For the second time in three days, the government failed to get the nod for implementation of its controversial 4.5 per cent sub-quota for minorities from the Supreme Court which asked whether the decision could be made on the basis of religion.

Again, on Wednesday the apex court refused to stay the Andhra Pradesh High Court order quashing the 4.5 per cent sub-quota for minorities carved out of the 27 per cent OBC quota in Central educational institutions.

The order will have a direct implication on prestigious educational institutions like the IITs which can go ahead with admissions ignoring the sub-quota provision under which 325 candidates from minorities were shortlisted for counselling.

“We are not inclined to grant stay,” a Bench comprising Justices K.S. Radhakrishnan and J.S. Khehar said, questioning the calculation for carving out the sub-quota within the 27 per cent OBC quota.

“You are carving out 4.5 per cent sub-quota. Will it not affect other OBCs?,” the Bench asked, referring to the data provided by the government about the ongoing counselling for IITs. It said the effect would “not be marginal.”

Before issuing notices to petitioners on whose PIL the High Court had quashed the sub-quota, the Bench felt the scheme of 4.5 per cent reservation was supported neither by constitutional nor statutory provisions.

The Bench, before which the Human Resource Development Ministry placed documents forming the basis for its decision on sub-quota, asked: “Can you make classification on the basis of religion?”

The court said that unlike 27 per cent reservation for OBCs in Central educational institutions which was supported by constitutional provisions, the December 22, 2011 Office Memorandum (OM) on the sub-quota issue did not have legislative support.

The Bench, which also questioned the calculation of providing sub-quota, wanted to know whether there was any constitutional and statutory support for granting 4.5 per cent sub-quota.

It said “the second question is whether the office memorandum has constitutional and statutory support or not.”

ASG's plea

Additional Solicitor-General Gourab Banerji urged the court to consider his plea for staying the High Court order in view of the ongoing counselling for IITs.

However, the Bench said it was not inclined to stay the High Court order as carving out sub-quota from minorities would have a bearing on the OBCs.

The court once again questioned the government for not consulting statutory bodies like the National Commission for Minorities (NCM) and the National Commission for Backward Classes (NCBC) in determining the sub-quota. “Why did you overlook the NCBC and the NCM? They are two most important statutory bodies.”