Case BriefsSupreme Court

Supreme Court: A 3-judge bench of SA Bobde, CJ and R. Subhash Reddy and BR Gavai, JJ has referred to a 5-judge Constitution Bench pleas challenging the Constitution (One Hundred and Third Amendment) Act, 2019 which provides for grant of 10% quota to Economically Weaker Sections (EWSs) in jobs and admissions in the general category. The bench said that a larger bench will decide the pleas filed by 35 petitioners challenging Centre’s decision.

“for the purpose of deciding any case involving a substantial question of law as to interpretation of the Constitution it is to be heard by a Bench of five Judges.”

By virtue of Article 15(6) of the Constitution, States are empowered to make a special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) and to make a special provision relating to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30, in addition to existing reservations and subject to a maximum of ten per cent of the total seats in each category. Similarly, Article 16(6) empowers the State to make any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent of the posts in each category.

It is the case of the petitioners Janhit Abhiyan, an NGO, that the impugned amendments violate the basic structure of the Constitution mainly on the ground that the existing provisions of the Constitution empower to provide affirmative action only in favour of socially backward classes. It is for the first time that by the impugned amendments in the Constitution itself the new clauses are incorporated enabling the State to provide affirmative action by way of reservation to the extent of 10% in educational institutions and for appointment in services to economically weaker sections of society. The Petitioners have argued that the economic criteria alone cannot be the basis to determine backwardness as per the 9-Judge Bench judgment of this Court in the case of Indira Sawhney v. Union of India, (1992) 3 SCC 217. It is also the case of the petitioners that exceeding the ceiling cap of 50% is also in violation of the very same judgment of this Court.The quota will be over and above the existing 50 per cent reservation to Scheduled Castes, Scheduled Tribes and Other Backward Classes (OBCs).

It has further been argued that by virtue of the impugned amendments, very Constitution is amended by inserting new clauses in Articles 15 and 16 thereof, which empower the State to make reservations by way of affirmative action to the extent of 10% to economically weaker sections

“the very amendments run contrary to the constitutional scheme, and no segment of available seats/posts can be reserved, only on the basis of economic criterion.”

After considering the submissions of the petitioner, the Court said that such questions do constitute substantial questions of law to be considered by a Bench of five Judges. It is clear from the language of Article 145(3) of the Constitution and Order XXXVIII Rule 1(1) of the Supreme Court Rules, 2013, the matters which involve substantial questions of law as to interpretation of constitutional provisions they are required to be heard a Bench of five Judges.

“Whether the impugned Amendment Act violates basic structure of the Constitution, by applying the tests of ‘width’ and ‘identity’ with reference to equality provisions of the Constitution, is a matter which constitutes substantial question of law within the meaning of the provisions as referred above.”

The Court also took note of the submission of the Union of India that though ordinarily 50% is the rule but same will not prevent to amend the Constitution itself in view of the existing special circumstances to uplift the members of the society belonging to economically weaker sections. The Court noticed that even such questions also constitute as substantial questions of law to be examined by a Bench of five Judges as per Article 145(3) of the Constitution read with Order XXXVIII Rule 1(1) of the Supreme Court of Rules, 2013.

[Janhit Abhiyan v. Union of India, 2020 SCC OnLine SC 624 , decided on 05.08.2020]


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Case BriefsHigh Courts

Jammu and Kashmir High Court: Tashi Rabstan, J. addressed a matter wherein 100 % reservation in public employment for J&K domiciles in the UT has been challenged.

Petitioner’s 1 and 3 are domiciles of the State of Haryana and Petitioner 2 a permanent resident of the erstwhile State of Jammu and Kashmir who is now a resident of UT of Ladakh.

Petitioners challenged Sections 3A, 5A, 6, 7, and 8 of Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act, 2010, on the ground that the same is violative of Article 14, 16, 19 and 21 of the Constitution of India.

Petitioner contended that Parliament has never delegated the law-making power of Article 16(3) of Constitution to the Central Government under Section 96 of Jammu and Kashmir Reorganization Act, 2019. 

“…power delegated under Section 96 was only for the purpose of facilitating the applications of already prevailing law in former State of Jammu and Kashmir or to make laws applicable to new Union Territories of J&K and Ladakh.”

Further, it was contended that the power delegated under Section 96 shall not be in any manner construed as a delegation of parliamentary power of Article 16(3) of the Constitution of India.

By amending Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act, 2010 by two executive orders dated 31-03-2020 and 03-04-2020, the Union Ministry of Home Affairs has debarred the non-domiciles from employment in J&K.

After the amendment in Section 96, the term “Permanent Resident of J&K” was replaced by “Domiciles” of UT of J&K.

Court directed for issuance of notice to the respondents. Matter to be listed on 03-09-2020. [Nishant Khatri v. UOI, 2020 SCC OnLine J&K 380, decided on 04-08-2020]

Op EdsOP. ED.

“The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” 

Article 15(1) of the Constitution of India

Introduction

Reservations are the biggest enemy of meritocracy. By offering reservation through relaxed entry criteria, we are fuelling inflation of moderate credentials as opposed to the promotion of merit-based education system, which is the foundation of many progressive countries. Meritocracy should not be polluted by injecting relaxation of entry barriers, rather should be encouraged by offering financial aids to the underprivileged although deserving candidates only.

From a political science perspective, the State has the obligation to look after the welfare of its subjects. The Government although justifies its reservation policies on grounds of confidence building and providing equality of opportunity to the disadvantaged sections of the society, the reservations basing on domicile and residence is entirely a separate infringement. The State subsequently has deprived the meritorious class through an unreasonable and perverse domicile reservation. This marks the departure from the field of justness, fairness and reasonableness guaranteed by the rule of law that is supposed to be supreme in our constitutional set-up.

Understanding Domicile

Domicile as a concept is of immense importance, both in municipal law as well as in private international law or the conflicts of laws, as it is called. The concept denotes “the place of living”, or more precisely a permanent residence. Domicile is the legal relationship between an individual and a territory with a distinctive legal system which invokes that system as his personal law.[1] Although the notion which lies behind the concept of domicile is of “permanent residence” or a “permanent home”, yet domicile is primarily a legal concept for the purposes of determining what is the “personal law” applicable to an individual and therefore, even if an individual has no permanent residence or permanent home, even then he is invested with a “domicile” albeit by law or implication of law. 

Now, it has been argued at various places that the term “place of birth” occurs in clause (1) of Article 15 but not “domicile”. If a comparison is made between Article 15(1) and Article 16(2) of the Constitution of India, it would appear that whereas the former refers to “place of birth” alone, the latter refers to both “domicile” and “residence” apart from place of birth. A distinction, therefore, has been made by the makers of the Constitution themselves to the effect that the expression “place of birth” is not synonymous to the expression “domicile” and they reflect two different concepts. But it is also true that both the expressions appeared to be synonymous to some of the members of the Constituent Assembly.

That certainly is not an issue. The deprivation of seats at educational institutions of national importance to deserving and meritorious candidates merely because they are resident in a different State creates an unjustified classification which assails Article 14 which has a wider ambit than Article 15(1).

Flawed Justifications

A perusal of the analysis of Pradeep Jain v. Union of India[2] that invalidated wholesale reservation on the basis of domicile or residence, and D.P. Joshi v. State of M.B.[3] reveals that two considerations have weighed with the courts in justifying departure from the principle of merit-based selection viz.:

(1) The claim of State interest in providing adequate medical service to the people of the State by imparting medical education to students who by reason of their residence in the State would be likely to settle down and serve the people of the State as doctors i.e. doctrine of sons of soil.

(2) The region’s claim of backwardness.

Now, even a certain amount of reservation on the basis of domicile and residence would mean discrimination as even a minimal departure creates an irrational class depriving a meritorious candidate of his fundamental rights and these justifications listed above are as fallacious as they can be. Firstly, there appears to be no reasonable guarantee that an individual having his residence in a State would practice a profession in his own State after he has graduated. Various surveys[4] have reflected that a very high majority of individuals getting admission under domicile reservation quotas, after graduation, pursue their careers in different States or in fact owing to globalisation, in different countries. Secondly, there is absolutely no rationale behind employing domicile-based reservations to curb backwardness as a person having or not having residence in a particular State has nothing to do with backwardness. It thus seems that there clearly has been an error in identifying the source of the problem.

The Court has, no doubt, by its decisions in D.P. Joshi case[5] and N. Vasundara v. State of Mysore[6] sustained the constitutional validity of reservation based on residence requirement within a State for the purpose of admission to medical colleges. But it is essential to note that the reasoning behind this appears to have been per incuriam. The Court believed that if admissions are given on the basis of all-India national entrance examination, each individual would have an equal opportunity of securing admission, but that would not take into account diverse considerations, such as, differing levels of social, economic and educational development of different regions, disparity in the number of seats available for admission to the MBBS course in different States, difficulties which may be experienced by students from one region who might in the competition on all-India basis get admission to the MBBS course in another region far remote from their own and other allied factors.

But if that were the case, then reserving seats for candidates from a single State would hardly serve the purpose since similar or higher social and educational backwardness is likely to exists in other States. The Court has rightly viewed that a brilliant student should not be impeded from getting his deserved share of education on geographical grounds when there is a common examination for determining merit.[7]

An Unusual Political Organisation

State domicile quotas are hence nothing but the State exercising its powers for the welfare of the people which would have been entirely fair had it not been with respect to universities of national importance. The State Governments must aim at welfare of individuals belonging to their State but such reservations may focus on the social and educational backward classes of people appearing for the State entrance examinations. Once there is a university of national importance allotting seats on the basis of an all-India entrance examination, allowing reservation on the basis of residence in a particular State would be as discriminatory as intra-State domiciliary classification which has been held to be discriminatory in A. Peeriakaruppan v. State of T.N.[8] There in fact is a huge hue and cry about economic backwardness which has also formed a ground for allowing reservation. If we look carefully, Article 15(4) frees the State from restrictions on making reservation policies with regards to socially and educationally backward classes only. Nowhere does the Constitution talk about economic backwardness and it has also been held in Janki Prasad Parimoo v. State of J&K[9] that mere poverty cannot be a consideration for the test of backwardness for the purpose of enabling reservations.

Delhi University, a Central university in the capital of India was not to be left behind. In 1978, the 48% reservation quota for Delhi graduates for admission to postgraduate medical courses was raised to 70% with entry point left open to them from the rest of the 30% “open” (for Indians) seats also. The University justified the reservation on the ground that all other universities practised university-wise reservations. The Health Minister of India justified it on the ground that the students had fasted at his residence for raising the limit and the Supreme Court justified it in Jagadish Saran v. Union of India[10], on the grounds that the Delhi students were from families drawn from all over India, not sons of the soil. The practice of reservation by all other universities prejudiced Delhi students’ chances—this indirect, real yet heavy handicap created discrimination and cannot be wished away and needs to be corrected by some percentage of reservation or other legitimate device, and that the Delhi students could not be made martyrs of the Constitution.[11]

The question that arises is whether in a federal structure, the State Governments by the mere virtue of funding universities have the power to make such laws which favour individuals residing in their State. It is true that with respect to subjects set out in List II of the Seventh Schedule to the Constitution, the States have the power to make laws and subject to the overriding power of Parliament, the State can also make laws with respect to subjects enumerated in List III of the Seventh Schedule to the Constitution, but the legal system under the rubric of which such laws are made by the States is a single legal system which may truly be described as the Indian legal system. It would be absurd to suggest that the legal system varies from State to State or that the legal system of a State is different from the legal system of the Union of India, merely because with respect to the subjects within their legislative competence, the State have power to make laws.

“Education” appears both in the Union List as also in the Concurrent List. The relevant entries in the Constitution are as under:

List I? 66. Coordination and determination of standards in institutions for higher education or research and scientific and technical institutions.

List III? 25. Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.

Now, in a democratic set-up, the mere fact that a national university is being funded by a State Government does not give the State Government the power or privilege to reserve seats for individuals resident within its territory. The federal structure of India is one of cooperative nature where the powers are distributed between the Centre and the States and exercised in cooperation with each other. Under the Indian Constitution, there are certain provisions[12] which authorise federal supervision of local execution of national laws. These provisions reflect the supremacy of the Union over the States.

Article 1, which describes India as a Union of States reflect the kind of federalism prevalent in India. Article 258 of the Constitution empowers the Union to confer powers in the State in certain cases. In funding and managing the educational institutions in their respective territories, the State Governments are carrying out the functions of the Centre in allegiance to the federal structure. The States are simply alleviating additional burden on the Centre and by doing so, cannot and should not confer themselves with power to an extent of creating a separate power as strong as the Centre. If the State Governments make laws to favour their students on a national platform, this would be like the State becoming a separate entity from the Union which is forbidden. This would defeat the whole purpose of having a State as an organisational set-up.

Halsbury’s Law of England too states as under: 

In federal States some branches of law are within the competence of the federal authorities and for these purposes the whole federation will be subject to a single system of law and an individual may be spoken of as domiciled in the federation as a whole; other branches of law are within the competence of the State or provinces of the federation and the individual will be domiciled in one State or province only. [13]

For this very reason, Article 5 of the Constitution is clear and explicit on this point and it refers only to one domicile, namely, “domicile in the territory of India”. The Court in Pradeep Jain case [14] observed that:

“8. … It is dangerous to use a legal concept for conveying a sense different that which is ordinarily associated with it as a result of legal usage over the years. Therefore, it is strongly urged upon the State Government to exercise this wrong use of the expression “domicile” from the rules regulating admissions to their educational institutions and particularly medical colleges and to desist from introducing and maintaining domiciliary requirement as a condition of eligibility for such admissions.”

However, in respect of considering the word “domicile” as residential requirement, the Supreme Court unreservedly condemned wholesale reservation made by some of the State Governments on the basis of “domicile” or residence requirement within the State or on the basis of institutional preference for students who have passed the qualifying examination held by the university or the State excluding all students not satisfying this requirement, regardless of merit.””

Conclusion

What is therefore necessary, is to set up proper and adequate structures in rural areas where competent medical services can be provided by doctors and some motivation must be provided to the doctors servicing those areas. But, as the position stands today, there is considerable paucity of seats in medical colleges to satisfy the increasing demand of students for admission and some principle has, therefore, to be evolved for making selection of students for admission to the medical colleges and such principle has to be in conformity with the requirement of Article 14.

It would run counter to the basic principle of equality before the law and equal protection of the law if a citizen by reason of his residence in State A, which ordinarily in the commonality of cases, would be the result of his birth in a place situate within that State, should have opportunity for education or advancement which is denied to another citizen because he happens to be resident in State B. It is axiomatic that talent is not the monopoly of the residents of any particular State; it is more or less evenly distributed and given proper opportunity and environment, everyone has a prospect of rising to the peak. What is necessary is equality of opportunity and that cannot be made dependent upon where a citizen resides. If every citizen is afforded equal opportunity, genetically and environmentally, to develop his potential, he will be able in his own way to manifest his faculties fully leading to all-round improvement in excellence. The philosophy and pragmatism of universal excellence through equality of opportunity for education and advancement across the nation is part of our founding faith and constitutional creed. The effort must, therefore, always be to select the best and most meritorious students for admission to technical institutions and medical colleges by providing equal opportunity to all citizens in the country and no citizen can legitimately, without serious detriment to the unity and integrity of the nation, be regarded as an outsider in our constitutional set-up. Moreover, it would be against national interest to admit in medical colleges or other institutions giving instruction in specialities, less meritorious students when more meritorious students are available, simply because the former are permanent residents or residents for a certain number of years in the State while the latter are not, though both categories are citizens of India. Exclusion of more meritorious students on the ground that they are not resident within the State would be likely to promote substandard candidates and bring about fall in medical competence, injurious in the long run to the very region. It is no blessing to inflict quacks and medical midgets on people by wholesale sacrifice of talent at the threshold.

Parliament has also the legislative competence in terms of Entry 25, List III of the Seventh Schedule to the Constitution to make laws involving the subject-matter of education. It, for education and particularly higher education where excellence is required, while enacting law must also foresee that in the era of liberalisation and globalisation, Indian citizens must compete with their counterparts of the developed countries. Merit, thus, must be allowed to explore to the fullest extent. Genius hidden in the citizens must be allowed to blossom.[15] The State is a politically organised society and each organisation within the State is expected to cooperate with every other organisation for the achievement of the State’s objectives. The State here is the Union of India and its objectives are to holistically ensure benefits to every section of the society. Also, in achieving such ends, importance must be given to the basic philosophies of human existence i.e. to give every individual what he deserves.

Universities, admission to which is done through merit at an all-India examination are universities of national importance and takes aspiring students from throughout India. So, where reservations for Scheduled Castes and Scheduled Tribes are for the whole of the country, reservations on the basis of residence or domicile in a particular State is unjust. Thus, although some reservations may still be necessary for the socio-political condition in India, reservation on the basis of domicile or residence within a State for admissions to universities of national importance would be highly discriminatory and utterly perverse.


* Student, BA LLB (Hons.), National University of Study and Research in Law.

[1] Halsbury’s Laws of England (Fourth edn.), Vol. 8, para 421.

[2] (1984) 3 SCC 654

[3] (1955) 1 SCR 1215

[4] Government of India, Ministry of Human Resource Development Department of Higher Education 2013, All India Survey on Higher Education.

[5] (1955) 1 SCR 1215

[6] (1971) 2 SCC 22

[7] Nidamarti Maheshkumar v. State of Maharashtra, (1986) 2 SCC 534

[8] (1971) 1 SCC 38

[9] (1973) 1 SCC 420 

[10] (1980) 2 SCC 768

[11] Id., p. 787

[12] Constitution of India, Articles 256, 257 and 258.

[13] Halsbury’s Laws of England (Fourth edn.),Vol. 8.

[14] (1984) 3 SCC 654 at p. 668

[15] Saurabh Chaudri v. Union of India, (2003) 11 SCC 146

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: Holding the Government Office Ms. No.3 dated 10.1.2000 issued by the erstwhile State of Andhra Pradesh providing 100% reservation to the Scheduled Tribe candidates out of whom 33.1/3% shall be women for the post of teachers in the schools in the scheduled areas in the State of Andhra Pradesh, unconstitutional, the 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ has held that there was no rhyme or reason with the State Government to resort to 100% reservation.

“It was least expected from the functionary like Government to act in aforesaid manner as they were bound by the dictum laid down by this Court in Indra Sawhney and other decisions holding that the limit of reservation not to exceed 50%.”

The Court noticed that a similar G.O. was issued by the erstwhile State Government of Andhra Pradesh in the year 1986, which was quashed by the State Administrative Tribunal, against which an appeal was preferred in this Court, which was dismissed as withdrawn in the year 1998. After withdrawal of the appeal from this Court, it was expected of the erstwhile State of Andhra Pradesh not to resort to such illegality of providing 100% reservation once again.  But instead, it issued G.O. Ms. No.3 of 2000, which was equally impermissible, even if the A.P. Regulation of Reservation and Appointment to Public Services Act, 1997 would have been amended, in that event also providing reservation beyond 50% was not permissible.

Agreeing to the apprehensions of the appellants that the State may again by way of mis­adventure, resort to similar illegal exercise as was done earlier, the Court directed the State of Andhra Pradesh to not exceed the limits of reservation in future. It said,

“In the peculiar circumstance, we save the appointments conditionally that the reorganised States i.e. the States of Andhra Pradesh and Telangana not to attempt a similar exercise in the future. If they do so and exceed the limit of reservation, there shall not be any saving of the appointments made, w.e.f. 1986 till date.”

The Court also held that the notification in question cannot be treated as classification made under Article 16(1). Once the reservation has been provided to Scheduled Tribes under Article 16(4), no such power can be exercised under Article 16(1). The notification is violative of Articles 14 and 16(4) of the Constitution of India.

It, further, held that the conditions of eligibility in the notification with a cut­off date, i.e., 26.1.1950, to avail the benefits of reservation, were also unreasonable and arbitrary.

The Court also answered, in detail, the questions relating to scope of power of the Governor. Here’s a summary of the other questions referred to and answered by the Court:

Scope of paragraph 5(1), Schedule V to the Constitution of India:

Under Para 5(1), Fifth Schedule of the Constitution, the Governor can:

  • exercise the powers concerning any particular Act of the Parliament or the legislature of the State.
  • direct that such law shall not apply to the Scheduled Areas or any part thereof
  • apply such law to the Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and can also issue a notification with retrospective effect.

Governor’s power to make a new law

Under Para 5(1), Fifth Schedule of the Constitution, the Governor can:

direct that any particular Act of Parliament or the Legislature of the State, shall not apply to a Scheduled Area or apply the same with exceptions and modifications.

make a provision within the parameters of amendment/modification of the Act of Parliament or State legislature.

“The power to make new laws/regulations, is provided in Para 5(2), Fifth Schedule of the Constitution for the purpose mentioned therein, not under Para 5(1) of the Fifth Schedule to the Constitution of India.”

Does the power to make new laws extend to subordinate legislation?

No, the power does not extend to subordinate legislation, it is with respect to an Act enacted in the sovereign function by the Parliament or legislature of the State which can be dealt with.

Can the exercise of the power conferred Under Para 5(1), Fifth Schedule of the Constitution override fundamental rights guaranteed under Part III?

The power is subject to some restrictions, which have to be observed by the Parliament or the legislature of the State while making law and cannot override the fundamental rights guaranteed under Part III of the Constitution.

Does the exercise of such power override any parallel exercise of power by the President under Article 371D?

No, the Governor cannot override the notification issued by the President in the exercise of powers under Article 371D. The power has to be exercised harmoniously with such an order issued under Article 371D, not in conflict thereof.

[Chebrolu Leela Prasad Rao v. State of Andhra Pradesh, 2020 SCC OnLine SC 383 , decided on 22.04.2020]

Case BriefsSupreme Court

Supreme Court:  The bench of Dr. DY Chandrachud and UU Lalit, JJ has refused to entertain the applications challenging the validity of Karnataka’s 2018 reservation law, which granted reservation in promotion to employees belonging to SC and ST categories. The Court held that applications filed by a group of general category employees for applying ‘post-based quota’ and the principle of the creamy layer at entry-level in public employment were not maintainable.

The maintainability of the MAs was challenged on the ground that though styled as an application for directions, they seek to lay a substantive challenge to the subsequent directions and clarifications issued by the State government in implementing the Reservation Act 2018.

The Court took note of various judgments wherein it was noticed that many applications, though styled as applications for clarification or modification are, in substance, applications for review. It noticed that this practice was presumably adopted to bypass the procedure stipulated for the consideration by this Court of review petitions. A party would not be permitted to circumvent substantive procedures by filing such applications.

The Court held that in B K Pavitra II, the Court was concerned with the constitutional validity of the Reservation Act 2018 and not actions taken thereunder or in pursuance of its implementation. However, the present MAs, though styled as applications for directions, seek to lay challenge to the actions of the State government to carry into effect the provisions of the Reservation Act 2018.

The Court noted,

“the nomenclature of an application is of no consequence and courts must assess the contents and reliefs sought in the application to determine what is the true nature of the application.”

In the present case the remedy, styled as directions, sought by the applicants cannot lie in the form of MAs.

  • Prayer (a) which seeks a direction to “re-work” all promotions on the basis of ‘post based reservations’ impugns item 3 of the FAQs annexed to the circular dated 24 June 2019 which states that the list is to be revised on the basis of the total number of government employees in the respective cadre.
  • Prayer (b) seeks the issuance of a direction to the State of Karnataka to apply the creamy layer principle at the entry level.
  • Prayer (c) seeks the issuance of a direction to the State Government to ensure, in the implementation of the Reservation Act 2018.

The Court, hence, held that the present MAs were, in effect, a substantive challenge to the actions of the State government in implementing the Reservation Act 2018.

In May last year, the court had, in BK Pavitra v. Union of India2019 SCC OnLine SC 694upheld the law allowing reservations in promotions for SC and ST candidates with consequential seniority. Upholding the validity of the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act 2018, the bench of UU Lalit and Dr. DY Chandrachud, JJ had held,

“The Reservation Act 2018 is a valid exercise of the enabling power conferred by Article 16 (4A) of the Constitution.”

It further held,

“The object of the Reservation Act 2018 is to accord consequential seniority to promotees against roster points. In this view of the matter, we find no reason to hold that the provisions in regard to retrospectivity in the Ratna Prabha Committee report are either arbitrary or unconstitutional.”

Therefore, the benefit of consequential seniority has been extended from the date of the Reservation Order 1978 under which promotions based on reservation were accorded.

[BK Pavithra v. Union of India, M.A. No. 1323 of 2019, decided on 19.03.2020]

Hot Off The PressNews

Supreme Court: The Court will start from March 17 the final hearing on the petitions challenging the constitutional validity of a Maharashtra law, which grants reservation to the Maratha community in education and jobs.

A bench of Justices L Nageswara Rao and Deepak Gupta refused to pass an interim order and said,

“We will hear on March 17, no adjournment will be granted and all pleadings will be completed by then. We will hear the matter finally and pass the order. We are not staying it. Already there is an order that all appointments will be subject to the outcome of this petition,”

The bench was hearing two appeals, including one filed by J Laxman Rao Patil challenging the Bombay High Court order that upheld the constitutional validity of the quota for the Maratha community in education and government jobs in Maharashtra. During the hearing of the case in the top court, senior advocate Gopalshankar Narayan appearing for the petitioner asked the bench to stay the High Court order as the reservation today is 65 per cent in education and 62 per cent in jobs, exceeding 50 per cent cap in total reservation.

The Bombay High Court had on June 27, 2019, said the 50 per cent cap on total reservations imposed by the Supreme Court could be exceeded in exceptional circumstances.

Another appeal filed by advocate Sanjeet Shukla, a representative of “Youth for Equality”, said the Socially and Educationally Backward Classes (SEBC) Act, 2018, enacted to grant reservation to the Maratha community people in jobs and education, breached the 50-per cent ceiling on reservation fixed by the Supreme Court in its judgment in the Indira Sawhney case.

The Maharashtra Assembly had, on November 30, 2018, passed the Maratha Reservation Bill which extended 16 per cent reservation in educational
institutions and government jobs to the Maratha community.

(Source: ANI)

Case BriefsHigh Courts

Kerala High Court: C.S. Dias, J. dismissed a writ petition filed by the petitioner on the basis that once any judgment is in force, a new petition cannot be filed for the same cause of action.

The petitioner had filed another petition before the instant petition, where the Court rendered a judgment, directing the Circle Inspector of Parassala Police Station (Respondent 4) and Sub Inspector of Police, Parassala Police Station (Respondent 5) to render adequate protection to the petitioner. The petitioner here filed a complaint against the harassment done to her by one Prakash (Respondent 6) and one Neetharani (Respondent 7).

The petitioner in this petition alleged that Respondent 6 and The Respondent 7 are still harassing her. The sole reason that the respondents are able to harass her, shows that Respondent 4 and Respondent 5 are not performing their duties. The Court in the last petition directed the circle inspector and the sub-inspector to protect the petitioner from any harassment.

It was held in Commr. Karnataka Housing Board v. Muddaiah, (2007) 7 SCC 689, that once any direction is issued by the Court, the authority is bound to abide by the directions without any reservations. In case, the authorities do not comply with the directions issued or ignore them, then the petitioner can institute contempt of court proceeding. In the case of contempt, the petitioner can not file a fresh suit as the cause of action is the same and the judgment of the previous petition is still in force.

After listening to the contentions of the counsel for the petitioner, K.P. Santhi, and counsel for the respondent, Princy Xavier, Government Pleader, the Court held that this petition is not maintainable as the Judgment of the previous petition is still in force. The Court dismissed the petition and asked the petitioner to seek remedy under Contempt of Courts Act, 1971. [J. Maya v State of Kerala, 2019 SCC OnLine Ker 6025, decided on 31-12-2019]

Hot Off The PressNews

As reported by media, Andhra Pradesh Assembly passes the Andhra Pradesh Employment of Local Candidates in Industries/Factories Act, 2019, that would offer 75% reservation.

“Privates jobs across factories, industrial units, joint ventures, private projects will be reserved for local Andhra people.”

The new law states that if locals with necessary skills are not available, then the companies would have to train them in association with the State Government in order to hire them.

Companies will have to comply with the new Act within three years of the beginning of its operations.


[Source: TOI]

Hot Off The PressNews

Supreme Court: The Maharashtra government has filed a caveat in the Supreme Court anticipating challenge to the verdict passed by the Bombay High Court which upheld the constitutional validity of reservation for Maratha community in education and government jobs in the state. In its plea, the Maharashtra government said no ex-parte order should be passed on any plea challenging the June 27 judgement of the Bombay High Court on Maratha quota without hearing the state.

The High Court, while upholding the constitutional validity of Maratha quota, has directed that it be slashed from the present 16% to 12% and 13%, respectively. The court said the 50% cap on total reservations imposed by the Supreme Court could be exceeded in exceptional circumstances.

It also accepted the Maharashtra government’s argument that the Maratha community was socially and educationally backward, and the government was duty-bound to take steps for its progress. The High Court said while the reservation was valid, its 16% quantum was not justifiable.

The Commission, in its report, had recommended 12% quota in education and 13% in jobs for Marathas.

On November 30, 2018, the Maharashtra legislature passed a bill granting the 16% reservation to the Marathas.

(Source: PTI)

Legislation UpdatesNotifications

The following issue was raised in Rajya Sabha on 26-06-2019 in respect to the “Reservation of Eunuchs”.

Will the Minister of Social Justice and Empowerment be pleased to state:-

a) whether Government is aware that an estimated 5-6 million eunuchs live in the country, who are deprived, alienated and encounters hostilities since early childhood which are so deep and extreme that, at some point, finding no other social space, they exclude themselves;
(b) whether Government has directed or taken measures such as to provide reservation to help bring eunuchs into the mainstream; and
(c) if so, the details thereof?

Response by Minister of State for Social Justice and Empowerment Shri Rattan Lal Kataria:

The Registrar General of India (RGI), during Enumeration of Census 2011, for the first time provided three codes i.e. Male-1, Female –2 and others -3 for enumeration. This was at the discretion of the respondent. In case the respondent wished to record neither ‘1’ nor ‘2’, then enumerator was instructed to record sex as ‘other’ and give code ‘3’. It is important to note that the Census of India does not collect any data specifically on ‘transgender’. Thus, the category of ‘other’ would not only include ‘transgender’ but also any person who desires to record sex under the category of ‘other’. It is also possible that some transgenders would have returned themselves either male or female depending upon their choice. The population of ‘other’ as per Census 2011 is 4,87,803.

An Expert Committee was constituted in the Ministry to make an in-depth study of the problems being faced by the Transgender Community and suggest suitable measures to ameliorate their conditions. The Committee submitted its report on 27th January 2014.  The Committee in its report has observed that the transgender community is a highly marginalized and vulnerable one and is seriously lagging behind on human development indices mainly in the area of education and employment.

The Hon’ble Supreme Court in its Judgment dated 15.04.2014 in WP(C) 400/2012 (NLSA Vs. UOI) directed, inter-alia, the Centre and State Governments to take steps to treat Transgenders as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.

In order to provide for the protection of rights of transgender persons and their welfare, the Ministry introduced a Bill titled “The Transgender Persons (Protection of Rights) Bill, 2016” in the Lok Sabha on 2.8.2016, the Bill was passed by the Lok Sabha on 17.12.2018.


[Press Release dt. 26-06-2019]

[Source: PIB & RajyaSabha.nic.in]

Op EdsOP. ED.

Introduction

Indian republic was formed in 1950 with a fourfold objective of securing to its citizen justice, liberty, equality and fraternity. Further, the citizens were guaranteed so many fundamental rights, through the Constitution, for a better standard of life. But without basic amenities to a decent life, the fundamental rights cannot be enjoyed in themselves. Land is still concentrated in the few hands, only 5% of India’s farmers control 32% land.[1] Industry too is concentrated in the hands of the top business houses. Social and economic power is still monopolised by small proportion of the people. Thus, in order to bring the economically weaker section of the society in the front, it is necessary to bring them under the garb of some economic policy. According to UNDP Report 2018 between 2005/2006 to 2015/2016 India has reduced multidimensional poverty from 54.7% to 27.5% of total people.[2]

In 1980, the Mandal Commission Report, followed the Supreme Court judgment in Indra Sawhney v. Union of India[3], allowed not more than 50 per cent of seats in the educational and service matter for the ST (Scheduled Tribes), SC (Scheduled Castes) and OBC (Other Backward Classes) who constituted around 70 per cent of the total population of India. This lead to a considerable progress in their status; according to the data released by Planning Commission between 2004-2005 and 2011-2012, more people among the deprived social classes — SCs, STs and OBCs — were brought above the poverty line, compared to other segments of society.[4] Therefore, it became an imperative for the legislature to frame policies for the upliftment of the economically weaker sections of the people who belonged to “other category” or “general category”. Keeping this in mind the legislature passed the Constitution (103rd Amendment) Act, 2019 (hereinafter referred as “Act”) to provide for 10 per cent reservation in the jobs and educational institutions to economically backward section in the general category.

It amended the fundamental rights under Part III of the Constitution to insert Articles 15(6) and 16(6) in the Constitution. The clauses read as follows:

  1. Article 15(6): Nothing in this article or sub-clause (g) of clause (1) of Article 19 or clause (2) of Article 29 shall prevent State from making:

(a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and

(b) any special provision for the advancement of any economically weaker sections of citizens other than the clauses mentioned in clauses (4) and (5) insofar as such special provisions relate to their admissions to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent of the total seats in each category.

Explanation.— For the purpose of this article and Article 16, “economically weaker sections” shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantages.

  1. Article 16(6): Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent of the posts in each category.

Whether the Act Violates the Basic Structure of Constitution

The Act is alleged to be violative of the basic structure of the Indian Constitution. But before delving into this question what is the basic structure doctrine has to be understood in a broader sense. Though every provision of the Constitution is essential but this does not place every provision of the Constitution in the same position. The true position is that every provision of the Constitution can be amended provided it does not alter the basic foundation and structure of the Constitution. To roughly put, the doctrine speaks on behalf of constitutional essentialism and suggests that constitutional amendments cannot embrace repeal of such essentials which define the constitutional identity.[5]

The definition of basic structure was first discussed in 1973, by Justice J.R. Mudholkar in his dissent, in Sajjan Singh v. State of Rajasthan[6], in the following words:

  1. It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of Article 368?

It was only in 1973 that the concept surfaced in the text of the Supreme Court’s verdict. In Kesavananda Bharati v. State of Kerala[7], the basic foundation and structure of the Constitution were mentioned by Sikri, C.J. as:

(1) supremacy of the Constitution;

(2) separation of powers between the legislature, the executive and the judiciary;

(3) republican and the democratic form of Government;

(4) secular character of the Constitution;

(5) federal character of the Constitution. The other Judges mentioned another 3 basic features of the Constitution;

(6) the dignity of the individual secured by the various fundamental rights and the mandate to build a welfare State contained in the directive principles;

(7) the unity and integrity of the nation; and

(8) parliamentary system.

And since then it has been closely examined and worked out in several cases, namely, Indira Nehru Gandhi v. Raj Narain[8], Minerva Mills Ltd. v. Union of India[9], Waman Rao v. Union of India[10], Bhim Singhji v. Union of India.[11]

Since the decision of Kesavananda Bharati case[12] all the constitutional amendments are tested on the touchstone of the basic structure principle and the amendments that are found to be adversely affecting or destroys the wider principles of the Constitution such as democracy, secularism, equality or republicanism or one that changes the identity of the Constitution are declared bad. The M. Nagaraj v. Union of India[13] laid down the twin test, namely, the “width test” and the test of “identity” which has to be satisfied in order to ascertain the validity of an amendment. The width test was to ascertain the “width” of the effect any amendment might have on Constitution, and obliquely on the principles which are at its core. The width of effect decides the legitimate scope (width) of the amending powers and also contemplates all the probable ramifications of an amendment to see if the “basic structure” of the Constitution is under threat. The “identity test” on the other hand tests whether after the amendment the identity of the Constitution remains the same.

In deciding whether the Act violates the basic structure it has to be subjected to the two tests. Where the width test the bill has to be examined on the basis of four issues: (i) qualitative issues like 50% ceiling for all reservations taken together; (ii) exclusion of creamy layer or qualitative exclusion; (iii) compelling reasons such as backwardness of the economically weaker sections for whom this reservation has been made; and (iv) that overall administrative efficiency is not obliterated by the new reservation.[14] The identity test will have to be applied to ascertain if the identity or the basic characteristics of the Constitution changes, after the amendment. All of these issues have been discussed in the succeeding paragraphs.

It does not Violate the 50% Cap on Reservation

The Act has been opposed on the grounds that it is exceeding the maximum limit of reservation i.e. 50%. But this is not the first instance, several attempts have been made by people’s representatives to extend reservation to new (disadvantaged) groups but they were all thwarted by this rule. In Indra Sawhney case[15] the Court capped the caste-based reservation to 50% without even explaining how it was considered “reasonable”. But the rationale behind it was that “no provision of reservation or preference can be so vigorously pursued as to destroy the very concept of equality”.[16]

Before delving into the topic it is necessary to understand the purpose of reservation. The reservation system began with the good objective to uplift the socially deprived society in order to provide them an opportunity. If we follow this logic then the Act is a good piece of legislation because around 30% of the total population of India, which constitute of the general category[17], are bereft of any socio-economic reservation either in the matter of education or in the matter of employment. This is so because they are considered as a “socially, educationally, and economically advanced”.

Though the 50% reservation has been considered as the maximum limit but this rule is not written on stone and can be extended in extraordinary circumstances. The same has been discussed in Indra Sawhney case[18], by the Chief Justice M.N. Venkatachaliah in the following words:

  1. 810. While 50 per cent shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas, the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.

The Bill makes it clear that the amendment relies upon the Article 46 to provide for the people of economically weaker sections of the society. But this view has been often chided upon by the Supreme Court. For instance, in State of Kerala v. N.M. Thomas[19], where the Supreme Court pointed out the same view: other “weaker sections” (mentioned in Article 46), in this context, means not every “backward class” but those dismally depressed categories comparable, economically and educationally, to Scheduled Castes and Scheduled Tribes.

This is in Consonance with the Creamy Layer Exclusion Principle.

The Indra Sawhney judgment referred to the “means test” which signifies the imposition of an income limit, for the purpose of excluding persons (from backward class) whose income is above the limit which was proposed as an economic indicator to adjudge them within the OBC category. There were some members of the designated backward classes that were highly advanced socially as well as economically and educationally. These persons were by no means backward and they were reaping all the benefits of reservation meant for the class. They were socially advanced enough to compete with forward class. These people formed the creamy layer for that backward class.

The rationale behind excluding these people was that the benefits of reservation are often snatched away by the top layers of that class. That the few seats reserved for the backward class are snatched away from them by the few fortunate among them. This wholly forfeits the aim of reservation as it snatches away seats from the unfortunate ones on “the same principle of merit on which the non-reserved seats are taken away by the top layers of society”. The 124th Amendment was in consonance with the same rationale. The unreserved posts in the jobs and educational institutions are often grabbed by the top creamy layers of the society, not because they are the enlightened ones but because the economically weaker counterparts of them cannot avail the same opportunities as them. This can be explained in a better manner by the example provided under Chapter VI of the Mandal Commission Report[20], that deals with “social justice, merit and privilege”. It provides an example of two boys — Lallu and Mohan. Lallu is a village boy belonging to a backward class occupying a low social position in the village caste hierarchy. He comes from a poor illiterate family and studies at a village school, where the level of instruction is woeful. On the other hand, Mohan comes from a fairly well-off middle class and educated family, attends one of the good public schools in the city, and has assistance at home besides the means of acquiring knowledge through television, radio, magazines and so on. Even though both Lallu and Mohan possess the same level of intelligence, Lallu can never compete with Mohan in any open competition because of the several environmental disadvantages suffered by him.

Economically Weaker Section of Society Comes under the Definition of Class

The Constitution makes it clear that the reservation can be for a caste or class only. Thus, before delving into the discussion about reservation on the economic basis solely, as given in the succeeding paragraphs, it has to be shown that the “economically weaker section” of the society constitutes a class in itself. If we go by the definition given by sociologist Max Weber, a class is a category of people who have a similar socio-economic status in relation to other classes in the society. The individuals and families which are classified as part of the same social class have similar life chances, prestige, style of life, attitudes, etc.

Further, the Black’s Law Dictionary[21], defines class as a group of persons or things, taken collectively, having certain qualities in common, and constituting a unit for certain purposes.

Thus, going by these definitions economically weaker sections do constitute a class of people because the Act lays down two major economic criteria for ascertaining the eligibility of the people; firstly, the person’s income should be less than 8 lakhs annually and secondly, if they own land it should be less than five acres. This categorises all the persons of same socio-economic status in the same group.

The Supreme Court of India in Ashoka Kumar Thakur v. Union of India[22], upholding the constitutional validity of Central Educational Institutions (Reservation in Admission) Act, 2006 stated that the identification of backward class cannot be done solely on caste. Other parameters are followed in identifying the backward class.

Most pertinent question here is that can a class be determined as backward class on the basis of occupation-cum-income without the reference to caste; this was affirmed in R. Chitralekha v. State of Mysore.[23] In many groups or classes the caste is not relevant at all, for example, agricultural labourers, rickshaw pullers/drivers, street-hawkers, etc. because they will always qualify as for being designated as backward class.

Economic Criteria can be the Sole Basis for Reservation

Various provisions of the Constitution like Articles 15, 29, 46 and 341 recognise the factual existence of backward classes in our country and which make a sincere attempt to promote the welfare of the weaker sections. This Act is a sincere attempt in this direction to mitigate the hardships of the people who are left behind because of their economic conditions.

One of the several contentions raised against the Act was that it formed reservation on the basis of economic criteria. But if we look into the Constitutional Assembly Debates relating to the first Amendment Act, 1951, pertaining to addition of Article 15(4) it is evident that the description of backwardness in the clause 4 of Article 15 was considered to be similar to that of clause (1) of Article 340. This was the reason, the word “economically” did not find a place in clause (4) of Article 15 though many members pointed out that in the identification of socially and educationally backward classes, economic backwardness could not be ignored.[24]

In K.C. Vasanth Kumar v. State of Karnataka[25], the Supreme Court discussed about the characteristics of backward classes. It was done on the request of Karnataka Government, who wanted the Court to lay down the guidelines for the discharge of the task of the Commission that was to be formed for this purpose. But all the Judges gave diverse opinion on this complex question. Though, on a closer look at the judgment it can be seen that all the Judges agreed upon one point that economic criteria is the most important factor for determining backward classes. Justice Chandarchud highlighted the two tests that should be conjunctively applied for identifying backward classes: one, they should be comparable to the Scheduled Caste and Scheduled Tribe in the matter of their backwardness; and two, they should satisfy the means test, that is to say, the test of economic backwardness, laid down by the State Government in the context of the prevailing economic backwardness.[26] Similarly, Desai J., held that the only criterion which can be realistically devised is one of the economic backwardness.[27]

In Indra Sawhney case[28], Justice R. Sahai observed that the individuals among the collectivity or the group, who may have achieved a social status or economic affluence, should be disentitled to claim reservation. Therefore time and again it can be seen, either through judicial pronouncements or by referring to the Constitutional Assembly Debates, which corroborate the same fact that reservations were meant to uplift the people economically. This is further elucidated by referring to the following excerpts from the first two Backward Classes Commissions:

The First Backward Classes Commission (Kalelkar Commission)

The Central Government appointed a Backward Classes Commission under Article 340 of the Constitution 29-1-1953. It was required “to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or any State to remove difficulties and to improve their conditions”. The Chairman of the Commission, however, after signing the report pleaded the President for rejection of it. This was so because he was of the opinion that the reservations and remedies recommended on the basis of caste should be eschewed altogether. Then alone, he said, would it be possible to help the extremely poor and deserving members of all communities.[29]

The Second Backward Classes Commission (Mandal Commission)

Chapter VII titled Social Justice, Constitution and Law talks about the post-independence times when nearly 90 per cent of higher posts under the State and seats in the medical and engineering colleges were filled by the higher castes. Therefore, in post-India the remedy to this situation was taken with the incorporation of clause (4) of Article 16.

Role of Judiciary in the Matters Related with Government Policies

The State, in designing its policies, should ensure that the vital principle of equality is not trampled upon. Petition has been filed before the Supreme Court to challenge the Act on the basis of violation of constitutional provisions however it is none of the concern of the Court whether the legislation in its opinion is wise or unwise.[30] Judicial restraint is a theory of judicial interpretation that encourages Judges to limit the exercise of their own power. It asserts that Judges should hesitate to strike down laws unless they are obviously unconstitutional. Judicially-restrained Judges respect stare decisis, the principle of upholding established precedent handed down by past Judges.

 Justice A.S. Anand, the former Chief Justice of India observed that and further in Asif Hameed v. State of J&K[31], the Indian Supreme Court observed:

Judicial restraint is particularly important for the Supreme Court for two reasons:

  1. Of the three organs of the State, only one, the judiciary is empowered to declare the limits of jurisdiction of all three organs. This great power must therefore be exercised by the judiciary with the utmost humility and self-restraint.
  2. The errors of the lower courts can be corrected by the higher courts, but there is none above the Supreme Court to correct its errors.

In State of Bombay v. F.N. Balsara[32], the principle that presumption was always in favour of constitutionality of an enactment was laid down. The State is obliged to act in a fair, reasonable and equitable manner[33], a statute cannot be declared invalid on the ground that it contents vague or uncertain or ambiguous[34], courts presume in favour of constitutionality of the statute because there is always a presumption that the legislature understands and correctly appreciates the need of its own people[35], every legislation enacted by Parliament or State Legislature carries with it a presumption of constitutionality. This is founded on the premise that the legislature, being a representative body of the people and accountable to them is aware of their needs and acts in their best interest within the confines of the Constitution.

In Shri Ram Krishna Dalmia v. S.R. Tendolkar[36], in the following words:

  1. that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds; and
  2. that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.

Ensuring Economic Justice through Directive Principle of State Policy

Articles 38 and 39 of the Indian Constitution which mandates State to secure a social order for the promotion of welfare of the people Article 39 of the Indian Constitution which mandates certain principles of policy to be followed by State and Article 46 of the Indian Constitution which provides promotion of educational and economic interests of Scheduled Castes, Schedule Tribes and other weaker sections. Articles 38, 39 and 46 mandate the State, as its economic policy, to provide socio-economic justice to minimise inequalities in income and in opportunities and status and further stated that State is under the obligation to work for the welfare of the society and to make socio-economic justice a reality, meaningful and fruitful so as to make the life worth living with dignity.[37]

Though the directive principles are not enforceable yet the Court should make a real attempt at harmonising and reconciling the directive principles and the fundamental rights and any collision between the two should be avoided as far as possible.[38] The concept of social justice consists of diverse principles essential for the orderly growth and development of personality of every citizen. The Constitution, therefore mandates, the State to accord justice to all members of the society in all facets of human activity.[39]

Conclusion

French economist Thomas Piketty, who wrote Capital in the 21st Century, which looks at wealth concentration and distribution since the 1700s, suggested that India should consider income-based reservations to tackle inequality.[40] The quota aims to cover nearly 190 million people from unreserved category. We have seen political parties making promises during election campaign and inserting the same in their election manifesto to provide reservations, thereby all the weaker class has remained vote bank to the political parties. This time Government has taken a bold step keeping aside the fact that the Government wants to allure the unreserved economic weaker class. The Act will provide benefits to the unreserved poor class people who are unable to afford their education expenses and are unemployed. The ratio behind caste-based reservation is a long history of untouchability and that criteria should not be changed, it should remain caste based to minimise the social inequality but at the same time it is a good move by Government to provide reservation to economically unreserved class to minimise the economic inequality. It is in consonance with the Preamble of Indian Constitution which provides social and economic justice elongated in the fundamental rights and directive principles.[41] Further, if seen closely it is just the implementation of the idea of the Constitution-makers who felt that the remedy to backwardness was economic basis but to make reservation a cumulative thing added the word socially. As “socially” is a much wider word including many things and certainly including economically.[42] Though the Act is a commendable step towards bringing economic equality, but reservations in jobs and education are not sustainable game changers. They can act only as interim measures, till the benefits of high growth trickle down, private sector jobs expand in numbers and quality and targeted public services reduce comprehensive inequality, using quotas to enable access to quality education and to government jobs which remain islands of security, dignity and relatively high income versus agriculture or unorganised manufacturing and services is a defensible strategy, responsive to our social and economic context.[43]


  IVth semester student, BA LLB, National University of Study and Research in Law, Ranchi.

††  VIIIth semester student, BA LLB, National University of Study and Research in Law, Ranchi.

[1]  Sumit Chaturvedi, Land Reforms Fail, Only 5% of India’s Farmers Control 32% Land, Reddif.com (18-5-2016, 10:32 IST), available at <https://www.rediff.com/business/special/special-land-reforms-fail-only-5-of-indias-farmers-control-32-land/20160518.htm> (accessed on 22-1-2019).

[2]  UNDP India Report 2018 Multidimensional Poverty Index, available at <http://www.in.undp. org/content/india/en/home/sustainable> (accessed on 22-1-2019).

[3]  1992 Supp (3) SCC 217.

[4]  Somesh Jha, Fewer Poor among SC, ST, OBC, Business Standard (14-03-2014, 02:02 IST), available at <https://www.business-standard.com/article/economy-policy/fewer-poor-among -sc-st-obc-114031301232_1.html>.

[5]  Satya Prateek, Today’s Promise, Tomorrow’s Constitution: ‘Basic Structure’, Constitutional Transformations and the Future of Political Progress in India, 1 NUJS L. Rev. 420 (2008).

[6]  AIR 1965 SC 845

[7]  (1973) 4 SCC 225

[8]  1975 Supp SCC 1

[9]  (1980) 2 SCC 591

[10]  (1981) 2 SCC 362

[11]  (1981) 1 SCC 166

[12]  (1973) 4 SCC 225

[13]  (2006) 8 SCC 212

[14]  Faizan Mustafa, An Expert Explains: New Quota and Basic Structure, The Indian Express (15-1-2019, 8:32:25 a.m.), available at <https://indianexpress.com/article/explained/10-percent-quota-reservation-economically-weaker-section-supreme-court-5538470/>

[15]  1992 Supp (3) SCC 217

[16]  Ibid

[17]  Roshan Kishore, Quota for Economically Weak in General Category could Benefit 190 MN, Hindustan Times, (7-1-2019, 23:39 IST), <https://www.hindustantimes.com/india-news/quota-for-economically-weak-in-general-category-could-benefit>

[18]  1992 Supp (3) SCC 217, 735

[19]  (1976) 2 SCC 310

[20]  Second Backward Class Commission Report (Mandal Commission Report, 1980)

[21]  Black’s Law Dictionary, (9th Edn., 2009)

[22]  (2008) 6 SCC 1

[23]  AIR 1964 SC 1823

[24]  1st Backward Classes Commission Report, Second Part (1955)

[25]  1985 Supp SCC 714

[26]  Ibid.

[27]  Id., at 1506

[28]  1992 Supp (3) SCC 217

[29]  Ananthakrishnan G., When Supreme Court Said Poverty Can’t Be Test of Backwardness, The Indian Express (8-1-2019, 6:58:07), <https://indianexpress.com/article/india/when-supreme-court-said-poverty-cant-be-test-of-backwardness>.

[30]  Mark Netto v. State of Kerala, (1979) 1 SCC 23

[31]  Asif Hameed v. State of J&K, 1989 Supp (2) SCC 364

[32]  AIR 1951 SC 318

[33]  Ajay Kumar v. Chandigarh Admn., 1982 SCC OnLine P&H 256; Punjab Engg. College v. Sanjay Gulati, (1983) 3 SCC 517

[34]  Nand Lal v. State of Haryana, 1980 Supp SCC 574; A.K. Roy v. Union of India, (1982) 1 SCC 271

[35]  Govt. of A.P. v. P. Laxmi Devi, (2008) 4 SCC 720; State of W.B. v. Kesoram Industries Ltd., (2004) 10 SCC 201; State of M.P. v. Rakesh Kohli, (2012) 6 SCC 312

[36]  AIR 1958 SC 538

[37]  Ahmedabad Municipal Corpn. v. Nawab Khan, (1997) 11 SCC 121

[38]  State of T.N. v. L. Abu Kavur Bai, (1984) 1 SCC 515: AIR 1984 SC 326

[39]  Air India Statutory Corpn. v. United Labour Union, (1997) 9 SCC 377

[40] Thomas Piketty, Consider Income-Based Reservations in India, 6-12-2015, available at <https://indianexpress.com/article/business/business-others/consider-income-based-reservations-in-india-thomas-piketty/> (accessed on 20-1-2019)

[41]  M.P. Jain, Indian Constitutional Law, LexisNexis, 12 (7th Edn., 2016)

[42]  Parliamentary Debates, Vol. XII-13(Part II) at 9830

[43]  Sanjeev Ahluwalia, After EWS Quota, Only 10 Per Cent of India is Left Out, The Asian ( 16-1-2019, 12:20 a.m. IST),<http://www.asianage.com/opinion/columnists/160119/after-ews-quota-only-10-per-cent-of-india-is-left-out.html> (accessed on 15-2-2019)


[Picture Credits: newslaundry.com]

Case BriefsHigh Courts

Uttaranchal High Court: Sharad Kumar Sharma, J. allowed a writ petition which was preferred against the action of the respondent of not extending the benefits to the petitioner which were available to the dependents of freedom fighter under various schemes floated by Government of India and State Government as well under the Act called as “Uttar Pradesh Public Services (Reservation for Physically Handicapped Dependents of Freedom Fighter and Ex-Servicemen) Act, 1993” on the premise that the petitioner would not be entitled to the benefit because she happens to be granddaughter (daughter’s daughter) of the deceased freedom fighter and would not be covered in the definition of family.

Tapan Singh, learned counsel for the petitioner argued that petitioner since being daughter’s daughter was a member of the family of deceased freedom fighter, irrespective of the fact that she was married or not, that ought not deprive the petitioner of availing the benefit under the freedom fighter scheme on the premise that she is married granddaughter of the deceased freedom fighter, It was also argued that such practices were an encouragement to gender discrimination. While further citing Isha Tyagi v. State of U.P., 2014 SCC OnLine All 15982, the counsel highlighted how such law will lead to gender discrimination as grandson (i.e. son’s son) of the freedom fighter was included under the definition of the ‘dependents of the family’ of freedom fighter in that eventuality that granddaughter i.e. daughter’s daughter or son should also be entitled to the benefit under the scheme. It was vehemently averred that such discrimination for the compassionate appointment was violative of Articles 14 and 15 of the Constitution. In Isha Tyagi, it was held that, “benefit of the horizontal reservation for descendants of freedom fighters shall extend both to descendants of a freedom fighter tracing their lineage through a son or through a daughter irrespective of the marital status of the daughter. Neither a married daughter nor her children would be disqualified from receiving the benefit of the reservation which is otherwise available to them in their capacity as descendants of a freedom fighter. Whether, in a given case including the present, an applicant is truly a descendant of a freedom fighter is undoubtedly for the authority to verify.”

High Court, observed that judgment in Isha Tyagi, is concurred by a Full Bench of Uttaranchal High Court as well and there was no contradictory remark on it. Thus, the law had been laid down by the judges who bar such discrimination. It was stated by the Court, that ratio of earlier judgments would be applicable in relation to an extension of the benefit of the daughter, granddaughter or grandson of the freedom fighter as they cannot be discriminated on the basis of gender discrimination.

Accordingly, the writ petition was disposed of with a direction that there cannot be any gender discrimination in relation to claim raised by the petitioner being the daughter’s daughter of the freedom fighter. [Ruchika Tomar v. State of Uttarakhand, 2019 SCC OnLine Utt 483, decided on 01-05-2019]

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of L. Narayana Swamy and P.S. Dinesh Kumar, JJ. allowed a PIL (Public Interest Litigation) to declare amendment 4 of Karnataka Rights of Children to Free and Compulsory Education Rules, 2012, as null and void on the grounds of violation of Article 21-A of the Constitution of India.

The Government of Karnataka enacted Karnataka Rights of Children to Free and Compulsory Education Rules in 2012 (herein Karnataka Act) to implement the provisions of Right of Children to Free and Compulsory Education Act passed by the Parliament in 2009 (herein RTE Act). Section 12(2) of the Karnataka Act defined the term ‘school’ as per Section 2(n) of RTE Act, 2009. Under this section, the unaided private schools were envisaged reimbursement as compensation for filling 25 per cent seats for the RTE children from weaker parts of the society. However, on 30-01-2019, the Government of Karnataka enacted an amendment altering the definition of term ‘school’ under Section 12(2) of the Karnataka Act. After this amendment, unaided schools were not required to provide admission to disadvantaged children where there government and unaided schools in the neighborhood. Thereafter, a writ petition was filed under Articles 226 and 227 of the Constitution of India to quash the impugned amendment.

The learned counsels for petitioners, Suman Hedge, Manasi Sharma, and Chethan B, contended that the Amendment was against the RTE Act, as it created an obligation for disadvantaged children to take admission in government schools against their choice. They argued that the parents of poor children didn’t want to send their wards to government schools as they lacked pre-elementary education and they were not English-medium schools. Moreover, they said that issuing of reimbursement to unaided schools was not be considered a burden by Karnataka Government as their total budget including such reimbursement amount was less than the national average of the educational budget. Furthermore, they argued that the amendment that notifies ‘neighborhood principle’ was bad in law. This provision said that within 1 km of the locality of poor children, if there were no private schools and within 3 km, if there was no higher secondary school, then the children had to enroll in the government school situated in their locality.

The learned State counsel for respondents, the Advocate General, Udaya Holla argued that due to the reservation under RTE there had been a tremendous fall in the number government schools as several schools had been shut down over the years. Moreover, a tremendous increase in the number of private schools was witnessed from 2011-12. The State counsel also argued that a heavy burden had been there on the State government and over the years the cost of reimbursement had increased manifold.  He also contended that the ‘neighborhood principle’ was in consonance with the spirit of the RTE Act. It postulated that if there was a government school nearby, the children couldn’t avail the option of going to private schools.

The Court observed that the State government or the local authorities were under the obligation to provide reimbursement to unaided schools for RTE children only if there were no government or government-aided schools in the neighborhood. Reliance was laid upon Unni Krishnan, J.P. v. State of Andhra Pradesh, (1993) 1 SCC 645 to hold that reimbursement of expenditure incurred on elementary education of a child was permissible only in the case where the government or aided schools were not available. Hence, the Court declared that the amendment was neither arbitrary nor unconstitutional nor in violation of Article 21-A of the Constitution of India. The Court further said that once the government schools were established then the government need not reimburse the education of RTE children. Therefore, the prayer sought by petitioners was not granted and the PIL was rejected.[Education Rights Trust v. Government of Karnataka, 2019 SCC OnLine Kar 567, decided on 31-05-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Full Bench of Ramesh Ranganathan CJ and Sudhanshu Dhulia and Alok Singh, JJ. entertained a writ petition calling into question the exhaustiveness of Article 16(4) of the Constitution of India.

The petitioners in the aforementioned writ questioned the Court, that whether reservation for the ‘sports’ category can be provided under Article 16(1) of the Constitution or whether Article 16(4) was exhaustive in all forms?

The contentions were based on the Order issued by Chief Secretary, Government of Uttarakhand in 2006, which informed that the Governor was pleased to sanction 4% horizontal reservations, for players who were successful at the international/national level, for employment in the services of the State and other organizations. By a subsequent Order of 2009, it was informed that such reservations were only available to domiciled persons.

A learned Single Judge earlier contemplated a petition filed by three sportsperson from different State who sought mandamus against State as they claimed appointment under the sports category. Court took note of the stand of the Government of Uttarakhand, they contended that horizontal reservation was not available to sports personalities, who did not have a permanent domicile in the State of Uttarakhand, and they could not be appointed. The learned Single Judge, thereafter, observed that refusal to appoint the petitioners in the quota, reserved for sportsmen, was illegal as their candidature was entertained, and they were declared successful. Hence, the State was directed to appoint the petitioners on the basis of the 2006 Order. The case went into Appeal and the Division Bench opined that an important aspect had been overlooked by the learned Single Judge, that the Government, by an Order or otherwise, could not reserve any Government post for sports personnel and same is stated under Article 16.

The Division Bench in Appeal stated earlier, “Sub-Article (1) of Article 16, were ‘any office under the State’; therefore, in respect of each and every office under the State, there shall be equality of opportunity for all citizens; this suggested that, in the matter of public appointment, everybody had the right of equal opportunity of being considered; but for Sub-Article (4) of Article 16, no reservation could be made for backward class citizens; but for Sub-Article (4A) of Article 16, no reservation could be made for the Scheduled Castes and the Scheduled Tribes; in other words, if a class did not come within the exceptions, as provided under Sub-Articles (4), (4A) and (4B) of Article 16, the State was bereft of any power to provide reservation for any person in any employment available within the State” . Thus, the Court overruled the decision of learned Single Judge.

Subsequently, the present case was brought before a Division Bench, who observed that it was brought to their notice that the Government of Uttarakhand had taken a decision to accept the judgment mentioned above in Appeal. It was declared that no one including the petitioner of the current Writ was considered in the sports quota; the counsel for the petitioner had contended that he was not a party to the said judgment, and the judgment was wrong as there was an authority under Article 16(1) to make a horizontal reservation.

The aggrieved petitioners of both the aforementioned cases filed a writ before a Full Bench. The learned counsel for the petitioner Alok Singh, submitted that earlier Court had erred in holding that Clauses (4), (4A) and (4B) of Article 16 are exhaustive of all forms of reservation and no reservation can be made under Article 16(1).

The counsel for the respondent-State Paresh Tripathi stated that reservations can no doubt be provided for sportsmen under Article 16(1) of the Constitution. He further contended that no obligation was cast either on the Legislature or the Executive to provide such reservation; it was for them to decide whether or not to provide reservation; a Division Bench in Appeal struck down horizontal reservation even based upon Order of 2006. It was argued that said judgment had attained finality since no appeal was preferred against it. If only Legislature or the Executive pass a law or make a rule or frame a policy afresh, providing reservation in favor of sportsmen, can the petitioners then claim the benefit of reservation under the sports category?

The Court has discussed some really important points based on the writ such as, can reservations be provided under Article 16(1)? Would the Order now passed hold the judgment of Appeal, not a good law? Can a mandamus be issued to the Legislature or Executive? Addressing these issues, the Full Bench, referred to the judgment of Indira Sawhney v. Union of India (2000) 1 SCC 168 , and held that, the opinion of the Division Bench, in Special Appeal, that Article 16(4) of the Constitution of India is exhaustive of all forms of reservation, is not good law; and reservation in favor of categories, other than those in whose favor reservation is provided under Articles 16(4), (4A) and (4B), can be extended under Article 16(1), provided such reservation satisfies the test of a valid and reasonable classification. It further stated that, as the Government Order of 2006, has been held to be non-est by the Division Bench in its order in Special Appeal and order has attained finality, the petitioners in both the Writ Petitions were not entitled to the grant of any relief from the Court.[Dhananjay Verma v. State of Uttrakhand, 2019 SCC OnLine Utt 373, decided on 21-05-2019]

Case BriefsHigh Courts

Patna High Court: Mohit Kumar Shah, J. entertained a writ petition which sought relief against Bihar Public Service Commission to re-advertise by the way of corrigendum for the post of Dental Doctor and to be allowed to participate in the selection process.

The petitioner prayed for declaring the advertisement of 2015 issued by the Commission contrary to the Reservation Rules, 1991. The petitioner contended that she completed BDS course in 2016. It was stated that 617 posts in dental services were created by a notification of 2013, thus total sanctioned strength in the dental services became 700, out of which a few were earmarked for promotions and a few were already occupied, leaving 558 posts vacant. The Government of Bihar, enacted the Bihar Dentist Service Rule, 2014 for regulating appointments and service conditions in the dentist service. The commission issued an advertisement of 2015, for respective vacant posts and applications were invited from the eligible candidates. Further, it was stated that only 16 posts were earmarked for the backward class female.

The learned counsel for the petitioner, Kripa Nand Jha, submitted that the eligibility criteria in the advertisement of 2015 was BDS degree from a recognized University and should had been registered under the Bihar and Orissa Medical Act, 1916. The counsel brought to the notice of Court that since all the vacant posts were advertised and the last date of submission of the form was in 2015, the petitioner who received his degree in 2016, and similar aggrieved students would be precluded from obtaining employment for years to come.

The learned counsel for the respondent Commission, Zaki Haider, submitted that upon a requisition sent by the Department of Health, the Commission has published the advertisement for appointment as the post of basic grade Dental Surgeon under the Department of Health, Government of Bihar. He referred to the requisition sent by the Government in 2015, it had been submitted that the roster clearance was obtained from the General Administration Department and only thereafter, the vacancies were advertised, category wise. He further submitted that earlier also the Bihar Dentist Rules, 2014, issued vide notification in 2014, which was challenged before the High Court and the learned Division Bench of Court had dismissed the said writ petition.

It was contended by the other respondents, that proviso to Article 309 of the Constitution of India, conferred the powers to said State and specifically stated that as far as the prayer of the petitioner regarding issuance of a direction upon the respondents to re-advertise the post of Dental Surgeon and 35% horizontal reservation to the female candidates was permitted. They further contend that the petition was misconceived and bereft of any merit as to the aforesaid notification of the Department of 2016, and was not effective retrospectively. The requisitions were made by the Health Department and, accordingly, the Commission had issued the advertisement taking into consideration the rules of reservation i.e. the Bihar Reservation for Vacancies in posts and Services for Scheduled Caste, Scheduled Tribes and other Backward Classes Act, 1991.

The Court observed that, all adverting to the issue of applicability of the notification issued by the Department, admittedly the same is not applicable retrospectively and moreover, the roster clearance has been taken by the Health Department from the General Administration Department after which requisition was sent and thereafter, the advertisement has been published immediately in 2015, in pursuance to the Bihar Dental Service Rules, 2014.  Hence, the Court held that the said notification of the General Administration Department in 2016 cannot be applied for the recruitment process under consideration in the present writ petition. The contention of the petitioner regarding the Rules, 1991 being contrary to the advertisement of 2015 was also declared void. The Court noted submission made by the learned counsel for the petitioner to the effect that since the petitioner passed in the year 2016 and the advertisement had been issued in 2015, the petitioner was pre-empted from applying for the post of Dental Doctor in the Health Services of the Government of Bihar, and rejected the same as the petitioner was not eligible to apply in pursuance to the advertisement of 2015, hence she had no locus standi to challenge the eligibility conditions. Hence, the petition was dismissed.[Pragya v. State of Bihar, 2019 SCC OnLine Pat 689, decided on 17-05-2019]

Hot Off The PressNews

Supreme Court: The 3-judge bench of CJI Ranjan Gogoi and Deepak Gupta and Sanjiv Khanna, JJ refused to pass any order on whether the issue of 10 per cent reservation for economically weaker sections across all classes will be referred to a Constitution bench. It said it will hear the matter on March 28.

The Court has asked senior advocate Rajeev Dhavan, appearing for the petitioner, to file a short note of the points which they have raised in their application.

The Court had, on January 25, issued notice to the Central Government on the issue returnable within 4 weeks. It, however, did not stay the operation of the Centre’s decision granting quota to the poor in the general category

Various petitions have been filed by parties including organisations like Janhit Abhiyan and Youth For Equality, challenging the validity of the Constitution (103 Amendment) Act, 2019, which paved the way for grant of quota to poor belonging to general category.

The petition, filed by Youth For Equality, has sought the quashing of the Act saying that the economic criterion cannot be the sole basis for reservation. It says that the said law violates basic feature of the Constitution as reservation on economic grounds cannot be limited to the general categories and the 50 per cent ceiling limit cannot be breached.

The quota as per the new law will be over and above the existing 50 per cent reservation to SCs, STs and Other Backward Classes (OBCs). The Constitution (103 Amendment) Act, 2019 was passed by the Rajya Sabha on 09-01-2019 as The Constitution (One Hundred and Twenty- fourth Amendment) Bill, 2019, and was assented to by the President on 12-01-2019.

(Source: PTI) 

Legislation UpdatesStatutes/Bills/Ordinances

The Union Cabinet, chaired by the Prime Minister Narendra Modi has approved the proposal of Jammu & Kashmir Government to issue “The Jammu and Kashmir Reservation (Amendment) Ordinance, 2019‘ by the President of India.  It provides for amendments in the Jammu and Kashmir Reservation Act, 2004 to bringing persons residing in the areas adjoining International Border within the ambit of reservation at par with persons living in areas adjoining Actual Line of Control (ALoC).

Impact

Once the Ordinance is issued, it would pave the way for bringing persons residing in the areas adjoining International Border within the ambit of Reservation at par with persons living in areas adjoining Actual Line of Control.

Background

  • 10% reservation for economically weaker sections made applicable in J&K also. This would pave the way for reserving State Government jobs to the youth of J&K who are from economically weaker sections belonging to any religion or caste. It may be recalled that 10% reservation to economically weaker sections was introduced in rest of the country through the 103rd Constitution Amendment in January 2019. This will be in addition to such reservation available in Govt. of India jobs also.
  • Benefit of promotion to Scheduled Castes and Scheduled Tribes, which include Gujjars and Bakarwals amongst others, has also been made applicable to the State of J&K. After a long wait of 24 years, the 77thConstitution Amendment of 1995 has now been applied to the State of J&K.
  • People living near the International Border have been brought at par with those living near the Line of Control for reservation in State Government jobs by amending the Jammu and Kashmir Reservation Act, 2004 through an Ordinance. Earlier, the provision of 3% reservation was available only for youth living within 6 kms. Of LoC in J&K. Now, this provision will be applicable for people living near the international border also. This has been a long-pending demand of the population living near the international border, as they have been facing the brunt of cross border firing in J&K.

The Jammu and Kashmir Reservation Act, 2004 and Rules thereunder namely The Jammu and Kashmir Reservation Rules, 2005 provide for vertical reservation in direct recruitment, promotions and admission in different professional courses to various categories viz. Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Classes (Residents of Backward Area (RBA), Residents of Areas adjoining Actual Line of Control (ALoC) and Weak and Under Privileged Classes (Social Castes) alongwith horizontal reservation to the Ex-Serviceman and Physically Challenged Persons. However, the reservation benefits are not extended to the persons residing in the areas adjoining International Border.

Due to continuous cross border tensions, persons living alongside International Border suffer from socio-economic and educational backwardness. Shelling from across the border often compels these residents to move to safer places and is adversely impacting their education as Educational Institutions remain closed for long periods. Hence, it was felt justifiable to extend the reservation benefits to persons residing in the areas adjoining International Border on the similar lines of the persons living in areas adjoining Actual Line of Control (ALoC).

[Press Release dt. 28-02-2019]

Cabinet

Legislation UpdatesNotifications

Following instructions are issued in consultation ‘with’ Ministry of Social Justice and Empowerment and Department of Legal Affairs regarding reservation for EWSs not covered under the reservation scheme for SCs/STs/OBCs in respect of direct recruitment in civil posts and services in’ the Government of India.

Quantum of Reservation

The persons belonging to EWSs who, are not covered under the scheme of reservation for SCs, STs and OBCs shall get 10% reservation in direct recruitment in civil posts and services in the Government of India.

Exemption from Reservation

“Scientific and Technical” posts which satisfy the conditions mentioned shall be exempted.

Criteria for Income & Assets

Persons who are not covered under the scheme of reservation for SCs, STs and OBCs and whose family has a gross annual income below Rs 8 lakh (Rupees eight lakh only) are to be identified as EWSs for benefit of reservation. Income shall also include income from all sources i.e. salary, agriculture, business, profession, etc. for the financial year prior to the year of application.

Also, persons whose family owns or possesses any of the following assets shall be excluded from being identified as EWS, irrespective of the family income:-

  1. 5 acres of agricultural land and above;
  2. Residential at of 1000 sq ft. and above;
  3. Residential plot of 100 sq. yards and above in notified municipalities;
  4. Residential, plot of 200 sq. yards and above in areas other than the notified municipalities.

Income and Asset Certificate Issuing Authority and Verification of Certificate

Benefit of reservation under EWS can be availed upon production of an Income and Asset Certificate issued by a Competent Authority. The Income and Asset Certificate issued ‘by any one of the following authorities in the prescribed format as given in Annexure-I shall only be accepted as proof of candidate’s claim as ‘belonging to EWS.

 Effecting Reservation – Maintenance of Rosters

Department of Personnel and Training had circulated Office Memorandum No.36012/2/96-Estt(Res) dated July 2, 1997, regarding the implementation of post based reservation roster. The general principles for making and operating post based reservation roster would be as per the principles laid down in the said Office Memorandum.

Adjustment Against Unreserved Vacancies

A person belonging to EWS cannot be denied the right to compete for appointment against an unreserved vacancy. Persons belonging to EWS who are selected on the basis of merit and not on account of reservation are not to be counted towards the quota meant for reservation.

Fortnightly/Annual Reports Regarding Representation of EWS

The Ministries/Departments shall send single consolidated fortnightly report including their attached/subordinate offices beginning from 15.2.2019 as per format at Annexure-VL -. From 01.01.2020, the Ministries/Departments shall upload data on the representation of EWSs in respect of posts/services under the Central Government on the URL i.e. www.rrcps.nic.inas on 1st January of every year. All Ministries/Departments have already been provided respective user code and password with guidelines for operating the URL.

Maintenance of Register of Complaints by the Government Establishment

Every Government establishment shall appoint a senior officer of the Department as the Grievance Redressal Officer.

Liaison Officer

Ministries/Departments/Attached and Subordinate Offices shall appoint Liaison Officer to monitor the implementation of reservation for EWSs.

The above scheme of the reservation will be effective in respect of all direct recruitment vacancies to be notified on or after 01.02.2019.

All the Ministries/Departments are requested to bring the above instructions to the notice of all appointing authorities, under their control. In case of any difficulty with regard to the implementation of the provisions of this OM, the concerned authorities may consult DOP&T through their administrative Ministry/Department.

Detailed Notification available here: Notification

Ministry of Personnel, Public Grievances & Pensions

[Office Memorandum dt. 31-01-2019]

Hot Off The PressNews

Supreme Court: Agreeing to examine the Centre’s decision to grant 10 % reservation in jobs and education to poor candidates belonging to general category, the bench of Ranjan Gogoi, CJ and Sanjiv Khanna, J issued notice to the Central Government returnable within 4 weeks. The Court, however, did not stay the operation of the Centre’s decision granting quota to the poor in the general category

Various petitions have been filed by parties including organisations like Janhit Abhiyan and Youth For Equality, challenging the validity of the Constitution (103 Amendment) Act, 2019, which paved the way for grant of quota to poor belonging to general category.

The petition, filed by Youth For Equality, has sought the quashing of the Act saying that the economic criterion cannot be the sole basis for reservation. It says that the said law violates basic feature of the Constitution as reservation on economic grounds cannot be limited to the general categories and the 50 per cent ceiling limit cannot be breached.

A similar plea has been filed by businessman Tehseen Poonawalla seeking to quash the law, saying that backwardness for the purpose of reservation cannot be defined by “economic status alone”.

The quota as per the new law will be over and above the existing 50 per cent reservation to SCs, STs and Other Backward Classes (OBCs). The Constitution (103 Amendment) Act, 2019 was passed by the Rajya Sabha on 09-01-2019 as The Constitution (One Hundred and Twenty- fourth Amendment) Bill, 2019, and was assented to by the President on 12-01-2019.

(Source: PTI) 

Case BriefsSupreme Court

Supreme Court: The bench of Ashok Bhushan and KM Joseph, JJ held that prescription of disability to the extent of 40%-50% for recruitment for the post of Civil Judge was valid and did not contravene any of the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 or any other statutory provision.

It was dealing with a matter where an advocate having 70% disability, had challenged a Notification dated 08.08.2014 issued by Tamil Nadu Government stipulating a limit of 40%-50% disability for the selection for the post of Civil judge.

The Court said:

“A judicial officer in a State has to possess reasonable limit of the faculties of hearing, sight and speech in order to hear cases and write judgments and, therefore, stipulating a limit of 50% disability in hearing impairment or visual impairment as a condition to be eligible for the post is a legitimate restriction i.e. fair, logical and reasonable.”

The appellant had submitted that restricting the disability to 40%-50% in reference to persons having partial blindness is clearly denying the of reservation as provided under Section 33 of the 1995 Act, 1995. Section 33 of the 1995 Act requires that every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from Blindness or low vision.

Disagreeing with the said contention, the Court said:

“The present is not a case where the respondent has not reserved the post for partial disability as required by Section 33 of the Act, 1995. Thus, requirement of reservation as mandated by Section 33 is clearly fulfilled. The issue is regarding eligibility of appellant to participate in the selection and as to whether the requirement in the advertisement that only those, who suffer from disability of 40%-50% are eligible, is contrary to the Act, 1995 or is in breach of any statutory provision.”

It was, hence, noticed that when the State, High Court and Public Service Commission are of the view that disability, which is suitable for appointment on the post of Civil Judge should be between 40%-50%, the said prescription does not violate any statutory provision nor contravene any of the provisions of the 1995 Act. Hence, it was well within the power of appointing authority to prescribe eligibility looking to the nature of the job, which is to be performed by holder of a post. [V. Surendra Mohan v. State of Tamil Nadu, 2019 SCC OnLine SC 53, decided on 22.01.2019]