved moving away
from caste centric definition of backwardness. This alone can
enable recognition of newly emerging groups in society
which would require palliative action. The recognition of the
third gender as a socially and educationally backward class
of citizens entitled to affirmative action of the State under
the Constitution in National Legal Services Authority vs.
Union of India8 is too significant a development to be
ignored. In fact it is a path finder, if not a path-breaker. It is
an important reminder to the State of the high degree of
8 (2014) 5 SCC 438
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vigilance it must exercise to discover emerging forms of
backwardness. The State, therefore, cannot blind itself to
the existence of other forms and instances of backwardness.
An affirmative action policy that keeps in mind only historical
injustice would certainly result in under-protection of the
most deserving backward class of citizens, which is
constitutionally mandated. It is the identification of these
new emerging groups that must engage the attention of the
State and the constitutional power and duty must be
concentrated to discover such groups rather than to enable
groups of citizens to recover “lost ground” in claiming
preference and benefits on the basis of historical prejudice.
54. The perception of a self-proclaimed socially backward
class of citizens or even the perception of the “advanced
classes” as to the social status of the “less fortunates”
cannot continue to be a constitutionally permissible
yardstick for determination of backwardness, both in the
context of Articles 15(4) and 16(4) of the Constitution.
Neither can any longer backwardness be a matter of
determination on the basis of mathematical formulae
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evolved by taking into account social, economic and
educational indicators. Determination of backwardness must
also cease to be relative; possible wrong inclusions cannot
be the basis for further inclusions but the gates would be
opened only to permit entry of the most distressed. Any
other inclusion would be a serious abdication of the
constitutional duty of the State. Judged by the aforesaid
standards we must hold that inclusion of the politically
organized classes (such as Jats) in the list of backward
classes mainly, if not solely, on the basis that on same
parameters other groups who have fared better have been
so included cannot be affirmed.
55. For the various reasons indicated above, we cannot
agree with the view taken by the Union Government that Jats
in the 9 (nine) States in question is a backward community
so as to be entitled to inclusion in the Central Lists of Other
Backward
Classes for the States concerned. The view taken by the
NCBC to the contrary is adequately supported by good and
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acceptable reasons which furnished a sound and reasonable
basis for further consequential action on the part of the
Union Government. In the above situation we cannot hold
the notification dated 4.3.2014 to be justified. Accordingly
the aforesaid notification bearing No. 63 dated 4.3.2014
including the Jats in the Central List of Other Backward
Classes for the States of Bihar, Gujarat, Haryana, Himachal
Pradesh, Madhya Pradesh, NCT of Delhi, Bharatpur and
Dholpur Districts of Rajasthan, Uttar Pradesh and
Uttarakhand is set aside and quashed. The writ petitions are
accordingly allowed.
………..........………………………J. [RANJAN GOGOI]
…………..........……………………J. [ROHINTON FALI NARIMAN]
NEW DELHI, MARCH 17, 2015.
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