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PETITIONER:

JAGDISH NEGI, PRESIDENT,UTTARAKHAND JAN MORCHA & ANR.

Vs.

RESPONDENT:

STATE OF U.P. AND ANR.

DATE OF JUDGMENT: 21/08/1997

BENCH:

S. B. MAJMUDAR, D. P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

S.B. MAJMUDAR, J

By an earlier order of this Court dated 5th May, 1997

this writ petition was ordered to be placed for final

disposal. That is how it has reached final hearing before

us. This petition under Article 32 of the Constitution of

India is moved by way of public interest litigation by

Uttarakhand Jan Morcha through its President and by one

Jagmohan who is resident of Barakhan, Village IRA, situated

in Almora district of U.P. The petition is filed against

State of U.P. and union of India. It is the case of writ

petitioners that in the State of U.P. there are nine hill

districts comprising of Almora, Pithoragarh, Pauri Garhawal,

Chamoli, Tehri, Uttarkashi, Nainital, Dehradun and Haridwar

and that people of this region, that is uttarakhand,

according to the petitioners, are judicially recognised as

socially and educationally backward classes citizens. For

supporting this contention reliance is placed on two

decisions of this Court in the case of State of Utter

Pradesh vs. Pradip Tandon & Ors. [1975 92) S.C.R. 761] and

in the case of Anil Kumar Gupta, etc. vs. State of Utter

Pradesh and ors. [JT 1995(5) SC 505]. It is their contention

that as the residents of Uttarakhand region are recognised

as socially and educationally backward classes they are

entitled to the benefit of Articles 15(4) and 16(4) of the

Constitution of India and that respondent No.1 State has

already taken a policy decision that in Government services

as well as in educational institutions run by the State, 27

per cent reservation will be available to socially and

educationally backward classes of citizens. The said

submission of the petitioners is based on an earlier

resolution of 1997 of U.P. government which had been later

converted into a statutory scheme of the reservation as per

the U.P. Public services (Reservation For Scheduled Castes,

Scheduled Tribes and Other Backward Classes) Act, 1994

(hereinafter referred to as `Reservation Act'). The

petitioners contend that despite this statutory policy of

reservation adopted by the first respondent-State which has

continues all throughout, the first respondent while

granting reservations for admission in colleges imparting

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medical education in State of U.P. treats the residents of

Uttarakhand as entitled to be considered for the benefit of

the aforesaid reservation of 27 per cent as socially and

educationally backward citizens only from year to year and

thus these classes of citizens are kept guessing as to

whether this scheme of reservation will be continued from

time to time or not. The petitioners contend that this

scheme of reservation policy reflected by the statutory

provisions of the Reservation Act remained in force. They

further contend that so far as admissions to agricultural

colleges are concerned even this benefit of the reservation

is not being granted by the first respondent-State to

Uttarakhand residents. This amounts to clear act of

discrimination on their part. It is also contended that

aforesaid statutory scheme of reservation Act remained in

force. They further contend that so far as admissions to

agricultural colleges are concerned even this benefit of the

reservation is not being granted by the first respondent-

State to Uttarakhand residents. This amounts to clear act of

discrimination on their part. It is also contended that

aforesaid statutory scheme of reservation is not made

available to Uttarakhand residents even in Government

services, though such benefit necessarily flows from the

statutory scheme of reservation as per the aforesaid

Reservation Act. For ventilating these grievances the

aforesaid petition is moved for enforcement of the

fundamental rights of the residents of uttarakhand as

flowing from Articles 15(4) and 16(4) of the constitution of

India. The diverse reliefs have been prayed for as under:-

(a) to include the entire people of

Uttarakhand and hill areas of U.P.,

comprising the districts of Almora,

Pithoragarh, Pauri Garhwal,

Chamoli, Tehri, Uttarkashi,

Nainital, Dehradun and Haridwar in

the list of O.B.C for the purposes

of reservation in services, and

admission in educational, technical

and medical institutions.

(b) to keep in abeyance all orders,

notifications and ordinances issued

for reservation of O.B.C. in

Uttarakhand and hill areas of U.P.

subject to the decision of the Apex

Court.

(c) to make special provision under

Articles 15(4) and 16(4) of the

constitution to ensure exemption of

tuition fees, free supply of books

and uniforms, mid-day meals,

special hostel facilities and

stipends for the students of

Uttarakhand irrespective of caste

and creed, for their educational

development.

(d) to make sufficient provision

for the social educational and

economic upliftment of Uttarakhand

and to create sufficient job

opportunities by proper

exploitation of natural resources

of the region.

This petition is sought to be resisted on behalf of the

State. A counter affidavit in this connection has ben filed

by one Shri C.K. Tewary, Special secretary, Uttarakhand

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Vikas Vibhag, U.P. Government, Lucknow. We shall refer to

the relevant averments found in this counter affidavit at an

appropriate place in the latter part of this judgment.

During the hearing of this writ petition at an earlier

stage a submission was made on behalf of the first

respondent-State that the U.P. Government had issued a

notification declaring that residents of the hill areas will

be treated as socially and educationally backward classes

citizens for admissions to medical colleges in the State for

enabling them to get requisite reservation as per Article

15(4) of the Constitution of India. The parties; counsel

were, therefore, directed to produce copies of the said

notification by an order of this court date 10.11.95.

Thereafter the matter stood adjourned from time to time and

ultimately learned senior counsel for the petitioners

submitted before this Court on 18.11.96 that two

notifications had been issued by the first respondent-State

on 6.11.95 and 17.11.95 in this connection. We will refer to

these notifications later on. Relying on these notifications

an apprehension was voiced by Shri Satish Chandra, learned

senior counsel for the petitioners, that the orders

contained in the Government notification of 17th November

1995, including the residents of hill areas of Uttarakhand

in the category of socially and educationally backward

classes citizens would be confined only to one year, that

is, 1995. There were no express words in the Government

order to continue the reservation on a long term basis. On

this apprehension of Shri Satish Chandra, learned senior

counsel for the petitioners, Mr. A.B. Rohtagi, learned

senior counsel for the respondent sought some time for

getting appropriate clarification from the State. The said

clarification was brought on record by additional affidavit

on behalf of the state filed by Deepak Rai Vijh,. Joint

Secretary, Uttranchal Vikas Vibhag, Secretariat, Lucknow,

U.P. By the said affidavit it was clarified that the

Government Order dated 17.11.95 regarding reservation for

Uttarakhand residents for admissions to medical colleges was

to continue to remain in force for subsequent years for the

combined pre Medical Test , i., for the years 1996 and 1997.

As regards Government Order dated 6.11.95 it was submitted

that reservation provision for agricultural courses was

under consideration.

It is in the light of the aforesaid developments

pending this petition that the main grievance put forward by

learned senior counsel Shri Satish Chandra for the

petitioners will have to be examined. We may note that

though various prayers (a) to (d) are put forward in the

petition, only prayer (a) was pressed for our consideration.

In this connection learned senior counsel for the

petitioners raised the following three contentions for our

consideration:

1. Despite there being a clear

cut statutory scheme of

reservation adopted by the

first respondent-state

Pursuant to the reservation

Act, so far as residents of

Uttarakhand are concerned

though they are being treated

as socially and educationally

backward citizens,

reservations for them in

medical colleges in the State

of U.P. are being continued

from year to year and that the

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said action of the respondent-

state is totally arbitrary and

unconstitutional. consequently

he first respondent should be

directed to make available the

scheme of reservation for

uttarakhand residents without

any time limit so long as

statutory scheme of 27 per

cent reservation for socially

and educationally backward

class of citizens as per the

Reservation act continues to

operate in the State.

2. Even though residents of

uttarakhand, as held by this

court, are to be treated

socially and educationally

backward citizens, so far as

admissions in agricultural

courses are concerned that

benefit is not being extended

to them, though the same class

of citizens is granted such

benefit periodically, that is,

from year to year so far as

admissions in medical courses

are concerned and that this

act on the part of the State

is highly discriminatory and

unreasonable and is also

unconstitutional.

3. Despite the operative

statutory scheme of

reservation as per the

reservation Act, benefit of 27

per cent reservation for

socially and educationally

backward class of citizens is

not made available to

residents of uttarakhand so

far as Government services are

concerned. The said act of the

first respondent amounts to

denial of equal opportunity to

this class of citizens and is,

therefore, unconstitutional.

Learned senior counsel for the first respondent state

Shri Rohtagi on the other hand tried to resist these

contentions and submitted that the statutory scheme of 2 per

cent reservation for socially and educationally backward

class of citizens is available to the whole class of

citizens of U.P. whether they are residing in plains or in

hills of Uttarakhand region and that it is true that the

state has treated residents of Uttarakhand as socially and

educationally backward class of citizens pursuant to the

decisions of this Court, but the residents of Uttarakhand

cannot be treated to be socially and educationally backward

for all times to come. However so long as they are so

treated by the State the benefit of 27 per cent reservation

will be available to them along with their counterparts

residing in the plains. That it has been decided by a

constitution Bench of this Court in Indra Sawhney and others

Vs. Union Of India and others [1992 Supp (3) SCC 217] that

policy of reservation has to be operated year wise and there

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cannot be any such policy in perpetuity. Therefore, the

eligibility of residents of Uttarakhand for being treated as

socially and educationally backward class of citizens can be

reviewed by the State from year to year and that upto year

1997 residents of Uttarakhand have been treated by the State

of U.P. as socially and educationally backward class of

citizens who would be entitled to be included in the

category of citizens to whom 27 per cent reservation is

available so far as medical education s concerned. However,

for admission to agricultural courses the State is going to

decide shortly as to whether that benefit should be made

available to the Uttarakhand residents. It is also submitted

that for Government services also benefit of reservation of

27 per cent is uniformly made available to all the citizens

of the State of U.P. who may fall within the class of

socially and educationally backward citizens. so far as

uttarakhand residents are concerned even though they may

fall in the same class they cannot be given entire 27 per

cent of reservation. Reservation to be given to them wholly

depends upon the proportionate percentage of population

residing in Uttarakhand areas as compared to their

counterparts residing in plains. Mr. Rohtagi, however, made

it clear that if any resident of Uttarakhand Satisfies the

requirement of being treated as socially and educationally

backward citizen he would naturally be entitled to be

considered for reservation in the quota of 27 per cent

reservation for socially and educationally backward class of

citizens residing in U.P. and that such a benefit is already

available to all such similarly situated citizens in the

State and hence the grievance of the petitioners that they

are being discriminated against is mere imaginary than real.

In the light of the aforesaid rival submissions we now

proceed to deal with triple contentions raised by learned

senior counsel for the petitioners Shri Satish Chandra.

Contention No.1

As we have noticed earlier during the pendency of this

writ petition it has transpired that the first respondent

has not only continued the statutory scheme of reservation

of 27 per cent for educationally and socially backward class

of citizens of UP. as per the reservation Act, but

Government Orders have also been issued from time to time

from 1995 to 1997 clearly indicating that residents of

Uttarakhand region are being treated as socially and

educationally backward class of citizens presumably in the

light of two decisions of this Court to which we will make a

reference shortly. Secretary, Government of U.P., Ramesh

Yadav, by communication dated 6th November, 1995 addressed

to vice Chancellor, G.B. Pant Agricultural & Technological

University, Pant Nagar, has observed that ' the Hon'ble high

Court on the basis of State of U.P. Vs. Pradeep Tandon (AIR

1975 SC 563) has held that the residents of uttarakhand be

treated as socially and educationally backward classes of

citizens and in the background of the abovementioned

judgments of the Hon'ble Supreme Court and High Court the

Government of U.P. after proper and due consideration, has

decided that all residents of Uttarakhand excluding

scheduled caste and scheduled tribe who are already covered

by reserve quota; will be added to the list of other

backward classes for the Purpose of Reservation. Accordingly

in view of the All India Status of your university you are

directed to admit all non-scheduled caste and non-scheduled

tribe candidates of Uttarakhand, within the quota fixed for

other backward classes on merit, alongwith the candidates of

other districts which will not exceed 27 per cent.

As the aforesaid policy decision of the first

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respondent-state communicated to the Vice Chancellor was

based on the decision of this Court rendered almost two

decades back in State of U.P. Vs. Pradip Tandon & Ors.

(supra) it will be profitable at this stage to refer to that

decision. In the said case a bench of three learned Judges

of this Court had to consider whether the scheme of

reservation of seats in medical colleges in favour of hill

and Uttarakhand areas of State of U.P. was sustainable as

per Article 15(1)(4) and Article 29(2) of the Constitution

of India. Upholding the said scheme on 19th November 1974

this Court speaking through Chief Justice Ray observed as

under:

" The hill and uttarakhand areas in

Uttar Pradesh are instance of

socially and educationally backward

classes of citizens for these

reasons. Backwardness is judged by

economic basis that each region has

its own measurable possibilities

for the maintenance of human

numbers, standards of living and

fixed property. From an economic

point of view the classes of

citizens are backward when they do

not make effective use of

resources. When large areas of land

maintain a parse, disorderly and

illiterate population whose of

social backwardness is observed.

When effective territorial

specialisation is not possible in

the absence of means of

communication and technical

processes as in the hill and

Uttrakhand areas the people

(residing there sic) are socially

backward classes of citizens.

Neglected opportunities and people

in remote places raise walls of

social backwardness of people.

Educational backwardness is

ascertained with reference to these

factors. Where people have

traditional apathy for education on

account of social and environmental

conditions or occupational

handicaps, it is an illustration of

educational backwardness. The hill

and uttrakhand areas are

inaccessible. There is lack of

educational institutions and

educational aids. People in the

hill and Uttrakhand areas

illustrate the educationally

backward classes of citizens

because lack of educational

facilities keep them stagnant and

they have neither meaning and

values nor awareness for

education."

It is, therefore, obvious that residents of hills and

Uttarakhand areas were treated as socially and educationally

backward classes of citizens entitled to benefit under

Articles 15(1),15(4) and 29(2) of the Constitution in the

year 1974 when this court decided that case. But simply on

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this basis it cannot be urged that this class of citizens

could be condemned as socially and educationally backward

class of citizens till eternity, however, much they may like

to be stigmatized as educationally and socially backward

class of citizens. This class is always required to be

judged in the light of the existing fact situation at a

given point of time. There cannot be a class of citizens

which can be treated perpetually to be a socially and

educationally backward class of citizens, Every citizen has

right to develop socially and educationally. We must,

therefore, hold that the aforesaid decision of this Court

ruled that residents of Uttarakhand and hill areas of State

of U.P. in 1974, when the matter was decided, formed a

socially and educationally backward class of citizens.

Consequently, they would be automatically entitled at that

point of time to any existing scheme of reservation

promulgated by the State for socially and educationally

backward classes of its citizens. Mr. Rohtagi, learned

senior counsel for respondent No.1 was right when he

contended that such backwardness cannot continue

indefinitely and the State is entitled to review the

situation from time to time.

However this does not advance the case of first

respondent state on the facts established on record. We

have noted earlier that as late as in 1995 the first

respondent state took a policy decision in its wisdom, even

after the expiry of two decades since the decision of this

Court in Pradip Tandon's case (supra) was rendered, that the

residents of Uttarakhand and hill region were still required

to be treated as socially and educationally backward class

of citizens as clearly reflected by the letter of Shri

Ramesh Yadav, Secretary, Government of U.P. Even thereafter

till 1997 that is current year the first respondent has

treated the residents of Uttarakhand and hill region as

socially and educationally backward classes of citizens. The

said decision of the first respondent-state is reflected by

the communication dated 27th February, 1996 afforested by

Secretary to the Director General, Medical Education and

Training., U.P. Lucknow. The said communication relied upon

the judgment of this court rendered in the case of Anil

Kumar Gupta Vs. Government of U.P. (Supra). As we will see

hereinafter, in the said decision this court endorsed the

earlier view of this Court in Pradip Tandon's case(supra)

that Uttarakhand residents were socially and educationally

backward class of citizens. The relevant recitals in the

said communication read as under:-

"2. I am also directed to state

that Hon'ble Supreme Court in their

observation made in writ No. Civil

276/1995(copy attached), civil No.

326/95 Anil kumar Gupta etc. Vs.

Government of U.P. Etc, has

directed that the horizontal

Reservation be compartmentalised

i.e. number of reserved seats for

the test for each reserved

category of SC/ST/BC General be

mentioned in the Brochure.

3. The Government has also

decided that for the Horizontal

Reservation of each category, the

under of seats be compartmentalised

as under:-

Scheduled Caste - 21 percent

Scheduled Tribe - 02 percent

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Other Backward - 27 percent

Classes

General Category - 50 percent

The total seats be divided and

mentioned as above for CPMT 1996

Brochure for the necessary action."

The very same Secretary to Government of U.P. has

retreated the same policy being continued for the year 1997

as per the communication dated 8.1.97 addressed to Director

General of Medical Education and Training, U.P. Lucknow. The

pertinent recitals read as under:

"In continuation to G. O. No.

5198 Sec. 14-/Five-96-26/96 dated

19.12.96, I am directed to state

that order was issued regarding

providing reservation to various

categories for C. P. M. T. 1996

vide G.O. No. 1067/Sec-14/Five-96-

111/93 T. C. dated 27.2.96. The

Govt. has after due consideration,

decided to enforce the above

provision in CPMT 1977 also."

It becomes obvious that the aforesaid recitals found in

the letters dated 27.2.96 and 8.1.97 clearly indicate that

the first respondent-State relying on the decision of this

Court in A.K. Gupta's case (supra) has continued reservation

of 27 percent for Other Backward Classes including residents

of hill and Uttarakhand areas, for the years 1996 and 1997

so far as admissions to medical courses were concerned.

It is useful at this stage to refer to the decision of

this Court in Anil Kumar Gupta's case (supra). In the said

decision a Bench of two learned two Judges of this Court

speaking through B.P. Jeevan Reddy, J., relying upon the

decision of this court in State of U.P. Vs. Pradip Tandon

(supra) as well as constitution Bench decision in Indira

Sawhney and Others (supra) reaffirmed the position in para 9

of the report to the effect that residents of hill areas and

Uttaranchal in State of U.P. were covered by the scheme of

reservation as per Article 15(4) of the Constitution of

India, that is, they were entitled to the reservation as

socially and educationally backward classes of citizens. But

this reservation available to them would be under the quota

of 27 per cent reservation for socially and educationally

backward classes of citizens. But this reservation available

to them would be under the quota of 27 per cent reservation

for socially and educationally backward classes of citizens

and they could not get additional benefit of reservation

under Article 15(1) as wrongly assumed by the State in their

favour.

A conjoint reading of the decision in A.K. Gupta

(supra) and the letters dated 27.2.96 and 8.1.97 of

secretary as noted earlier leaves no room for doubt that

according to the first respondent-State the residents of

hill areas and uttarakhand in State the residents of hill

areas and Uttarakhand in State of U.P. Were entitled to be

treated as socially and educationally backward class of

citizens and were accordingly entitled to be considered for

reservation of seats in medical colleges against 27 per cent

reservation quota available to that class of citizens. Once

that conclusion is reached the first contention f learned

senior counsel for the petitioners loses much of its

efficacy as till the current year, according to the first

respondent-State, residents of Uttarakhand region and hill

areas are being treated as socially and educationally

backward classes of citizens who would obviously be entitled

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to be considered along with other citizens falling in this

class towards grant of 27 per cent reservation in medical

colleges.

It is, however, not possible to agree with the

contention of learned senior counsel for the petitioners

that such reservation should continue without any limitation

or there cannot be periodical review about the said

reservation policy. It is true that as per the statutory

scheme of reservation as envisaged by the Reservation Act,

27 per cent reservation for educationally and socially

backward classes of citizens in the State of U.P. in all

Government services and educational institutions has to be

continued so long as this statutory scheme of reservation

continues in the state. But that does not solve the problem

for the petitioners for all times to come. It is true that

from 1974 onwards till today residents of Uttarakhand hills

region are being treated by the State of U.P. as socially

and educationally backward class of citizens for the purpose

for being considered eligible for consideration towards 27

per cent reservation. But only on that score, it cannot be

predicated that in future they may not cease to be socially

and educationally backward. Once at any future point of time

they cease to be so they will obviously go out of the

umbrella of 27% reservation available to the remaining

socially and educationally backward classes of citizens in

the State of U.P. Therefore, even though the statutory

scheme for 27% reservation envisaged by the Reservation Act

may continue to cover socially and educationally backward

category of citizens in State of U.p., Uttarakhand residents

may cease to be treated as socially and educationally

backward classes of citizens in future, if relevant data is

available in that connection by that time. We, therefore,

cannot bind down the first respondent-State to treat

Uttarakhand residents as socially and educationally backward

classes of citizens for all times to come. Even learned

senior counsel Shri Satish Chandra also agreed that such a

situation cannot be countenanced. But in his submission once

the statutory scheme of 27 per cent reservation for socially

and educationally backward classes for citizens continues,

Uttarakhand residents must be made available the umbrella of

that reservation for socially and educationally backward

classes of citizens continues, Uttarakhand residents must be

made available the umbrella of that reservation which should

run parallel to and be conterminous with the reservation

scheme available under the Reservation Act to the extent of

27 per cent reservation for socially and educationally

backward classes of citizens. It is not possible to agree

with this contention. Reason is obvious. The Statutory

scheme of reservation for 27 per cent for socially and

educationally backward classes for citizens may continue

indefinitely till the Reservation Act continues to operate.

Still a given category for Citizens which may form a part

and parcel for that class of citizens, namely, socially and

educationally backward classes for citizens as on date may

in future cease to belong to that class. Consequently the

question whether a given category of citizens continues to

be socially and educationally backward class of citizens at

a give point of time or not has to be left to the State

concerned for its objective decision from time to time. The

State cannot be bound in perpetuity to treat such classes

for citizens for all times as socially and educationally

backward classes for citizens. The principles of 'once a

mortgage always a mortgage' cannot be pressed in service for

submitting that once a backward class of citizens, always

such a backward class. In other words it is open to the

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state to review the situation from time to time and to

decide whether a given class of citizens that has earned the

benefit of 27 per cent reservation as socially and

educationally backward class of citizens has continued to

form a part of that category or has ceased to fall in that

category. Thereby it cannot be said that the first

respondent is adopting a policy which is contrary to the

constitutional scheme of reservation. Within four corners of

Article 15(4) or 16(4) such an exercise has been upheld by

the Constitution Bench of this Court in Indra Sawhney and

Others Vs. Union of India and others (supra). In the said

decision at page 559 in concurring judgment Sawant, J. in

para 531 observed as under:

"The validity of the percentage of

reservation for backward classes

would depend upon the size of the

backward classes in question. So

long as it is not so excessive as

to virtually obliterate the claims

of others under Clause 16(1), it is

not open to challenge. However, it

is not necessary, and Article 16(4)

does reservation should be in

proportion to the percentage of

reservations should be in

proportion to the percentage of the

population of the backward classes

to the total population. The only

guideline laid down by Article

16(4), as pointed out elsewhere, is

the adequacy of representation in

the services. Within the said

limits, it is in the discretion of

the State to keep the reservations

at reasonable legitimate claims and

the relevant factors. In this

connection, the law laid down

directly on the subject in the

following decisions is worth

recounting."

At para 814 at page 736-737 in the main majority

decision B.P. Jeevan Reddy, j., indicated the legal

observation as under:

"............It must be remembered

that the equality of opportunity

guaranteed by clause (1) is to each

individual citizen of the country

while clause (4) contemplates

special provision being made in

favour of socially disadvantaged

classes. Both must be balanced

against each other. Neither should

be allowed to eclipse the other.

For the above reason, we hold that

for the purpose of applying the

rule of 50% a year should be taken

as the unit and not the entire

strength of the Cadre, service or

the unit, as the case may be."

The first respondent is, therefore, bound to act and is

entitled to act as per the modalities for the scheme of

reservation as envisaged by the Constitution Bench judgment

of this Court. The first contention of learned senior

counsel for the petitioners, therefore, has to be decided by

holding that the first respondent is bound to treat the

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residents of Uttarakhand and hill areas as socially dn

educationally backward class of citizens all throughout from

1974 till date, in the light of its own policy decision

reflected by the above referred communications issued by the

Secretary of the U.P. State from time to time. However it is

open to the first respondent to review the situation from

time to time and to take its own policy decision in the

light of relevant material available to it in future as to

whether residents of Uttarakhand and hill region have

continued to remain socially and educationally backward

class of citizens for earning the statutory benefit of 27%

reservation envisaged by the Reservation Act or have ceased

to belong to that reserved category of citizens. Such an

exercise is perfectly legitimate and permissible to the

first respondent and hence it is not possible to agree with

the learned senior counsel for the petitioners that

reservation for citizens of hill regions must be made

available to them without any limitation of time so long as

reservation Act remains on the Statute book. The first

contention is decided accordingly.

Contention No.2

So far as this contention is concerned, learned senior

counsel for the petitioners was right when he submitted that

when the first respondent itself decided that for the year

1997 the residents of hills and uttarakhand areas were to be

considered towards 27 per cent reservation available to such

class of citizens. While considering their claim for

admissions to medical colleges in the State, it is difficult

to appreciate how for the very same class of citizens this

benefit of reservation was not made available when students

coming from that regions were to be considered for admission

to agricultural colleges. Learned senior counsel for the

state could not successfully controvert this contention. It

is obvious that when the state itself in its wisdom has

considered residents of the aforesaid areas as socially and

educationally backward for being included for consideration

towards 27 per cent reservation available to that class for

admission in medical colleges, fortiori they have to be

considered eligible for being included in this said quota of

reservation of 27 per cent. while considering their claims

for admission to agricultural colleges. The stand of the

respondent state that it is still considering their claims

for such reservation to agricultural colleges for the year

1997, to say the least, is totally inconsistent and nothing

short of being treated as arbitrary and illegal. However,

this conclusion of ours cannot give any substantial benefit

to the petitioners as the admissions to agricultural

colleges for current year are already finalised. All that we

can direct is to the effect that if in future for the year

1998 onwards, State takes a decision that residents of

Uttarakhand and hill regions of the State are to be still

considered as socially and educationally backward class of

citizens for these relevant years, then for the academic

year concerned the State must take a prompt decision in this

connection at least three months prior to starting of

academic terms of medical and other educational courses

including agricultural education to be imparted in the

Government institutions in the state and such decision

should be properly published in newspapers having wid

circulation in the concerned regions of the State so that

residents staying in those regions can know well in advance

about the approved policy of the State in this connection.

It is obvious that such a decision has also to be properly

and promptly conveyed to all authorities, concerned with the

imparting of education in different colleges situated in the

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State and who are required to follow the policy of

reservation as envisaged by the State. Such a decision to be

taken by the State in future years should be uniformly

applied to all types of academic education courses not

merely confined to medical courses conducted at Government

colleges and other institutions covered by the reservation

scheme for admissions. under these circumstances no useful

purpose can now be served in voiding the decision reflected

in the letter dated 24th July, 1997 of Shri Jagan Nath

Tewari, Under Secretary, Government of U.P. Addressed to

Shri R.B. Mishra, Advocate on Record, Supreme Court of

India, to the effect that the matter is still under

consideration and no final decision has yet been taken in

connection with reservation facilities to be provided to

residents of uttarakhand in various educational Courses of

Pant Nagar Agriculture University to be extended for the

year 1996-1997. We, however, hold that the aforesaid stand

taken in this letter was clearly unjustified once the State

decided to treat residents of Uttarakhand and hill region as

socially and educationally backward class of citizens for

getting the benefit of being included in quota of 27 per

cent reservation in radical colleges for the year 1997. The

second contention, therefore, is found to be well sustained,

though it cannot result in further directions to the State

for the Current year 1996-1997. It stands accepted to the

limited extent, by directing the first respondent-state to

regulate its future course of action for years 1997-98

onwards as indicated hereinabove.

Before parting with the discussion on this contention

we may refer to decisions of this court to which our

attention was invited by the learned senior counsel for the

petitioners. D.S. Nakara & Others Vs. union of India [1983

(2) SCR 165]; Superintending Engineer, public Health, U.T.

Chandigarh & Ors. Vs. Kuldeep Singh & Ors. [JT 1997(2) SC

509]; and Panchayat Varga Sharmajivi Samudaik Sahakari

Khedut Coop, Society and Others Vs. Haribhai Mevabhai and

Others [1996(10) SCC 320] were pressed in service by Shri

Satish Chandra, learned senior counsel, for submitting that

grant of reservation under Articles 15(4) and 16(4) was a

constitutional obligation of the State and it was a power

coupled with duty. Reference made by him to these judgments

is not strictly relevant in the present context as the first

respondent-State itself has already discharged it s

constitutional obligation by enacting the Reservation Act

and by promulgating the policy of reservation for socially

and educationally backward citizens of uttarakhand by

affording them the right of inclusion towards 27 per cent

reservation quota upto 1997. Consequently, it is not

necessary for us to examine the wider question as to whether

the State will be bound to follow any policy of reservation

if it finds that it is not necessary to follow the same in a

given set of circumstances and whether such a policy cannot

be enforced against the state by a court of law.

Contention No.3

So far as this contention is concerned learned senior

counsel for the first respondent state made it clear to us

that the State of U.P. has considered the claim of residents

of uttarakhand for being included in the category of

socially and educationally backward class of citizens while

computing 27 per cent reservation for such class of citizens

even in Government Services. He has invited our attention in

this connection to paragraph 11 of the counter affidavit on

behalf of the State of U.P. filed by shri C.K. Tewary,

Special Secretary, Uttarakhand Vikas Vibhag, U.P. It has

been that 'it is noteworthy that the population of

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hill/Uttarakhand area is approximately 4% of the total

population of Uttar Pradesh. As against this, the

representation of residents of hill/uttarakhand area in

various important services is mentioned in sub-para (a) to

(i) of the said paragraph'. He further stated that 'it is

noteworthy that the Hon'ble Supreme Court in its landmark

judgment in the Indra Sawhney case has stipulated 27%

reservation as adequate representation for other backward

classes, which constitutes 52% of the total population of

the country. Thus, using the same logic around 2%

representation in the State services would be adequate

representation for people belonging to hill/Uttarakhand

area, since the population of this area is 4% of the total

population of the State. It can be seen from the details

given above that in all services mentioned above, the

representation of people from hill/Uttarakhand area is more

than 2% and in most cases is much above 4%. In some service,

in fact, the representation of hill/uttarkhand area is more

than double the percentage of their population to the total

population of the State.';

Relying on the aforesaid assertion it was submitted by

learned senior counsel for the first respondent state that

towards the 27 per cent reservation in Government services

available to socially and educationally forward classes of

citizens in State of U.P., the hill and uttarakhand region

also are included. The whole State has been taken as a unit

and on the basis of the comparative density of population in

the hill regions vis-a-vis remaining parts of the State

appropriate and proportionate reservation out of 27 per cent

quota is made available to socially and educationally

backward residents of hill areas and Uttarakhand areas,

Therefore, the policy of the reservation even so far as

Government services are concerned is also made available to

the residents of this area by treating them as socially and

educationally backward classes of citizens. In view of

aforesaid stand taken by the learned senior counsel for the

respondent, which could not be factually controverted by the

petitioners, it becomes obvious that the policy of

reservation of 27 per cent for socially and educationally

backward classes of citizens as envisaged by the Reservation

Act has enured for the Benefit of the residents of

Uttarakhand and hill regions also. Therefore, it cannot be

that the said benefit is not available to the residents of

this region as erroneously assumed by the learned senior

counsel for the petitioners. The thirds contention is not

well sustained factually and, therefore, has to be rejected.

As a result of the aforesaid discussion it must be held

that except contention No.2, learned senior counsel for the

petitioners has not been able to sustain any of the other

contentions raised in support of the petition and so far as

contention No.2 is concerned, as discussed earlier, the only

limited relief which could be given to the petitioners is as

indicated while considering the said contention.

In the result this petition stands partly allowed in

aforesaid terms, namely, that if the residents of

Uttarakhand and hill region are to be treated as a socially

and educationally backward class of citizens for a given

year, in future, such decision should be taken by the State

well in advance and should be published at appropriate time

as indicated by us while deciding Contention No. 2,

hereinabove. There will be no orders as to costs.