reservation

Hot Off The PressNews

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

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

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

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

[Source: TOI]

Hot Off The PressNews

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

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

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

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

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

(Source: PTI)

Legislation UpdatesNotifications

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

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

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

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

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

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

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

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

[Press Release dt. 26-06-2019]

[Source: PIB & RajyaSabha.nic.in]

OP. ED.

Introduction

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

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

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

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

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

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

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

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

Whether the Act Violates the Basic Structure of Constitution

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

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

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

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

(1) supremacy of the Constitution;

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

(3) republican and the democratic form of Government;

(4) secular character of the Constitution;

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

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

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

(8) parliamentary system.

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

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

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

It does not Violate the 50% Cap on Reservation

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

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

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

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

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

This is in Consonance with the Creamy Layer Exclusion Principle.

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

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

Economically Weaker Section of Society Comes under the Definition of Class

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

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

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

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

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

Economic Criteria can be the Sole Basis for Reservation

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

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

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

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

The First Backward Classes Commission (Kalelkar Commission)

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

The Second Backward Classes Commission (Mandal Commission)

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

Role of Judiciary in the Matters Related with Government Policies

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

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

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

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

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

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

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

Ensuring Economic Justice through Directive Principle of State Policy

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

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

Conclusion

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

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

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

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

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

[3]  1992 Supp (3) SCC 217.

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

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

[6]  AIR 1965 SC 845

[7]  (1973) 4 SCC 225

[8]  1975 Supp SCC 1

[9]  (1980) 2 SCC 591

[10]  (1981) 2 SCC 362

[11]  (1981) 1 SCC 166

[12]  (1973) 4 SCC 225

[13]  (2006) 8 SCC 212

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

[15]  1992 Supp (3) SCC 217

[16]  Ibid

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

[18]  1992 Supp (3) SCC 217, 735

[19]  (1976) 2 SCC 310

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

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

[22]  (2008) 6 SCC 1

[23]  AIR 1964 SC 1823

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

[25]  1985 Supp SCC 714

[26]  Ibid.

[27]  Id., at 1506

[28]  1992 Supp (3) SCC 217

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

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

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

[32]  AIR 1951 SC 318

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

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

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

[36]  AIR 1958 SC 538

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

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

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

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

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

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

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

[Picture Credits: newslaundry.com]

Case BriefsHigh Courts

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

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

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

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

Case BriefsHigh Courts

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

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

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

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

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

Case BriefsHigh Courts

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

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

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

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

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

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

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

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

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

Case BriefsHigh Courts

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

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

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

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

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

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

Hot Off The PressNews

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

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

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

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

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

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

(Source: PTI) 

Legislation UpdatesStatutes/Bills/Ordinances

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

Impact

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

Background

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

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

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

[Press Release dt. 28-02-2019]

Cabinet

Legislation UpdatesNotifications

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

Quantum of Reservation

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

Exemption from Reservation

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

Criteria for Income & Assets

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

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

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

Income and Asset Certificate Issuing Authority and Verification of Certificate

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

 Effecting Reservation – Maintenance of Rosters

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

Adjustment Against Unreserved Vacancies

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

Fortnightly/Annual Reports Regarding Representation of EWS

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

Maintenance of Register of Complaints by the Government Establishment

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

Liaison Officer

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

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

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

Detailed Notification available here: Notification

Ministry of Personnel, Public Grievances & Pensions

[Office Memorandum dt. 31-01-2019]

Hot Off The PressNews

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

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

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

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

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

(Source: PTI) 

Case BriefsSupreme Court

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

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

The Court said:

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

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

Disagreeing with the said contention, the Court said:

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

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

Case BriefsHigh Courts

Karnataka High Court: The Bench of S. Sunil Dutt Yadav, J. allowed a civil writ petition challenging State’s notification dated 10-08-2018 which stipulated reservation for various wards of Mangaluru City Corporation in the upcoming elections.

Petitioners, being aspirant candidates who intended to contest elections in various wards, contended that the impugned notification failed to adhere to guidelines mentioned in the Government Order dated 02-02-2015 specifying reservation policy and matrix; and principle of rotation envisaged under Article 243-T of the Constitution of India; and also the legislative mandate under Section 7(4) of the Karnataka Municipal Corporations Act, 1976. It was pointed out that there had been no change in the constitution of wards and there was a clear repetition in reservation for the same categories.

Respondent challenged maintainability of the petition contending that jurisdiction under Article 226 of the Constitution could not be exercised as the only remedy available to the petitioner was to approach before the Election Commission. However, the same was dismissed holding that there was no legislation providing for reservation and rotation and in absence of the same Court was competent to exercise jurisdiction.

The Court opined that Article 243T of Constitution provides for allotment of reserved seats by rotation to different constituencies. The Legislature had incorporated this constitutional mandate in the State Municipal Corporations Act. Modalities of the process of rotation had been detailed in the G.O. dated 02-02-2015. However, it was noted that there were irregularities in adherence to the said provisions. Thus, the impugned notification was quashed holding that there cannot be a repetition of reservation for any ward in any category as it would be the anti-thesis of rotation. [Ravindra Nayak v. Karnataka State Election Commission, 2019 SCC OnLine All 77, Order dated 14-01-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Rajiv Narain Raina, J., dealt with a case where the matter was to distinguish the judgment and order passed in case of Kashmir Chand Kamboj v. State of Haryana, 2015 SCC OnLine P&H 14518 which covered facts and law in favour of petitioner related to same advertisement and description of post.

Facts of the case were that the minimum scores for general category candidate was 200/400 and for OBC was 180/400. After the results were declared a resolution was issued by Haryana Staff Selection Commission whereby the minimum marks was decreased with a purpose to call 3 times the number of candidates for the interview. This affected the candidates who secured the earlier assigned minimum marks. Court referred the case of T.N. Computer Science B.Ed Graduate Teachers Welfare Society (I) v. Higher Secondary School Computer Teachers Assn. , 2009 (14) SCC 517 wherein it was held that recruitment guidelines are sacrosanct and should be followed. In view of the above, High Court concluded that after eligibility criteria had already been issued then Commission cannot alter the criteria before the interview. But since, in Kashmir Chand Kamboj case selection was not set aside and thus, he was entitled to the post of Assistant Engineer (Civil) in the SC/OBC category.

In this case, petitioner belonged to OBC category and it was found that vacancies were available to accommodate petitioner if the petition succeed due to which Court allowed the petition and directed respondent to consider the appointment of petitioner. [Sohan Lal v. State of Haryana, 2018 SCC OnLine P&H 1532, decided on 04-10-2018]

Case BriefsSupreme Court

Supreme Court: The 5-Judge Constitution Bench comprising of CJ Dipak Misra and Kurian Joseph, R.F. Nariman, Sanjay Kishan Kaul and Indu Malhotra, JJ., disposed of a batch of petitions holding that the judgment in M. Nagaraj v. Union of India, (2006) 8 SCC 212does not need to be referred to a 7-Judge Bench. However, the conclusion in Nagaraj that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes, being contrary to the 9-Judge Bench in Indra Sawhney v. Union of India, 1992 Supp (3) 217was held to be invalid to this extent.

The Court was hearing the matter regarding the correctness of the decision in Nagaraj case. The controversy revolved around the interpretation of Articles 16 (4-A) and (4-B), 335, 341 and 342 of the Constitution. K.K. Venugopal, Attorney General for India, submitted that Nagaraj needs reconsideration on two points. First, when Nagaraj states that the State has to collect quantifiable data showing backwardness, such observation would be contrary to the 9-Judge Bench in Indra Sawhney, as it has been held therein that the SC/ST are the most backward among backward classes and it is, therefore, presumed that once they are contained in the Presidential List under Articles 341 and 342, there is no question of showing backwardness all over again. Second, the creamy layer concept has not been applied in Indra Sawhney in regard to SC/ST and Nagaraj has misread the aforesaid judgment to apply this concept to the SCT/ST.

The Supreme Court referred to previous judgments including, inter alia, Keshav Mills Co. Ltd. v. CIT, (1965) 2 SCR 908; E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394; Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1.The Court held it to be clear that when Nagaraj allows the States to collect quantifiable data on backwardness, insofar as SC/ST are concerned, this would clearly be contrary to Indra Sawhney and would have to be declared to be bad on this ground. However, regarding the creamy layer principle, the Court observed that the whole object of reservation is to see that backward classes of citizens move forward so that they may march hand in hand with other citizens of India on an equal basis. This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were. This being the case, it is clear that when a Court applies the creamy layer principle to SC/ST, it does not in any manner tinker with the Presidential List under Articles 341 or 342. Therefore, this part of the judgment does not need to be revisited, and consequently, there is no need to refer Nagaraj to a 7-Judge Bench. In light of the said discussion and observations, the petitions were disposed of. [Jarnail Singh v. Lachhmi Narain Gupta,2018 SCC OnLine SC 1641, decided on 26-09-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: The Division Bench comprising of Mahesh Grover and Mahabir Singh Sindhu, JJ., addressed the issue whether a person who had been issued a certificate of Schedule Caste/Schedule Tribe and Backward Classes by one  State take benefit of reservation in another state.

The facts of the case were such that the petitioner who had applied for M.B.B.S course questioned the selection at the Government Medical College and Hospital. The petitioner contended that candidates belonging to reserved category in states of Punjab, Haryana, Himachal Pradesh and Rajasthan having been issued certificate of Schedule Caste/Schedule Tribe should get benefit of reservation in their respective State and not in UT, Chandigarh. In favour of the above contention, the case of Sanjeev Kumar v. State of Bihar, (2016) 13 SCC 105 was referred according to which no person could take dual benefit by invoking reservation in two states by virtue of the fact that the person has migrated from one state to another.

The High Court quashed the admissions already made by the Government Medical College and directed a fresh counselling to be held. [Sabhya Kamal v. Union Territory, Chandigarh,  2018 SCC OnLine P&H 1046, order dated 24-07-2018]

Case BriefsSupreme Court

Supreme Court: The Vacation Bench comprising of Adarsh Kumar Goel and Ashok Bhushan JJ., allowed the Centre to go ahead with the reservation in promotion for employees belonging to the cadre of SC/ST in accordance to law.

Centre had stated various submissions for explaining their concern on the whole process of promotion being “standstill” due to the various orders passed by the High Courts and apex court.  The government also cited the cases on the issue of quota in promotion in government jobs by placing the apex court’s decision in M Nagaraj v. Union of India, (2006) 8 SCC 212  would be applicable, as in reference to the said case, creamy layer concept cannot be applied to the ST/SC for promotions as decided in the verdict of Indra Sawhney v. Union of India; 1992 Supp (3) SCC 210 and E.V Chinnaiah v. State of A.P; (2005) 1 SCC 394.

ASG Mahinder Singh also referred to an order passed on May 17th in which it was said that “pendency of petition before it shall not stand in the way of the Centre taking steps for the promotion”. He also mentioned Article 16 (4A) of the Constitution, which enabled the state to provide reservation in matters of promotion to SC/ST which in its view was not effectively represented for services.

By a decision of the Supreme Court in M Nagaraj v. Union of India (2006) 8 SCC 212, the constitutional validity of Article 16(4), (4A) and (4B) was upheld.
Subsequent to the pronouncement of law in M Nagaraj, there were decisions by the Supreme Court stating that the government could not blindly provide for reservation in promotions, in favour of SCs and STs unless, prior thereto, the requisite exercise, to acquire quantifiable data regarding lack of representation of SCs and STs in public services was undertaken.

On noting the Delhi High Court verdict of August 23, 2017, in which the government was restrained from granting any reservation, in promotion to SC/ST, in exercise of the power conferred by Article 16 (4A) of the Constitution, without, in the first instance, carrying out the necessary preliminary exercise of acquiring quantifiable data indicating inadequacy of representation, the instant petition was filed and till any further decision of the Constitution bench, as per law permission has been granted in regard to the promotions. [State of Maharashtra v. Vijay Ghogre, 2018 SCC OnLine SC 589, order dated 05-06-2018]

Case BriefsHigh Courts

Kerala High Court: A Division Bench comprising of Antony Dominic, CJ and Dama Seshadri Naidu, J. decided a writ appeal, wherein the Court upheld the validity of the prospectus providing 1% reservation to Other Backward Hindus (OBH) for the admission in post-graduate medical courses, as against the government order providing 3% reservation for medical courses.

The said prospectus was assailed by the respondent in Writ Petition No. 34862 of 2016 as being vitiated by fraud. The learned Single Judge rejected the case of the respondent. He, however, held the said prospectus to be arbitrary, illegal, unfair and in violation of the Government Order as mentioned hereinabove. This judgment was challenged by the petitioner in the instant appeal.

The High Court, after perusal of the record, held that the Government which is to provide reservation under the enabling provision of Article 15(4) of the Constitution, is also entitled to provide the percentage thereof. The Court found that although the above-mentioned government order provided for 3% reservation for OBH category in medical degree courses, however at the same time 1% reservation was followed for admissions into post-graduate courses with Government approval even in previous years. It was held that the fact that 3% reservation was provided in the general Government Order did not mean that that the government did not have liberty to prescribe a lesser percentage of reservation in individual cases such as admission to postgraduate courses. The Court held that the learned Single Judge was totally unjustified in his conclusion that the prospectus concerned was vitiated by illegality or arbitrariness. Hence, the appeal was allowed and the judgment under challenge was set aside. [State of Kerala v. Sandhya S.R. Chandran, 2018 SCC OnLine Ker 1421, order dated 03.04.2108]

Case BriefsSupreme Court

Supreme Court: Stating that educational institutions are bound to reserve seats from persons suffering from disability, the bench of Dr. AK Sikri and Ashok Bhushan, JJ directed that all those institutions which are covered by the obligations provided under Section 32 of the Rights of Persons with Disabilities Act, 2016 shall comply with the provisions of Section 32 while making admission of students in educational courses of higher education each year.

The other directions given by the Court in this regard are:

  • Insofar as law colleges are concerned, intimation in this behalf shall be sent by those institutions to the Bar Council of India (BCI) as well. Other educational institutions will notify the compliance, each year, to the UGC. It will be within the discretion of the BCI and/or UGC to carry out inspections of such educational institutions to verify as to whether the provisions are complied with or not.
  • UGC should constitute a committee consisting of persons from amongst Central Advisory Board, State Advisory Boards, Chief Commissioner of State Commissioners appointed under the Disabilities Act. The said committee will prepare a detailed study for making provisions in respect of accessibility as well as pedagogy and would also suggest the modalities for implementing those suggestions, their funding and monitoring, etc by June 2018.
  • The aforementioned committee will also consider feasibility of constituting an in-house body in each educational institution (of teachers, staff, students and parents) for taking care of day to day needs of differently abled persons as well as for implementation of the Schemes that would be devised by the Expert Committee.

It is important to note that the petition was filed only in respect of law colleges but considering the fact that these issues are of seminal importance, the Court decided to extend the coverage by encompassing all educational institutions. Stressing upon the importance of the issue, the Court said:

“a basic underline assumption, which is well recognised, is that everyone can learn; there is no such person as one who is ineducable; and that, accordingly, all disabled persons (from whatever disability they are suffering) have right to get not only minimum education but higher education as well. Not making adequate provisions to facilitate proper education to such persons, therefore, would amount to discrimination.”

The Court, hence, directed that the Report of the committee, as well as the Action Taken Report, shall be submitted before it in July 2018. [Disabled Rights Group v. Union of India, 2017 SCC OnLine SC 1486, decided on 15.12.2017]