Wednesday, May 29, 2019

Ordinance validating admissions of Maratha students under SEBC reservations is legally flawed


The SEBC Ordinance validating reservation given to Maratha candidates in postgraduate medical courses is legally and constitutionally flawed
In March 2019, the Government of Maharashtra [GoM] brought out a notification to the effect that the SEBC reservation given to the Marathas will be applicable to for admission to postgraduate medical courses starting in 2019. A clutch of writ petitions challenging the notification were filed. It was contended that the reservation should not have been applied by virtue of S. 16 (2) of the SEBC Act.  It provides that the reservations will not be applicable to courses where admission process had started before the SEBC Act coming into effect. The admission process had already begun on 02.11.2018, much before the Act came into effect on 30.11.2018.  

For a version of this article in Marathi click here.
After hearing parties at length, the High Court of Bombay bench at Nagpur directed that the admission process should be carried out as per the rules prevalent prior to the coming into effect of SEBC Act.  
This decision was upheld by the Supreme Court. The attempt of the GoM to justify its policy was nullified by Courts which directed admissions to be done without the SEBC reservation being applied. The GoM did not comply with the directions of the Courts.
In an attempt to quell the agitation of Maratha supporters, GoM offered to pay the fees for the education of students of SEBC category affected by the order inprivate colleges. But the Maratha students and reservation agitators stuck to their demand of same seat, same branch and same college to which they had been admitted because of GoM policy.
 After long dithering and taking further steps tantamount to contempt of Court, GoM moved Election Commission of India to seek relaxation of Code of Conduct. It also sought further time from the Supreme Court on spurious reasons.
On 20.05.2019, as Ordinance was promulgated validating the admissions of the candidates under reservation quota and retrospectively amending S. 16 (2) of the SEBC Act. This is in continuation of its flawed policy of hasty implementation of the SEBC Act which itself is under challenge. It is likely that the SEBC Act will be declared bad in law.
The Ordinance has been challenged before the Nagpur Bench.
There are three main grounds on which the Ordinance is bad in law.
i) It intends directly to circumvent the final judgment of a Court.
ii) It retrospectively amends a law thereby frustrating legitimate expectations of open category students who had lesser seats because of illegal implementation of reservation when clearly S 16 (2) of the SEBC Act intended otherwise.
iii) It is in conflict with the ratio led down in Medical Council of India vs. State of Kerala wherein the Supreme Court ruled that
“The impugned Ordinance is declared to be ultra vires and entrenching upon the field earmarked for the judiciary as it sought to nullify the judgment and order passed by the High Court and this Court.”       
It is also useful to read from a judgment of the Constitution Bench in Janapada  Sabha  Chhindwara  vs. The   Central   Provinces Syndicate Ltd. and anr. 1970 (1) SCC 509
 “On the words used in the Act, it is plain that the Legislature attempted to overrule or set aside the decision of this Court. That, in our judgment, is not open to the Legislature to do under our Constitutional scheme. It is open to the Legislature within certain limits to amend the provisions of an Act retrospectively and to declare what the law shall be deemed to have been, but it is not open to the Legislature to say that a judgment of a Court properly constituted and rendered in exercise of its powers in a matter brought before it shall be deemed to be ineffective and the interpretation of the law shall be otherwise than as declared by the Court.”
The Ordinance is bad in law and in view of clear precedent, likely to be  declared ultra vires by Courts. 
Adv. Shrirang Choudhary

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