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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.