Case BriefsSupreme Court

Supreme Court: In the case relating to appointment to the post of Post Graduate Assistants in Chemistry departments for the year 2018-2019 in Tamil Nadu, the 3-judge bench of Sanjay Kishan Kaul*, Dinesh Maheshwari and Hrishikesh Roy, JJ was posed with the question as to whether the candidates who secured high marks should have been fitted in the General Turn but have been fitted in Most Backward Class (MBC)/ Denotified Community (DNC) Quota for the last year, which in turn has deprived certain candidates of selection.

The Court held that the increase in MBC/DNC candidates does not impinge on the reservation of seats for other categories, nor does it violate any provision of the Constitution of India. Though, of course, it would imply that some of the other candidates from different reserved categories would not be entitled to fill in the reserved seats of MBC/DNC categories, if those seats would have remained vacant.

The Court, however, clarified that these observations were in the context of the controversy before it as the larger issue of reservation beyond 50%, qua Tamil Nadu, is still pending consideration.

Background

Notification was issued on 12.06.2019 by the Teachers’ Recruitment Board, inviting applications online from eligible candidates for direct recruitment to the post of Post Graduate Assistants and Physical Education Directors, Grade-I in school education and other departments for the year 2018-2019 in Tamil Nadu. The filling up of vacancies for the post of Post Graduate Assistants in Chemistry has caused some disputes in which the respondents were applicants. In terms of the notification, a total of 356 posts were notified for Chemistry, out of which 117 vacancies were available for Most Backward Class (MBC) and Denotified Community (DNC) candidates. The break-up of 117 vacancies was of 74 backlog vacancies and 43 current vacancies.

The respondents, among other candidates, applied for the aforementioned post online and appeared in the written examination on 28.09.2019. Post verification of certificates, a provisional selection list was published on 20.11.2019, but the names of the respondents were absent.

The respondents claimed that on scrutinizing the list, they found that the meritorious candidates under the MBC quota, who would have been selected irrespective of any reservation, had not been considered under the general vacancies but had been appointed in the MBC/DNC quota against the backlog vacancies. This had caused the respondents not to be appointed. It was their case that the meritorious candidates were required to be adjusted against vacancies on merit in the General Turn, and it is only thereafter that the backlog vacancies had to be filled in and thereafter, lastly, the current vacancies under the quota had to be adjusted.

Analysis

The Court agreed with the findings of the single and division bench of the Madras High Court, both and explained that the controversy revolved around the interpretation of Section 27(f) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016.

The Section propagates the social philosophy of vacancies for reserved category not lapsing in case there are inadequate number of candidates. Thus, instead of offering it to the general category, a provision has been made to carry forward those vacancies for one year. In case even in the succeeding year, these vacancies are not filled in, then it goes to other categories.

The Single Bench explained that the crucial issue arises from the last sentence of third proviso to Section 27(f) which provides for the selection of appointment for the next direct recruitment to be made “first for backlog vacancies and then the normal rotation shall be followed”. Meaning, thus, has to be assigned to what is implied by the expression “first” vis-à-vis the backlog vacancies.

Section 27(f) merely states that if the required number of candidates belonging to the community which fall under reservation are not available, then, the vacancies, for which selection could not be made in the current year, should be treated as backlog vacancies. In the subsequent recruitment, the backlog vacancies and the current vacancies for the particular community must be separately announced, and the direct recruitment must first accommodate the backlog vacancies and thereafter only, the current vacancies have to be accommodated.

“The provision had been read by the appellants as if the backlog vacancies must be filled in by MBC/DNC category candidates, irrespective of the merit of the candidate or the rank secured by him/her. The highest mark that was secured was 109 and, up to 90 marks, the candidates were fitted in General Turn and thus those candidates will have to be selected under the General Turn, irrespective of their community. It is these candidates who had been fitted in the backlog vacancy which has caused the problem.”

The Division Bench vide the impugned order also opined in the same terms and agreed with the interpretation of Section 27 of the Act by further observing that the proviso which contains the word “first” does not have any relation to the offer and placement of such reserved category candidates, including, Most Backward Classes who attain their position by way of merit in the open category/General Turn vacancies.

Agreeing to both the opinions, the Court said,

“The principle that such of the reservation category candidates who make it on their own merit have to be adjusted against the general category candidates has not been in doubt or argued in view of the catena of judgments cited aforesaid. In our view, Section 27(f) of the Act cannot be read in a manner, apart from any other reason, to negate this very principle.”

It explained that Section 27 deals with the reservation. It has nothing to do with the general candidates list/ General Turn vacancies.

“Such of the candidates who have made it on their own merit albeit, from reserved category, have not sought the benefit of the reservation. Thus, Section 27 of the Act would have nothing to do up to that point. Section 27 would apply only when the reservation principle begins, which is after filling up of the seats on merit.”

Thus, the word “first” would apply at that stage, i.e., the backlog vacancies have to be filled in first and the current vacancies to be filled in thereafter. At the stage when the general category seats are being filled, there is thus no question of any carry forward or current vacancies for reserved category arising at all.

The Court, in Saurav Yadav v. State of Uttar Pradesh, 2020 SCC OnLine SC 1034, stated the steps which have to be taken to fill in the vacancies:

(a) the general merit list to be first filled in;

(b) the backlog vacancies of the particular reserved category to be thereafter filled in “first”; and

(c) the remaining reserved vacancies for the current year to be filled thereafter.

Considering this, the Court said that it appears that such a situation may not arise in the future as all backlog vacancies are stated to have been filled in.

“The performance and merit of candidates, as apparent from the list in question, would itself show as to how many candidates have been successful to attain appointment on a merit position without even availing of reservation- an extremely encouraging aspect!”

Hence, it was held that the increase in MBC/DNC candidates really does not impinge on the reservation of seats for other categories, nor does it violate any provision of the Constitution of India.

[State of Tamil Nadu v. K. Shobhna,  2021 SCC OnLine SC 179, decided on 05.03.2021]


*Judgment by: Justice Sanjay Kishan Kaul

Know Thy Judge| Justice Sanjay Kishan Kaul

Appearances before the Court by:

For appellants: Senior Advocate C. Aryama Sundaram

For intervenors: Senior Advocate S. Nagamuthu

For respondent: Senior Advocate N.L. Rajah

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Case BriefsHigh Courts

Delhi High Court: V. Kameswar Rao, J., while addressing an issue wherein a doctor sought for a study leave for pursuing MD/MS Course, stressed upon the ambit of the power of judicial review.

Petitioner sought a direction against respondents 1 and 2 to issue the relieving order and grant study leave to him in order to enable him to pursue MD/MS Course in Pediatrics from Post Graduate Institute of Medical Education and Research, Chandigarh (PGI) as petitioner satisfied the criteria laid down for grant of study leave in the Office Memorandum dated 02-11-2012.

The request for study leave was denied in view of the prevailing situation i.e., COVID-19.

Further, it was added that the Lt. Governor took a considered view that in these times of Pandemic COVID-19, more medical staff was required. Since some of the doctors had already proceeded on study leave, it would not be prudent to spare more Doctors. Hence the LG desired that the department may kindly be advised to not sanction any more study leave application.

 Analysis, Law and Decision

The decision in regard to study leave came under the decision-making power of the Lt. Governor, Govt. of NCT of Delhi based on the prevailing COVID-19 situation in the city and in the instant case, the said request of the petitioner was not acceded to.

Judicial Review

Court stated that the Court, in exercise of its power of judicial review, cannot sit as an Appellate Authority over the decision taken by the administration/management.

Further, the Bench expressed that the decision was taken giving due regard to the exigencies, which may arise in the course of administration.

“…petitioner being a meritorious candidate, has a legitimate expectation to acquire a higher qualification and advance in his career but at the same time, as an employee working in the Govt. of NCT of Delhi, is bound by the Rules framed by the Government i.e. Rule 50 of the Leave Rules clearly stipulates that the grant of study leave is not a matter of right, as the same shall be granted to the government servant with due regard to the exigencies of public service.”

 Hence, it was held that in view of the Supreme Court decision in State of Punjab v. Dr Sanjay Kumar Bansal, (2009) 15 SCC 168,  when the decision has been taken at the highest level in the Government, this Court cannot sit as an Appellate Authority over such a decision. [Dr Rohit Kumar v. Lt. Governor of Delhi,  2021 SCC OnLine Del 317, decided on 02-02-2021]


Advocates for the parties:

Petitioner: Geeta Luthra, Senior Advocate with Nitin Saluja and Varun Dewan, Advocates

Respondents: Avinash Ahlawat, SC for GNCTD with Tania Ahlawat, Nitesh Kumar Singh and Palak Rohmetra, Advocates

Case BriefsHigh Courts

“Bowed by the weight of centuries, he leans upon his hoe and gazes on the ground the emptiness of ages in his face and on his back, the burden of the world.”

Bombay High Court: These lines from Nehru’s autobiography were quoted by Ranjit More, J. in the judgment delivered for himself and Bharati H. Dangre, J. to describe the social status of the Maratha community and the need of a solution to the peculiar problem brought before the Court. In a 487-pages long Judgment, the High Court upheld the validity of the Maharashtra State Reservation (of seat for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 providing reservation for the Maratha community. However, at the same time, the Court held that the quantum of reservation at 16% was not justifiable and therefore the same was partially set aside.

The challenge 

The Court was dealing with a batch of writ petitions posing a challenge to the SEBC Act which categorise Marathas as ‘Socially and Educationally Backward Class’ and confers 16% reservation in their favour in the seats for admission in educational institutions and to the posts for appointments in public services in the State of Maharashtra. One of the prime contentions of the petitioners was that the said Act was a fraud on the Constitution as it hiked the reservation available in the State of Maharashtra from 52% to 68% and thereby crossed the barrier of the ceiling limit of 50% imposed by the Supreme Court in Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217.

Government’s stand

The Government of Maharashtra justified the enactment of SEBC Act as being warranted by these extraordinary circumstances — (a) Gradual deterioration in educational and social backwardness of Marathas; (b)Deterioration in income as well as the desperation of families to survive; (c) Substantial  backlog in services under the State; (d) Increase in the number of suicides as a result of form indebtedness and shift to manual labour; (e) Inability to raise the standard of living as a result of adverse conditions.

The issue

 The Court considered the question — Whether the SEBC Act, 2018 is constitutionally invalid on account of lack of legislative competence on the following sub-heads: (a) the subsisting interim order passed by the Bombay High Court in Sanjeet Shukla v. State of Maharashtra, 2014 SCC OnLine Bom 1672, thereby granting stay to a similar enactment and ordinance of the State, which was pending for adjudication before the Court; (b) the Constitution (102nd Amendment) Act, 2018 depriving the State legislature of its power to enact a legislation determining the Socially and Educationally Backward Class and conferring the benefits on the said class in exercise of its enabling power under Articles 15(4) and 16(4) of the Constitution as now such classes are those as declared under Article 342-A of the Constitution; (c) the limitation of 50% reservation set out by the Constitution Bench of the Supreme Court in Indra Sawhney.

Conclusions of the Court

The conclusion of the High Court on various points as formulated and deliberated upon are summarised in seriatim:

(i) The State possesses the legislative competence to enact the Maharashtra State Reservation (of seats for  admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018, and the interim order passed by the Bombay High Court in Sanjeet Shukla v. State of Maharashtra, 2014 SCC OnLine Bom 1672. We resultantly uphold the impugned enactment except to the quantum of reservation as set out in Point 6.

(ii) The report of the Maharashtra State Backward Class Commission under the Chairmanship of Justice Gaikwad is based on quantifiable and contemporaneous data and it has conclusively established the social, economic and educational backwardness of the Maratha Community and it has also established the inadequacy of representation of the Maratha Community in public employment/posts under the State. Accordingly, the MSBCC Report is upheld.

(iii) The classification of the Maratha class into “Socially and Educationally Backward Class” complies the twin test of reasonable classification permissible under Article 14 of the Constitution of India — namely, (a) intelligible differentia and (b) rational nexus to the object sought to be achieved.

(iv) The limit of the reservation should not exceed 50% however in exceptional circumstances and extraordinary situations, this limit can be crossed subject to availability of quantifiable and contemporaneous data reflecting backwardness, the inadequacy of representation and without affecting the efficiency in administration.

(v) The report of the Gaikwad Commission has set out the exceptional circumstances and extraordinary situations justifying crossing of the limit of 50% reservation as set out in Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217.

(vi) The State Government in the exercise of its enabling power under Articles 15(4) and (5) and 16(4) of the Constitution is justified, in the backdrop of the report of MSBCC, in making provision for a separate reservation to Maratha community. However, the quantum of the reservation set out by the SEBC Act in Section 4(1)(a) and 4(1)(b) as 16% is not justifiable and resultantly the quantum of reservation under the said provisions over and above 12% and 13% respectively as recommended by the Commission is quashed and set aside.

Hope and trust

While concluding its judgment, the Court stated: At present, we have dealt with the extraordinary situation with which the State is confronted with where it justified the exceeding of limit, and we, by taking consideration the exceptional circumstances, have upheld this exercise of power by the State. We hope and trust that the said situation would be reviewed by the State in the near future so that it follows the rule of caution and do not forever continue with this “Exceptional circumstances and extraordinary situation.”

Note of appreciation for the counsel

Before concluding the Court placed n record the appreciation for the erudite submissions advanced by the Senior Counsel who ably assisted the Court in delivering the judgment. TheCourt stated that it deeply valued the assistance rendered by Senior Advocates Arvind Datar, S.G. Aney and Pradeep Sancheti assisted by the junior counsel on record. The Court also acknowledged the valuable assistance rendered by Gunratan Sadavarte and S.B. Talekar, Advocates. The Court further acknowledged the valuable assistance rendered by the Senior Advocate Ranjeet Thorat who was ably assisted by Akshay Shinde and Prachi Tatke, Advocates, for his strenuous efforts. The court also acknowledged the special assistance rendered by the Senior Advocates Mukul Rohatgi and Paramjeet Singh Patwalia. It was also noted that the Court was deeply assisted in its endeavour by Senior  Advocates Rafiq Dada, Arif Bookwala, A.Y. Sakhare, Prasad Dhakephalkar, Vineet Naik and Mihir Desai. Assistance of Rajesh Tekale, Ashish Gaikwad and Abhijeet Patil, Advocates were also acknowledged. [Jishri Laxmanrao Patil v. State of Maharashtra, 2019 SCC OnLine Bom 1107, decided on 27-06-2019]