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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