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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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