To,

The Hon’ble the Chief Justice of India 

and His Companion Judges of the

Hon’ble Supreme Court of India, New Delhi.

Sub: Request for vacating Stay on SEBC reservation along with reasons and current factual condition which is still not at all brought before the Hon’ble Supreme Court.

The applicant Most Respectfully Submits:

1. The applicant / petitioner / signatory, a member of SEBC category under SEBC Act, 2018, is aggrieved by the stay on reservation imposed by the Division Bench of Hon’ble Supreme Court vide interim order dated 09.09.2020 based on prima facie opinion and without giving an opportunity of hearing the members of aggrieved SEBC category.

2. Factual aspects that ought to have been given due credence:

(a) Marathas are traditionally an agriculturist class of citizens evolved as species of genus Kunbi which is included in OBC, whereas Marathas are deprived of reservation because of erroneous exclusion for seven long decades of constitutional equality as observed by Bombay High Court in the judgment dated 27.06.2019 (para 163, 164).

(b) In 1902, Marathas were included in the 50% Reservation given by Chhatrapati Rajarshi Shahu Maharaj with all other backward castes excluding forward sections in the State. 

In 1919, Dr. B. R. Ambedkar advocated demand of Marathas for reservation in State council as “the case for special provision can be sustained and should be admitted.” 

(c) In 1920, Marathas were given political reservation with 7 seats on the basis of their educational and economic backwardness as “Marathas and equivalent castes

(d) In1930, Marathas were grouped as Intermediate castes by Starte Committee and as per para 768 of Indra Sawhney case, those intermediate castes are nothing but the OBCs. 

(e) As per India Act,1935 Marathas were included in the list of reserved category with 7 seats in the Bombay State Council. 

(f) In 1942, Marathas were included in the list of reserved category of the Bombay State with all other Intermediate Backward Castes in the State. 

(g) In 1946, Dr. B.R. Ambedkar mentioned Marathas as a part of “Shudras” in his book “Who were the Shudras? How they came to be the fourth Varna?” 

(h) In 1946, Dr. B.R. Ambedkar mentioned Marathas as a part of “servile class” of Shudras and Untouchables in his book “What Gandhi and Congress Done to Untouchables?” 

(i) In 1948, Dr. B.R. Ambedkar mentioned “Marathas are very backward in politics” in the report submitted on “States and Minorities.”

(j) In 1955, Kalelkar Commission identified Marathas as a backward class of citizens and defined them as mostly agriculturists.

(k) Dr. B.R. Ambedkar explained in a press conference on 13.10.1956 at Shyam Hotel that “the untouchables and Marathas were not given freedom to raise their voice.” 

(l) In the GR dated 18.05.1959, Marathas were included in the list of other backward castes for educational benefits like seats, scholarships, hostel etc. 

(m) B.D. Deshmukh committee report did not exclude Marathas from the list of backward castes and in fact, this committee neither identified any class or caste nor it provided any list of backward classes or castes. 

3. Original Basis of OBC reservation and Erroneous Exclusion of Marathas in 1967:

i. In 1959, vide GR dated 18.05.1959, the whole OBC list was abolished by the State as there were region-wise separate lists in Bombay province, Marathwada and Vidarbha and all types of educational concessions were made available for all the families on economic criteria.

ii. The B.D. Deshmukh committee submitted report in January 1964 with classification of backward classes in four categories, however it did not provide any list of OBC.

iii. On 09.04.1965 four categories were created by the State with category-wise percentage of reservation, but without any list of OBC.

iv. After formation of Maharashtra, there were two non-Maratha Chief Ministers in power for significant 13 years of reservation history, during 1962 to 1975 from Vidarbha region where Maratha are in miniscule.

v. Marathas were, for the first time, excluded from the first caste-wise list of OBC declared on 13.10.1967 in which 80 castes were included without identification or application of any criteria, report or recommendations.

vi. On 13th April 1968, two more castes namely Teli (oil traders) and Mali (vegetable growers & irrigated agriculturists) were added in the said list of OBCs arbitrarily. 

vii. This caste-wise list of OBC has become permanent for all purposes like reservation in education and politics with further addition.

viii. On 27.04.1979 the whole reservation in the State was cancelled and a new 80% reservation was implemented strictly on economic criteria for all the castes or communities (including SC, ST, OBC, Marathas & Brahmins etc.). This scheme of 80% reservation was struck down by Hon’ble Supreme Court in1984 and the old lists were again continued without any revision and also without any criteria, report or recommendations of any commission or committee.

ix. On 19.02.1986, the State has published lists of all castes entitled for total 34% reservation in which share of OBC was only 10% or at best 14% including VJNT.

4. Fraud on Constitution by the State is the real Extraordinary Situation:

a. In May 1993, post Indra Sawhney decision, the proposal of Marathas was sent to the Standing committee (which was in 1995 renamed as State Backward Classes Commission) for inclusion of Marathas in the list of OBC.

b. However, on 23.03.1994, the OBC reservation was indiscriminately increased by 16% without any study, report or recommendations of any commission or committee and with a mala-fide intention of blocking the gap upto 50% (from 34% to 50%) for resisting inclusion of Marathas into it.

c. On 23.03.1994, OBC & VJNT were clubbed and the castes or tribes were divided into five sub-categories with arbitrary percentage of reservation without any study, recommendations or report which is clear violation of Indra Sawhney order.

d. In the same GR dated 23.03.1994, new 30% reservation was implemented for the same list of castes dated 13.10.1967 in admissions in educational institutions without any study, report or recommendations as mandated by Supreme Court.   

e. Further. 08.12.1994, the OBC reservation was again increased by 2% crossing limit of 50% for new SBC sub-category of OBC without any study or report.

f. On 09.08.1995, the State also added about 100 castes in the list of OBC without any quantifiable data and report by any commission as mandated by Supreme Court.

g. The State violated order of the Hon’ble Supreme Court in Indra Sawhney case regarding constitution of Statutory commission within four months of the judgment and which was for the first time constituted in August 2009 i.e. 16 years.

h. Periodical revision of castes or classes in the list OBC is the precondition of rule of 50% ceiling on reservation, however, the State never undertook any such revision and thereby committed a fraud on constitution.  

i. The State has selectively given SEBC reservation over and above 52% because of vested interests of leaders of OBC who have been acting against ceiling of 50%.

j. The above-mentioned fraud on constitution causing irreparable loss of open merit candidates in appointment of posts as well as in educational admissions has been tolerated for 26 years which prevented inclusion of Marathas in the list of OBC.

5. Marathas are not the Dominant Caste in the State:  

A. Evidently, in many States like Tamil Nadu, Karnataka, Bihar, Uttar Pradesh, Madhya Pradesh, most of MLAs & MPs are elected from the reserved castes because of their large population in the State and however, election of more MLAs or MPs is not considered as a criterion for rejecting reservation in these States.

B. Whereas Marathas are miniscule in the whole area of Mumbai, Thane, north Maharashtra and the whole Vidarbha region and Pune city where the OBCs & EWS sections are dominant in all respects.

C. About 60% GDP of the State comes from only five cities namely Mumbai, Thane, Pune, Nashik and Nagpur where Marathas are miniscule and OBCs, EWS and affluent sections are main beneficiaries.

D. On the contrary, Marathas are situated in Marathwada region (with population about 50%) which is a backward region since centuries and all districts of this region have GDP & per capita income below the State average since seven decades.

E. The Great social reformers like Mahatma Jotiba Phule, Chhatrapati Rajarshi Shahu Maharaj and Dr. B.R. Ambedkar have elaborated the miserable situation and backwardness of Marathas through their speeches, writing and work.

F. Mr. T. N. Aatre, the then Tahsil Magistrate in his book “Village System” (Gaogada, 1915) and Ms. Gail Omvedt, the great Sociologist, in her book “Cultural Revolt in Western India-the Non-Brahmin Movement” (1976) have described the ground reality of Marathas showing that they have never been a dominant caste in the State.

G. No Chief Minister from Maratha community could complete tenure of more than three years continuously (including Sharad Pawar), because Marathas are very backward in politics and have been exploited by the party politics dominated by Central leadership in Delhi.

H. Marathas have lost their identity in rural politics as 50% political reservation is given in the elections of all Local Bodies, Panchayat Raj institutions like Zilha Parishad, Panchayat Samiti, Gram Panchayats and Cooperative societies etc.

I. Due to fragmentation, essential commodities Act, rural habitation and natural calamities, there is agricultural crisis in India and Marathas being the agriculturists, are the victim of agricultural distress and there is majority of Maratha farmers in the suicide data.  

J. Due to privatisation, the educational sector has been dominated by the urban elites belonging to EWS, OBC & Unreserved sections and the public funded as well as government aided institutions have been dominated by the monopolistic Brahmins and reserved category people like SCs & OBCs.

K. As observed in Bombay High Court’s judgment 91% families in SEBC Maratha community are living with income below Rs. 1.00 lakh p.a. and 25% of them are getting below Rs. 25000/- p.a. (ref: para 90 -C, page 276)

L. The Bombay High Court also observed that 93% Maratha families have yellow & orange Ration cards evincing the chronic poverty or destitution causing to low standard of living since many decades. (ref: para 90 -C, page 276)

M. The large chunk of Marathas is literally living like Semi Adivasis and what is seen by is the upper crest which anyways would not be eligible for benefits of reservation due to creamy layer limit.

N. The report of the Justice Gaikwad Commission has brought out the complete factual matrix, adequate quantifiable statistical data, supportive documents, which is examined by the Hon’ble High Court at length in comparison with many previous reports including the Kalelkar and Mandal report and has explained how the Gaikwad report has been the best report ever in the country.

O. It is really unfortunate that the Hon’ble Supreme Court has not seen even the summary of the report while arriving at a prima facie opinion to stay a legislation passed unanimously by all the elected representatives of State legislature.

6. Marathas are miniscule in 15 Powers Influencing Jobs and Education in the State:           

i. Administrative Power: Marathas are miniscule in administrative power of the State as it is in the hands of monopolistic bureaucracy belonging to EWS, OBC & SC categories. Consequently, most of the Secretaries & Chief Secretaries in the State and Centre have been non-Marathas.  

ii. Judicial Power: Marathas are miniscule in judicial power in State as well in the Centre as the whole Judicial system is dominated by a few sections of society. Consequently, all the Chief Justices of India have been non-Marathas and most of the Judges and Registrars in Supreme Court and High Courts have been non-Marathas.  

iii. Media Power: Marathas are miniscule in the powers of Mass media like newspapers, magazines, television channels, advertisement sector, cinema, editorial posts which are controlled by the urban elites belonging to Jains, Brahmins and Business communities in EWS category  

iv. Power of Opinion Makers: Marathas are miniscule in the group of opinion makers in the country as well as in the State as media is controlled by non-Maratha people.

v. Power of Industrialists and Business Houses: Marathas are miniscule in the group of established businessmen houses, industrialists, private corporations, commercial firms, traders, and concerned officials in the State as well as in the country.

vi. Economic Power: Marathas are miniscule in economic power of the State as well as in the country as Nationalised Banks, Private Banks, Commercial banks, Urban   Cooperative Banks, Corporations or PSUs like LIC, GIC, RBI, ONGC, Nav-ratna & Mini-ratna Corporations, Boards etc. are dominated by non-Marathas.

vii. Educational Power: Marathas are miniscule in the powers and authority of public funded and government aided educational institutions, Universities, SSC Boards, AICTE, UGC, Technical Boards, Research Institutions, ICSE, CBSE, etc.

viii. Powers of Central Leadership:  Marathas are miniscule in central leadership of National Parties like BJP, Congress, Marxists or Communist Parties which decide and control the State politics and also influence the issues of social justice.  

ix. Power of Selective Professions and Technocrats: Marathas are miniscule in Selective Professions, technologists, CEOs, Innovators, Data Scientists, Engineers, Doctors, CA, ICWA, CS and CEOs as these departments are dominated and controlled by non-Marathas.

x. Power of Nutritionally Important Institutions: Marathas are miniscule in nationally important institutions of higher education like BARC, ISRO, NCL IITs, IIMs, IISc, IISERs, AIIMs, ICT, JNU etc. and also in some other institutes like BITS PILANI, VIT, MIT, TISS, XLRI, VJTI, Gokhale Institute, Symbiosis etc.  

xi. Power of Religion and Cultural Decisions: Traditionally Marathas have no voice and recognition in the process of religious and cultural process and there is perpetual dominance of Brahmins, Jains, Buddha in religious and cultural decisions.

xii. Power of Upper and middle Class:  Marathas are miniscule in the stratum of affluents in upper and middle class in urban areas which dominate the economic policies and process of social change in the country as well as in State.

xiii. Powers of Researchers and Scientists: Marathas are miniscule in the Researchers and Scientist holding patents also in those students taking education overseas and settled there as Citizens, NRIs.

xiv. Power of Urban Platforms: Marathas are miniscule in the urban platforms like Trade Unions, Urban Pressure Groups, Public Relation Firms, Event Managers, Religious Committees, business organisations like FICCI etc.  

xv. Power of Literary and Social Activities: Marathas are miniscule in the social organisations, NGO or Non-profit Associations like Rotary/Rotaract Clubs, Lions clubs, Literary Associations of Poets, Authors, Publishers, think tanks, groups working for policy initiatives.

7. Sheer Reality of Reservation in the State: the Disproportionate & Excessive Reservation Quota Blocked by OBCs & EWS as on Today:

Category
Identification of List of Classes
% of population
% of Reservation
SC & ST
Identified by President’s Notification in 1950
21
20
SEBC
Identified by Justice Gaikwad Commission in 2018
30
No Reservation
NT & D-NT (VJNT- a part of OBC
Identified by Thade Committee in Nov. 1950 (vide State list dated 19.02.1986)
5
5.50
OBC
Arbitrary list of castes, not identified as mandated by Supreme Court orders
29
26.50
EWS
Not identified, Unreserved sections earning Rs. 8 lakhs or less p.a. are given reservation
9
10
Open
Affluent class not covered in reservation and unreserved groups not ordinarily residents.
5
No reservation
Total effective reservation in State as on today
62%
8. The table shows that Reservation of SC & ST combine is 20% and their population given in census 2011 is more than 21% and excluding SEBC, total reservation in State is 62% crossing the limit of 50% and thereby causing irreparable loss to open pool and SEBC category.

9. Excluding SC & ST, there is 42% reservation available and population is 74% (including 30% Maratha) barring affluent and other unreserved 5%. Thus, there is no shortage of reservation in the State, but there is need of restructuring or revision of OBC & EWS reservation.    

10. Under affirmative action as per Articles 15, 16 & 46 of Constitution, there is already 42% reservation available for 74% population (including 30% Marathas) which is more than 50% of their population.

11. The table shows that, forward or affluent sections earning Rs. 8 lakhs or less p.a. are categorized as Economically Weaker Sections with reservation at par with SC & STs.

12. The 42% reservation of OBC & EWS is imbalanced & disproportionate and hence, it ought to be revised & restructured as per Supreme Court orders to accommodate SEBC population in the existing of reservation.

13. The existing castes in OBC (+VJNT) are over-represented in public employment of the State. (Ref: Public Employment Report as on 31.03.2015 pub. by the Statistical & Planning Department, Govt. of Maharashtra, Mumbai and reproduced in Report of Prof. Dr. R.N. Karpe, member of MSBCC, Ann. B, page 7, of Gaikwad report 2018)

Sr. No
Category wise quota
Cadre A
Cadre B
Cadre C
Cadre D
Total
1
OBC-19%
22.40%
24.70%
25.20%
23.30%
24.70%
2
VJNT-11%
12.10%
12.90%
14.70%
11.10%
13.80%
3
SBC – 2%
2.00%
2.60%
2.70%
2.40%
2.50%
Total
OBCs - 32%
36.5%
40.20%
42.6%
36.80%
41 %
4
Open - 48%
41.00%
37.70%
31.90%
25.50%
31.60%
5
SC–13%
16.70%
15.40%
16.40%
25.70%
18.10%
6
ST– 7 %
5.80%
6.70%
9.10%
12.00%
9.30%
14. The above table proves that (i) OBC (sub-category) is over represented in all A, B, C, & D cadres as 22.40%, 24.70%, 25.70% and 23.30% respectively and 24.70% on an average against 19% reservation; and (ii) Overall OBC category is also over  represented in all A, B, C, & D cadres as 36.50%, 40.20%, 42.60% and 36.80% respectively and 41.00% on an average against reservation of 32%.

15. The OBC category was created on 9th April 1965 with 10% reservation, however, arbitrarily, the first caste-wise list of 180 castes was declared as OBC on 13th October 1967, without identification by any commission or committee. Subsequently, in the same way, many castes are included in OBC arbitrarily without following constitutional mandate.

16. The arbitrary list of OBC dated 13.10.1967, has been continued forever and for all purposes without identification, examination or revision by any commission or committee, and thereby violating constitutional mandate and Supreme Court Orders in M.R. Balaji (1963) USV Balaram vs. State of A.P. (1972), Indra Sawhney (1992), M. Nagraj (2006) and Ashok Kumar Thakur (2008) cases.

17. It is evident that on 09.04.1965 only 10% reservation was given to OBC category. However, on 23.03.1994, the OBC reservation was indiscriminately increased by 16% curtailing open quota with mala-fide intention of blocking the then available quota within 50% without any study, report and recommendations by any commission or committee as mandated by Supreme Court orders.

18. On 23.03.1994, OBC category was clubbed with NT-DNT (or VJNT) and all castes & tribes were re-classified into various sub-categories granting arbitrary percentage of reservation without any report or recommendations and with a mala-fide intention of blocking the reservation quota for resisting inclusion of Maratha community.

19. Marathas are deprived of Reservation because of OBC & EWS

(a) Marathas are identified as the entitled class of citizens by the Statutory Backward Classes Commission, the State granted reservation, Bombay High Court upheld the State action and constitutional entitlement and the constitutional entitlement of Marathas is not questioned by the Hon’ble Supreme Court.

(b) The reservation of OBC & EWS categories has compelled the State to cross limit of 50%, though it is extraordinary, excessive and disproportionate in terms of identification, population and entitlement.

(c) The Bombay High Court categorically observed (in para 165, page 432) that, “….the State population is about 11.24 crores out of which 3,68,83,000 is the population of OBC (VJNT, OBC, SBC). The statistics of Ministry of Social Justice and Empowerment, Government of India has given the State wise percentage of OBCs in India and for Maharashtra it is 33.8% whereas SC-ST is 22%. The Gaikwad commission has therefore deduced that the population of Marathas is 30%. Therefore, in terms of the population, almost 85% of the population is of the backward classes”.

(d) Further, the Bombay High Court also observed (in para 170, page 455,456) that, “…..the backward class communities already included in the OBC list, the total population of which is estimated to be around 33% to 34% ….. and if abruptly they are asked to share their well-established entitlement of reservation with 30% Maratha class, it would be a catastrophic scenario and this according to the Commission is an extra-ordinary situation and exceptional circumstances, which if not swiftly and judicially addressed may lead to unwarranted repercussion in the well said harmony of co-existence culture of the State….”

It is very unfortunate that such unconstitutional hooliganism of some castes in OBC has been tolerated by the Government and judiciary and on the contrary, the entitled SEBC class is deprived of reservation on prima facie basis. In fact, this is the real cause of crossing the limit of 50% and therefore, the condition of extraordinary situation has to be applied for the existing castes in OBC category.

(e) The Division Bench of Supreme Court has not appreciated the fact observed in judgment of Bombay High Court (para 170, page 455,456), the existing castes in the list of OBC have compelled the State to cross limit of 50% and therefore, their reservation ought to be treated as extraordinary, excessive and disproportionate as per Supreme Court orders.

(f) Legally and Constitutionally the SEBC category entitled for inclusion in existing 42% reservation available in the State because it is given through proper identification and proved entitlement.

(g) However, the Division Bench of Supreme Court has not appreciated the fact that, forward Hindu castes and communities like Brahmins, Jains, Baniya, Vaishya, Rajputs etc. mentioned in Mandal report are also included in reservation as on today except Maratha community while staying benefits of deserving SEBC category on prima facie basis neglecting established social backwardness, chronic poverty, rural habitation, agricultural distress and erroneous exclusion for seven decades.

20. Two Dimensions of Extraordinary Situation in Maharashtra:  

The concept of Extraordinary Situation has two dimensions, viz.- (I) Extraordinary Situation evincing entitlement of Marathas for reservation without any discontinuity and (II) Extraordinary Situation created by the existing castes in OBC and some political leaders which compelled the State to cross the limit of 50%.

(I) Extraordinary Situation evincing entitlement of Marathas:

a. Erroneous Exclusion by the State Administration and Previous Commissions (as observed by the Hon’ble Bombay High Court in judgment dt. 27.06.2019 vide para 163 & 164)  

b. Peculiar Characteristics of Marathas: (i) Marathas are traditional cultivators & tillers, traditional methods and techniques of production, fragmentation of agricultural land - generation to generation, landless or marginal landholding,  dependency on nature's cycle and natural resources, rain fed or drought affected, effect of natural calamities, (ii) impact of adverse policies of the government, victim of administrative indifference, lack of irrigation facilities, modern economic policies neglected agriculture sector,  (iii)  agricultural distress because of fragmentation, low productivity, low remunerative occupation, (iv) lack of skills or competence, lack of alternative employment, burden of cost of living and trap of indebtedness, (v) majority are Maratha farmers in the suicide data, (vi) rural habitation since centuries, (vii) victim of vicious cycle perpetual indebtedness & chronic poverty since centuries (records from 19th century disclose the fact), (viii) bound within frame of occupational boundaries (agriculture), village boundaries (rural habitation), community boundaries (bonding with caste or kinship) and boundaries of traditions (influence of customs & traditions), (ix) engaged in physical or menial labour as a part of traditional occupation, (x) lack of modern knowledge or technological education and lack progressive approach, (xi) out of main stream social changes,  (xii) Maratha women class is deeply backward & having primitive status, (xii) static mind-set and stagnant attitude, (xiv) semi-primitive (i.e. nim-adivasi) style of living- only language & dressing is different but thinking & living is like primitive tribes, (xv) Regional backwardness influencing the Marathas in Marathwada region and (xvi) Marathas are actually isolated from the mainstream process of development.

(II) Extraordinary Situation created by the Leaders representing the existing OBC: As on 23.03.1994, the original 34% reservation in State was increased to the extent of 50% with a mala-fide intention of blocking the gap upto limit of 50% as prescribed by Hon’ble Supreme Court in Indra Sawhney. Accordingly, the representatives of some castes in OBC have always resisted the inclusion of Marathas for inclusion in the existing quota. Consequently, a compelling situation has been created and due to political vested interests, the State pushed the SEBC category crossing the limit of 50%. This approach and stand of castes in OBC is the root cause of the conflicts which is subject to judicial scrutiny and liable to be examined as extraordinary situation. 

21. Legal aspects that need consideration by the Hon’ble Supreme Court:

a. The SEBC Act, 2018 is passed on the basis of a detailed report of a statutory commission which has brought forth with quantifiable data the social, educational and economic backwardness of Maratha community. The said report is scrutinized in detail and accepted by the Hon’ble High Court as the best report as compared to the other reports as mentioned in para 164 of the judgment.

b. The SEBC Act, 2018 was unanimously passed by State legislature on 30.11.2018 in both the houses with complete majority on the basis of the contemporary quantifiable data and recommendations of Statutory State Backward Classes Commission declaring Marathas as the entitled class for the benefits of reservation.

c. Marathas are identified as a socially, educationally & economically backward class of citizens as per Articles of 15(4) & 16(4) and the State included them in SEBC category as a deserving class and also the High Court has upheld the SEBC Act and Supreme Court has not questioned entitlement of this class for reservation.

d. Reservation is not a right, but similarly placed classes are given benefits and any entitled class is deprived selectively, then it becomes right of that deprived deserving class under Article 14 guarantying equality.

e. The constitutionally eligible, deserving and entitled SEBC category cannot be deprived of reservation benefits when there is quota of 42% reservation available in the State for the categories of OBC, SEBC & EWS comprising of similarly placed members.  

f. The Parliament passed 103rd Constitutional Amendment Act, 2019 and nullified the order of Indra Sawhney case to the extent of economic criteria and ceiling of 50% on total reservation and granted 10% vertical reservation to EWS category beyond 50%.

g. The State has given 10% vertical reservation to EWS in February 2019 without ascertaining population of unreserved Economically Weaker sections and without creating any supernumerary posts as contemplated in Central notification of EWS reservation.

h. The Bombay High Court upheld the SEBC Act with due examination of objections, arguments, facts, records, evidences and quantifiable data vide judgment dated 27.06.2019 through a consecutive hearing of 45 days during 6th February to 26th March 2019 and with consideration of 103rd Constitutional Amendment. No new objection has been raised by the petitioners before the Hon’ble Supreme Court of India.

i. The High Court observed that “erroneous exclusion of Marathas is extraordinary situation” (para 163, p.421 & para 164, p. 425) and the petitioners have not challenged the fact of “erroneous exclusion of Marathas since about seven decades” and therefore, there is no case of absence of extraordinary situation in this matter.

j. However, the Divisional Bench of the Hon’ble Supreme Court set aside the decision of Bombay High Court on prima facie basis under communal perceptions and stayed the ongoing benefits of SEBC reservation vide interim order dated 09.09.2020.   

k. The Hon’ble three Judges Bench of Hon’ble Supreme Court, instead of throwing out the entitled SEBC class out of reservation, ought to have directed the State to revise the list of existing OBC as per impugned judgment (para 176) and Sec. 11 of MSBCC Act, 2005 and also to restructure the available 42% reservation of OBC & EWS categories in to accommodate the deserving SEBC on the basis of population.  

22. SUBSTANTIAL QUESTIONS OF LAW INVOLVED IN THE MATTER:

In the light of the above facts and consequent upon the Stay on SEBC reservation, the following substantial questions of law have arisen:

A. The Article 14 is violated by staying the ongoing reservation benefits of the constitutionally entitled SEBC category comprising of 3.80 crores of citizens under communal perceptions expressed as “….Maratha community which comprises of 30 per cent of the population in the State of Maharashtra cannot be compared to marginalized sections of the society living in far flung and remote areas. (para 15 of interim order) ….” and in a situation where the similarly placed members of OBC & EWS categories have been enjoying benefits of 42% reservation in the State and though they are not identified as entitled classes or not so marginalized sections living in far flung and remote areas.

B. The Central Government passed 103rd Constitutional Amendment Act, inserted Articles 15(6) & 16(6) and implemented EWS reservation crossing limit of 50%. Even the State action following the Centre in respect to EWS is not questioned which has implemented without creating any supernumerary seats. However, the State action in the case of SEBC Act, has been questioned, when the State Legislature passed the Act unanimously in both Houses with complete majority. This is not the issue of constitutional amendment (under 368), but this is issue of extending affirmative action under Articles 15,16 & 46 where the actions are not honoured equally by the Apex Court and Central Government does not amend the Constitution to sustain the State action. Therefore, there is substantial question of law, “whether the enabling powers of State Government under Articles 15,16 & 46 are inferior or limited as compared to the powers of the Central Government?”

C. The Hon’ble Division Bench admitted the fact (para 11) as “normally an interim order is not passed to stultify statutory provisions”, however, held the impugned judgment of High Court as “ex facie un-constitutional or contrary to the law” on prima facie basis without specifying any shortfall or factual evidence and only because “there is no absolute rule to restrain interim orders”. The substantial question arises that, whether the High Court is not competent to decide such matters and the Division Bench of Apex Court is really empowered constitutionally to curb the decision of Hon’ble High Court as a prima facie case without examining the facts, figures, evidences and report of Statutory Backward Classes Commission.

D. The decision of Bombay High Court is set aside on ‘’prima facie” basis neglecting the ratio as per para 176 (page 480) which reads as: “.....We hope and trust that the State Government would discharge the duty cast on it by Section 11 of the MSBCC Act of 2005 and bring the reservation conferred on the Other Backward Classes as well as the SEBC within the ceiling limit set out by the Constitution Bench in Indra Sawhney.”In fact, this observation is consistent with mandate of Indra Sawhney, but the Division Bench of Hon’ble Supreme Court has lost sight of.  

E. While staying the ongoing SEBC reservation, the Constitutional powers of the High Court are underestimated without any new factual evidence and/or specific legal flaw in the judgment and solely under influence of communal perceptions.

F. The ongoing SEBC reservation is stayed without giving an opportunity of hearing to the aggrieved members of SEBC category comprising of about 3.80 crores of citizens in the State.

G. The fact has not been appreciated that, the rule of 50% ceiling on reservation has been nullified by 103rd Constitutional Amendment Act, 2019 which is also a basis of decision of the Bombay High Court.

H. The fact has not been appreciated that, the periodical revision was a precondition & mandatory part of ceiling of 50% on reservation which has been completely violated by the State and the rule of 50% is abused as provision of making the existing castes in OBC as permanent beneficiaries prohibiting inclusion of deserving Marathas.

I. The fact is not appreciated that, the State has failed to implement the mandatory order of Supreme Court and provision of section 11 of MSBCC Act for revision of existing castes in OBC and the entitled Marathas are punished for such failure.

J. The fact is not appreciated that, in Indra Sawhney case, the Hon’ble Supreme Court upheld 27 % reservation by adopting ‘principle of Leniency’ as Mandal report was not considered by majority judgment (para 848, 853, 854 (b), 855, 857) and minority judgment invalidated the report and reservation both (para 325, 326).

K. The fact is not appreciated that, the Bombay High Court upheld SEBC reservation crossing 50% for the time being by adopting the same ‘principle of Leniency’ on the ground of erroneous exclusion of deserving Maratha for seven decades and to give time for revision existing OBC reservation under section 11 of MSBCC Act.

L. The SEBC reservation is stayed, selectively on prima-facie basis without any clarification that whether there is any impact of 103rd Amendment Act, 2019 on the rule of 50% ceiling on reservation.

M. The fact is not appreciated that, on 05.08.2020, the Division Bench Headed by Chief Justice referred the matter of EWS reservation (Janahit Abhiyan vs. Union of India, WP 55/2019) to larger Bench stating that Constitutional Amendment for crossing limit of 50% in certain exceptional situation involves substantial question of law.  

N. In the matter of SEBC category, the Hon’ble Three Judges Bench of Supreme Court completely neglected the said order and also the impact of 103rd Constitutional Amendment on rule of 50% ceiling on reservation though this was argued before the Bench as mentioned in para 5 of interim order.

O. The SEBC reservation is stayed not on the ground of crossing limit of 50%, but on the ground of extraordinary situation when there is no decision of any Constitutional Bench on this issue and the Statutory Commission is empowered by the Hon’ble Supreme Court in Indra Sawhney case (para 855-c) that, “Such Commission, which will have the power to receive evidence and enquire into disputed questions of fact, can more appropriately decide such complaints than this Court under Article 32.”

P. The fact is not appreciated that, the existing castes in OBC category have been compelling the State not to include Marathas in existing OBC quota with a mala fide intention of availing disproportionate reservation and therefore, condition of “extraordinary situation” ought to have been applied to the castes in the list of OBC and their ongoing reservation ought to have been stayed instead of Marathas.   

23. Therefore, this whole matter deserves to be referred to the Larger Bench of Hon’ble Supreme Court with restoration of ongoing reservation benefits to SEBC category subject to final outcome.

24. This application is submitted to support IA of SEBC Welfare Association in the interest of social justice and constitutional equality under Art. 14 of the Constitution.

Hence, it is prayed that:

1. The Hon'ble Supreme Court may be pleased to vacate stay on SEBC reservation to the extent of para 17 (B) & (C) of interim order dated 09.09.2020 with restoration of all benefits in the present category.

2. The Hon'ble Supreme Court may be pleased to direct the State Government to revise and restructure the existing list of OBC and the available 42% reservation (with EWS) within a period of one year as per para 176 of impugned judgment of High Court. 

3. The Hon'ble Supreme Court may be pleased to constitute the Constitutional Bench at the earliest to hear all the issues involved in the matter.