Jhar HC | 10 % EWS reservation; Can it be invoked retrospectively? HC clarifies

Jharkhand High Court: In an interesting case Sanjay Kumar Dwivedi, J., had held that the 10% reservation to Economically Weaker Sections cannot be applied retrospectively.

The petitioners had preferred this writ petition for quashing the Advertisement No.05/2019, so far as it relate to the appointments to be made on the post of Assistant Engineer (Civil) to the extent of retrospective applicability of 10% reservation for Economically Weaker Section (EWS) reservation. The prayer was also made for quashing of the decision to conduct single selection process on the vacancies of the year 2013 and 2015 respectively.

Background

The facts of the case were that the Road Construction Department vacancies for the post of Assistant Engineer (Civil) were published in the year 2013 wherein petitioners had applied to participate in the selection process for their direct recruitment. The number of unreserved posts advertised was 105 vacancies. There was no EWS reservation of 10% quota applicable at that point of time. Later on, by another Advertisement No. 06 of 2015, the department earmarked vacancies to be filled up for the post of Assistant Engineer (Civil) in the year 2015. The petitioners eligible on all counts, applied to participate in the selection process for their direct recruitment. The number of unreserved posts advertised was 93 vacancies again; there was no EWS reservation of 10% quota applicable at that point of time. However, no selection test was conducted pursuant to above two advertisements.

The grievance of the petitioners was that the respondent-department further published Advertisement No.05 of 2019 to make appointment on the post of Assistant Engineer (Civil). The earlier advertisements had been superseded by the current advertisement, which contains merged vacancies of advertisements of 2013 and 2015 and also current vacancies of 2019. Due to merger of vacancies, the seats which were available in the year 2013 and 2015, had been brought under the cover of current advertisement of the year 2019, wherein 10% reservation for EWS had been made applicable retrospectively for all the earlier vacancies. Aggrieved with the merger part of the earlier advertisements, the petitioners had filed the instant petition.

Grievance of the Petitioners

The counsel for the petitioners, Mr. Saurabh Shekhar submitted that the petitioners were not EWS candidates, and therefore, the applicability of reservation quota would adversely affect their right on earlier vacancies, on which the provisions of EWS could not be made applicable retrospectively. It was further submitted that 52 seats had been earmarked for EWS candidates separately, but these seats had been carved out from the unreserved quota, as the reservation point had been increased by 10%, thereby, enhancing the upper limit of reservation 60%, but that had to be done on post facto vacancies. Therefore, the counsel contended that the petitioners would suffer as the vacancies in unreserved quota had been reduced by applicability of EWS in the vacancies of earlier selection process.

Whether EWS reservation can be given effect retrospectively or not?

Reliance was placed by the Court on M. R. Balaji v. The State of Mysore, AIR 1963 SC 649, wherein the Constitution Bench of the Supreme Court had rejected the argument that in the absence of a limitation contained in Article 15(4), no limitation can be prescribed by the Court on the extent of reservation. It had also been observed that a provision under Article 15(4) being a special provision must be within reasonable limits. Again, in Indra Sawhney v. Union of India, reported in 1992 Supp (3) SCC 217, the Constitution Bench of the Supreme Court had approved the view taken in the case of M. R. Balaji by providing proposition 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.

Admittedly, 103rd Amendment Act, 2019 which introduced the reservation for EWS was made effective w.e.f. 14-01-2019. The Government of Jharkhand by way of resolution dated 15-02-2019 had also adopted the said amendment. In view of Clause 11 of that resolution, it was clear that the reservation would be effective w.e.f. 15-01-2019 in subsequent advertisement. Thus, that reservation could not be allowed to be made effective with retrospective effect, which was against the mandate of the Constitution which is the fountain of all the Statutes. The Bench clarified,

“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. The merger of earlier advertisements, which has been made effective retrospectively, is against the constitutional scheme.”

Hence, reservation for EWS which had been made effective in the garb of resolution dated 15-02-2019, along with the vacancy of the year 2013 and 2015 could not be allowed. The Bench stated,

“The respondent-State has already come out with advertisement of the year 2013 and 2015 respectively, which was cancelled subsequently. This appointment was required to be completed adhering to the extent of reservation up to 50%. Thus, the said vacancies are required to be filled up in terms of Rule of that time.”

In view of the above, the impugned Advertisement No. 05 of 2019 was set aside and the Court declared that retrospective application of 10% EWS quota is against Articles 14 and 16 of the Constitution of India. Consequently, the State Government was directed to modify the impugned Advertisement to the extent that 10% quota for EWS should not be made effective retrospectively for the vacancy of the year 2013 and 2015. Similarly, ongoing appointment process were declared contrary to the constitutional mandate and hence, held to be illegal.

Accordingly, the State was directed to advertise those posts separately within eight weeks and modify the impugned advertisement of 2019 in light of 103rd Amendment of Constitution.[Ranjeet Kumar Sah v. State of Jharkhand, 2021 SCC OnLine Jhar 78, decided on 21-01-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioners: Mr. Saurabh Shekhar, Advocate

For the Respondent-State: Mr. Rajiv Ranjan, Advocate General, Mr. Mohan Kumar Dubey, A.C. to A.G.

For the Respondent-JPSC: Mr. Sanjay Piprawall, Advocate

Join the discussion

Your email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.