# RAM SINGH & ORS v. UNION OF INDIA

- **Citation:** [2015] 5 S.C.R. 670
- **Court:** Supreme Court of India
- **Decided:** 2015-03-17
- **Bench:** RANJAN GOGOi, R. F. Nariman
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ram-singh-ors-v-union-of-india-30850
- **Pages:** 52

## Headnote

c
Constitution of India, 1950 - Art. 16( 4) - Inclusion of 'Jal
Community' in the Central List of Other Backward Classes
for 9 States - By Notification dated 04.03.2014 by Central
Government - Bypassing the contrary view taken by National Commission for Backward Classes - Propriety of -
D Held: In view of the observations in Indra Sawhnev case
and s. 9 of National Commission for Backward Classes Act,
the advice of the Commission is ordinarily binding on the
Government and the same can be overruled only on compelling reasons - The decision of the Commission not to
E include the 'Jat Community' in the Central List was based
on detailed consideration of various reports of the State
Backward Classes Commissions and the findings of Expert
Committee - The Government cannot be permitted to discard the statutory norms - The terms 'backward classes' and
F 'socially and educationally backward classes' are not synonymous - Backward classes contemplated by Art. 16(4) is
'social backwardness' - Hence the crucial test for determining entitlement of 'Jats' in Central List is social backwardness - However, determining factors for inclusion of Jats in
G the Central List by the Government was educational backwardness - Government also decided the issue on the basis of inputs which were not contemporaneous except the
State of Haryana - Such a course adopted by the GovernH
670
RAM SINGH v. UNION OF INDIA
671
ment is retrograde governance - Therefore, the Notification A
passed on the basis of view of the Government which was
contrary to the advice of the Commission which was adequately supported by good and acceptable reasons, is not
justified - National Commission for Backward Classes Act,
1993 - ss. 9 and 11 - National Commission for Backward B
Classes (Power to Review Advice) Rules, 2011 - r. 4- Notification No. 63 dated 4.3.2014.
Allowing the writ petitions, the Court
c
HELD: 1. The observations in *Indra Sawhney case
and the expressed provisions contained in Section 9 of
the National Commission for Backward Classes Act
clearly indicate that the advice tendered by the National
Commission for Backward Classes is ordinarily binding o
on the Government and the same can be overruled/
ignored only for strong and compelling reasons which
reasons would be expected to be available in writing.
As the constitution of the Commission is traceable to
the opinion rendered in *Indra Sawhney case, there can E
be no doubt that even when the exercise undertaken by
the Central Government is one under Section 11 of the
Act, the views expressed by the NCBC in the process
of the consultation mandated by Section 11 of the Act,
would have a binding effect in the normal course. [Para F
26] [692-G-H; 693-A-B]
*Indra Sawhney & Ors. Vs. Union of India & Ors. 1992
(2) Suppl. SCR 454: 1992 Supp (3) SCC 217; Barium
Chemicals Ltd. Vs. Company Law Board 1966 Supp SCR G
311; Rohtas Industries Ltd. Vs. S.D. Agarwal & Ors. 1969
(3) SCR 108: (1969) 1 SCC 325; Shri Sitaram Sugar Co.
Ltd. & Anr. Vs. Union of India & Ors. 1990 (1) SCR 909:
(1990) 3 SCC 223; Gazi Saduddin Vs. State of Maharashtra
H
672
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[2015) 5 S.C.R.
A & Anr. 2003 (2) Suppl. SCR 966: (2003) 7 sec 330 -
referred to.
2. The report dated 26.02.2014 of the Commission
was made on a detailed consideration of the various
B reports of the State Backward Classes Commissions;
other available literature on the subject and also upon
consideration of the findings of the Expert Committee
constituted by the ICSSR to examine the matter. The
decision not to recommend the Jats for inclusion in the
C Central List of OBCs of the States in question cannot
be said to be based on no materials or unsupported by
reasons or characterized as decisions arrived at on
consideration of matters that are, in any way,
D
extraneous and irrelevant. [Para 46) [713-E-F]
3. Having requested the ICSSR to go into the matter
and upon receipt of the report of the Expert Committee
constituted in this regard, the Commission was under
a d

## Text

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A
B
[2015] 5 S.C.R. 670
RAM SINGH & ORS.
v.
UNION OF INDIA
(Writ Petition (civil) No. 274 of 2014)
MARCH 17, 2015
[RANJAN GOGOi AND R. F. NARIMAN, JJ.]
c
Constitution of India, 1950 - Art. 16( 4) - Inclusion of 'Jal
Community' in the Central List of Other Backward Classes
for 9 States - By Notification dated 04.03.2014 by Central
Government - Bypassing the contrary view taken by National Commission for Backward Classes - Propriety of -
D Held: In view of the observations in Indra Sawhnev case
and s. 9 of National Commission for Backward Classes Act,
the advice of the Commission is ordinarily binding on the
Government and the same can be overruled only on compelling reasons - The decision of the Commission not to
E include the 'Jat Community' in the Central List was based
on detailed consideration of various reports of the State
Backward Classes Commissions and the findings of Expert
Committee - The Government cannot be permitted to discard the statutory norms - The terms 'backward classes' and
F 'socially and educationally backward classes' are not synonymous - Backward classes contemplated by Art. 16(4) is
'social backwardness' - Hence the crucial test for determining entitlement of 'Jats' in Central List is social backwardness - However, determining factors for inclusion of Jats in
G the Central List by the Government was educational backwardness - Government also decided the issue on the basis of inputs which were not contemporaneous except the
State of Haryana - Such a course adopted by the GovernH
670
RAM SINGH v. UNION OF INDIA
671
ment is retrograde governance - Therefore, the Notification A
passed on the basis of view of the Government which was
contrary to the advice of the Commission which was adequately supported by good and acceptable reasons, is not
justified - National Commission for Backward Classes Act,
1993 - ss. 9 and 11 - National Commission for Backward B
Classes (Power to Review Advice) Rules, 2011 - r. 4- Notification No. 63 dated 4.3.2014.
Allowing the writ petitions, the Court
c
HELD: 1. The observations in *Indra Sawhney case
and the expressed provisions contained in Section 9 of
the National Commission for Backward Classes Act
clearly indicate that the advice tendered by the National
Commission for Backward Classes is ordinarily binding o
on the Government and the same can be overruled/
ignored only for strong and compelling reasons which
reasons would be expected to be available in writing.
As the constitution of the Commission is traceable to
the opinion rendered in *Indra Sawhney case, there can E
be no doubt that even when the exercise undertaken by
the Central Government is one under Section 11 of the
Act, the views expressed by the NCBC in the process
of the consultation mandated by Section 11 of the Act,
would have a binding effect in the normal course. [Para F
26] [692-G-H; 693-A-B]
*Indra Sawhney & Ors. Vs. Union of India & Ors. 1992
(2) Suppl. SCR 454: 1992 Supp (3) SCC 217; Barium
Chemicals Ltd. Vs. Company Law Board 1966 Supp SCR G
311; Rohtas Industries Ltd. Vs. S.D. Agarwal & Ors. 1969
(3) SCR 108: (1969) 1 SCC 325; Shri Sitaram Sugar Co.
Ltd. & Anr. Vs. Union of India & Ors. 1990 (1) SCR 909:
(1990) 3 SCC 223; Gazi Saduddin Vs. State of Maharashtra
H
672
SUPREME COURT REPORTS
[2015) 5 S.C.R.
A & Anr. 2003 (2) Suppl. SCR 966: (2003) 7 sec 330 -
referred to.
2. The report dated 26.02.2014 of the Commission
was made on a detailed consideration of the various
B reports of the State Backward Classes Commissions;
other available literature on the subject and also upon
consideration of the findings of the Expert Committee
constituted by the ICSSR to examine the matter. The
decision not to recommend the Jats for inclusion in the
C Central List of OBCs of the States in question cannot
be said to be based on no materials or unsupported by
reasons or characterized as decisions arrived at on
consideration of matters that are, in any way,
D
extraneous and irrelevant. [Para 46) [713-E-F]
3. Having requested the ICSSR to go into the matter
and upon receipt of the report of the Expert Committee
constituted in this regard, the Commission was under
a duty and obligation to consider the same and arrive
E at its own independent decision in the matter, a duty
cast upon it by the Act in question. Consideration of the
report of the Expert Body and disagreement with the
views expressed by the said body cannot, therefore,
amount to sitting in judgment over the views of the
F experts. In fact, the Expert Body of the ICSSR did not
take any particular stand in the matter and did not come
up with any positivP recommendation either in favour
or against the inclusion of the Jats in the Central List
of OBCs. The report of the said Body merely recited the
G facts as found upon the survey undertaken, leaving the
eventual conclusion to be drawn by the NCBC. [Para 46)
[713-G-H; 714-A-C]
4. There may be possibility that the Commission
H upon consideration of the various materials
RAM SINGH v. UNION OF INDIA
673
documented before it had underplayed and/or A
overstressed parts of the said material. Such an
approach, by itself, would not make either the decision
making process or the decision taken legally infirm or
unsustainable. Something more would be required in
order to bypass the advice tendered by the Commission B
which judicially (by Indra Sawhney case) and. statutorily
(by NCBC Act) would be binding on the Union
Government in the ordinary course, The mere possibility
of a different opinion or view would not detract from the
binding nature of the advice tendered by the C
Commission. [Para 46] [714-C-D]
5. Undoubtedly, Article 16(4) of the Constitution
confers power on the Union to bypass the Commission
to include groups of citizens in the Central List of D
OBCs, but what cannot be overlooked is the enactment
of the specific statutory provisions constituting a
Commission, whose recommendations in the matter are
required to be adequately considered by the Union
Government before taking its final decision. Surely, the E
Union cannot be permitted to discard its self-professed
norms which in the present case are statutory in
character. [Para 47] [714-G-H; 715-A]
6. The backwardness contemplated by Article 16(4) F
is 'social backwardness'. 'Educational and economic
backwardness' may contribute to social backwardness.
But 'social backwardness' is a distinct concept having
its own connotations. The extracts of the Minutes of the
Meeting of the Cabinet held on 2"d March, 2014 which G
had preceded the impugned notification dated 4th
March, 2014 tends to overlook the fact that crucial test
for determination of the entitlement of the Jats to be
included in the Central Lists is 'social backwardness'. H
674
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[2015] 5 S.C.R.
A [Paras 49 and 50] [715-H; 716-A-B, G]
7. The two expressions used in Articles 15(4) and
16(4) cannot be read synonymously. The terms
"backward class" and "socially and educationally
B backward classes" are not equivalent and that in Article
16(4) the backwardness contemplated is mainly social.
A social class therefore has to be understood as an
identifiable section of society which may be internally
homogenous (based on caste or occupation) or
C heterogeneous (based on disability or gender e.g.
transgender). [Para 53] [718-F-H]
8. While there can be no doubt that in the matter of
inclusion in the Central Lists of other backward classes,
o the exercise undertaken by the State Governments in
respect of the State Lists may be relevant, what cannot
be ignored in the present case is the very significant
fact that in respect of all the States (except Haryana) the
inclusion of Jats in the OBC Lists was made over a
E decade back. A decision as grave and important as
involved in the present case which impacts the rights
of many under Articles 14 and 16 of the Constitution
must be taken on ~he basis of contemporaneous inputs
and not outdated and antiquated data. In fact, under
F Section 11 of the Act revision of the Central Lists is
contemplated every ten years. The said provision further
illuminates on the necessity and the relevance of
contemporaneous data to the decision making process.
[Para 48] (715-0-G]
G
H
9. Proceeding on that basis what is clear is that
save and except the State Commission Report in the
case of Haryana which was submitted in the year 2012,
all the other reports as well as the literature on the
RAM SINGH v. UNION OF INDIA
675
subject would be at least a decade old. The necessary A
data on which the exercise has to be made, has to be
contemporaneous. Outdated statistics cannot provide
accurate parameters for measuring backwardness for
the purpose of inclusion in the list of Other Backward
Classes. Any other view would amount to retrograde B
governance. Yet, the facts of the case indicate a
governmental affirmation of such negative governance
inasmuch as decade old decisions not to treat the Jats
as backward, arrived at on due consideration of the
existing ground realities, have been reopened, inspite C
of perceptible all round development of the nation. [Para
51] [717-E-H; 718-A]
M.R. Balaji Vs. State of Mysore 1963 Suppl. (1) SCR
439; Janaki Prasad Vs. State of Jammu & Kashmir 1973 o
(3) SCR 236: (1973) 1 SCC 420 - referred to.
10. Article 16(4) as also Article 15(4) lays the
foundation for affirmative action by the State to reach
out the most deserving. Social groups who would be E
most deserving must necessarily be a matter of
continuous evolution. New practices, methods and
yardsticks have to be continuously evolved moving
away from caste centric definition of backwardness.
This alone can enable recognition of newly emerging F
groups in society which would require palliative action.
[Para 53] [719-B-E]
National Legal Services Authority vs. Union of India
(2014) 5 sec 438 - relied on.
11. The perception of a self-proclaimed socially G
backward class of citizens or even the perception of the
"advanced classes" as to the social status of the "less
fortunates" cannot continue to be a constitutionally
permissible
yardstick for
determination
of H
676
SUPREME COURT REPORTS
[2015) 5 S.C.R.
A backwardness, both in the context of Articles 15(4) and
16(4) of the Constitution. Neither can any longer
backwardness be a matter of determination on the
basis of mathematical formulae evolved by taking into
account social, economic and educational indicators.
B Determination of backwardness must also cease to be
relative; possible wrong inclusions cannot be the basis
for further inclusions but the gates would be opened
only to permit entry of the most distressed. Any other
inclusion would be a serious abdication of the
C constitutional duty of the State. Judged by the aforesaid
standards, it is held that inclusion of the politically
organized classes (such as Jats) in the list of backward
classes mainly, if not solely, on the basis that on same
0
parameters other groups who have fared better have
been so included cannot be affirmed. [Para 54] [720-AE]
12. The view taken by the Union Government that Jats
in the 9 (nine) States in question is a backward
E community so as to be entitled to inclusion in the
Central Lists of Other Backward Classes for the States
concerned, is not correct. The view taken by the
Commission to the contrary is adequately supported by
good and acceptable reasons which furnished a sound
F and reasonable basis for further consequential action
on the part of the Union Government. Therefore, the
Notification dated 4.3.2014 is not justified. Accordingly
the aforesaid Notification bearing No. 63 dated 4.3.2014
G including the Jats in the Central List of Other Backward
Classes for the States of Bihar, Gujarat, Haryana,
Himachal Pradesh, Madhya Pradesh, NCT of Delhi,
Bharatpur and Dholpur Districts of Rajasthan, Uttar
Pradesh and Uttarakhand is set aside and quashed.
H [Para 55] [720-F-H; 721-A]
RAM SINGH v. UNION OF INDIA
677
Case Law Reference
A
1992 (2) Suppl. SCR 454 referred to.
Para 15
•
1966 Supp SCR 311
referred to.
Para 21
1969 (3) SCR 108
referred to.
Para 21
B
1990 (1) SCR 909
referred to.
Para 21
2003 (2) Suppl. SCR 966 referred to.
Para 21
1963 Suppl. (1) SCR 439 referred to.
Para 53
c
1973 (3) SCR 236
referred to.
Para 53
(2014) 5 sec 438
relied on.
Para 54
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
D
274 of 2014.
[Under Article 32 of the Constitution of India]
WITH
E
W. P. (C) Nos. 261, 278, 297, 298, 305, 357 and 955 of
2014
Mukul Rohatgi, AG, Tushar Mehta ASG, Guru Krishan
Kumar, Vibha Datta Makhija, Mahabir Singh, Jayant Bhushan,
F
Manjit Singh, AAG, Rakesh Kumar, Gaurav Yadava, Raj
Kumar Yadav, Naik H. K., Prabhat Kaushik, Venkat Prasnna,
Manjunath Melad, B. Subramanian Prasad, Ombir Singh, Anuj
Saini, Yadav Narender Singh, Abhishek Yadav, Anurag Singh,
G
Sudhir Nargar, L. R. Khatana, Alok Shukla, A. K. Shukla, Mohit
Singh, Ram Parasher, Nihal Ahmed, Ram Naresh Yadav,
Farrukh Rasheed, Pawan Anchal, Lal Bahadur Khowal,
Ganesh K. Sharma, Disha Vaish, Sudhansu Palo, Lal Bahur .
Paliwal, R. K. Yadav, D. L. Chidananda, Madhvi Divan,.
H
678
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A
Meenakshi Grover, Nivesh Rastogi, D.S. Mahra, Dr. Vijendra
Mahndiyan, Pallavi Awasthi, Deepak Goel, Mamta Rani,
Nagendra Singh, Gyanandra Singh, Yogendra Pal Singh,
Surjeet Singh, Yogesh Kumar, Sajiv K. Baliyan, Aankhi Ghosh,
Somvir Singh Deswal, Satbir Singh Pillania, Nishchal Kumar
B Neeraj, Pranab Kumar Mullick, Soma Mullick, Varun Thakur,
Sharddha Saran, Varinder Kr. Sharma, Dr. Sushi! Balwada,
Pahlad Singh Sharma, Vishwa Pal Singh, Lalita Kaushik,
Ameet Singh, Sandeep Singh, Praveen Swarup, Devesh
Kumar, Manjeet Kirpal, Tarjit Singh, Vivekta Singh (For Kamal
C Mohan Gupta), Naresh Kaushik, Navdeep for the appearing
parties.
The Judgment of the Court was delivered by
D
RANJAN GOGOi, J. 1. The challenge in the present
group of writ petitions is to a Notification published in the
Gazette of India dated 04.03.2014 by which the Jat
Community has been included in the Central List of Backward
Classes for the States of Bihar, Gujarat, Haryana, Himachal
E Pradesh, Madhya Pradesh, NCT of Delhi, Bharatpur and
Dholpur districts of Rajasthan, Uttar Pradesh and
Uttarakhand. The said Notification was issued pursuant to the
decision taken by the Union Cabinet on 02.03.2014 to reject
the advice tendered by the National Commission for
F Backward Classes (NCBC) to the contrary on the ground that
the said advice "did not adequately take into account the
ground realities".
G
RESUME OF THE CORE FACTS :
2. Pursuant to several requests received from individuals,
organisations and associations for inclusion of Jats in the
Central List of Backward Classes for the States of Haryana,
Rajasthan, Madhya Pradesh and Uttar Pradesh, the National
H Commission for Backward Classes (NCBC) studied their
RAM SINGH v. UNION OF INDIA
[RANJAN GOGOi, J.]
679
claims and submitted a report on 28.11.1997. It A
recommended inclusion in the Central List only of the Jats of
Rajasthan, except the Bharatpur and Dhaulpur districts.
3. The NCBC also examined the claim for inclusion of
Jats in the Central List for the State of Delhi, and tendered
B
its advice rejecting their claim on 25.11.2010.
4. The significant developments that took place after
submission of the aforesaid two reports may be relevant to
be taken note of at this stage.
c
On 03.05.2011 the National Commission for Backward
Classes (Power to Review Advice) Rules, 2011 was notified
by the Ministry of Social Justice and Empowerment. By virtue
of the aforesaid Rules, the NCBC"'Was. empowered to review
its advice tendered to the Central Government under Section D
9(1) of the Act. Rule 4 of the Rules provides that the "provision
of Section 114 and Order 47 of the Code of Civil Procedure,
1908 shall mutatis mutandis apply to a review undertaken by
the Commission."
5. In a meeting of the NCBC held on 20.06.2011, a large
number of representations received from the Jat Community
for review of the earlier advice of the NCBC was taken up
E
for consideration. It was decided that consideration of all such
F
representations be deferred till finalisation of the Socioeconomic Caste Census (SCC) 2011 which was being
conducted by the Registrar General of India all over the
country for enumerating castewise population of the country.
However, in a meeting held on 19.07.2011 the NCBC decided G
to approach the Indian Council of Social Science Research
(ICSSR) to conduct a full-fledged survey in the States of Uttar
Pradesh, Haryana, Madhya Pradesh, Rajasthan, Himachal
Pradesh and Gujarat to ascertain the socio-economic status
of the Jat Community. The said decision was prompted by H
680
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[2015] 5 S.C.R.
A the necessity to have adequate quantifiable data to enable
. the NCBC to consider the request of the Jat Community for
inclusion in the Central List of Other Backward Classes in the
concerned States.
B
6. What happened to the survey entrusted to the ICSSR
c
would not be very relevant except that in October 2012 the
NCBC decided to reduce the comprehensive survey to a 2%
sample survey which work, once again, was entrusted to the
ICSSR.
7. It appears that in the midst of the aforesaid exercise
the office of the Prime Minister addressed a communication
dated 04.06.2013 to the Ministry of Social Justice and
Empowerment to the effect that a decision has been taken
o to constitute a Group of Ministers chaired by the Finance
Minister and comprising, inter alia, of the Home Minister for
the following purpose:-
E
F
(i) To interact with the representatives of the Jat
· Community with regard to their demand for inclusion and
to keep them apprised of the progress in the matter.
(ii) To monitor the expeditious completion of the survey
undertaken by the NCBC through the ICSSR and to
facilitate an early decision in the matter by the NCBC.
8. The Group of Ministers in its meetings held on
28.10.2013 and 30.10.2013, upon consideration of the matter,
perceived that two options were available to it. The first was
to request the NCBC to reconsider its earlier decision of
G conducting the sample survey and to tender its advice on the
basis of materials already available. The second was that the
survey work which had already begun in Gujarat would be
restricted to confirmed list of Jat variants and on the basis of
H the results of the survey done by the ICSSR the NCBC will
RAM SINGH v. UNION OF INDIA
[RANJAN GOGOi, J.]
681
tender its advice." Thereafter, in a meeting of the Cabinet held A
on 19.12.2013, decision was taken to request NCBC to go
ahead with first option i.e. to tender its advice based on
existing material. The cabinet further took the decision that
the cases of States of Bihar, Uttarakhand and NCT of Delhi
be also included in the reference made to the NCBC.
B
9. On the basis of the aforesaid decision of the cabinet
communicated to the NCBC, the Commission took the view
that as it did not have sufficient expertise in the matter, the
ICSSR be requested to set up an Expert Committee to C
conduct an extensive literature survey on the subject in order
to collect sufficient materials for the impending exercise.
Thereafter, the NCBC forwarded all reports/documents
received by it in this regard including representations for and
against the inclusion of the Jat Community to the ICSSR. The D
expert body constituted by the ICSSR submitted its report
(hereinafter referred to as the report of the ICSSR) In the
matter which primarily was based on the reports of the
various State Commissions submitted to the respective State
Governments in connection with the inclusion of the Jat E
Community in the OBC list of the concerned States. The
ICSSR, apparently, did not undertake any study of the other
materials by way of books/literature/representations. The
report of the ICSSR, noticeably, did not make any F
recommendations but only set out the existing facts. The said
. report of the ICSSR was, thereafter, discussed by the NCBC
, .. in several of its meetings. Simultaneously, the NCBC
addressed letters to the State Governments for fixing public
hearings in the respective State capitals. As there was no G
response from the States in this regard, the NCBC published
notices for conducting public hearings fixing different dates
for hearing the claims and counter-claims (objections). The
public hearings were to be held in Siri Fort Auditorium, New
H
682
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A Delhi on two sets of dates in February, 2014.
10. On conclusion of the public hearings, which appear
to have received what may at best be termed as a mixed
response, the NCBC submitted its advice/opinion/report
B dated 26.02.2014 to the Central Government stating that the
Jat Community had not fulfilled the criteria for inclusion in the
Central List of OBCs. It observed that merely belonging to an
agricultural community cannot confer backward status on the
Jats. It suggested the need for a non-caste based
C identification of backward classes. The NCBC found that the
Jats were not socially backward. They were also. not
educationally backward. It similarly rejected the claim of
inadequate representation in public employment, finding them
adequately represented in armed forces, government
D services and educational institutions.
11. Thereafter, the Union Cabinet in a meeting held on
02.03.2014 decided that the advice tendered by the NCBC
did not adequately take into account the "ground realities." The
E Cabinet, therefore, resolved not to accept the said advice and
instead to include the Jat Community in the Central List of
Backward Classes for the States of Bihar, Gujarat, Haryana,
Himachal Pradesh and NCT of Delhi, Bharatpur and Dholpur
districts of Rajasthan, Uttar Pradesh and Uttarakhand.
F Thereafter, the impugned notification came to be issued on
04.03.2014.
12. At this stage it may be relevant to notice the dates
on which the Jat Community was included in the List of OBCs
G in the States in question which are set out herein:
H
"(1)
(2)
03.11.1999
10.03.2000
State of Rajasthan
State of Uttar Pradesh
RAM SINGH v. UNION OF INDIA
[RANJAN GOGOi, J.]
683
(3)
31.05.2000
NCT of Delhi
A
(4)
06.11.2000
State of Bihar
(5)
24.01.2002
State of Madhya Pradesh
(6)
16.11.2002
State of Himachal Pradesh
B
(7)
22.03.2010
State of Uttarakhand
(8)
24.01.2013
State of Haryana-As
Special OBC
c
(9)
Gujarat
Not included"
Relevant Constitutional and Statutort Provisions
13. The relevant Constitutional and Statutory provisions D
in the light of which the issues arising will have to be
determined may be taken note of at the outset:
Article 15 of the Constitution prohibits discrimination on
ground of religion, race, caste, sex or place of birth. Clause E
(4) of Article 15 provides that "nothing in this article or in clause
(2) of article 29 shall prevent the State from making any
special provision for the advancement of any socially and
educationally backward classes of citizens or for the
Scheduled Castes and the Scheduled Tribes". Article 16 F
which provides for equality of opportunity in matters of public
employment provides in Clause (4) thereof that "nothing in this
article shall prevent the State from making any provision for
the reservation of appointments or posts in favour of any
backward class of citizens which, in the opinion of the State, G
is not adequately represented in the services under the State".
14. Reference to the provisions of Article 38 and 46 of
in Part IV of the Constitution may also be made. Article 38 of
H
684
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A the Constitution enjoins a duty on the State to endeavour to
promote the welfare of the people by securing and protecting
as effectively as it may a social order by, inter alia, eliminating
inequalities in status, facilities and opportunities not only
amongst individuals but also amongst groups of people either
B residing in different areas or engaged in different vocations.
Article 46 casts upon the State a duty to promote the
educational and economic interests of the weaker sections
of the population particularly of the Scheduled Castes and
Scheduled Tribes and to protect such citizens from .social
C injustice and exploitation. Article 340 of the Constitution
envisages the creation of a Commission, inter alia, to
investigate the conditions of the socially and educationally
backward classes and the difficulties under which such
0 classes labour; and to make recommendations as to the
steps that should be taken to remove such difficulties and
improve their conditions etc.
15. The National Commission of Backward Classes Act,
1993 was enacted following the decision of this Court in Indra
E Sawhney & Ors. Vs. Union of India & Ors. 1 which
visualised the necessity of establishment of a permanenU
specialised body to which complaints of non-inclusion or
wrong inclusion of groups, classes and sections in the list of
F Other Backward Classes can be made from time to time. In
this regard, the following part of the opinion of Justice Jeevan
Reddy in Indra Sawhney case (supra) may be noticed :-
G
"We are of the considered view that there ought to be a
permanent body, in the nature of a Commission or
Tribunal, to which complaints of wrong inclusion or noninclusion of groups, classes and sections in the lists of
Other Backward Classes can be made. Such body must
H
1 1992 Supp (3) sec 211
RAM SINGH v. UNION OF INDIA
[RANJAN GOGOi, J.]
. 685
be empowered to examine complaints of the said A
nature and pass appropriate orders. Its advice/opinion
should ordinarily be binding upon the Government.
Where. however, the Government does not agree with
its recommendation. it must record its reasons therefor.
Even if any new class/group is proposed to be included
B
among the other backward classes, such matter must
also be referred to the said body in the first instance and
action taken on the basis of its recommendation. The
body must be composed of experts in the field, both
official and non-official, and must be vested with the C
necessary powers to make a proper and effective
inquiry. It is equally desirable that each State constitutes
such a body, which step would go a long way in
redressing genuine grievances. Such a body can be 0
created under Clause (4) of Article 1§ itself - or under
Article 16(4) read with Article 340 - as a concomitant
of the power to identify and specify backward class of
citizens, in whose favour reservations are to be
provided. We direct that such a body be constituted both
E
at Central level and at the level of the States within four
months from today. They should become immediately
operational and be in a position to entertain and
examine forthwith complaints and matters of the nature
aforementioned, if any, received. It should be open to
F
the Government of India and the respective State
Governments to devise the procedure to be followed by
such body. The body or bodies so created can also be
consulted in the matter of periodic revision of lists of
O.B.Cs ... "
G
(para 847)
16. The National Commission for Backward Classes Act,
1993 (for short "the Acf') contain provisions for the constitution
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[2015] 5 S.C.R.
A
of the National Commission For Backward Classes (NCBC),
its powers and functions and other allied matters. The salient
features of the Act which will require to be specifically noticed
may be set out hereunder.
B
c
D
E
F
G
H
Section 2(a) and 2(c) provides as follows:
"2(a) - "backward classes" means such backward
classes of citizens other than the Scheduled Castes and
Scheduled Tribes as may be specified by the Central
Government in the lists;
2(c) - "lists" means lists prepared by the Government
of India from time to time for purposes of making
provision for the reservation of appointments or posts
in favour of backward classes of citizens which, in the
opinion of that Government, are not adequately
represented in the services under the Government of
India and any local or other authority within the territory
of India or under the control of the Government of India".
Section 3 deals with constitution of NCBC. It provides
that the NCBC shall consist of the following persons
nominated by the Central Government.
(a)
A Chairperson, who is or has been a Judge of the
Supreme Court or of a High Court;
(b)
A social scientist;
(c)
Two persons, who have special knowledge in matters relating to backward classes; and
(d)
A Member-Secretary, who is or has been an officer of the Central Government in the rank of a
RAM SINGH v. UNION OF INDIA
687
[RANJAN GOGOi, J.]
Secretary to the Government of India.
A
Sections 9 and 11 of the Act read as under:
"9. Functions of the Commission
(1)
The Commission shall examine requests for incluB
sion of any class of citizens as a backward class
in the lists and hear complaints of over-inclusion
or under-inclusion of any backward class in such
lists and tender such advice to the Central Government as it deems appropriate.
c
(2)
The advice of the commission shall ordinarily be
binding upon the Central Government.
11.
Periodic Revision of Lists by the Central D
Government ·
(1)
The Central Government may at any time, and shall,
(2)
at the expiration of ten years from the coming into
force of this Act and every succeeding period of E
ten years thereafter, undertake revision of the lists
with a view to excluding from such lists those
classes who have ceased to be backward classes
or for including in such lists new backward classes.
F
The Central Government shall, while undertaking
any revision referred to in sub-section (1), consult
the Commission."
17. Section 8 of the Act empowers the Commission to
lay down its own procedure while Section 10 enumerates the G
powers of the Commission while performing its functions
under Section 9(1) of the Act. There is no specific provision
in the Act which empowers the Central Government to
override the advice/recommendation of the Commission.
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A
Arguments on aeh!Jikof :PetitioM,CS
18. To begin with, learned counsel for the petitioners
seeks to attribute legal malice to the decision making process
resultantly vitiating the decision taken by the Union
B Government. The manner in which the decision was taken
commencing with the conferment of the review power in the
year 2011 by enactment of the extant Rules; the constitution
of Group of Ministers to oversee the matter; the exercise of
the first option available and the repeated requests made by
C the Government to the Commission to tender its advice
indicate the pre-determined manner in which the Central
Government was proceeding in the matter, it is urged. The
meeting of the cabinet on a Sunday (2.3.2014); the
publication of the notification on 4.3.2014 when the General
D Elections were notified on the next day i.e. 5.3.2014 has been
mentioned to contend that the impugned notification is based
on wholly extraneous considerations and is actuated by
political motives, namfi!ly, to gain electoral advantages.
E
19. It is contended that the impugned notification dated
04.03.2014 has been issued in derogation of the provisions
of Section 9(2) of the Act which provides that "advice of the
Commission shall ordinarily be binding upon the Central
Government". Even in a situation contemplated by Section 11
F of the Act the views of the NCBC would be equally compulsive
and binding and should commend for acceptance of the
Central Government except in situations where there are
strong compelling and overwhelming reasons not to do so.
None of the aforesaid situations do exist in the present case,
G it is claimed on behalf of the petitioners.
H
20. It is submitted that the earlier reports of the NCBC
dated 28.11.1997 and 25.11.2010 were founded on an
elaborate reasoning and upon a comprehensive consideration
RAM SINGH v. UNION OF INDIA
[RANJAN GOGOi; J.]
689
of all relevant materials. Not only the circumstances leading . A
to the submission of the report dated 26.2.2014 of the NCBC
make the decision of the Union Government to reject the
same wholly premeditated, even otherwise, the decision of
the Central Government to override the advice tendered by
the NCBC is not supported by any reasons recorded or by B
notings in the file. Neither the said decision can be said to
be a reasonable or possible conclusion that could have been
reached by the Union Government on the available materials.
21. The decisions in Barium Chemicals Ltd. Vs. C
Company Law BoarcP; Rohtas Industries Ltd. Vs. S.D.
Agarwal & Ors.3; Shri Sitaram Sugar Co. Ltd. & Anr. Vs.
Union of India & Ors.4 and Gazi Saduddin Vs. State of
Maharashtra & Anr.5 have been relied upon to contend that
the satisfaction of the Central Government is open to challenge D
and within the reach of the judicial scrutiny both on grounds
of its legal fragility and ex facie unreasonableness. Learned
counsel for the petitioners has very elaborately taken us
through the advice/report of the NCBC dated 26.02.2014 to
contend that the exhaustive report of the said body contain a E
detailed analysis of the facts recorded in the reports of the
various State Commissions. The said exercise clearly
demonstrates that the Jats are a forward community in all the
States in question. The contrary view of the Union Government F
is wholly unsupported by any adequate, reasonable a~d
relevant grounds or basis. The decision of the Union
Government is also not based on any relevant quantifiable
data or material to enable recognition of the Jat Community
as backward within the meaning of Article 16(4) of the G
Constitution. Learned counsel for the petitioners has
2 1966 Supp SCR 311
3 (1969) 1 sec 325
• (1990) 3 sec 223
• (2003) 1 sec 330
/
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A elaborately placed the relevant materials on record in respect
of each of the States under consideration and has contended
that the said materials cannot reasonably sustain the decision
to include Jats in the Central lists of other Backward Classes
of the concerned States.
B
22. In reply, the learned Attorney General has argued that
the power to make provisions for reservation by inclusion of
the eligible classes in the Central lists flow from Article 16(4)
of the Constitution. The advice of the NCBC, according to the
C learned Attorney General, would not be very material
inasmuch as even dehors the provisions of the NCBC Act the
Union Government would not be denuded of its powers to add
or subtract from the Central Lists of Other Backward Classes.
The learned Attorney has alternatively contended that the
D present exercise of inclusion of Jats in the list of Other
Backward Classes is not pursuant to any exercise undertaken
under Section 9 of the NCBC Act so as to 'bind' the Union to
the advice tendered by the NCBC. It is also argued that the
inclusion of classes or groups in the State OBC Lists will be
E a strong and compelling factor for inclusion of such classes
in the Central Lists also inasmuch as the considerations
which had weighed with the State Government to include a
particular class as an other backward class would always be
F relevant for being taken into account for inclusion of the said
class in the Central List of Other Backward Classes. Such a
course, according to the learned Attorney, is necessary for
purposes of consistency and uniformity of action by the Union
and the States.
G
23. Pointing out the facts antecedent to the submission
of the report/advice of the NCBC on 26.2.2014, the learned
Attorney General has drawn the attention of the Court to the
fact that the process of tendering such advice had really
H commenced in the year 2011 and the delay that has occurred
RAM SINGH v. UNION OF INDIA
[RANJAN GOGOi, J.]
691
is attributable to the NCBC. The NCBC has been vacillating A
from time to time as would be evident from its decisions,
firstly, to defer consideration of the matter till finalisation of the
Caste Census Survey conducted by the Registrar General of
India and thereafter in deciding to approach the ICSSR for a
full survey in the six States and subsequently its decision to B
opt for a 2% sample survey. It is pointed out that even after
the decision to go for a sample survey, nothing had happened
for over a year. It is only in December 2013 after the Central
Government had 'reminded' the NCBC of the matter that the
NCBC had decided to entrust the ICSSR to carry out a study C
based on the available literature, books/documents. There
was no undue haste in the process claims the learned Attorney
General who also points out that timing of the notification i.e.
on the eve of the commencement of the General Elections 0
would not, by itself, be sufficient to hold the decision taken to
be vitiated in law or by legal malice.
24. The learned Attorney General has taken us through
the exhaustive materials on record i.e. the report dated
26.2.2014 of the NCBC; the reports of the various State E
Commissions; and report of the ICSSR including the report
of the llPA relied upon by the ICSSR. It is submitted, on the
basis of the said materials, that there is overwhelming
evidence to permit a conclusion to be reached that the Jat F
Community should be included in the Central Lists of Other
Backward Classes in the States in question. It is only after
such consideration that the impugned notification dated
04.03.2014 came to be issued. The conduct of the NCBC in
entrusting the responsibility of carrying out a literature survey G
to the Expert Body i.e. ICSSR on the ground that the NCBC
itself is not equipped to perform the task and, thereafter, in
acting as an Appellate Body sitting in jL•dgment over the views
of the said Expert Body has come in for sharp criticism by
the learned Attorney General. By referring to the specific H
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A conclusions of the NCBC recorded in its report dated
26.02.2014, it has been contended that the conclusions
reached are wholly untenable and unacceptable being
contrary to specific findings recorded by the ICSSR or in the
reports of the State Commissions with regard to the social,
B economic as well as educational status of the Jats.
25. The above submission advanced by the learned
Attorney General have been echoed by the learned counsels
appearing on behalf of the other respondents in the writ
C petitions i.e. Akhil Bharatvarshiya Jat Mahasabha, Jat
Aarakshan Sangharsh Samiti and the Jat Sabha Zila, Meerut.
The limited scope of judicial review that will be available to
this Court to scrutinise the decision taken by the Union
Government has been particularly urged by Shri Mohan
D Parasaran, learned senior counsel appearing for the Akhil
Bharatvarshiya Jat Mahasabha. In so far as Jat Sabha Zila,
Meerut is concerned, Shri Jayant Bhushan, learned senior
counsel has further urged that the test for determining social,
educational and economic backwardness laid down in Indra
E Sawhney case (supra) are fully satisfied by the Jat
Community so as to make its members eligible for inclusion
in the Central lists of OBCs.
26. What weight-age the advice/recommendation
F tendered by the NCBC should receive in the decision making
by the Union Government is a crucial determination that this
Court is required to make in the present case. The
observations in Indra Sawhney (extracted above) and the
expressed provisions contained in Section 9 of the NCBC Act
G clearly indicate that the advice tendered by the NCBC is
ordinarily binding on the Government meaning thereby that the
same can be overruled/ignored only for strong and compelling
reasons which reasons would be expected to be available in
H writing. As the constitution of the NCBC is traceable to the
RAM SINGH v. UNION OF INDIA
[RANJAN GOGOi, J.]
693
opinion rendered in Indra Sawhney (extracted above) there A
ean be no doubt that even when the exercise undertaken by
the Central Government is one under Section 11 of the Act,
the views expressed by the NCBC in the process of the
consultation mandated by Section 11, would have a binding
effect in the normal course.
B
27.