In a setback to the Bharatiya Janata Party government in Gujarat ahead of the leadership change, the Gujarat high court on Thursday quashed the ordinance providing 10 per cent quota for the economically backward among the unreserved category, promulgated to pacify the agitating Patel community.
The state government said it will challenge the high court decision. The HC stayed the order for two weeks on the request of the state government pleader so that they can approach the Supreme Court.
Terming the ordinance issued on May 1 as "inappropriate and unconstitutional", a division bench of Chief Justice R Subhash Reddy and Justice V M Pancholi rejected the state's argument that it is a classification under the general category and not the reserved category and held that it will breach the 50 per cent quota cap set up by the Supreme Court.
Significantly, the high court order has come when the BJP government is all set to have a new chief minister after the resignation of Anandiben Patel as the ruling party grapples with multiple challenges, including Patidar quota stir, ahead of next year's assembly polls.
Sticking to its stand on the EBS quota, the BJP government said it will move the Supreme Court against high court decision to scrap the ordinance which was announced by Anandiben to pacify the agitating Patidars who were demanding quota in jobs and educational institutions under OBC quota.
However, Patidar quota leader Hardik Patel welcomed the order and said their agitation for quota under OBC category will continue.
The court observed that 10 per cent reservation for poor among the unreserved category takes the total quota beyond 50 per cent, which is not permitted as per the Supreme Court's earlier decision.
The high court also said that the government took the decision without any study or scientific data.
Petitioners Dayaram Verma, Ravjibhai Manani, Dulari Basarge and Gujarat Parents' Association had separately challenged the ordinance announcing reservation of 10 per cent seats to candidates belonging to the unreserved category with family income cap of Rs 6 lakh annually in government jobs and educational institutions.
Their petitions were heard together.
The Patel quota stir, spearheaded by Patidar Anamat Andolan Samity led by Hardik Patel, is seen to be a key factor that led to the leadership change in the state, where assembly polls are due in a little over an year.
The BJP had suffered heavy losses in the rural local bodies polls, which were blamed on the quota stir of the numerically and socially strong Patel community.
Reacting to the order, Health minister Nitin Patel, considered to be a front runner for the chief minister's post, said the government will stick to the provision of EBC quota and challenge the HC order in the apex court as soon as possible.
The government pleader had told the court that the reservation is actually "a further classification in the general, open, unreserved category" and does not violate either Supreme Court order or Constitutional provisions.
The state government, in its affidavit, said the ordinance does not violate provisions of the Constitution nor does it go against the Supreme Court orders.
"The ordinance should be read with Article 46 of Constitution (which states that social justice is required for weaker sections of society) and not with reference to backward class quota," the affidavit said.
The petitioners submitted before the court that the reservation violates the Supreme Court's order providing 50 per cent ceiling for quota in the Indra Sawhney vs Union of India case.
They said that additional 10 per cent reservation reduced the number of seats in educational institutions for candidates from unreserved category with annual family income of more than Rs 6 lakh.
On May 1, the state had issued the ordinance providing 10 per cent reservation to persons from economically weaker sections from unreserved category, other than the SC, ST and OBC, for admissions in educational institutions and government jobs.
The reservation is applicable to persons with annual family income cap of Rs 6 lakh.
"When we announced the 10 per cent EBC reservation, our government had clearly stated that we will stick to this provision of EBC quota in any situation. Thus, we will file an appeal in the Supreme Court against Thursday's order by high Court, which rejected this quota," Nitin Patel said.
Hailing the order, Hardik Patel said, "The court had clearly said that EBC quota was unconstitutional.
"We welcome the order, as we always wanted reservation as per the Constitution. Thus, our agitation for reservation under OBC quota will continue till we get justice" Patel said through a video message from Udaipur, Rajasthan. He was directed to stay out of Gujarat for six months by the high court while being granted bail in a sedition case related to the agitation last month.
