Jhar HC | [Article 16] Retrospective application to 103rd Amendment providing reservation to EWS cannot be permitted; Petition allowed

Jharkhand High Court: Sanjay Kumar Dwivedi J., allowing the present petition, held, “…the retrospective application of 10% EWS quota is against Articles 14 and 16 of the Constitution of India”

The present petition has been preferred for quashing advertisement no. 5 of 2019, so far as it relates to the retrospective applicability of 10% reservation for Economically Weaker Section (EWS). Prayer is also made for quashing the decision to conduct a single selection process on the vacancies of the year 2013 and 2015 respectively. Moreover, conducting selection process on the vacancies arrived in the year 2013, 2015 & 2019 separately and independently is also pleaded.

Court considered the following cases, in pursuance of its decision;

M.R. Balaji v. State of Mysore, AIR 1963 SC 649, Supreme Court observed that in the absence of any limitation contained in Article 15(4), no limitation can be prescribed by the Court on the extent of reservation.

Taking strict view in State of Kerala v. N.M. Thomas, (1976) 2 SCC 310, it was held that a suitable reservation within permissible limits will depend upon the facts and circumstances of each case and no hard and fast rule can be laid down, nor can this matter be reduced to a mathematical formula so as to be adhered to in all cases. Further, it was said that percentage of reservation should not exceed 50%.

In Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, Constitution Bench of the Supreme Court by its majority view has been pleased to approve the view taken in the case of M.R. Balaji and disapproved the view taken in the case of N. M. Thomas by providing that the extent of reservation shall not exceed to 50% of the appointment of post except in certain extraordinary situation taking together with reservation in favour of Scheduled Caste and Scheduled Tribe category candidates.

Further Court considered the observation in R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745, wherein it was held that roster system is necessary to be followed in the matter of public employment so that extent of reservation may not exceed to 50% limit taking into account the principle laid down to maintain equality under Article 16 of the Constitution of India, on which balance is maintained.

Reliance was further placed on M. Nagaraj v. Union of India, (2006) 8 SCC 212 and B.K. Pavitra v. Union of India, (2017) 4 SCC 620.

Narrowing down to the facts and circumstances of the present case and the amendment brought for Economically Weaker Section, Court noted, “Admittedly, 103rd Amendment Act, 2019 was made effective with effect from 14-01-2019. The Government of Jharkhand by way of resolution dated 15-02-2019 has also adopted the said amendment. In view of Clause 11 of the resolution dated 15-02-2019, it is clear that the reservation will be effective with effect from 15-01-2019 in subsequent advertisement. Thus, that reservation cannot be allowed to be made effective with retrospective effect, which is against the mandate of the Constitution of India. The Constitution of India is fountain of all the Statutes. At the time of advertisement of 2013 and 2015, 10% reservation for EWS was not there and by way of clubbing the vacancies, 10% reservation for EWS has been provided in the vacancy of 2013 and 2015, which is against the mandate of the Constitution of India.” It was further remarked, “The merger of earlier advertisements, which has been made effective retrospectively is against the constitutional scheme.”

While allowing the present petition, Court set aside the impugned advertisement directing the respondent State to put forth the said vacancies separately within eight weeks.[Ranjeet Kumar Sah v. State of Jharkhand, 2021 SCC OnLine Jhar 78, decided on 21-01-2021]


Sakshi Shukla, Editorial Assistant has put this story together

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