The Centre on Monday moved the Supreme Court seeking vacation of its stay on implementation of the 27 per cent reservation for the Other Backward Classes in elite educational institutions and setting up of a five-member Constitution Bench to hear the matter.

Filing a 'clarification' application a fortnight after the apex court had stayed the provision in the Central law enabling reservation for the OBCs, the government also opposed exclusion of 'creamy layer' from the benefit of reservation.

The government maintained that the decision of the nine-judge Constitution Bench in the Indra Sawhney case (Mandal Case) upholding reservation for OBCs 'is binding on all concerned, including the petitioners, the government as well as a two-member bench of this honourable court.'

Referring to the March 29 interim order of the two-judge bench, the government petition said that according to one view, the judgment may not be construed as an order of stay but only an advice to the government. The alternative interpretation is that it is an order of stay of operation of Section 6 of the Central Educational Institutions (Reservation in Admissions) Act.

"It is respectively submitted that it would be in the interests of justice if the court were to clarify and confirm that the order date March 29 is not an order directing stay of the implementation of the Act and is in the nature of advice to the Central government as to the course of action that may appropriately be undertaken," the application said. 

Earlier in the day, Solicitor General G E Vahanvati's efforts to 'mention' the matter before a bench headed by Justice Arijit Pasayat did not fructify with the judge asking him to bring the matter before an appropriate bench.

Justice Pasayat said he can mention the matter when Justice L S Panta would also sit with him.

However, hours after that the Centre filed the application contending that the interim order on the issue was inconsistent with the nine-judge bench judgment in the Mandal case.

It maintained that the 'census of 1931 never was the basis for identification of castes for inclusion in lists of socially and educationally backward classes/OBC.'

It said it has to be clarified that that the 1931 census was not the basis for identification of castes for inclusion in the list of socially and educationally backward classes and OBC.

"The Census of 1931 was used only for the limited purpose of deriving the proportion of socially and educationally backward classes and OBC in the total population of India," the application said.

On the issue of creamy layer, the Centre said, "The applicability of this principle in context of reservation in admission to the educational institution is distinct from its application in the context of reservation in employment."

While seeking vacation of the March 29 order, the Centre said the order overlooks the 'impact test' in relation to vast section of the population of the country, which is already suffering from the stigma of backwardness, centuries of oppression, serious denial of access to opportunities in education and thereafter entry into mainstream of the society.

Further, it said, the order has the consequence of negating legislative intervention to give effect to the constitutional assurances and entitlements and executive flexibility and choices in policy making and implementation.

The order appears to sustain a challenge, which invites this court to enquire into whether Parliament, while exercising its primary function that of legislating, had material before it to support the enacting of the Act.

The Centre said the order further appears to sustain a challenge which seeks to scrutinize the adequacy or otherwise of the material underlying the Act.

"Such an inquiry departs from the well established principles in regard to judicial review of legislation," the Centre said.