Questioning
the government on giving 4.5 percent sub-quota for minorities on the basis of
religion, the Supreme Court today refused to stay the Andhra Pradesh High Court
order quashing the decision.
"We
are not inclined to grant stay," a bench comprising justices K S
Radhakrishnan and J S Khehar said while issuing notices to the petitioner on
whose PIL the high court had quashed the 4.5 percent sub-quota for minorities
carved out of the 27 per cent OBC quota in central educational institutions
like the IIT.
The
bench, before which the Ministry of Human Resource Development placed the
relevant and supporting documents forming the basis for the sub-quota, asked
"can you make classification on the basis of religion".
It
further said that the December 22, 2011 Office Memorandum on the issue of
sub-quota did not have the legislative support.
The
bench, which also questioned the calculation of providing 4.5 percent sub-quota
within the 27 percent OBC quota, wanted to know from the government as to
"whether there was any constitutional and statutory support for granting
4.5 percent sub-quota.
"We are asking whether 4.5
percent sub-quota has got constitutional or statutory support or not," the
bench said.
It said "the second
question is whether the office memorandum has constitutional and statutory
support or not".
Additional
Solicitor General Gourab Banerji made all efforts that the apex court considers
his plea for staying the high court order in view of the on going counselling
for IITs for which 325 candidates have been short listed under the 4.5 percent
sub-quota for minorities.
However, the bench said it was
not inclined to stay the high court order and noted that there was ambiguity in
the calculation for carving out sub-quota within the 27 percent OBC quota.
The
bench was of the view that carving out sub-quota from minorities would have a
bearing on the OBCs.
The
court once again questioned the government for not consulting statutory bodies
like the National Commission of Minorities (NCM) and National Commission for
Backward Classes (NCBC) in determining the sub-quota.
"Why you overlooked the
NCBC and NCM. They are two most important statutory bodies," the bench
asked.
At
the outset, the bench told the Centre that voluminous documents, which have
been placed before it now, should have been produced in the high court.
When
Banerji said the high court was under the impression that the sub-quota was for
all minorities, the bench shot back "it was because that was the
reflection in the office memorandum".
Banerji
said, all religious minorities like Buddhism and Zoroastrianism are not in the
list of 4.5 percent sub-quota.
He
said though the OBCs among the religious minorities are covered under 27
percent OBC quota, 4.5 percent sub-quota is granted to lowest ranks of Muslims
or converts to Christianity.
Banerji
said the first cut-off identifying the OBC within the minorities for 4.5
percent sub-quota were that they have to be socially and educationally backward
and they have to be religious minorities.
At
this, the bench said "that is the difficulty and that is the point. We can
understand if its is across the board. How you made the calculation?"
The
Centre had yesterday placed before the Supreme Court the "relevant"
material and documents on the basis of which it carved out 4.5 per cent
sub-quota.
The
apex court had on June 11 asked the Ministry of Human Resources Development to
place the material before it.
The
bench had ticked off the government for the way it had handled the
"complex" and "sensitive" issue.
The
apex court had also expressed its "unhappiness" that the Centre was
blaming the High Court when it had itself failed to produce documents to
support its case.
The
bench was critical of the Ministry of Human Resource Development rushing to the
apex court with the appeal against the May 28 order of the High Court with out
documents to justify the policy of carving out 4.5 per cent sub-quota within
the 27 per cent OBC reservation.
The
Union government had moved the apex court challenging the High Court order
quashing the 4.5 per cent sub quota for minorities.
The
December 22, 2011 Office Memorandum for the sub-quota for socially and
educationally backward classes of citizens belonging to minority communities in
central educational institutions and jobs was announced by the Centre ahead of
the Assembly elections in five states including Uttar Pradesh and Punjab.
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