Gaurav Dubey And Another vs State Of Madhya Pradesh And others

Sanjay Yadav, J

Petitioners, belonging to General Category, are teachers and having obtained low marks in High School Teacher Eligibility Test, 2018 (Re-Exam

29.9.2019) have filed this petition claiming that they being an Economically Weaker Section Class the respondents be directed to reduce the qualifying

marks of the candidates belonging to Economically Weaker Section for whom 10% posts are reserved. Accordingly, petitioners seek direction to

amend Schedule I of Madhya Pradesh Lok Sewa (Anusuchit Jatiyon, Anusuchit Janjatiyon Aur Anya Pichhade Vargo ke Liye Arakshan) Niyam,

1998, as amended vide Notification No. F7-53-2019-vk0Ã0-,d dated 24.12.2019, published in Madhya Pradesh Gazette (Extraordinary) dated

24.12.2019 and the notification No. F-07-11/2019/vk0Ã0/,d dated 2.7.2019 which provides for 10% reservation for the EWS in consonance with

Constitution (103rd Amendment) Act, 2019.

That, Constitution (103rd Amendment) Act, 2019 brought in following amendment in Article 15 and 16 of the Constitution:

“2. In article 15 of the Constitution, after clause (5), the following clause shall be inserted, namely:â€

‘(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,â€

(a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and

(b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as

such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other

than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and

subject to a maximum of ten per cent. of the total seats in each category.

Explanation.â€"For the purposes of this article and article 16, ""economically weaker sections"" shall be such as may be notified by the State from time to time on the

basis of family income and other indicators of economic disadvantage.’

In article 16 of the Constitution, after clause (5), the following clause shall be inserted, namely:â€

(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker

sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in

each category.â€​

Evidently 10% reservation in favour of EWS is for the citizens other than classes mentioned in classes (4) and (5) of Article 15 of the Constitution.

In other words the 10% quota is carved out of 50% of the General Category. The reservation, it is further evident, is not on the basis of social

backwardness but on the basis of economic disadvantage.

The State Government vide notification dated 2.7.2019 while carving out the 10% quota, determined following parameter determining the indices as

who will be “economically weaker sectionâ€​:-

“4. ( . . .) 10

-- ◌

(1) 0 8.00 ( ) । , ,

।

(2) -

(1) 5 ( , , ,

)◌

(2) 1200 / ।

(3) 1500 / ।

(4) 1800 / ।)

5. The petitioners as is evident from the pleadings and the relief clause are claiming parity in marks relaxation with the classes mentioned in clauses

(4) and (5) of Article 15 of the Constitution, i.e., socially and educationally backward classes of citizen for the Scheduled Caste and Scheduled Tribes.

Petitioners are not socially and educationally backward class as would draw parity with the citizens of SC/ST/OBC category. The relief sought by the

petitioners for a direction to amend the notification to provide relaxation in marks is thus misconceived. Even otherwise no mandamus can be issued to

the legislature to frame or amend a law including the Constitutional law. In State of Himachal Pradesh and others v. Satpal Saini [(2017) 11 SCC 42]

“6. The grievance, in our view, has a sound constitutional foundation. The High Court has while issuing the above directions acted in a manner contrary to settled

limitations on the power of judicial review under Article 226 of the Constitution. A direction, it is well settled, cannot be issued to the legislature to enact a law. The

power to enact legislation is a plenary constitutional power which is vested in Parliament and the State Legislatures under Articles 245 and 246 of the Constitution.

The legislature as the repository of the sovereign legislative power is vested with the authority to determine whether a law should be enacted. The doctrine of

separation of powers entrusts to the court the constitutional function of deciding upon the validity of a law enacted by the legislature, where a challenge is brought

before the High Court under Article 226 (or this Court under Article 32) on the ground that the law lacks in legislative competence or has been enacted in violation of

a constitutional provision. But judicial review cannot encroach upon the basic constitutional function which is entrusted to the legislature to determine whether a law

should be enacted. Whether a provision of law as enacted subserves the object of the law or should be amended is a matter of legislative policy. The court cannot

direct the legislature either to enact a law or to amend a law which it has enacted for the simple reason that this constitutional function lies in the exclusive domain of

the legislature. For the Court to mandate an amendment of a law â€"â€" as did the Himachal Pradesh High Court â€"â€" is a plain usurpation of a power entrusted to

another arm of the state. There can be no manner of doubt that the High Court has transgressed the limitations imposed upon the power of judicial review under

Article 226 by issuing the above directions to the state legislature to amend the law. The government owes a collective responsibility to the state legislature. The

state legislature is comprised of elected representatives. The law enacting body is entrusted with the power to enact such legislation as it considers necessary to deal

with the problems faced by society and to resolve issues of concern. The courts do not sit in judgment over legislative expediency or upon legislative policy. This

position is well settled. Since the High Court has failed to notice it, we will briefly recapitulate the principles which emerge from the precedent on the subject.

For these reasons, we hold that the directions issued by the High Court for amending the provisions of the Himachal Pradesh Tenancy and Land Reforms Act,

1972 and the Rules were manifestly unsustainable. The directions are accordingly set aside. The appeal filed by the State shall stand allowed in these terms.â€​

In view whereof no relief can be granted, petition fails and is dismissed. No costs.