reservation

Case BriefsSupreme Court

Supreme Court: The bench of L. Nageswara Rao v. BR Gavai*, JJ has set aside the judgment of the Aurangabad bench of the Bombay High Court wherein it was held that the reservation of the Office of Mayor for the Dhule Municipal Corporation for Backward Class (OBC) for a second term, coupled with the fact that there has been no reservation for the Scheduled Caste category, amounted to violation of rotation policy.

Facts

  • The respondent No.1 though belongs to the Scheduled Caste category, was elected as a Councillor to the Dhule Municipal Corporation from the General category. By the Notification dated 27th November 2019, the Office of Mayor in the said Corporation was earmarked for Backward Class of Citizens for the next term of two and half years commencing from June, 2021.
  • Respondent number 1 challenged the aforementioned Notification on the ground that from the year 2003 onwards, the Office of Mayor in the said Corporation was reserved for Backward Class category on various occasions, but was not reserved for Scheduled Caste category.
  • Bombay High Court held that the reservation of the Office of Mayor for the Dhule Municipal Corporation for Backward Class (OBC) for a second term even without any reservation for Scheduled Caste category.
  • The said judgment was challenged on the ground that the import of Clauses (d) and (e) of sub­rule (2) of Rule 3 of the Maharashtra Municipal Corporations (Reservation of Offices of Mayors) Rules, 2006 was not considered by the High Court while deciding the matter.

Analysis

Interpreting a Statute

Explaining the rules for interpreting a Statute, the Court said,

“… the Court will have to prefer an interpretation which makes the Statute workable. The interpretation which gives effect to the intention of the legislature, will have to be preferred. The interpretation which brings about the effect of result, will have to be preferred than the one which defeats the purpose of the enactment.”

It is the duty of the Court to construe the Statute as a whole and that one provision of the Act has to be construed with reference to other provisions so as to make a consistent enactment of the whole Statute.

“It is the duty of the Court to avoid a head-on clash between two sections and construe the provisions which appear to be in conflict with each other in such a manner so as to harmonise them.”

Further, while interpreting a particular statutory provision, it should not result into making the other provision a “useless lumber” or a “dead letter”. While construing the provisions, the Court will have to ascertain the intention of the law¬making authority in the backdrop of dominant purpose and   the underlying intendment of the Statute

The Legislative Intent behind the Rules in question

The impugned Rules are mechanism for giving effect to the constitutional mandate under Article 243T of the Constitution of providing reservation for Scheduled Castes and Scheduled Tribes and the   enabling provision for providing reservation for Backward Class of Citizens in proportion to their population.

The intent and the dominant purpose of Rule 3 of the said Rules is to provide reservation to Scheduled Castes, Scheduled Tribes, Backward Class of Citizens and Women and further to ensure that there is no  repetition  of reservation  of  a particular category  in a particular Corporation.

The intent of the said Rules is to give effect to the reservation policy while ensuring that reservations are not repeated in particular Corporations and at the same time in all the Corporations, there shall be reservation, at some point of time, for all the eligible categories by rotation.

The legislative intent is to exclude the Corporations which were earlier reserved for a particular category until all the categories are provided reservation.  However, while doing so, the Court will have to interpret Rule 3 of the said Rules in such a manner that this scheme is made workable and not frustrated.

True import of the Rules in question

The Court took note of the dominant purpose and the legislative intent of the said Rules which is to provide reservation in proportion of the population of such categories in the Municipal areas and also to ensure that while all the eligible Corporations get reservation at some point of time for the different categories, at the same time there would be no repetition of reservation until the rotation   is complete. However, while doing so, the number of seats reserved for a particular category also cannot be ignored.

“… the total number of seats reserved for Scheduled Castes are 3 whereas for Backward Class of citizens, they are 7. Sub-rule (2) of Rule 3 of the said Rules prescribes the manner in which the seats are to be allotted to be reserved for various categories including women. Clause (a) thereof provides that it shall be done by notification in the Official Gazette by allotment of draw of lots. Clause (d) thereof provides that while drawing lots, the offices of Mayors reserved for such category in the earlier years shall be excluded from the draw of lots for those categories. Clause (e) thereof provides that the offices of Mayors to be reserved shall be rotated in   the subsequent terms of office of Mayor to such Corporation, in which no reservation has been made in the previous terms until such reservations are given by rotation to each category.”

Applying the rules of interpretation, the Court noticed that at the first blush, an isolated reading of clause (e) is capable of being interpreted in a manner that until reservation is provided for each category by rotation, the said office cannot be reserved for a category for which it was already reserved. However, if the Rules along with Article 243T of the Constitution and Section 19(1A)[1] of the Maharashtra Municipal Corporations Act, 1949 are read as a whole, then the dominant purpose behind the said Rules appears to be that the reservation as mandated in the Constitution, should be provided for offices of Mayors in the Corporations.

“While doing so, the reservation has to be provided by a draw of lots. It has to be ensured that at any given point of time, the number of offices of Mayors reserved for such categories should not be less than the number determined in accordance with the provisions of sub-rule (1) of Rule 3 of the said Rules.”

Clause (d) of sub-rule (2) of Rule 3 of the said Rules also provides that while drawing lots, the offices of Mayors reserved for such category in the earlier years, shall be excluded from the draw of lots for those categories. The purpose appears to ensure that the reservation is not thrust upon a particular Corporation again and again and all the Corporations, at some point of time, will have the office of Mayor reserved for particular category in accordance with the said Rules.

The Court explained,

“The office of Mayor can be reserved for Scheduled Tribes in only 9 Corporations whereas all the Corporations are eligible for reservation for Scheduled Castes and Backward Class of Citizens.  However, taking into consideration the fact that the number of seats reserved for Scheduled Castes are 3 whereas for Backward Class of Citizens, they are 7 i.e. more than twice,  it is quite probable that the post of Mayor could be reserved for two earlier terms for Backward Class of Citizens and whereas no reservation is provided for Scheduled Castes.”

The Court noticed that a harmonious construction of the said Rules would not lead to a conclusion that the procedure as followed by the State Government in allotting the reservation by draw of lots, would be said to be inconsistent with the scheme of the said Rules.

The Court then took note of the following facts,

  • After excluding 12 Corporations which are already reserved for Scheduled Castes in the earlier years and the one which was reserved for Scheduled Tribes in the first draw of lots, there were 14 Corporations available including the Dhule Municipal Corporation.
  • The said Corporation was also included in the draw of lots for Scheduled Castes. However, in the draw of lots, it could not be reserved for Scheduled Castes.
  • However, insofar as Backward Class is concerned, out of 27 Corporations, 26 Corporations excluding newly created Panvel Corporation were already reserved for Backward Class in the earlier years.
  • As such, the State excluded the 7 Corporations which were immediately reserved for the Backward Class and also excluded the 4 Corporations which were reserved for Scheduled Castes and Scheduled Tribes in the present draw of lots.
  • Coincidentally, in the draw of lots, Dhule Municipal Corporation was one of the 7 Corporations which got to be reserved for the Backward Class.

The Court, hence, held that such a situation is bound to occur in view of the difference in number of seats, reserved for Scheduled Castes and Backward Class of Citizens.

“If the interpretation as placed is to be accepted then unless the post of Mayor is reserved for Scheduled Tribes in all the Corporations to complete the rotation, it will not be possible to provide reservation for the categories which were already reserved earlier.  However, it could be seen that as per the Rules, only 9 Corporations could be reserved for Scheduled Tribes.”

[Sanjay Ramdas Patil v. Sanjay, 2021 SCC OnLine SC 650, decided on 01.09.2021]

[1] “19. Mayor and Deputy Mayor

(1) …

(1A) There shall be reservation for the office of the Mayor   in   the   Corporation,   by   rotation,   for   the Scheduled   Castes,   the   Scheduled   Tribes,   women and   the   Backward   Class   of   citizens,   in   the prescribed manner.”

Judgment by: Justice BR Gavai

Know Thy Judge| Justice B.R. Gavai

Appearances before the Court:

For appellants: Senior Advocate Meenakshi Arora and Advocate Braj Kishore Mishra

For the State of Maharashtra: Advocate Sachin Patil

For Respondent: Advocate Nishant Ramakantrao Katneshwarkar

Case BriefsSupreme Court

Supreme Court: The bench of UU Lalit and Ajay Rastogi, JJ has held that such persons whose place of origin/domicile on or before the appointed day i.e. 15th November, 2000 was of the State of Bihar now falling within the districts/regions which form a successor State, i.e., State of Jharkhand under Section 3 of the Bihar Reorganisation Act, 2000 can claim the benefit of reservation for participation in public employment in either of the successor State of Bihar or State of Jharkhand. Reservation can, however, not be claimed in both the States simultaneously.

What was the case about?

  • The Court was dealing with the case wherein the appellant’s father originally belonged to District Patna in the State of Bihar but as alleged, the appellant was born on 27th November, 1974 in Hazaribagh where his father was residing which earlier was part of the unified State of Bihar but after the Bihar Reorganisation Act, 2000 came into force from the appointed day, i.e. 15th November 2000, District Hazaribagh became part of the successor State of Jharkhand.
  • It was his case that he was born & brought up and took his education within the territory which is now in the State of Jharkhand.
  • He belongs to Scheduled Caste category and a certificate was issued by the competent authority in the State of Jharkhand.
  • He was appointed on the post of Assistant Teacher on 21st December, 1999 and posted in a school in Ranchi, the capital of Jharkhand against the post reserved for SC category and pursuant to the cadre revision on bifurcation of the States, he opted the State of Jharkhand.
  • He then appeared as a member of SC category in the third Combined Civil Services examination, 2008 and cleared the preliminary, as well as main examination followed with an interview and the final result was published in the year 2010 and his name appeared at Sl. No. 5 against 17 vacancies reserved for Scheduled Caste category.
  • However, his appointment order was withheld on the ground that he is permanent resident of District Patna in the State of Bihar and hence, is to be treated as migrant to the State of Jharkhand.
  • In consequence, he was not eligible for appointment in Scheduled Caste category pursuant to his participation in the selection process held in the Combined Civil Services Examination, 2008.

It was argued by the State of Jharkhand that the existing service conditions including benefit of reservation in the promotional cadre post shall not be varied to his disadvantage but he shall be considered to be a migrant to the State of Jharkhand while participating in public employment to compete in open/general category and asked to seek the benefit of reservation in the neighbouring State of Bihar, to hold different status in his parent State of Jharkhand after he became a member of service of the State of Jharkhand, serving for sufficient long time on and after the appointed day, i.e. 15th November, 2000 in the State.

The Court found this argument unsustainable in law and in contravention to the scheme of the Act 2000. The Court said,

“The collective readings of the provisions of the Act, 2000 makes it apparent that such of the persons whose place of origin/domicile on or before the appointed day was of the State of Bihar now falling within the districts/regions which form a successor State, i.e., State of Jharkhand under Section 3 of the Act, 2000 became ordinary resident of the State of Jharkhand, at the 43 same time, so far as the employees who were in public employment in the State of Bihar on or before the appointed day, i.e. 15th November, 2000 under the Act 2000, apart from those who are domicile of either of the district which became part of the State of Jharkhand, such of the emploees who have submitted their option or employees who are junior in the cadre of their seniority as per the policy of the Government of India of which a reference has been made, either voluntarily or involuntarily call upon to serve the State of Jharkhand, their existing service conditions shall not be varied to their disadvantage and stands protected by virtue of Section 73 of the Act, 2000.”

Holding that the appellant would be entitled to claim the benefit of reservation including the privileges and benefits admissible to the members of Scheduled Caste category in the State of Jharkhand for all practical purposes including participation in open competition seeking public employment, the Court said,

“It will be highly unfair and pernicious to their interest if the benefits of reservation with privileges and benefits flowing thereof are not being protected in the State of Jharkhand after he is absorbed by virtue to Section 73 of the Act 2000 that clearly postulates not only to protect the existing service conditions but the benefit of reservation and privileges which he was enjoying on or before the appointed day, i.e. 15th November, 2000 in the State of Bihar not to be varied to his disadvantage after he became a member of service in the State of Jharkhand.”

Key takeaways

  • Such of the employees who are members of the SC/ST/OBC whose caste/tribe has been notified by an amendment to the Constitution(Scheduled Castes)/(Scheduled Tribes) Order 1950 under Vth and VIth Schedule to Sections 23 and 24 of the Act 2000 or by the separate notification for members of other backward class category, benefit of reservation including privileges and benefits flowing thereof, shall remain protected by virtue of Section 73 of the Act 2000 for all practical purposes which can be claimed (including by their wards) for participation in public employment.
  • A person is entitled to claim benefit of reservation in either of the successor State of Bihar or State of Jharkhand, but will not be entitled to claim benefit of reservation simultaneously in both the successor States and those who are members of the reserved category and are resident of the successor State of Bihar, while participating in open selection in State of Jharkhand shall be treated to be migrants and it will be open to participate in general category without claiming the benefit of reservation and vice-versa.

[Pankaj Kumar v. State of Jharkhand, 2021 SCC OnLine SC 616, decided on 19.08.2021]

*Judgment by: Justice Ajay Rastogi

Know Thy Judge | Justice Ajay Rastogi

Case BriefsHigh Courts

Madras High Court: The Division Bench of Sanjib Banerjee, CJ and P.D. Audikesavalu, J. while addressing the contempt petition, expressed that,

Merely because the immediate lis pertains to the contempt jurisdiction would not imply that this court sheds its plenary authority under Article 226 of the Constitution while considering the manner of implementation of the said order. 

Rather than the caste system being wiped away, the present trend seems to perpetuate it by endlessly extending a measure that was to remain only for a short duration to cover the infancy and, possibly, the adolescence of Republic. Though the life of a nation state may not be relatable to the human process of aging, but at over-70, it ought, probably, to be more mature.

Factual Background

Petitioner is stated to be a political party, one which has returned to power in this State following the Assembly elections conducted a few months back. Most major political parties in the State had filed the other petition that came to be decided the Order dated 27-07-2020 (“the said order”).

Petitions that were decided by the said order sought implementation of reservation for Other Backward Classes (OBC) in the All India Quota (AIQ) of the seats surrendered by the State for admission to the under-graduate, post-graduate and diploma medical and dental courses in the State. Reservation implementation was sought from 2020-21.

Request for interim relief, was rejected with the observation that this court was justified in holding that since the selection process for the relevant academic year had commenced, the same could not be disturbed. However, the appeals remain pending and, in such sense, the order of this Court of July 27, 2020, has not attained finality, though there is no impediment to it being implemented in academic year 2021-22.

Analysis, Law and Decision

While addressing the matter, Court observed that,

If a pool of seats is available to candidates from all over the country, irrespective of an individual’s place of residence, the State-wise reservation, which is based on demography of the State, cannot hold good for the entire country as the mix of socially backward classes would differ from region to region even within a State.

Court added that, Ordinarily, reservations pertaining to admission to educational institutions and appointments to government service are provided by statutory enactments or rules under a particular statute.

Difficulty, in the present case, arises in the fact that the present contempt petition arises out of an order which has been carried to the Supreme Court by way of an appeal and an interim order in the appeal observed as to the import of the order dated July 27, 2020

To elaborate more, the Bench added that the matter is of some importance as the careers of not only the prospective all-India candidates in the medical entrance seats surrendered by the State in the AIQ would be affected by the present order, it may also have an all-India impact, subject to what may ultimately be decided by the Supreme Court.

Coming to the question, whether the said order of this Court has been complied with?

Bench noted that:

to the extent that a committee was constituted and the committee made its recommendations, the order has been complied with. However, the order may not have contemplated that neither recommendation of the committee would be accepted and a third alternative would be imposed by the Union, though the order required consultation between several stakeholders to arrive at an informed decision. Equally, the first option indicated by the committee was no option at all, as it was absurd to suggest that the State reservation rules would apply to AIQ seats for admission to the under-graduate, post- graduate and diploma medical and dental courses in the State since that would, ipso facto, take the seats away from the AIQ pool back to the State as only backward classes as notified by the State in its official gazette would be entitled to the reservation and not candidates not resident in the State.

Adding to the above, Court expressed that, it is true that the petition before this Court is one for the perceived breach of a previous order of this court, but if the present petition were to be ineffectively disposed of that would result in another petition, multiplicity of proceedings and the issue being left unresolved.

It may be in the public interest, at times, for courts to be decisive, without being rash, of course.

At least there is a safety net even if this court goes wrong for the matter to be decided at the highest stage; but a decision is called for in the matter in the larger public interest.

Analyzing further, the Bench stated that the AIQ scheme had been introduced for entrance to under-graduate and post-graduate degrees and diploma courses in government-run or aided medical and dental colleges across the country pursuant to orders of the Supreme Court.

To the extent that 27 per cent of the seats available for admission in Central educational institutions is reserved for OBC candidates, other than the creamy layer, and such figure having been arrived at upon empirical studies being conducted, the provision for 27 per cent reservation for OBC candidates, in addition to the approved reservation for scheduled caste and scheduled tribe candidates as indicated in the notification of July 29, 2021, may be permissible, subject to the formal approval of the Supreme Court being obtained in such regard.

Another significant point expressed by the Court was that, if the AIQ seats are thrown open to candidates across the country, there cannot be reservation to one extent in one State and reservation to another extent in another State.

Conclusion 

  1. Since the committee required to be constituted by the order dated July 27, 2020, was constituted and such committee gave its opinion and the Union, or its appropriate agencies, have acted on the basis thereof – albeit not exactly in terms of the recommendations – no case of wilful or deliberate violation of the said order can be said to have been made out.
  2. The notification of July 29, 2021, issued by the Union as a consequence of the order dated July 27, 2020, appears to be in order insofar as it provides for reservation for scheduled castes, scheduled tribes and OBC categories. The horizontal reservation provided in such notification for persons with disabilities also appears to be in accordance with law.
  3. The additional reservation provided for economically weaker sections in the notification of July 29, 2021, cannot be permitted, except with the approval of the Supreme Court in such regard.

In view of the above, contempt petition was dropped.

“…entire concept of reservation that appears to have been addressed by the Constituent Assembly while framing the Constitution may have been turned on its head by repeated amendments and the veritable reinvigoration of the caste system – and even extending it to denominations where it does not exist – instead of empowering citizens so that merit may ultimately decide matters as to admission, appointment and promotion.”

 [Dravida Munnetra Kazhagam v. Rajesh Bhushan, 2021 SCC OnLine Mad 4851, decided on 25-08-2021]

 Advocates before the Court:

For the Petitioner: Mr. P. Wilson, Senior Advocate for M/s. P. Wilson Associates

For the Respondents: Mr. K.M. Nataraj

Additional Solicitor-General of India assisted by Mr. V. Chandrasekaran

Senior Panel Counsel for respondents 1, 2, 4 and 8

: Mr. P. Muthukumar Counsel for the State for respondents 6 and 9

: Ms. Shubharanjini Ananth Standing Counsel  for 3rd respondent

: Service awaited for respondents 5 and 7

Case BriefsSupreme Court

Supreme Court: The Division Bench of L. Nageswara Rao and B. R. Gavai, JJ., directed the Madhya Pradesh High Court to immediately decided the validity of 100% reservation in more than 600 Post Graduate medical seats in the State of Madhya Pradesh.

The Bench was addressing the Special Leave Petition (SLP) preferred by the Association of Private Medical Colleges whereby the validity of 100% reservation of their seats for domicile candidates of M.P. or those candidates who had completed their M.B.B.S. from any Medical college (Govt. or Pvt.) was challenged. The contention raised through the SLP was with regard to the adjournment order passed by the High Court, whereby the Court had deferred final hearing on the matter stating that the issue of reservation for domicile candidates in PG Medical Courses is already pending before the Larger Bench of the Supreme Court in Tanvi Behl v. Shrey Goel, (2020) 13 SCC 675.

Background

The State of M.P. had incorporated mandatory Eligibility conditions of being a domicile of the State of M.P. for admission to PG Medical/Dental Courses in its admission rules for admission to Private Medical and Dental Colleges. Noticeably, around 650 seats constitute the pool of admission to PG Courses in the State of Madhya Pradesh for both Clinical as well as Non-clinical branches. As per the Admission Rules of 2018, the first priority is to be given to the candidates possessing domicile of the State of Madhya Pradesh or those having an MBBS degree from any medical college of the State of Madhya Pradesh.

The said conditions stands relaxed in the event of availability of a candidate who has completed his M.B.B.S. from any Medical college of the State. The seats get unlocked for admission to the students from other States and All India Merit List only after completion of first round of counseling from the second round onwards, that too when the first two categories are exhausted.

Grounds for Challenge

The Association of Private Medical Colleges had challenged these clauses as ultra vires Article 19(1)(g) as also the Parent Act of M.P. Niji Vyavsayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007 on the following grounds:

  1. The impugned conditions were in excess of the delegation of powers to the rule making authority by the parent Act.
  2. The reservation on the ground of domicile are unpalatable and incompatible with Medical Colleges’ ‘Fundamental Right to admit students of their choice’, when they are forced to provide admission to the important branches of the PG Medical Course (Clinicals) to the State domicile candidates, thus being precluded from giving admissions to far more meritorious candidates from the All India Merit List.

Stand taken by the Association of Private Medical Colleges

The Association had approached the Supreme Court on being aggrieved by the High Court’s rejection to stay the counseling in the year 2019. Finding the questions of law to be of vital importance, the Supreme Court had opined that their resolution could not brook any delay and had directed the High Court to decide the matter as expeditiously as possible.

The Association pleaded that the High Court had failed to adhere to the direction made by the Supreme Court of expeditious disposal and kept deferring its Final Adjudication on one pretext or the other. The Association contended that repeated adjournments and deferral of the hearings had brought them close onto the heels of counseling process for PG Medical Courses for the year 2021-22 and it was extremely necessary that the High Court must be asked to take up the petition and decide at the earliest. It also pleaded that mere reference to Larger Bench could not be resorted as an excuse by the High Court to defer the final disposal of the petition ad infinitum.

Directions by the Supreme Court

Observing that the matter pertained to the reservations in Post Graduate Medical Courses and the Court had already directed the High Court to dispose of the matter expeditiously by an order dated 15-07-2019, the Bench directed the High Court to dispose of the matter on 25-08-2021.[Association of Private Universities, Madhya Pradesh v. State of M.P., 2021 SCC OnLine SC 638, decided on 16-08-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For Petitioner(s) Mr. Siddharth R. Gupta, Adv.

Mr. Mrigank Prabhakar, AOR

Mr. Yash Mittal, Adv.
Case BriefsHigh Courts

Bombay High Court: The Division Bench of R.D. Dhanuka and R.I. Chagla, JJ., addressed a petition revolving around the Right to Education Act, 2009.

In the instant petition, petitioner sought directions against respondents 1 and 2 to forthwith grant admission to his son as per the allotment letter issued to the petitioner by the competent authorities under Right to Education Act, 2009 in Standard I during the academic year 2020-21 and 2021-22.

Petitioner’s son was issued a certificate of disability of persons with autism by Nair Hospital and sometime in the year 2019, he applied for online admission of his son under the RTE Act, 2009.

Later, respondents 3 and 4 granted admission to petitioner in the respondent 1 school. The admission was granted after verification of the documents submitted before the committee.

Further, the petitioner made a representation to the Education Department informing that though the petitioner had visited the respondent 1 school in the month of August, 2019, the Administrative Officer refused to grant admission to the petitioner in spite of the letter of allotment issued by the authority. Hence the petitioner filed the present petition.

Analysis, Law and Decision

It was noted that respondent 2 had been granted a certificate of ‘minority education institution’ within the meaning of Section 2(g) of the National Commission for Minority Educational Institution Act, 2004 on 17-02-2020 and respondents 1 and 2 were issued a letter in favour of the petitioner for granting admission to the son of the petitioner in the respondent no.1 school much prior to the date of such certificate.

Hence, respondents 1 and 2 were thus required to comply with the said directives issued by the competent authority within the time prescribed therein which was much prior to the said date of certificate.

Upon raising a query upon the learned counsel for respondents 1 and 2 whether any other students had been admitted by respondents 1 and 2 prior to the date of obtaining such certificate dated 17-02-2020 under the provisions of the Right to Education Act, 2009, learned counsel fairly on instructions states that four students were admitted prior to 17th February, 2020 based on the directives issued by the Education Department under the provisions of the Right to Education Act, 2009.

Counsel for respondents 1 and 2 could not dispute that the respondents could not have cancelled the admission once granted to the petitioner on the ground of minority status granted subsequently.

Bench opined that respondents 1 and 2 cannot be allowed to take advantage of such certificate obtained after committing default in complying with the directives which were already issued prior to the date of such certificate.

The disobedience of the directives issued by the Education Department cannot be condoned by obtaining certificate as minority education institution subsequently.

Medical certificate by the petitioner indicated that the recommendation made by the Department of Psychiatry were that the petitioner’s son should continue in a regular school with various further advise.

Therefore, Court directed the respondent 1 and 2 to comply with the directives issued by the Education Department and to grant admission to the son of the petitioner in respondent 1 school within one week.

In view of the above, petition was disposed of. [Ashish Patel v. Edubridge International School, 2021 SCC OnLine Bom 1587, decided on 5-08-2021]

Advocates before the Court:

Mr C. R. Sadasivan, a/w. Mr Anup Dhannawat for the Petitioner.

Mr Pradeep Bakhru, a/w. Ms Upasana Vasu i/b. M/s.Wadia Ghandy & Co. for the Respondents 1 and 2.

Mr Milind More, Additional Government Pleader for the State – Respondents 3 and 4.

Legislation UpdatesNotifications

On July 29, 2021, the Government has announced 27% reservation for the OBCs (Other Backward Classes) and 10% quota for the Economically Weaker Sections (EWS) in the All India Quota (AIQ) scheme for undergraduate (UG) and postgraduate (PG) medical / dental courses (MBBS / MD / MS / Diploma / BDS / MDS) from 2021-22 onwards.

Source: PIB

Hot Off The PressNews

Karnataka Government on Wednesday decided in favour of 1% horizontal reservations to be given to the transgender community in government jobs, after it did not receive any objections to the draft notification in so far as the amendment to Rule 9 is concerned within the stipulated time.

The State of Karnataka issued a notification with Draft rules namely Karnataka Civil Services (General Recruitment) Rules, 1977 on May 13 proposing to amend Rule 9 by inserting Sub Rule 1 D providing 1 % vacancies to be filled in any post or service by the state government from among the transgender candidates in each category of general, Scheduled Castes, Scheduled Tribes and in each of the categories among the Other Backward Classes.

In the case of Sangama v. State, WP No. 8511 of 2020, Division bench of Abhay Shreeniwas Oka, CJ and Suraj Govindaraj, J. was informed by the State that Department of Personnel and Administrative Reforms State has taken steps to amend the Karnataka Civil Services (General Recruitment) Rules, 1977 and subsequently, on July 6 amended it by inserting sub-rule (1D) to the Rules which reads as follows:

 “Notwithstanding anything contained in the rules of recruitment specially made in respect of any service or post, in all direct recruitment one percentage of vacancies set apart for that method in each of the categories of General Merit, Scheduled Castes, Scheduled Tribes and in each of the categories among Other Backward Classes shall, subject to any general instructions that may be issued by the Government regarding the manner of appointment, be filled from among transgender candidates:

Provided that, every Appointing Authority shall provide a separate column of “Others” along with male gender and female gender in the application for recruitment to any category of Group-A, B, C or D posts for the convenience of transgender persons. The Recruitment Authority or the Appointing Authority shall not discriminate a transgender person while making selection of appointment to any category of post.

Provided further that, if sufficient number of eligible transgender persons are not available, to the extent of one per cent, the unfilled vacancies shall be filled by male or female candidates, as the case may be, belonging to the same category.

Explanation: For the purpose of this sub-rule a Transgender Person shall have the same meaning as defined in Clause (k) of Section 2 of the Transgender Persons (Protection of Rights) Act, 2019 (Central Act 40 of 2019)”.

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: In a big development, the 5-judge bench of Ashok Bhushan, S.A. Nazeer, L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat, JJ has quashed the much in debate Maratha Reservation and has held that the Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 [ 2018 Act] as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is not covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney[1]’s case.

Questions framed

  1. Whether judgment in case of Indra Sawhney v. Union of India [1992 Suppl. (3) SCC 217] needs to be referred to larger bench?
  2. Whether the 2018 Act as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney’s case?
  3. Whether the State Government on the strength of Maharashtra State Backward Commission Report chaired by M.C. Gaikwad has made out a case of existence of extraordinary situation and exceptional circumstances in the State to fall within the exception carved out in the judgment of Indra Sawhney?
  4. Whether the Constitution 102nd Amendment deprives the State Legislature of its power to enact a legislation determining the socially and economically backward classes and conferring the benefits on the said community under its enabling power?
  1. Whether State’s power to legislate in relation to “any backward class” under Articles 15(4) and 16(4) is anyway abridged by Article 342(A) read with Article 366(26c) of the Constitution of India?
  2. WhetherArticle 342A of the Constitution abrogates States power to legislate or classify in respect of “any backward class of citizens” and thereby affects the federal policy / structure of the Constitution of India?]

While all judges agreed with the opinion of Justice Bhushan on Question Numbers 1, 2 and 3, Justice L. Nageswara Rao and Hemant Gupta agreed with Justice Ravindra Bhat’s opinion on Question Numbers 4, 5 and 6. Justice L. Nageswara Rao also wrote a separate opinion.[2]

Timeline and trajectory

  • The “Maratha” is a Hindu community which mainly resides in the State of Maharashtra.
  • After the enforcement of the Constitution of India, the President of India in exercise of power under Article 240 appointed a Commission to investigate the conditions of all such socially and educationally backward classes, the first National Commission for backward classes did not find Maratha as other backward class community in the State of Bombay and stated,

“In Maharashtra, besides the Brahman it is the Maratha who claimed to be the ruling community in the villages, and the Prabhu, that dominated all other communities”.

  • The Maratha was included in forward Hindu caste, by the second National Backward Classes Commission.
  • The National Commission for Backward Classes conducted public hearing at Mumbai and after hearing Government officials, Chairman of the Maharashtra State Backward Classes Commission submitted a detailed report dated 25.02.1980 holding that Maratha is not a socially and educationally backward class community but a socially advanced and prestigious community.
  • The Maharashtra State OBC Commission headed by Justice R.M. Bapat submitted a report on 25.07.2008 conclusively recording that Maratha could not be included in the OBC list because it is a forward caste. The review of the findings was rejected on 03.06.2013.
  • Despite the existence of statutory State OBC Commission, the Government of Maharashtra appointed a special Committee headed by a sitting Minister, Shri Narayan Rane to submit a report on the Maratha Caste. On 26.02.2014 Rane Committee submitted its report to the State and recommended that for the Maratha special reservation under Article 15(4) and 16(4) of the Constitution of India be provided.
  • On 09.07.2014 Maharashtra Ordinance No.XIII of 2014 was promulgated providing for 16% reservation in favour of the Maratha caste.
  • The Maharashtra Legislature passed the Act, 2014 on 23.12.2014 which received the assent of the Governor on 09.01.2015 and was deemed to have come into force with effect from 09.07.2014.
  • On 14.08.2018 the National Commission for Backward Classes (Repeal) Act was passed repealing the National Commission for Backward Classes Act, 1993.
  • On 15.08.2018 the Constitution (102nd Amendment) Act, 2018 was brought into force adding Article 338B, 342A and 366(26C). Article 338, sub-clause (10) was also amended.
  • On 15.11.2018, the State Backward Classes Commission submitted its report declaring Maratha caste of citizens as social and economic backward class of citizens with inadequate representation in services.
  • The Government after receipt of the above report enacted Act, 2018 which was published on 30.11.2018.

Revisiting Indira Sawhney judgment

The crux of 6 separate judgments delivered by the 9-judge bench in the case was:

(i) Reservation under Article 16(4) should not exceed 50%.

(ii) For exceeding reservation beyond 50% extraordinary circumstance as indicated in paragraph 810 of the judgment of Justice Jeevan Reddy should exist, for which extreme caution is to be exercised.

All 5 judges in the present case agreed that there was no need to revisit the ratio laid down in the landmark judgment in Indra Sawhney v. Union of India, 1992 Suppl. (3) SCC.

“To change the 50% limit is to have a society which is not founded on equality but based on caste rule. The democracy is an essential feature of our Constitution and part of our basic structure. If the reservation goes above 50% limit which is a reasonable, it will be slippery slope, the political pressure, make it hardly to reduce the same. Thus, answer to the question posed is that the percentage of 50% has been arrived at on the principle of reasonability and achieves equality as enshrined by Article 14 of which Articles 15 and 16 are facets.”

The bench also noticed that the judgment of Indra Sawhney is being followed for more than a quarter century without there being any doubt raised in any of the judgments about the 50%, the 50% rule has been repeatedly followed.

“There can be no quarrel that society changes, law changes, people changes but that does not mean that something which is good and proven to be beneficial in maintaining equality in the society should also be changed in the name of change alone.”

The “misunderstanding” in the MC Gaikwad report

The Commission relied on the Constitution Bench judgment in M. Nagaraj and took the view that on the quantifiable data ceiling of 50% can be breached. It hence noted,

“Based on the population of 30%, Commission has arrived at a conclusion that the total percentage of State population which is entitled for the constitutional benefits and advantages as listed under Article 15(4) and Article 16(4) would be around 85% and this is a compelling extra-ordinary situation demanding extra-ordinary solution within the constitutional framework. …”

However, the Constitution Bench in M. Nagaraj has noticed majority opinion in Indra Sawhney has held that rule of 50% was a binding rule and not a mere rule of prudence.

The Constitution bench had held that,

“The State is not bound to make reservation for SCs/STs in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.”

The Constitution Bench, thus, had clearly laid down that even reservation for promotion, ceiling of 50% limit cannot be breached. Hence, the Commission has completely erred in understanding the ratio of the judgment.

“The Marathas are dominant forward class and are in the main stream of National life.”

2019 Amendment granting separate reservation to Maratha Community unconstitutional

The Court noticed that no extraordinary circumstances were made out in granting separate reservation of Maratha Community by exceeding the 50 percent ceiling limit of reservation. The 2018 Act violates the principle of equality as enshrined in Article 16. The exceeding of ceiling limit without there being any exceptional circumstances clearly violates Article 14 and 16 of the Constitution which makes the enactment ultra vires.

“The statement and object of the bill clearly indicates that the State has formed the opinion on the basis of the report of the Commissions and had accepted the reasons given by the Commission holding that extraordinary circumstances for exceeding the ceiling limit is made out.”

Directions

  • The admissions insofar as Postgraduate Medical Courses which were already held not to affect by order dated 09.09.2020, which shall not be affected by this judgment. Hence, those students who have already been admitted in Postgraduate Medical Courses prior to 09.09.2020 shall be allowed to continue.
  • The admissions in different courses, Medical, Engineering and other streams which were completed after the judgment of the High Court dated 27.06.2019 till 09.09.2020 are saved. Similarly, all the appointments made to the members of the Maratha community in public services after the judgment of the High Court dated 27.06.2019 till order passed by this Court on 09.09.2020 are saved. However, no further benefit can be claimed by such Maratha students admitted in different course or Maratha students who were appointed in public services in the State under Act, 2018.
  • After the order was passed on 09.09.2020 neither any admission can be taken in the educational institutions nor any appointment can be made in public services and posts in accordance with Act, 2018.

[ Dr. Jaishri Laxmanrao Patil v. The Chief Minister, 2021 SCC OnLine SC 362, decided on 05.05.2021]

Judgment by: Justice Ashok Bhushan, Justice L. Nageswara Rao and Justice S. Ravindra Bhat

Appearances before the Court:

K.K. Venugopal, Attorney General for India and Tushar Mehta, Solicitor General.

Senior Advocates Arvind Datar, Gopal Sankaranarayanan, Mukul Rohatgi, Shekhar Naphade, P.S. Patwalia, Kapil Sibal, Dr. Abhishek Manu Singhvi, Dr. Manish Singhvi, C.U. Singh, V. Shekhar, S. Niranjan Reddy, Jayanth Muth Raj, Jaideep Gupta and Mahalakshmi Pavani

Advocates Manish Kumar, Karan Bharihok, Vinay Arora, Arun Bhardwaj, Amit Kumar, Pradeep Misra, Tapesh Kumar Singh, Diksha Rai, A.P. Singh, Shriram Pingle, V.K. Biju, Hrishikesh s. Chitaley, Kaleeswaram Raj, Ashok Arora and Akash Avinash Kakade.

[1] Indra Sawhney v. Union of India, 1992 Suppl. (3) SCC 217

[2] The analyses of question number 4 to 6 will be dealt with in separate post.

Case BriefsHigh Courts

NOTE: The judgment which is been reported below, has since been affirmed by the Supreme Court in State of Goa v. Fouziya Imtiaz Shaikh, 2021 SCC OnLine SC 211, albeit with certain modifications in directions (c) and (e) noted at the end of this report.

 Bombay High Court: The Division Bench of M.S. Sonak and Bharati Dangre, JJ., held that

Fairness in action is the benchmark in electoral matters.

Elections are the central institution of democratic representative governance, since in the democratic setup, the authority of the Government derives solely from the concept of the governed.

 The constitutional Courts cannot be reduced to mute spectators when the right to contest or to vote at a election, though a statutory right is said to be scuttled on the basis on uninformed reservation policy which can be capriciously utilized for ejection of eligible contestant, eventually causing a serious dent in the democratic principles governing election laws as well as edifice of democracy.

While referring to the celebrated Supreme Court decision in  Mohinder Singh Gill v. Chief Commissioner (1978) 1 SCC 405, has expressed a word of caution while entertaining any dispute involving and revolving around ‘Election’.

Following was the word of caution:

“Election disputes are not just private civil disputes between two parties. Though there is an individual or a few individuals arrayed as parties before the Court but the stakes of the constituencies as a whole are on trial. Whichever way the lis terminates it affects the fate of the constituency and the citizens in general. A conscientious approach with over riding consideration for welfare of the constituency and strengthening the democracy is called for. Neither turning a blind eye to the controversies which have arisen nor assuming a role of over enthusiastic activist would do. The two extremes have to be avoided in dealing with the election disputes”.

Factual Matrix

Goa State Election Commission’s (SEC) decision was to conduct the general elections in 11 Municipal Councils in the State of Goa.

The SEC, constituted under Section 237 of the Goa Panchayat Raj Act, exercising the power of superintendence and control of the conduct of all elections to the Council, on giving thoughtful consideration to the pandemic of Covid in the entire State of Goa and taking into account that the 11 Municipal Councils are located at different geographical positions, postponed the general elections, by a further period of three months by issuing a notification.

COVID-19 & Elections

Contemplating risk to the life of the people involved in the process, the Commission deemed it appropriate not to proceed with the election process. Further, by another notification the general elections were postponed having regard to the prevailing scenario to the effect that the official responsible for conduct of elections were going to be amongst the officers who were engaged in the Management of COVID-19 Vaccination Drive to be implemented in the State.

Apart from the above, Government’s concern was with regard to the congregation of crowds during the campaign period and holding the elections together. Since the election process involves holding public meeting, public rallies, public procession during the campaign period and contemplating that enforcing the health protocol and regulating the number of participants would be a serious issue.

Hence, in view of the above-said situation, the elections were postponed till April, 2021 or to the election date which may be determined by the Election Commission.

Analysis

Procedure adopted in determining the reservation of seats in different Wards of the Municipal Councils.

Challenge in the writ petitions of Mormugao and Mapusa Municipal Council

Percentage of reservation provided for women, being less than 1/3rd of the total number of seats, as prescribed in Article 243T(3) of the Constitution and Section 9(1) of the Goa Municipalities Act, 1968. When the record is perused, it bear out that in Mormugao Municipal Council total number of seats to be filled in by direct election are 25. Of these seats, 8 seats have been reserved for women; which gets translated into 32%. As per the mandate prescribed, for reservation to women, the number of seats which would make up to 1/3rd of 25 seats would be 8.33%.

Court expressed that the reservation for women is done by rotation and after delimitation done in 2015, rotation end up in three terms, commencing from 2015 and going to end in 2026. After charting the reservation which is already provided for women category in 2015 and 2021, the solution offered is the remaining Wards which are not reserved for women in the earlier two elections, may be reserved in 2026. Implicitly, the stand taken is that in order to complete the fraction, the seat would be rounded off in the three terms by rotation, in order to avoid excessive reservation to women and therefore the aforesaid solution.

Reservation of seats for women in Panchayat and Municipalities which were introduced by the 73rd and 74th Amendment seeking to achieve an avowed purpose, to make women a part of the decision making and governance process, in a democracy governed by law.

High Court opined that the course adopted by respondent 2 violate the mandate of law. The solution offered by respondent 2 in taking forward the reservation and to be adjusted within the three terms, is also, according to us defeat the very purpose as the mandate contained in the first proviso appended to sub-section 1 of Section 9 which is to be followed in every Council which means, the Municipal Council constituted or deemed to be constituted under the Act for a Municipal area and as a body corporate with a prescribed tenure. The fraction even if it is created in calculating 1/3rd reservation cannot be permitted to be rounded off towards the earlier denomination and the normal principle for rounding off, which is based on logic and common sense.

Bench relying on the decision in Ashok Maniklal Harkut v. Collector, Amravati [1988 Mah LJ 378], Ganesh Sukdev Gurule v. Tahsildar Sinnar (2019) 3 SCC 211, found that the approach adopted by respondent 2 would stare in face of the constitutional mandate, reserving 1/3rd seats for women and to that extent the impugned order would be quashed. Adding to this, Court quashed and set aside the order that reserved 8 seats in Margao Municipal Council where the total number of seat to be filled were 25.

Even in Mapusa, reservation for women had been flawed since out of 20 seats available to be filled in, 6 seats reserved for women which amounted to 30% and which is less than the prescribed 1/3rd percentage and adopting the reasoning aforesaid, the number of seats reserved for women in Mapusa ought to have been 7. The same is the case in respect of Valpoi, Sanguem, Pernem Municipal Council where 10 seats are available for election and 3 seats have been reserved for women, which amount to 30% of the total number of seats, whereas the reservation provided for women is 1/3rd and 4 seats should have been gone to women, in each of the aforesaid Municipal Council.

High Court held that the Director acted in breach of the Constitution as well as the statutory provision.

Further, it was stated that the principle of law laid down by the Supreme Court in case of N.P. Ponnuswami v. Returning Officer AIR 1952 SC 64, a leading case in election law, revolve around the relevant provisions in the Constitution, in form of a bar and deal with the scope amplitude and limitation imposed in the Constitution in election matters.

Constitution Bench judgment in case of Mohinder Singh Gill v. Chief Commissioner (1978) 1 SCC 405 formulated two types of challenges:

  • first relating to the proceedings which interfere with the process of election and
  • second which accelerates the completion of election and act in furtherance of election.

Conclusions in the above decision were determinative factor whether the interference will have the effect of interrupting, obstructing or protracting the election proceedings or whether it sub-serves the election procedure or facilitate the completion of election and that would determine whether an ‘election is called in question’.

Judicial intervention is imminent for correcting or smoothing the election process by removing the obstacles therein, the writ Court shall not be overwhelmed by the non-obstante clause, the underlining emphasis being on delaying, interrupting, protracting or stalling the election proceedings. The courts can always examine any action which is motivated by extraneous reason and also as to whether it is derogating the germane objective.

 In the instant case, it is apparent that impugned action cannot stand to the test of fairness in action.

Bench further remarked that,

“…action of the Director and on the conduct of the Election Commission as a mute spectator, which in fact was expected to act and live up to its role conferred by the constitution, ensuring free and fair elections, we are not expected to be oblivious to the situations which have been drawn to us. We do not appreciate the helplessness expressed by the State Election Commission, which is supposed to be an authority independent of the Government.”

State Election Commission has the power of superintendence over the “conduct of elections” is wide enough, which include the power to take all steps necessary for conduct of the free and fair election.

“Silence on part of the constitutional functionary is highly detrimental to the democratic to the democratic concept of the country.”

Second Ground on which impugned order dated 04-02-2021 has been attacked

Allotment of reserved seats is based on no predetermined policy and the Director, taking undue advantage of the absence of policy has chosen to make allotment without the application of mind and in an arbitrary, whimsical and capricious manner.

High Court for the above-stated ground held that an unfretted discretion in the State was always frowned upon and violate Article 14 by mere absence of policy, is no ground to strike the impugned provisions, because it is not a matter where there are no guidelines.

Absence of definite and certain policy of rotating the reserved seats would obviously inflict a corresponding detriment on some person by being susceptible to arbitrary use.

 Bench in view of the above discussion stated that to achieve the avowed purpose of reservation within the constitutional and electoral dynamics, it is obligatory to have adequacy of representation of all classes as per the reservation policy uniformly followed. The constitutional Courts would act as watchdog and expected to be conscious about proper exercise of power to repel any impediment or detriment to any weaker section of class as an entailing consequence of decision taken.

Constitutional Courts, cannot remain oblivious to fundamental principles governing the realm of reservation policy in election matters.

 In the instant case, malice in law and in fact can be discerned, obviously for the reason that in a multi-party democracy, the existence of reservation policy is a sine qua non to uphold de constitutional policy.

Adding to the above, Court expressed that the Pertinence of free and fair election stems from participation of all and sundry and as well as representation from the entire societal strata which has led to inculcation of definite reservation policy in election matters.

Amongst the 11 Municipal Councils whose process of reservation and rotation has been alleged to be flawed one, their term has already expired and it is being informed that its administration has been taken over by the body of Administrators.

If the authorities move with lightning speed, which they are expected to, since in the exigency of the situation which prompted the SEC to be agile in issuing the Notification declaring the elections when the Writ Petitions were pending before the Court, challenging the impugned Notification, expecting the same promptitude by the election Commission and on behalf of the State Government to rectify its procedure, and ensure free and fair election which is a hallmark of democracy.

Bench directed respondent 2 to redetermine the reservation of seats in the Wards of the Municipal Council in the light of observations made by the Court.

M.S. Sonak, J., expressed that the crucial expressions were made clear that while reservation in favour of women can exceed one-third, under no circumstances can the same be less than one-third of the total number of seats to be filled by direct election in every Municipality.

Hence, in so far as the Mormugao Municipal Council in which the total number of seats to be filled by direct election were 25, the Director was both constitutionally as well as statutorily bound to reserve at least nine seats for women, which, he has admittedly failed to.

“…reservation of only eight seats out of a total number of 25 seats in favour of women is a reservation which is less than one-third the total number of seats to be filled by direct election to the Mormugao Municipal Council.”

The reservation of only six seats from out of a total number of 20 seats to be filled by direct election to the Mapusa Municipal Council amounted to a reservation less than one-third of the total number of seats to be filled by direct election. The Director acted in breach of both constitutional as well as statutory provisions in failing to provide reservation of not less than one-third of the total number of seats, in favour of women, and to that extent the impugned order dated 4th February 2021 is required to be quashed and set aside.

“…whilst making the reservation, the Director, is statutorily bound to have regard to the concentration of population of ST, SC, and OBC in any particular wards.”

Following order was passed:

(a) Writ Petition No. 515 of 2021 (filing) is dismissed.
(b) Writ Petition No. 85 of 2021, 86 of 2021, 87/2021, 88/2021, 90/2021, 91/2021, 524/2021 (Filing) and 525/2021 (Filing) are hereby allowed. The impugned order dated 04/02/2021 issued by the Director and ex-officio Additional Secretary, Municipal Administrator/Urban Development, Goa in so far as it concerned the Municipal Council of Sanguem, Mormugao, Mapusa, Margao and Quepem is quashed and set aside.

(c) By a Writ of Mandamus, we direct the Director and ex-officio Additional Secretary, Municipal Administrator/Urban Development, Goa to issue fresh Notification under sub-section 1 of Section 9 r/w. Sub-section 1 of Section 10 of the Goa Municipalities Act, 1968 within a period of 10 days from today, thereby ensuring inter alia, reservation for women of not less than on-third of the total number of seats reserved for direct elections to the Municipal Councils.

(d) While exercising the power afresh and rectifying the gross illegalities pointed out in our judgment and order, the Director shall give due weightage to our observations made therein.

(e) The State Election Commission of Goa is directed to expeditiously notify the election programme, on the order for reservation of seats in the Municipal Councils being issued by the Director, Respondent No. 2 and the State Election Commission shall align the schedule of election in a manner, to ensure its completion by fixing up its various stages as per the Goa Municipalities (Election) Rules, 1969 and the culmination of the process on or before 15th April, 2021.[Romaldo Fernandes v. State of Goa, 2021 SCC OnLine Bom 275, decided on 01-03-2021]

Case BriefsSupreme Court

Supreme Court: In the case relating to the appointments to the post of Police Constables in the State of Uttar Pradesh, the 3-judge bench of UU Lalit, S. Ravindra Bhat and Hrishikesh Roy, JJ., has upheld State Government’s decision of shifting of candidates, who were earlier selected against posts meant for reserved categories, to the open category.

The Court has held,

“With the availability of 3295 additional posts, in the re-working exercise, if the candidates who were already selected against reserved posts were entitled to be considered against open category posts, that exercise cannot be termed as illegal or invalid on any count. These 3295 posts were part of the same selection process initiated in 2013 for filling up 41610 posts and as such the adjustment was rightly done by the State.”

In the present case,

  • By issuing an advertisement on 20.06.2013, selection process was undertaken to fill up 41610 posts of Police Constables [U.P. Civil Police/Provincial Armed Constabulary (PAC)/Fireman]. The petitioners had participated in the selection process as candidates of General Category.
  • After the requisite examinations, results were declared on 16.07.2015, in which 38315 candidates were successful. Thus, as on that date, there were vacancies which were not filled as no suitable candidates were available. About 2312 vacancies had remained unfilled and additionally, there were 982 vacancies arising out of causes such as nonreporting of the selected candidates.
  • In the circumstances, the Supreme Court in Ashish Kumar Yadav v. State of Uttar Pradesh, 2019 SCC OnLine SC 1968 issued following directions:

“It is accepted by the learned counsel for the State that the State did not undertake any process of selection in respect of those 2312 vacancies. In the circumstances it is directed:

    1. A) The State shall within a month from today complete the entire process of selection in respect of 2312 vacancies strictly in accordance with law.
    2. B) The State shall follow the principle of reservation while filling up these 2312 vacancies.
    3. C) While filling up these vacancies, the State shall adhere to the minimum required qualifying marks as devised during the process of selection but subject to this, the State shall consider all eligible candidates and go strictly in order of merit.
    4. D) The State shall before the next date of hearing, shall file a list of all the selected candidates.

It is also accepted that apart from these 2312 vacancies, there are still 982 vacancies to be filled up in the original selection.”

  • Consequently, selection in respect of 3295 posts was undertaken in accordance with the aforementioned direction and hence, certain candidates coming from ‘Reserved Categories’, who were initially selected against Reserved Categories’ seats, were now shown against ‘Open Category’ in the list published on 11.11.2019.

According to the petitioners in the present case, this shifting prejudiced the chances of ‘Open Category’ candidates and that there should not have been any adjustment of the candidates who were already selected in ‘Reserved Categories’ and all those seats should have been made available to the ‘Open Category’.

In response, the State gave details about the last selected candidates in various categories and has stated that the last selected person in ‘General Male Category’ was one Pawan Singh (having secured 313.616 marks). Except the petitioners at serial Nos. 22 and 24, who had secured 313.616 marks, none of the 48 petitioners had secured marks in excess of 313.616. It was stated that since large number of candidates had secured exactly 313.616 marks, tiebreaker principle was adopted in which these two petitioners got eliminated.

Upholding the selection process, the Court held that the selection in respect of 3295 posts was undertaken in accordance with the directions issued by this Court in Ashish Kumar Yadav v. State of Uttar Pradesh, 2019 SCC OnLine SC 1968 and the State Government and its functionaries were obliged to go strictly in order of merit and apply the principle of reservation.

[Pramod Kumar Singh v. State of Uttar Pradesh, 2021 SCC OnLine SC 223, decided on 16.03.2021]

*Judgment by: Justice UU Lalit

Know Thy Judge| Justice Uday Umesh Lalit

Appearances before the Court by:

For petitioners: Senior Advocate P. S. Patwalia

For State: Additional Advocate General Vinod Diwakar,

For Intervenors: Senior Advocates B. P. Patil and Vinay Navare

Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench comprising of A.M. Khanwilkar*, Indu Malhotra and Ajay Rastogi, JJ., addressed the instant petition, wherein a declaration had been sought that Section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (Act, 1961), was ultra vires the provisions of Articles 243D and 243T including Articles 14 and 16 of the Constitution. The Bench remarked,

“State legislations cannot simply provide uniform and rigid quantum of reservation of seats for OBCs in the local bodies across the State that too without a proper enquiry into the nature and implications of backwardness by an independent Commission”

In the instant petition the validity of the notifications dated 27-07-2018 and 14-02-2020 issued by the State Election Commission, Maharashtra providing for reservation exceeding 50 per cent in respect of Zilla Parishads and Panchayat Samitis of districts Washim, Akola, Nagpur and Bhandara had been questioned and it was prayed that the same be quashed and set aside. Relying on the dictum of the Constitution Bench in K. Krishna Murthy v. Union of India, (2010) 7 SCC 202, the petitioners had urged that it was not open to the respondents to reserve more than 50 per cent (aggregate) seats in the local bodies concerned.

Section 12 of the Act, 1961 had enabled the respondents to reserve 27 % of seats in the concerned Zilla Parishads and Panchayat Samitis. Section 12 of the 1961 Act is reproduced hereunder:

“(c) The seats to be reserved for persons belonging to the category of Backward Class of Citizens shall be 27 % of the total number of seats to be filled in by election in a Zilla Parishad and such seats shall be allotted by rotation to different electoral divisions in a Zilla Parishad :

Provided that, in a Zilla Parishad comprising entirely the Scheduled Areas, the seats to be reserved for the persons belonging to the Backward Class of Citizens shall be 27 % of the seats remaining (if any), after reservation of the seats for the  Scheduled Tribes and the Scheduled Castes”

Position as laid down in K. Krishna Murthy v. Union of India

In the case of K. Krishna Murthy, the constitutional Bench had opined that Articles 243D(6) and 243T(6) of the Constitution were merely enabling provisions and it would be improper to strike them down as violative of the equality clause. That these provisions did not provide guidance on how to identify the backward classes and neither do they specify any principle for the quantum of such reservations. Instead, discretion had been conferred on the State legislatures to design and confer reservation benefits in favour of backward classes. The Bench stated,

“The identification of backward classes for the purpose of reservations is an executive function and as per the mandate of Article 340, dedicated commissions need to be appointed to conduct a rigorous empirical inquiry into the nature and implications of backwardness. It is also incumbent upon the executive to ensure that reservation policies are reviewed from time to time so as to guard against over breadth.”

Further, the Bench observed that It would be safe to say that not all of the groups which had been given reservation benefits in the domain of education and employment need reservations in the sphere of local self government because

“The barriers to political participation are not of the same character as barriers that limit access to education and employment.”

Observation and Analysis

Regarding state legislations providing for reservation of seats in respect of OBCs, the Bench stated that state must ensure that in no case the aggregate vertical reservation in respect of SCs/STs/OBCs taken together should exceed 50% of the seats in the local bodies concerned. The foremost requirement was stated to be to collate adequate materials or documents that could help in identification of backward classes for the purpose of reservation by conducting a rigorous empirical inquiry into the nature and implications of backwardness in local bodies concerned through an independent dedicated Commission established for that purpose. The Bench explained,

“In case, constitutional reservation provided for SCs and STs were to consume the entire 50 per cent of seats in the concerned local bodies and in some cases in scheduled area even beyond 50 per cent, in respect of such local bodies, the question of providing further reservation to OBCs would not arise at all.”

Noticing that no material was on record as to on what basis the quantum of reservation for OBCs was fixed at 27%, when it was inserted by way of amendment in 1994 and that there was nothing on record that such a dedicated Commission had been set up, the notifications issued by the State Election Commission to reserve seats for OBCs in respect of which notifications had been challenged, the Court, by an interim direction, had allowed the elections to proceed subject to the outcome of the present writ petitions.

Triple Test for Reservation

Relying on the judgment in K. Krishna Murthy, the Bench reiterated the triple test required to be complied by the State before reserving seats in the local bodies for OBCs:

(1) To set up a dedicated Commission to conduct contemporaneous rigorous empirical inquiry into the nature and implications of the backwardness qua local bodies, within the State;

(2) To specify the proportion of reservation required to be provisioned local body wise in light of recommendations of the Commission, so as not to fall foul of over breadth;

(3) In any case such reservation shall not exceed aggregate of 50% of the total seats reserved in favour of SCs/STs/OBCs taken together.

“Shall be” to be interpreted as “May be”

Regarding the question of constitutionality of Section 12(2)(c) of the Act, 1961 as inserted in 1994, the Bench opined that the plain language of the provision indeed gave an impression that uniform and rigid quantum of 27% of the total seats across the State need to be set apart by way of reservation in favour of OBCs. Therefore, to maintain to strike a balance, the Court interpreted the words in a harmonious manner and directed that,

“The expression “shall be” preceding 27% occurring in Section 12(2)(c), be construed as “may be” including to mean that reservation for OBCs may be up to 27 per cent but subject to the outer limit of 50 per cent aggregate in favour of SCs/STs/OBCs taken together…”

Conclusion and Directions

In the light of above considerations, the Bench held that the impugned notifications suffer from the vice of foundational jurisdictional error, therefore, the same were void and without authority of law. Similarly, the elections conducted on the basis of such notifications concerning reserved OBC seats alone were held to be vitiated and non est in the eyes of law from its inception. Also, Noticing that the provisions similar to Section 12(2)(c) of the Act, 1961 find place in other State enactments concerning the establishment of local, the Bench clarified that,

“The view taken in this judgment would apply with full force to the interpretation and application of the provisions of other state Act(s) as well and the State Authorities must immediately move into action to take corrective and follow up measures to ensure that future elections to the concerned local bodies are conducted strictly in conformity with the exposition of this Court in K. Krishna Murthy’s case for providing reservation in favour of OBCs.”

Lastly, the case was disposed of with the following directions:

  1. State Election Commission must take follow up steps and notify elections for seats vacated in terms of this decision for the remainder tenure of Gram Panchayats and Samitis concerned;
  2. Challenge to the validity of Section 12(2)(c) of the Act, 1961 was negatived and the same was directed to be read down to mean that it may be invoked only upon complying with the triple conditions;
  3. All acts done and decisions taken by the concerned local bodies due to participation of members (OBC candidates) who had vacated seats in terms of this decision should not be affected in any manner and the judgment would take affect prospectively.

[Vikas Kishanrao Gawali v. State of Maharashtra,  2021 SCC OnLine SC 170, decided on 04-03-2021]

Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: A.M. Khanwilkar

Know Thy Judge| Justice AM Khanwilkar

Case BriefsSupreme Court

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

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

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

Background

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

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

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

Analysis

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

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

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

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

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

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

Agreeing to both the opinions, the Court said,

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

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

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

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

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

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

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

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

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

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

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

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

*Judgment by: Justice Sanjay Kishan Kaul

Know Thy Judge| Justice Sanjay Kishan Kaul

Appearances before the Court by:

For appellants: Senior Advocate C. Aryama Sundaram

For intervenors: Senior Advocate S. Nagamuthu

For respondent: Senior Advocate N.L. Rajah

ALSO READ

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Case BriefsHigh Courts

Rajasthan High Court: The  Division Bench of Satish Kumar Sharma and Indrajit Mahanty, JJ., dismissed the petition remitting the matter to State Government for consideration.

The present writ application has come to be filed by the petitioner seeking a direction to the State of Rajasthan to include persons with locomotive disabilities as well as who are hard of hearing (hearing impairment) under the category of reservation for the purpose of induction as employee under the Rights of Persons with Disabilities Act, 2016 i.e. PWD Act, 2016.

Counsel for the petitioners submitted that pursuant to the decision in State of Rajasthan v. Vikas Kumar Agarwal, DB SAW No. 1484/2012, the State of Rajasthan has carried out necessary amendments in the notification and included blind people in the area of reservation for recruitment of Primary School Teachers. It was further submitted that the recent notification issued by the Union of India dated 04.01.2021 notified by the Ministry of Social Justice and Empowerment in terms of which identified posts are to be reserved for persons with disabilities after review of such list. It was also submitted that that in so far as serial No. 1520 is concerned, Primary School Teachers, other persons with hard of hearing (HH) have been included for the purpose of consideration for appointment

Counsel for the respondents submitted that in terms of the notification issued by the State of Rajasthan, the petitioner cannot be given the benefit of reservation or consideration of posting under the Act of 2016 since persons with hearing impairment cannot be inducted as Primary School Teachers.

The Court observed that the State of Rajasthan shall consider amending its earlier notification and to bring it in line with the suggestions made by the Union of India to the extent that the State Government shall issue necessary modified notification under the Act of 2016 and shall reconsider the applicability of the notification issued by the Union of India in all the various departments of the State of Rajasthan within a period of three months from the date of the order.

The Court thus held “the petitioner is not entitled to any relief before the decision of the State Government to be taken in light of the said notification dated 04.01.2021 issued by Union of India.”

In view of the above, petition was dismissed.[Kaushalya v. State of Rajasthan, 2021 SCC OnLine Raj 176, decided on 16-02-2021]

Arunima Bose, Editorial Assistant has put this story together.

Know thy JudgeObituariesOP. ED.

Former Supreme Court judge, Justice P.B. Sawant, a champion of the rights of the poor and oppressed, passed away at the age of 90 in Pune on February 15, 2021.

Born on 30th June, 1930, Justice PB Sawant completed B.A. (Special) Hons. in Economics and LL.B. from Bombay University and started practicing as an advocate in Bombay High Court and Supreme Court of India from 1957. He dealt with cases on vast number of laws like Civil, Criminal, Industrial, Service Election, Constitutional, etc. He was also office bearer and Legal adviser of several Trade Unions and Social and Educational Institutions.

Before becoming a Bombay High Court judge in 1973, Justice PB Sawant also served as a Lecturer in New Law College, Bombay in 1965-66 where he taught Private International Law and Constitutional Law. Elevated to the Bench of the Supreme Court of India with effect from 6th October, 1989, Justice PB Sawant retired on 29th June, 1995.

♦Did you know? Justice PB Sawant served as a High Court judge for over 16 years before being elevated as a Supreme Court Judge. [1]

Here are some his notable quotes:

  • “Equality postulates not merely legal equality but also real equality. The equality of opportunity has to be distinguished from the equality of results. The various provisions of our Constitution and particularly those of Articles 38, 46, 335, 338 and 340 together with the Preamble, show that the right to equality enshrined in our Constitution is not merely a formal right or a vacuous declaration. It is a positive right, and the State is under an obligation to undertake measures to make it real and effectual. A mere formal declaration of the right would not make unequals equal. To enable all to compete with each other on equal plane, it is necessary to take positive measures to equip the disadvantaged and the handicapped to bring them to the level of the fortunate advantaged. Articles 14 and 16(1) no doubt would by themselves permit such positive measures in favour of the disadvantaged to make real the equality guaranteed by them. However, as pointed out by Dr Ambedkar while replying to the debate on the provision in the Constituent Assembly.”[2]
  • (…) the States have an independent constitutional existence and they have as important a role to play in the political, social, educational and cultural life of the people as the Union. They are neither satellites nor agents of the Centre. The fact that during emergency and in certain other eventualities their powers are overridden or invaded by the Centre is not destructive of the essential federal nature of our Constitution. The invasion of power in such circumstances is not a normal feature of the Constitution. They are exceptions and have to be resorted to only occasionally to meet the exigencies of the special situations. The exceptions are not a rule.[3]
  •  There is need to minimise the scope of the arbitrary use of power in all walks of life. It is inadvisable to depend on the good sense of the individuals, however high-placed they may be. It is all the more improper and undesirable to expose the precious rights like the rights of life, liberty and property to the vagaries of the individual whims and fancies. It is trite to say that individuals are not and do not become wise because they occupy high seats of power, and good sense, circumspection and fairness does not go with the posts, however high they may be. There is only a complacent presumption that those who occupy high posts have a high sense of responsibility. The presumption is neither legal nor rational. History does not support it and reality does not warrant it. In particular, in a society pledged to uphold the rule of law, it would be both unwise and impolitic to leave any aspect of its life to be governed by discretion when it can conveniently and easily be covered by the rule of law.[4]
  • The right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental rights and when work is the sole source of income, the right to work becomes as much fundamental. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them.[5]
  • The correct interpretation to be placed on the expression “the right to practise any profession, or to carry on any occupation, trade or business” is to interpret it to mean the right to practise any profession or to carry on any occupation, trade or business which can be legitimately pursued in a civilised society being not abhorrent to the generally accepted standards of its morality. Human perversity knows no limits and it is not possible to enumerate all professions, occupations, trades and businesses which may be obnoxious to decency, morals, health, safety and welfare of the society. This is apart from the fact that under our Constitution the implied restrictions on the right to practise any profession or to carry on any occupation, trade or business are made explicit in clauses (2) to (6) of Article 19 of the Constitution and the State is permitted to make law for imposing the said restrictions.[6]
  • The desire to be communicable is born with the Man. Hence the freedom of speech and expression is an inherent human right as are some other human rights which are otherwise known as the Civil rights or liberties of the Man. They are not created by any statute whether fundamental or otherwise. They are merely recognised by it. [7]
  • When it is realised that in a democracy, the political executive has a limited tenure and the administrative executive wields the real power, (they can truly be described as the permanent politicians), the antipathy to reservation on a pitched note, propelled by the prospective loss of power, is quite intelligible. The loss of employment opportunities can be made good by generating employment elsewhere and by adopting a rational economic structure with planned economy, planned population and planned education. That is where all sections of the society — whether pro or anti-reservation should concentrate. For even if all available posts are reserved or dereserved, they will not provide employment to more than an infinitesimal number of either of the sections. Unfortunately, it is not logic and sanity, but emotions and politics which dominate the issue.[8]
  • Democracy does not mean mere elections. It also means equal and effective participation in shaping the destiny of the country. Needless to say that where a majority of the population is denied its share in actual power, there exists no real democracy. It is a harsh reality. It can be mended not by running away from it or by ignoring it, but by taking effective workable remedial measures. Those who point to the past achievements and the present progress of the country, forget that these achievements and the progress are by a tiny section of the society who got an opportunity to realise and use their talent. If all sections of the society had such opportunity, this country’s achievements in all fields and walks of life would have been many times more. [9]
  • The preventive detention law by its very nature has always posed a challenge before the courts in a democratic society such as ours to reconcile the liberty of the individual with the allegedly threatened interests of the society and the security of the State particularly during times of peace. It is as much a deprivation of liberty of an individual as the punitive detention. Worse still, unlike the latter, it is resorted to prevent the possible misconduct in future, though the prognosis of the conduct is based on the past record of the individual. The prognosis further is the result of the subjective satisfaction of the detaining authority which is not justiciable. The risk to the liberty of the individual under our detention law as it exists is all the more aggravated because the authority entrusted with the power to detain is not directly accountable to the legislature and the people.[10]
  • Every society is in need of peace, stability and progress without which the building of the nation is not possible. The media as a mass-communicator can help preserve and promote harmony between different social groups as well as between the people and the authorities. It can also help build bridges of understanding, and good-will between the nations and prevent hot and cold wars. It can propose and pursue policies, programmes, projects and measures for the betterment of the people. It may also act as a catalyst of the needed changes and reforms. The legal and administrative measures adopted to alter and improve the conditions of the people need to be pursued constantly, and the media has the capacity to do so by keeping up the pressure, in the absence of which the needed changes may be sought to be brought about by the people through violent and undemocratic means.[11]

†Associate Editor, EBC Publishing Pvt. Ltd. 

[1] Judicial Tenure: An Empirical Appraisal of Incumbency of Supreme Court Judges by Rangin Pallav Tripathy and Gaurav Rai

[2] Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 

[3] S.R. Bommai v. Union of India, (1994) 3 SCC 1

[4] Delhi Transport Corpn. v. D.T.C. Mazdoor Congress, 1991 Supp (1) SCC 600

[5] Ibid

[6] Khoday Distilleries Ltd. v. State of Karnataka, (1995) 1 SCC 574 

[7] Media in Democracy on the occasion of Justice P.N. Ramaswami Birth Centenary Memorial Lecture, (2000) 2 LW (JS) 74

[8] Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 

[9] Ibid

[10] Addl. Secy. to the Govt. of India v. Alka Subhash Gadia (Smt),

1992 Supp (1) SCC 496

[11] Media in Democracy on the occasion of Justice P.N. Ramaswami Birth Centenary Memorial Lecture, (2000) 2 LW (JS) 74

Case BriefsHigh Courts

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

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

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

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

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

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

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

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

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

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

Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsSupreme Court Roundups

♦ Did you know? In the year 2020,

    • All the Constitution bench verdicts were unanimous with no dissenting opinion.
    • 9 out of 11 Constitution bench judgments were delivered by benches consisting of Justices Arun Mishra, Indira Banerjee, Vineet Saran and M.R. Shah, followed by Justices Aniruddha Bose and S. Ravindra Bhat who were part of Constitution benches in 5 and 4 cases, respectively.

As we look forward to the new year of 2021, here is a quick recap of the Constitution bench verdicts delivered by the Supreme Court of India in 2020.

1. Questions of law can be referred to larger bench while hearing a review petition

9-judge bench: SA Bobde, CJ and R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S A Nazeer, R Subhash Reddy, B R Gavai and Surya Kant, JJ

After renowned jurist and senior advocate Fali Nariman objected to the manner in which the Supreme Court turned a review of the Sabarimala case into an opportunity to set up a nine-judge Bench and examine whether certain essential religious practices of various faiths, including Islam and Zoroastrianism, should be constitutionally protected, the 9-judge bench held that the Supreme Court can refer questions of law to a larger bench while exercising its review jurisdiction.

The Court had in November last year, suggested that the Sabarimala issue along with other related issues, be heard by a larger bench of at least 7-judges. [Read: Sabarimala Review Petitions Not Referred To A Larger Bench, But Kept Pending. Here’s What Supreme Court Has Actually Held]

Read more…

[Kantaru Rajeevaru v. Indian Young Lawyers Assn, (2020) 3 SCC 52]

2. Pleas challenging the abrogation of Article 370 not referred to a larger bench

5-judge bench: NV Ramana, SK Kaul, R. Subhash Reddy, BR Gavai and Surya Kant, JJ

The bench refused to refer the petitions challenging the constitutional validity of the Centre’s move to abrogate Article 370 to a larger bench. Holding that there is no conflict between the judgments in the Prem Nath Kaul case and the Sampat Prakash case, the bench said that judgments cannot be interpreted in a vacuum, separate from their facts and context. Observations made in a judgment cannot be selectively picked in order to give them a particular meaning. It noted,

“the Constitution Bench in the Prem Nath Kaul case did not discuss the continuation or cessation of the operation of Article 370 of the Constitution after the dissolution of the Constituent Assembly of the State. This was not an issue in question before the Court, unlike in the Sampat Prakash case where the contention was specifically made before, and refuted by, the Court. This Court sees no reason to read into the Prem Nath Kaul case an interpretation which results in it being in conflict with the subsequent judgments of this Court, particularly when an ordinary reading of the judgment does not result in such an interpretation.”

Read more…

[Dr. Shah Faesal v. Union of India, (2020) 4 SCC 1]

3. No time limit could be fixed while granting anticipatory bail

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, and S. Ravindra Bhat, JJ

The bench unanimously ruled that the protection granted to a person under Section 438 Cr.PC should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time.

Read more…

[Sushila Aggarwal v. State of NCT of Delhi,  (2020) 5 SCC 1]

4. No lapse of acquisition proceedings if government has ‘paid’ compensation

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, and S. Ravindra Bhat, JJ

The bench unanimously held that the land owners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013

Last year, Justice Arun Mishra, heading the Bench, had refused to recuse himself from hearing the case and had said,

“I would be committing a grave blunder by recusal in the circumstances, on the grounds prayed for, and posterity will not forgive me down the line for setting a bad precedent. It is only for the interest of the judiciary (which is supreme) and the system (which is nulli secundus) that has compelled me not to recuse.”

Justice Mishra’s recusal was sought on the ground that he was heading a Bench meant to re-examine a judgment that he had himself given in 2018 in in Indore Development Authority v. Shailendra, (2018) 3 SCC 412. 

Read more…

[Indore Development Authority v. Manohar Lal Sharma, (2020) 8 SCC 129]

5. States, and not MCI, have power to make reservation for in-service candidates in Post Graduate Medical Course 

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ

The bench unanimously held that States have the legislative competence and/or authority to provide for a separate source of entry for in-service candidates seeking admission to postgraduate degree/diploma courses, in exercise of powers under Entry 25, List III.

“…policy must provide that subsequent to obtaining the postgraduate degree by the concerned in-service doctors obtaining entry  in degree courses through such separate channel serve the State in the rural, tribal and hilly areas at least for five years after obtaining the degree/diploma and for that they will execute bonds for  such  sum the   respective  States  may   consider   fit  and  proper”

 The Court, however, specifically observed and clarified that the present decision shall operate prospectively, and any admissions given earlier taking a contrary view shall not be affected by this judgment.

Read more…

[TN Medical Officers Association v. Union of India, 2020 SCC OnLine SC 699]

6. Sub-classification of Scheduled Castes| E.V. Chinnaiah decision to be revisited; Matter referred to larger bench

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ

After noticing that a 5-Judge Bench in E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394, is required to be revisited, the bench referred the matter to a larger bench and said,

“Reservation was not contemplated for all the time by the framers of the Constitution.  On the one hand, there is no exclusion of those who have come up, on the other hand, if sub¬classification is denied, it would defeat right to equality by treating unequal as equal.”

Read more…

[State of Punjab v. Davinder Singh, (2020) 8 SCC 1]

7. SARFAESI Act applicable to Co­operative Banks

5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ

The bench unanimously held that ’banking’ relating to co­operatives can be included within the purview of Entry 45 of List I, and it cannot be said to be over inclusion to cover provisions of recovery by co­operative banks in the SARFAESI Act.

Holding that Co­operative bank’s entire operation and activity of banking are governed by a law enacted under Entry 45 of List I, i.e., the BR Act, 1949, and the RBI Act under Entry 38 of List I, the bench said,

“recovery of dues would be an essential function of any banking institution and the Parliament can enact a law under Entry 45 of List I as the activity of banking done by co­operative banks is within the purview of Entry 45 of List I. Obviously, it is open to the Parliament to provide the remedy for recovery under Section 13 of the SARFAESI Act.”

Read more…  

[Pandurang Ganpati Chaugale v. Vishwasrao Patil Murgud Sahakari Bank Ltd,  (2020) 9 SCC 215]

8. Andhra Pradesh’s 100% reservation for Scheduled Tribe candidates for the post of teachers without rhyme or reason

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ 

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 bench said 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%.”

Read more…

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

9. District Forum can’t extend limitation period of 45 days for filing response under Section 13 of Consumer Protection Act

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and S. Ravindra Bhat, JJ

The bench unanimously held that the District Forum has no power to extend the time for filing the response to the complaint beyond the period of 15 days in addition to 30 days as is envisaged under Section 13 of the Consumer Protection Act, 1986.

The bench was answering the reference relating to the grant of time for filing response to a complaint under the provisions of the Consumer Protection Act, 1986 wherein the answers to the following questions were sought:

  • whether Section 13(2) (a) of the Consumer Protection Act, which provides for the respondent/opposite party filing its response to the complaint within 30 days or such extended period, not exceeding 15 days, should be read as mandatory or directory; i.e., whether the District Forum has power to extend the time for filing the response beyond the period of 15 days, in addition to 30 days.
  • what would be the commencing point of limitation of 30 days stipulated under the aforesaid Section.

Read more…

[New India Assurance v. Hilli Multipurpose Cold Storage Pvt. Ltd., (2020) 5 SCC 757]

10. Accused under NDPS Act not entitled to acquittal as a blanket rule merely because the complainant is the investigating officer

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and S. Ravindra Bhat, JJ

The bench unanimously held that the accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is not entitled to an acquittal as a blanket rule merely because the complainant is the investigating officer.

“… merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis.”

Read more…

[Mukesh v. State (Narcotic Branch of Delhi), (2020) 10 SCC 120]

11. State Government cannot fix the “minimum price” of sugarcane once Centre has already fixed it

5-judge bench: Arun Mishra, Indira Banerjee and Vineet Saran, M.R. Shah and Aniruddha Bose, JJ,

The bench unanimously held that once the Central Government having exercised the power under Entries 33 and 34 List III of seventh Schedule and fixed the “minimum price”, the State Government cannot fix the “minimum price” of sugarcane.

By virtue of Entries 33 and 34 List III of seventh Schedule, both the Central Government as well as the State Government have the power to fix the price of sugarcane. The Court, however, clarified that

“it is always open for the State Government to fix the “advised price” which is always higher than the “minimum price”, in view of the relevant provisions of the Sugarcane (Control) Order, 1966, which has been issued in exercise of powers under Section 16 of the U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953.”

Read more…

[West UP Sugar Mills Association v. State of Uttar Pradesh, (2020) 9 SCC 548]

Also read:

Supreme Court year-end roundup| From important judgments to unmissable facts and stories, here’s a comprehensive roundup of all that happened in 2020

Case BriefsSupreme Court

Supreme Court: In the case where OBC female category candidates had challenged the appointment of General category female candidates, who had secured lower marks, as Constables in Uttar Pradesh Police, the 3-judge bench of UU Lalit*, S. Ravindra Bhat** and Hrishikesh Roy, JJ has directed that all candidates coming from ‘OBC Female Category’ who had secured more marks than 274.8928, i.e. the marks secured by the last candidate appointed in ‘General Category–Female’ must be offered employment as Constables in Uttar Pradesh Police.

However, the employment of General Category Females with cut off at 274.8928 are not to be affected in any manner merely because of this judgment.

Background

Pursuant to Supreme Court’s order dated 24.07.2019, selection to the 3295 posts in accordance with merit and consistent with reservation policy of the Government was undertaken by the Uttar Pradesh Government. According to the results declared on 11.11.2019, 188 posts in ‘General Female Category’ were filled up. While doing so, the claim of ‘OBC Female Candidates’ was not considered or taken into account.

The last candidate appointed in the category of ‘General Female’ had secured 274.8298 marks. 21 OBC applicants who secured marks greater than the candidate with 274.8298 challenged the action on part of the State Government in refusing to consider the claim of ‘OBC Female Category’ candidates in respect of ‘General Female Category’ seats.

Lalit, J, for himself and Bhat and Roy, JJ

The Court discussed the views of various High Courts and categorised them as “first view” and the “second view”. The High Courts of Rajasthan, Bombay, Uttarakhand, and Gujarat have adopted the “first view” while dealing with horizontal reservation whereas the High Court of Allahabad and Madhya Pradesh have taken a contrary view i.e. the “second view”.

First view

Candidates belonging to any of the vertical reservation categories are entitled to be selected in “Open or General Category”. If such candidates belonging to reserved categories are entitled to be selected on the basis of their own merit, their selection cannot be counted against the quota reserved for the categories for vertical reservation that they belong.

Second view

According to the second view, different principles must be adopted at two stages; in that:-.

(I) At the initial stage when the “Open or General Category” seats are to be filled, the claim of all reserved category candidates based on merit must be considered and if any candidates from such reserved categories, on their own merit, are entitled to be selected against Open or General Category seats, such placement of the reserved category candidate is not to affect in any manner the quota reserved for such categories in vertical reservation.

(II) However, when it comes to adjustment at the stage of horizontal reservation, even if, such reserved category candidates are entitled, on merit, to be considered and accommodated against Open or General Seats, at that stage the candidates from any reserved category can be adjusted only and only if there is scope for their adjustment in their own vertical column of reservation.

Such exercise would be premised on following postulates: – (A) After the initial allocation of Open General Category seats is completed, the claim or right of reserved category candidates to be admitted in Open General Category seats on the basis of their own merit stands exhausted and they can only be considered against their respective column of vertical reservation. (B) If there be any resultant adjustment on account of horizontal reservation in Open General Category, only those candidates who are not in any of the categories for whom vertical reservations is provided, alone are to be considered. (C) In other words, at the stage of horizontal reservation, Open General Category is to be construed as category meant for candidates other than those coming from any of the categories for whom vertical reservation is provided.

Analysis of both the views

The second view, based on adoption of a different principle at the stage of horizontal reservation as against one accepted to be a settled principle for vertical reservation, may lead to situations where a less meritorious candidate, not belonging to any of the reserved categories, may get selected in preference to a more meritorious candidate coming from a reserved category as has happened in the present matter.

Admittedly, the last selected candidates in Open General female category while making adjustment of horizontal reservation had secured lesser marks than the Applicants. The claim of the Applicants was disregarded on the ground that they could claim only and only if there was a vacancy or chance for them to be accommodated in their respective column of vertical reservation.

The Court further noticed that if the consideration for accommodation at horizontal reservation stage is only with regard to the concerned vertical reservation or social reservation category, the candidates belonging to that category alone must be considered. For example, if horizontal reservation is to be applied with regard to any of the categories of Scheduled Castes, Scheduled Tribes or Other Backward Classes, only those candidates answering that description alone can be considered at the stage of horizontal reservation.

“But it is completely different thing to say that if at the stage of horizontal reservation, accommodation is to be considered against Open/General seats, the candidates coming from any of the reserved categories who are more meritorious must be side-lined.”

Noticing that the second view is neither based on any authoritative pronouncement by the Supreme Court nor does it lead to a situation where the merit is given precedence, the Court said that subject to any permissible reservations i.e. either Social (Vertical) or Special (Horizontal), opportunities to public employment and selection of candidates must purely be based on merit.

“Any selection which results in candidates getting selected against Open/General category with less merit than the other available candidates will certainly be opposed to principles of equality. There can be special dispensation when it comes to candidates being considered against seats or quota meant for reserved categories and in theory it is possible that a more meritorious candidate coming from Open/General category may not get selected. But the converse can never be true and will be opposed to the very basic principles which have all the while been accepted by this Court.”

Hence, rejecting the second view, the Court held that it will not only lead to irrational results where more meritorious candidates may possibly get sidelined as indicated above but will, of necessity, result in acceptance of a postulate that Open/General seats are reserved for candidates other than those coming from vertical reservation categories.

Bhat, J in his concurring opinion

“Reservations, both vertical and horizontal, are method of ensuring representation in public services. These are not to be seen as rigid “slots”, where a candidate’s merit, which otherwise entitles her to be shown in the open general category, is foreclosed, as the consequence would be, if the state’s argument is accepted. Doing so, would result in a communal reservation, where each social category is confined within the extent of their reservation, thus negating merit. The open category is open to all, and the only condition for a candidate to be shown in it is merit, regardless of whether reservation benefit of either type is available to her or him.”

[Saurav Yadav v. State of Uttar Pradesh, 2020 SCC OnLine SC 1034, decided on 18.12.2020]

*Justice UU Lalit has penned this judgment. Read more about him here.

** Justice S. Ravindra Bhat has penned a concurrent opinion. Read more about him here. 

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.V. Gangapurwala and Shrikant D. Kulkarni, JJ., directed that the petitioner, belonging to the Maratha caste, be considered for providing the benefit of EWS quota albeit a rider.

In the instant petition, the petitioners stated that they belong to the ‘Maratha Caste’ and have applied from E.W.S Category in the central format.

The same is categorized as S.E.B.C. Because of the G.R. dated 28-07-2020, a person from the reserved category cannot apply from E.W.S. Supreme Court had stayed the reservation of S.E.B.C

Further, the petitioners state that they will give an undertaking that they would not claim the benefit of reservation for educational purpose at any point in time.

Decision

Bench held that respondents may not deny the EWS Certificate to the petitioners only on the count of them belonging to the Maratha caste hence shall consider them on the production of the EWS Certificates required as per the rules from EWS Category.

Adding to the above, Court also stated that the petitioners shall not be entitled to any benefit of reservation for educational purposes once having been admitted from EWS Category.

Petitioners will have to prove before the Tahsildar that they belong to the economically weaker section then only would be entitled to EWS certificate.

Court expressed that:

If the petitioners are issued with the EWS certificates in the State format and undertaking is filed by the petitioners that during the entire educational career, they would not claim benefit of any reservation, either vertical or horizontal except EWS category, then the petitioners be considered for admission from EWS category.

[Vaishnavi Maroti Wadje v. State of Maharashtra, 2020 SCC OnLine Bom 4350, decided on 18-12-2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of L. Nageswara Rao, Hemant Gupta and Ajay Rastogi, JJ has directed that that there will be no reservation in Super Specialty Medical Courses to in-service doctors for the academic year 2020-2021.

The direction reads,

“… the counselling for admission to Super Specialty Medical Courses for the academic year 2020- 2021 shall proceed on a date to be fixed by the competent authority without providing for reservations to in-service doctors for the academic year 2020-2021.”

Facts considered

  • The information bulletin for admission to Super Specialty Courses for the academic year 2020-2021 was issued on 03.08.2020. Point 5.16 of the bulletin provided that there shall be no reservations of seats for Super Specialty DM/MCH Courses.
  • The NEET Super Specialty Examination was conducted on 15.09.2020 and the results were declared on 25.09.2020.
  • Counselling was scheduled to commence on 08.10.2020.
  • The Medical Counselling Committee issued the counselling scheme for 100 per cent All India Quota for NEET Super Specialty DM/MCH DMB 2020-2021 in which it was made clear that there shall be no reservation for Super Specialty Medical Courses.
  • The State of Tamil Nadu issued a Government Order dated 07.11.2020 by which a decision was taken to reserve 50 per cent of the Super Specialty seats in Government Medical Colleges in the State of Tamil Nadu for in-service candidates.
  • Kerala Medical Officers Admission to Postgraduate Courses under Service Quota Act, 2008 provides for 40 per cent reservation for in-service doctors in admission to the Super Specialty Medical Courses. Admittedly, the Act was not implemented for the years 2017-2019. By the impugned order, the Kerala High Court directed the concerned authorities to carry out the provisions of the Act and provide reservation to in-service Doctors. However, the State of Kerala has shown its inability to implement the said Act for admission to the Super Specialty Medical Courses for the current academic year i.e. 2020-2021.

Arguments against in-service Reservation

It was argued that the information bulletin made clear to the candidates that there shall be no reservation for admission to Super Specialty Courses. They further contended that the Rules of the game cannot be changed mid-stream and no reservation can be provided for this academic year i.e. 2020-2021 as the procedure for selections for admission to Super Specialty Medical Courses commenced a long time back.

It was also brought to Court’s notice that the 5-judge bench decision in Tamil Nadu Medical Officers Association v. Union of India, 2020 SCC OnLine SC 699[1] was not applicable as the information bulletin for admission to Super Specialty Courses for the academic year 2020-2021 was issued on 03.08.2020 and the judgment that was delivered on 31.08.2020, clearly stated that the judgment shall operate prospectively.

Arguments supporting in-service Reservation

It was argued that administrative inconvenience cannot be a ground to interfere with the order passed by the High Court directing implementation of reservation to in-service doctors in accordance with the Kerala Medical Officers Admission to Postgraduate Courses under Service Quota Act, 2008.

Further, the Constitution Bench in its judgment in Tamil Nadu Medical Officers Association v. Union of India, 2020 SCC OnLine SC 699 only saved the admissions which have already been made. As the admissions for the year 2020-2021 have not been completed, the said judgment has to be implemented for admissions to the academic year 2020- 2021.

What the Supreme Court said

The Court noticed that the process for admissions to Super Specialty Medical Courses started on 03.08.2020 and it was made clear to all the competing candidates that there shall be no reservation to Super Specialty Medical Courses. Hence,

“The Government order issued by the State of Tamil Nadu on 07.11.2020 reserving 50 per cent seats for in-service doctors would be detrimental to the interests of the meritorious Doctors as 50 per cent of the available seats in the State of Tamil Nadu in Super Specialty Medical Courses will not be available to them.”

Rejecting the submission that nobody will be prejudiced if the Government Order is given effect to, the Court said that there will be reduction of 50% of seats in Super Specialty courses in Tamil Nadu if the Government Order is carried out, which is detrimental to their chances of admission.

The Court also took note of the fact that the Kerala Medical Officers Admission to Postgraduate Courses under Service Quota Act, 2008 providing for 40 per cent reservation for in-service doctors in admission to the Super Specialty Medical Courses has not been implemented for the years 2017-2019. And the State of Kerala has shown its inability to implement the said Act for admission to the Super Specialty Medical Courses for the current academic year i.e. 2020-2021.

In the State of Tamil Nadu too, no reservation for in-service Doctors was implemented since 2016.

The Court, hence, held

“As the admission process is at the final stages, we cannot permit reservation for in-service Doctors for this year.”

[Dr. Prerit Sharma v. Dr. Bilu B.S.,  2020 SCC OnLine SC 961, decided on 27.11.2020]

For appellant: Senior Advocates Dushyant Dave and Shyam Divan

For National Medical Commission: Senior Advocate Vikas Singh

For Union of India: Additional Solicitor General Sanjay Jain

For State of Kerala: Senior Advocate Jaideep Gupta

For State of Tamil Nadu: Senior Advocates C.S. Vaidhyanathan and V. Giri,

For Respondents in the Appeal arising out of SLP (C) No.13670-13672 of 2020: Senior Advocate Mr. P. Wilson

For Respondent in Appeal arising out of SLP (C) No.12891 of 2020.: Advocate George Varghese Perumpallikuttiyil

[1] The 5-judge Constitution bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ in Tamil Nadu Medical Officers Association v. Union of India, 2020 SCC OnLine SC 699 held that the Medical Council of India has no power to make any reservation for in-service candidates in Post Graduate Medical Course in States and that only States are allowed to grant the benefit of reservation of seats to in-service doctors in the National Eligibility cum Entrance Test (NEET) postgraduate degree courses.
Holding that States have the legislative competence and/or authority to provide for a separate source of entry for in-service candidates seeking admission to postgraduate degree/diploma courses, in exercise of powers under Entry 25, List III, the bench observed that
“…policy must provide that subsequent to obtaining the postgraduate degree by the concerned in-service doctors obtaining entry  in degree courses through such separate channel serve the State in the rural, tribal and hilly areas at least for five years after obtaining the degree/diploma and for that they will execute bonds for  such  sum the   respective  States  may   consider   fit  and  proper”
The Court, however, specifically   observed   and   clarified   that the present decision shall operate prospectively, and any admissions given earlier taking a contrary view shall not be affected by this judgment. (Read more…)

Case BriefsHigh Courts

Orissa High Court: A Division Bench of S. Panda and S. K. Panigrahi JJ., dismissed the petition and called upon the relevant legal stakeholders to ensure that a uniform and well-defined parameter is adopted so that the meritorious candidates do not suffer.

The facts of the case are such that the petitioner has challenged the inaction of opposite party 1 in not considering the application of the petitioner for admission into 5 years BBA LLB (Hons.) Course under NRIs (Non-Resident Indian Sponsored) category for the academic year commencing 2020.

Counsel for the petitioners submitted that when she applied for CLAT (Common Law Admission Test) examination and wanted to apply through NRI quota but selected GENERAL CATEGORY for the same, however, due to COVID outbreak she wasn’t able to modify the quota due to technical glitch on the last date i.e. 15-08-2020. It was further submitted that the petitioner’s name was not found in the merit list where the candidates with a lower rank than that of the petitioner were in the merit list as against NRI/NRIs category.

Counsel for the respondents submitted the petitioner herein has not applied under NRI/NRIs category for the CLAT 2020 Application in spite of several extensions granted to the students by the CLAT Consortium. It was further submitted that there is always the possibility of server down, internet glitch etc. and therefore, it has been advised by the CLAT conducting authority that candidates must apply well before the last date because there tends to be a heavy rush on the use of internet on the last date.

The Court observed that The Opposite Party 1 is bound by the CLAT Rules and Notification. If the petitioner fails to figure in the CLAT 2020 NRI/NRIs category, the Opposite Party 1 cannot change the category of the candidate. Since the petitioner has not applied under NRI/NRIs category in the CLAT 2020 Application, due to the said fact the OP 1 had to reject the candidate’s application.

Court held that changing the category, at this juncture when the admissions are over, would disturb the entire process and jeopardize the interest of so many students.

The Court before disposing off the petition relied on the judgment P. A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537 and observed:

“NRIs category is an affront to the meritorious candidates who toiled day night to secure seats in NLUs through CLAT. The candidates belonging to the category of NRI/NRIs, who are very low ranked in the merit list often gets seat in the NLUs whereas the general candidates having secured better marks also lag behind the NRIS students and get disappointed. This is like the reservation for the elite class and this dubious category of quota is unconstitutional.”[Ishika Pattnaik v. National Law University of Odisha,  2020 SCC OnLine Ori 762, decided on 20-10-2020]

Arunima Bose, Editorial Assistant has put this story together