NEW DELHI: The Centre's decision to create additional seats in Central Educational Institutions (CEIs) exclusively for the Other Backward Classes amounted to violation of the Constitution, said senior counsel Harish Salve in the Supreme Court on Monday.

Opposing the Centre's application for vacating the interim stay on implementation of the 27 per cent quota for the OBCs, Mr. Salve — appearing for one of the petitioners — said: "Such a decision violates Article 29 (2) of the Constitution which says "no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them."

He said: "Every citizen is expected to derive the benefit of increased seats. The moment the taxpayers' money is spent for creation of infrastructure in an educational institution and seats are increased thereby, you can't differentiate on the basis of caste, community or religion. By amending the Constitution and inserting clause 15 (5) in Article 15 [to provide reservation for educationally and economically backward classes], Parliament has made an exception to Article 29 (2)."

Referring to Section 3 of the Central Educational Institutions (Reservation in Admissions) Act that provided for 27 per cent quota for the OBCs, he said: "Whatever may be the strength, 27 per cent is fixed." In Section 2 (b) of the Act there was a mention about Annual Permitted Strength (APS). Generally, the total strength in an institution was fixed as approved by the regulatory body, such as the Medical Council in the case of a medical college. There was nothing like APS, which was a new concept introduced in the Act."

Constitutional case

Mr. Salve said: "What they (Centre) are saying is about the political fallout. This sends a wrong message. We are concerned with constitutional issues and not emotional issues. For the Supreme Court this is one more constitutional case. For others it is an emotional and political case. There is nothing wrong in the March 29 order which warrants reconsideration."

Earlier, Mr. Vahanvati said the identification of OBCs was a continuous process and there was a lot of expectations among the OBCs, who had suffered a lot.

"The question is whether the court can shut out a person who is waiting for admission."

The Bench said: "First we will have to see whether he (the OBC) is entitled to the expectations."

It reminded the Solicitor-General that "the concept of reservation was introduced only to make the depressed community to compete with others. Somebody who comes within the `creamy layer' among the OBCs can definitely compete with persons in the general category."

When Mr. Vahanvati pleaded for referring the matter for adjudication by a Constitution Bench, the Judges said "we will consider that when we hear the main matter."

The Bench told Mr. Vahanvati "this is an hurried effort and an effort which can't wait for another six months."

Supporting Mr. Salve, senior counsel Rajeev Dhavan said: "Expectations are there for both merit and OBC candidates. Parliament cannot dismantle merit for the sake of expectations of one community."

Another counsel M.L. Lahoty submitted that as per the Mandal case judgment there should not be any reservation for super specialities, and institutions such as the IIMs and IITs were definitely super speciality institutions where reservation for the OBCs should not be applied.

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