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Last Updated: May 20, 2007 - 10:48:48 AM
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Government faces uphill task on quota before apex court Monday
Apr 22, 2007 - 10:09:09 PM
But the experts pointed out that the government has ignored that the nine-judge bench ruling had also introduced the concept of 'creamy layer' among the OBC population and had barred them from deriving the benefits of reservation in state jobs.

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[RxPG] New Delhi, April 22 - The government faces Monday an uphill task of convincing the Supreme Court with the 'maintainability' of its plea for revival of the suspended law for quota in higher educational institutes.

The government will have to clear the apex court's doubt whether its plea, demanding revision of the court's March 29 interim order, which suspended the operation of the other backward classes - quota law for admissions, is worth hearing at all.

Fixing April 23 to hear the plea, a bench of Justices Arijit Pasayat and L.S. Panta had Wednesday asked the government's counsel to first satisfy the court of the maintainability of its petition.

According to legal experts, the government has tied itself into knots on more than one count.

To begin with, it has approached the court with a plea that it chooses to term as a 'clarification or modification application' but which the apex court bench prima facie has found to be a 'revision petition'.

Experts and law ministry sources pointed out that a revision petition could be filed only to challenge the court's final order and not an interim order, which is what the March 29 order is.

While delivering the interim order, the bench had slated the quota matter for final hearing in August, only after which it would be delivering its final verdict on the issue.

A review petition can be filed only to challenge a final verdict in case, in the petitioner's view, the court has faulted on the points of law or has not deliberated upon all the prayers of the original petition.

A clarification petition, on the other hand, is filed to seek explanation of some part of the court order, which might appear ambiguous to the petitioner.

The government last week approached the court with its application, with a lame excuse saying it wanted to clarify if the court's order to it to suspend the quota law was of advisory nature or binding to it.

Upset by this plea, Justice Pasayat even took a dig at Solicitor General G.E. Vahanvati, saying he stopped giving advises since he became a judge.

In legal parlance, an advice is given by a lawyer and not by a judge.

The bench specifically told him that 'the government's petition prima facie appears to be a revision petition' in the garb of a clarification petition.

The bench told him to first satisfy it that it was not a review petition, but one merely seeking clarification and modification of the March 29 interim order suspending quotas for OBC students.

The government has also complicated the matter by swearing by the nine-judge bench ruling of the apex court in Indira Sawhney case on implementation of Mandal Commission's recommendations for quota in state jobs to OBC candidates.

In its petition, the government has contended that the nine-judge bench ruling, which approved the provision of quota for OBC candidates in state jobs, would also be applicable to the quota for admissions in higher educational institutions.

It has also contended that by approving the Mandal Commission's recommendations for 27 percent quota for OBCs in state jobs, which was primarily based on the results of 1931 census, the nine-judge bench also approved the 27 percent figure as the OBC population in the country.

But the experts pointed out that the government has ignored that the nine-judge bench ruling had also introduced the concept of 'creamy layer' among the OBC population and had barred them from deriving the benefits of reservation in state jobs.

That creates a contradiction when the government insists on providing caste-based reservation in educational institutions even to the 'creamy layer' among OBCs.

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