“We are not inclined to grant stay,” a bench comprising justices K S Radhakrishnan and J S Khehar said while issuing notices to the petitioner on whose PIL the high court had quashed the 4.5 percent sub-quota for minorities carved out of the 27 per cent OBC quota in central educational institutions like the IIT.
The bench, before which the Ministry of Human Resource Development placed the relevant and supporting documents forming the basis for the sub-quota, asked “can you make classification on the basis of religion”.
It further said that the December 22, 2011 Office Memorandum on the issue of sub-quota did not have the legislative support.
The bench, which also questioned the calculation of providing 4.5 percent sub-quota within the 27 percent OBC quota, wanted to know from the government as to “whether there was any constitutional and statutory support for granting 4.5 percent sub-quota.
“We are asking whether 4.5 percent sub-quota has got constitutional or statutory support or not,” the bench said.
It said “the second question is whether the office memorandum has constitutional and statutory support or not”.
Additional Solicitor General Gourab Banerji made all efforts that the apex court considers his plea for staying the high court order in view of the on going counselling for IITs for which 325 candidates have been short listed under the 4.5 percent sub-quota for minorities.
However, the bench said it was not inclined to stay the high court order and noted that there was ambiguity in the calculation for carving out sub-quota within the 27 percent OBC quota.
The bench was of the view that carving out sub-quota from minorities would have a bearing on the OBCs.
The court once again questioned the government for not consulting statutory bodies like the National Commission of Minorities (NCM) and National Commission for Backward Classes (NCBC) in determining the sub-quota.
“Why you overlooked the NCBC and NCM. They are two most important statutory bodies,” the bench asked.
At the outset, the bench told the Centre that voluminous documents, which have been placed before it now, should have been produced in the high court.
When Banerji said the high court was under the impression that the sub-quota was for all minorities, the bench shot back “it was because that was the reflection in the office memorandum”.
Banerji said, all religious minorities like Buddhism and Zoroastrianism are not in the list of 4.5 percent sub-quota.
He said though the OBCs among the religious minorities are covered under 27 percent OBC quota, 4.5 percent sub-quota is granted to lowest ranks of Muslims or converts to Christianity.
Banerji said the first cut-off identifying the OBC within the minorities for 4.5 percent sub-quota were that they have to be socially and educationally backward and they have to be religious minorities.
At this, the bench said “that is the difficulty and that is the point. We can understand if its is across the board. How you made the calculation?”
The Centre had yesterday placed before the Supreme Court the “relevant” material and documents on the basis of which it carved out 4.5 per cent sub-quota.
The apex court had on June 11 asked the Ministry of Human Resources Development to place the material before it.
The bench had ticked off the government for the way it had handled the “complex” and “sensitive” issue.
The apex court had also expressed its “unhappiness” that the Centre was blaming the High Court when it had itself failed to produce documents to support its case.
The bench was critical of the Ministry of Human Resource Development rushing to the apex court with the appeal against the May 28 order of the High Court with out documents to justify the policy of carving out 4.5 per cent sub-quota within the 27 per cent OBC reservation.
The Union government had moved the apex court challenging the High Court order quashing the 4.5 per cent sub quota for minorities.
The December 22, 2011 Office Memorandum for the sub-quota for socially and educationally backward classes of citizens belonging to minority communities in central educational institutions and jobs was announced by the Centre ahead of the Assembly elections in five states including Uttar Pradesh and Punjab.