reservation Archives

J&K and Ladakh HC| J&K Reservation Act does not bar the admission of reserved category students in open merit, if they are found qualified

Jammu and Kashmir and Ladakh High Court: While deciding the instant appeal concerning the selection list of NEET-MDS-2021, candidates belonging to Union Territories of J&K and Ladakh, issued by the Board of Professional Entrance Examination (BOPEE), the Division Bench of Pankaj Mittal, C.J., and Wasim Sadiq Nargal, J., observed that the principle enshrined in Section 10 of J&K Reservation Act, 2004 unambiguously provides that there shall be no bar for admission of a candidate of reserved category against the seat other than, or in addition to one reserved for him under Section 9, if such candidate is found qualified for admission on merit as compared with the candidates of the open merit/general category.

Facts and Legal Trajectory of the case: BOPEE issued the list of selected candidates for NEET-MDS-2021 via notification No. 100-BOPEE of 2021, dated 03-10-2021 to the extent it denies the reservation quota in the MDS Course provided for the reserved category of Children of Defense Personal/Military Forces and State Police Personal.

The respondent, a candidate belonging to the category of Children of Defense Personal/Military Forces and State Police Personal, claimed that he was next in the order of merit to Dr. Rasiq Mansoor (MRC candidate), who, by dint of his merit, was placed in the general category. The respondent was aggrieved that in terms of the impugned selection list, the BOPEE had filled up only 41 seats by selection of equal number of candidates for different specialties of MDS Courses, but in doing so, the official respondents have not given 2% reservation earmarked for CDP/JKPM Category.

It was further stated that out of 42 seats notified for admission, 1 seat was allocable to the category of CDP/JKPM. However, no candidate from CDP/JKPM Category was selected, therefore, the mandate of reservation provided under the J&K Reservation Act, 2004 and Rules framed thereunder, were violated.

The Writ Court had allowed the petition consisting of the afore-stated grievances and had held that the respondent (petitioner therein) is entitled to admission in the MDS Course in the discipline that was last leftover after the Open Merit Category candidates 20 in number were allotted the seats in various disciplines as per their merit and preference. The Court, with a view to undo the wrong done to the petitioner, directed the BOPEE to keep one seat of MDS reserved in the next session in the discipline to which the petitioner was entitled to in the instant admission.

Core Issues arising in the Appeal:

Whether in the facts of the present case, Section 9 and 10 of the 2004 Act and Rules as amended till date, are required to be applied? If yes, then how Rule 15 and 17 of the Reservation Rules is required to be interpreted and applied.
Whether after coming to the conclusion by the learned Writ Court about applicability of the Reservation Rules and Reservation Act and its incorrect interpretation on part of the Board before the Writ Court, the relief granted in favour of the respondent is in tune with the settled legal position?
Whether the directions issued by the learned Single Judge to the extent of reserving one seat of MDS in the next session in the discipline to which respondent was entitled to, but was not granted because of the fault attributable to the appellants (BOPEE) is correct, in absence of arraying the affected persons as party respondents?

Analysis and Decision: Perusing the appeal the Court made the following observations’

The Court pointed out that Sections 9 and 10 of J&K Reservation Act, 2004, were enacted to give effect to the law settled by the Supreme Court and this High Court itself. The provisions are unambiguous in nature. The Court noted that BOPEE did not act in conformity with the mandate and spirit of Section 9 and 10 of the 2004 Act, as Dr. Rasiq Mansoor, who was figuring at S. No. 5, was entitled to be considered in the open merit, though, he had the option for taking the benefit of his reserved category status for the purpose of making the choice of the discipline/college.
Analyzing J&K Reservation Rules, 2005, the Court stated that Rule 17 makes abundantly clear that the reserved category candidate, if selected against open merit seat (known as MRC), is entitled to be considered for allotment of discipline/stream/college allocable to him in his respective category on the basis of his merit-cum-preference. Explanation to Rule 17 explicitly provides that the term leftover discipline/stream/college means such number of discipline/stream/colleges that would become available after allotment of seat to the last open merit candidate as allocable under Rules. The Court further pointed out that bare perusal of Rule 15 along with the Proviso to Rule 17 also makes it clear that in respect of PG courses, the leftover disciplines/streams/colleges, shall be added to the pool of reserved category candidates in terms of Rule 15 and allotted on the basis of merit-cum-preference. Rule 17, Note (1), makes the position further clear by providing that in case the last open merit candidate belongs to any reserved category, i.e., if the last candidate in the open merit is MRC, in that eventuality, Rule 17 will have no application. Then in such case, the said candidate shall be considered first in the open merit category and subsequently, be allotted the discipline/stream/college of his choice/preference, if available.
The Court pointed out that in the instant case, the MRC candidate, Dr. Rasiq Mansoor, had given only one choice insofar as the discipline of MDS and accordingly, he was allotted the aforesaid discipline as per his merit/preference, by making his choice as a CDP/JKPM category candidate. The movement of Dr. Rasiq Mansoor from open merit category to CDP/JKPM category for the purpose of making the choice of the discipline resulted in one discipline of MDS available in open merit. The BOPEE, upon allotting a seat to MRC in open merit was under a legal obligation to allot the seat to the respondent, being next meritorious candidate in CDP category, which in the present case has not happened and action of appellants, as such, is violative of Rule 15 of the Reservation Rules. “The leftover discipline in the present case would shift and has to be added to the pool of the reserved category candidates as envisaged under Rule 15 and was required to be allotted on the basis of inter se merit/preference amongst the reserved category candidates.”
The Court stated that the BOPEE committed an illegality in not pushing the respondent, up to the selected under the category of CDP/JKPM, when, the only more meritorious candidate in the category than the respondent, i.e., Dr. Rasiq Mansoor, had succeeded in making a place in the open merit on the strength of his merit. Thus, the BOPEE made an error in interpreting Rule 15 and 17 to the disadvantage of the respondent.
The Court relied upon its precedent in Mehdi Ali v. State, 2019 SCC OnLine J&K 1020, wherein it was observed that, “Rule 17 recognizes the right of meritorious reserved category candidate, who on the strength of his merit comes in the open merit, still makes an option of discipline/stream/college of his choice as per his status as reserved category candidate. He would not count a seat of the reserved category,but would occupy one seat in the open merit. This would not disturb the percentage of reservation provided for the general category and the reserved categories in any manner.“
With the afore-stated observations, the Court dismissed the instant appeal and held that the next candidate in the order of merit in the category of CDP/JKPM i.e., the respondent, was entitled to be selected against one seat earmarked for the category of CDP/JKPM. The BOPEE, has not carried out the mandate of Sections 9 and 10 of the 2004 Reservation Act in its letter and spirit as they have not selected any candidate in the category of CDP/JKPM for which 1 out of the 42 notified seats, was reserved.

[UT of J&K v. Dr. Bhat Ab. Ubran Bin Aftab, 2022 SCC OnLine J&K 737, decided on 13-09-2022]

Advocates who appeared in this case :

Appellants: D.C. Raina, Advocate General with Hilal Ahmad Wani, AAG

Respondents: Syed Faisal Qadiri, Sr. Advocate with Huzaif Ashraf Khanpuri, & Mansab Wadoo, Advocates

*Sucheta Sarkar, Editorial Assistant has prepared this brief

Case Briefs High Courts

Delhi High Court upholds denial of admission where AIIMS declared a foreign national successful in exam, but PGIMER denied admission for lack of seats

Delhi High Court: Sanjeev Narula, J. upheld the denial of admission by AIIMS and PGIMER as mere mentioning of eligibility criteria for admission as a foreign national in its prospectus does not mean that PGIMER advertised seats for foreign nationals.

AIIMS undertook to conduct the INI-SS Examination at the national level by integrating certain institutes of national importance through a common entrance test. PGIMER is amongst the said institutes that sought to admit students based on their performance in the INI-SS into various courses. The petitioner is a Nepalese national who is aggrieved with the denial of admission in M.Ch. (cornea, cataract and refractive surgery) course (hereinafter, “course”) by Respondent 2 â€“ Post Graduate Institute of Medical Research and Education, Chandigarh “PGIMER”, despite fulfilling the eligibility criteria and being declared as a selected candidate in the entrance test for Institutes of National Importance Super-Specialty “INI-SS” conducted by Respondent 1 â€“ Examination Section of All India Institute for Medical Sciences “AIIMS”, pursuant to a Merit List on the ground that Respondent 2 did not have any seats reserved for foreign national candidates. Thus, the petitioner is seeking direction from respondents to grant him admission.

The Court noted that there is ambiguity in the prospectus issued by PGIMER in as much as there is no clarity qua the position of foreign nationals in the said academic session â€“ which led to allocation of seats under the sponsored category to a foreign national, i.e., the Petitioner. However, considering that conducting of the INI-SS Examination by AIIMS is still at a nascent stage, it is plausible that the same had inadvertently been done based on the general rules of admission and in the absence of counselling sessions that are usually held before admission.

The prospectus of PGIMER issued for July, 2022 session, under the head ‘eligibility of foreign nationals‘, states that “admission of foreign national category will be available in July session only”. The Court finds merit in the contention that mere mentioning of eligibility criteria for admission as a foreign national in its prospectus does not mean that PGIMER advertised seats for foreign nationals

Regarding the discrepancy in the eligibility criteria provided for foreign national students in PGIMER’s prospectus, the Court noted that such an error cannot be taken to have created a right in favour of the Petitioner to seek admission against the seat allotted for sponsored students.

The Court observed that private institutions are empowered to formulate their own policies/ schemes governing reservation of seats for foreign national/ NRI students. It cannot be refuted that it is for PGIMER to ultimately decide the allocation of seats. The documents brought on record establish that PGIMER provides reservation of seats for foreign nationals only for the July batch, and not for the January batch.

The Court opined that the prospectus of PGIMER would be the dominant factor in matters of admission to various courses in the said institute. PGIMER is well within its powers to lay down the policy of providing reservation to foreign nationals only in batches commencing from July, and not from January. In that light, it must also be noted that while laying down the general scheme of INI-SS, the prospectus issued by AIIMS categorically provides that the terms and conditions, including matters concerning seat allocation, for admission into any of the participating institutes (such as PGIMER) â€“ will be governed by the rules and regulations of the respective institution.

Thus, the Court further observed that the ambiguity in the prospectus published by AIIMS is not a compelling ground to direct PGIMER to abide by the stipulations laid down by AIIMS, which are at variance with their policy. PGIMER is the appropriate authority to determine the number of seats to be reserved under the ‘foreign national’ category

Reliance was placed on Nilay Gupta v. Chairman NEET PG Medical and Dental Admission/Counselling Board 2020, 2020 SCC OnLine SC 819 wherein it was observed that creation of a quota/ category for foreign nationals is neither sacrosanct nor inviolable. Therefore, it cannot be said that Petitioner has an inherent right to seek admission in the institute. It was an administrative decision to provide admission to foreign students only in the July batch, and the same cannot be tampered with by this Court.

The Court thus held “Undeniably, there has been a mistake by the Respondents in declaring Petitioner as a selected candidate, “however, this does not empower the Court to create a seat for the Petitioner when evidently, none exists and there is no provision for the same in the scheme of examination decided by Respondents.”

[Vishnu Todi v. AIIMS, 2022 SCC OnLine Del 1810, decided on 30-05-2022]

Advocates who appeared in this case :

Mr Nitin K. Gupta and Ms Ritika Gautam, Advocates, for the Petitioners;

Mr. Sudarshan Rajan, Mr. Ramesh Rawat, Mr. Hitain Bajaj and Mr. Vijay Kr. Sharma, Advocates, for the PGIMER;

Mr. Dushyant Parashar and Manu Parashar, Advocates, for the AIIMS.

*Arunima Bose, Editorial Assistant has reported this brief.

Cases Reported Supreme Court Cases

2022 SCC Vol. 3 Part 4

In Part 4 of 2022 SCC Volume 3, read some very pertinent Supreme Court decisions, involving aspects regarding reservation, accountability of social media platforms, service law and more.

Constitution of India — Arts. 14, 15, 16 and 226 — Writ of mandamus in matters of reservation — Scope and limit: Order of High Court directing State Government to increase the percentage of reservation for a particular category, that is, to provide for 3% reservation/quota for sportspersons, instead of 1% provided by State Government, held, beyond its jurisdiction and a grave error. Court cannot issue a mandamus: (i) to provide for reservation or reservation for any particular community even on basis of any quantifiable data brought to its notice, or (ii) to collect quantifiable data to justify their action of not providing reservation. [State of Punjab v. Anshika Goyal, (2022) 3 SCC 633]

Constitution of India — Arts. 19(1)(a) & (2) and Arts. 194 & 105 — Accountability of Social media platforms, for posts made on such platforms by third parties: Extent of accountability of Social media platforms for posts made by third parties to House Committee of State Legislature, determined. [Facebook v. Delhi Legislative Assembly, (2022) 3 SCC 529]

Criminal Law — Public Accountability, Vigilance and Prevention of Corruption — Constitutional Authorities/Functionaries/High Public Offices — Security of Prime Minister of India: Directions issued for judicial inquiry into breach and lapses as the convoy of PM was stuck on a flyover for around 20 minutes. Records relating to PM’s visit seized and secured. Directions also issued for constitution of Enquiry Committee, terms of reference and stay of ongoing proceedings by Central and State Governments. [Lawyers Voice v. State of Punjab, (2022) 3 SCC 521]

Criminal Procedure Code, 1973 — S. 389: Suspension of sentence by Supreme Court on ground of plea of juvenility taken before Supreme Court for the first time, when warranted, explained. [Sagar Behara v. State of W.B., (2022) 3 SCC 526]

Criminal Procedure Code, 1973 — S. 439 — Bail: Grant of bail without considering relevant aspects and recording reasons is not justified. Law summarised regarding principles for grant of bail and considerations to be balanced therefore. [Manoj Kumar Khokhar v. State of Rajasthan, (2022) 3 SCC 501]

Criminal Procedure Code, 1973 — S. 482 — Failure to exercise quashment power — When not proper: In this case of alleged misappropriation of monies of complainant and others, main allegations are against other co-accused, in the facts and circumstances of the case, it was held that to continue criminal proceedings against both appellant-accused herein would be abuse of process of law and court and unnecessary harassment to appellants. Hence, High Court ought to have exercised its powers and discretion under S. 482 CrPC and ought to have quashed criminal proceedings against appellants. Hence, criminal proceedings under Ss. 406, 420, 467, 468, 471 and 120-B IPC including charge-sheet, quashed and set aside insofar as appellants herein are concerned. [Rekha Jain v. State of U.P., (2022) 3 SCC 497]

Service Law — Pension — Computation/Calculation of pension: In this case, respondent retired after one month of rejoining from leave for about two years without allowances. Cl. 2(2) as modified vide Circular GO (P) No. 230/2012/Fin. dt. 19-4-2012 envisaged that for computing 10 months’ emoluments for purpose of average emoluments in respect of employee who retired from service on or after 1-1-2006 and who during part 10 months drew pay in pre-revised scale, their pay in pre-revised scale was to be enhanced notionally to initial pay drawn in revised scale. For calculating average emoluments as per Kerala Services Rules, if during period of ten months, employee was absent from duty, on leave with or without allowances which qualified for pension, or having been suspended was reinstated in service without forfeiture of service, his emoluments for ascertaining average were to be taken, at what they would have been, had he not been absent from duty or suspended provided that benefit of pay in any officiating post would be admissible only if it was certified that he would have continued to hold that officiating post but for leave or suspension. Thus, part of 10 months not equivalent to past 10 months. Hence, impugned judgment finding fixation of pension @ Rs 19,334 in revised scale justified considering last drawn pay of Rs 46,400 by respondent, calls for no interference. [State of Kerala v. Anie Lukose, (2022) 3 SCC 629]

Case Briefs Supreme Court

Insertion of meritorious OBC candidates into general category list without disturbing the appointment of general category candidates? Supreme Court strikes balance

Supreme Court: In a service matter where upon reshuffling and on insertion of two OBC candidates into general category select list, two general category candidates already appointed and working since long would have been expelled or removed, thereby unsettling the entire selection process, the bench of MR Shah* and BV Nagarathna, JJ exercised its powers under Article 142 of the Constitution of India to do complete justice to all the candidates involved.

Factual Background

BSNL issued notification in 2008 for filling up the post of Telecom Technical Assistants (TTAs). The recruitment was to be made by conducting a competitive examination of eligible candidates in an objective type paper of 200 marks. However, in the exam which was conducted no person from general category candidate got more than 40% marks. However, four candidates from OBC category obtained more than 33% marks.

Despite the poor pass percentage of candidates in the TTA examination, BSNL relaxed the qualifying marks by 10% for all candidates owing to the acute shortage of manpower. Accordingly, the qualifying marks were refixed at 30% for general category and 23% for reserved category.

However, two candidates, who were found to be more meritorious than the general category candidates subsequently were found eligible to be appointed against the reserved category – OBC. Therefore, the respondent No.1, who was wait listed No.1 in OBC category, approached the Tribunal for a direction to prepare a fresh list for all candidates based on relaxed standard and act on the said combined merit list. It was, inter alia, pleaded that there cannot be two cut-off marks for a single selection. It was submitted that there was an unreasonable classification by providing another set of cut-off marks and the action was discriminatory and violative of Articles 14 and 16 of the Constitution of India.

It was the case on behalf of the original applicant that those two candidates belonging to OBC category, who were having more merit were required to be adjusted against the general category seats and consequently the seats reserved for OBC category were required to be filled in from remaining reserved category candidates on merit.

Tribunal’s ruling

Tribunal directed BSNL to consider the candidature of the respondent No.1, if sufficient vacancies exist for placement of the candidates of OBC and further his candidature shall be considered against the present and future vacancies on OBC category.

High Court’s Ruling

Rajasthan High Court dismissed the writ petition preferred by BSNL by observing that the BSNL should have given appointment to the two candidates belonging to OBC category, against the vacancies which were not reserved vertically in the event of shuffling the said two persons to general category (admittedly both the candidates have secured and/or have more merit than the general category candidates, who were appointed). The High Court further observed that consequently the respondent no. 1 could have been selected against the vacancies reserved for the OBC.

Supreme Court’s Ruling

When the matter reached the Supreme Court, various decisions were taken note of wherein it was held that the reserved category candidates securing higher marks than the last of the general category candidates are entitled to get seat/post in unreserved categories. Further, even while applying horizontal reservation, merit must be given precedence and if the candidates, who belong to SCs, STs and OBCs have secured higher marks or are more meritorious, they must be considered against the seats meant for unreserved candidates. It is further observed that the candidates belonging to reserved categories can as well stake claim to seats in unreserved categories if their merit and position in the merit list entitles them to do so.

Applying the law laid down by the Supreme Court in various decisions to the facts of the case on hand, the Court noted that the two candidates, namely, Alok Kumar Yadav and Dinesh Kumar, belonging to OBC category, were required to be adjusted against the general category as admittedly they were more meritorious than the last of the general category candidates appointed and that their appointments could not have been considered against the seats meant for reserved category. Consequently, after considering their appointments in the general category, the seats meant for reserved category were required to be filled in from and amongst the other remaining reserved category candidates on merit such as respondent No.1.

“If such a procedure would have been followed, the original applicant – respondent No.1 would have got appointed on merit in the reserved category seats in the vacancy caused due to the above procedure.”

Therefore, the findings of the High Court were upheld.

The Court, however, was also alive to the fact that by reshuffling and on insertion of two OBC candidates into general category select list, two general category candidates already appointed shall have to be expelled and/or shall have to be removed, who are working since long and it may unsettle the entire selection process. Therefore, to strike a balance and to ensure that the two general category candidates, who are already appointed will not have to be removed and at the same time, respondent No.1 being a reserved category candidate also gets accommodated, if he is so appointed, in exercise of the powers under Article 142 of the Constitution of India, the Court ordered that on reshuffling and on respondent No.1 being appointed now against the reserved category seats and while the Alok Kumar Yadav and Dinesh Kumar, belonging to reserved category, to be treated in the general category seats, two candidates already appointed and belonging to general category shall not be removed. However, respondent No.1 shall get the seniority from the date the general category candidates were appointed, who were having lesser merit than Alok Kumar Yadav and Dinesh Kumar.

[Bharat Sanchar Nigam Ltd. Sandeep Choudhary, 2022 SCC OnLine SC 524, decided on 28.04.2022]

*Judgment by: Justice MR Shah

Counsels

Amicus curiae: Senior Advocate Dr. Rajeev Dhavan and Advocate Gaurav Agrawal

For BSNL: Advocate Pradeep Kumar Mathur

For respondent no.1: Advocate Puneet Jain

Op Eds OP. ED.

Conundrum on Economically Weaker Section —Having Reservations about Reservation

Introduction

If the local Government included in this category of reservations such a large number of seats, I think one could very well go to the Federal Court and the Supreme Court and say that the reservation is of such a magnitude that the rule regarding equality of opportunity has been destroyed and the court will then come to the conclusion whether the local Government or the State Government has acted in a reasonable and prudent manner.

–Dr B. R. Ambedkar in Constituent Assembly Debates on 30-11-1948 Part II.[1]

History is witness; making India independent was not a cakewalk. Our great leaders had left no stone unturned to unite the newly independent but fragmented India and shape it into an Akhand Bharat. The integration of States was made possible after pacifying every section of Indian population through deliberate talks, meetings, agreements, and policies. One such policy for socially and educationally backward sections was “reservation”. Back in 1948, when the reservation policy was proposed, it was welcomed with an overwhelming response, yet with an intention to initially limit its implementation to the period of 10 years which could be extended, only if necessary.

Since then, more than 75 years have passed, Indian politicians still seem to play the “reservation” card in pursuit of their political advantage, and Indians are still brawling for quotas in educational institutions and jobs. A little while ago, in January 2019, the present Government brought a new reservation policy granting 10% reservation of seats in government jobs and educational institutions for economically weaker section (EWS). The persons who will fall into the category of EWS are those who, are not covered under the scheme of reservation for Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs).[2] This was facilitated by incorporating Articles 15(6) and 16(6) by the 103rd Constitutional Amendment Act on 14-1-2019.[3]

Since then, debates on EWS reservations have been the talk of the town. Numerous writ petitions were filed challenging the constitutional validity of the 103rd Constitutional Amendment in Supreme Court.[4] Though final decision on validity of EWS reservation and 103rd Constitutional Amendment is yet to be decided by the Supreme Court, the State and Union Governments are implementing EWS reservation scheme under the principle that there is always a presumption that the legislature understands and correctly appreciates the need of its own people and therefore, every legislation enacted by Parliament or State Legislature carries with it a presumption of constitutionality.[5]

In July 2021, Central Government issued notifications regarding 27% reservations for OBCs and 10% quota for EWS in NEET All India Quota seats. These created furors among doctors which led them to protest and document multitudinous writ petitions in the Supreme Court. The Supreme Court heard all writ petitions under the case, Neil Aurelio Nunes v. Union of India.[6] Though the Supreme Court passed an interim order in this case allowing 27% reservation to OBC and 10% to EWS for the current academic cycle but the question is still unanswered — Is EWS reservation constitutionally valid?

To derive to the conclusion to this question, the Supreme Court sought clarifications from the Central Government by asking whether the Union Government endeavoured to take any exercise before deciding the criteria for the determination of the EWS category, whether or not EWS criteria is over-inclusive and arbitrary at the same time as it provides identical income cap both for the OBC and EWS categories, whether the regional income differences is considered before arriving at Rs 8 lakh income limit and many more related questions. This article endeavoured to analyse the answers to such micro questions in order to derive at solution to one mega question — Is EWS reservation constitutionally valid?

Definition of economic weaker section —A game changer

Definitions are of the utmost significance in legal thought, and that terms which cannot be defined should be dropped.[7] Central Government defines EWS[8] as –

“Persons who are not covered under the scheme of reservation for SCs, STs and OBCs and whose family has gross annual income below Rs 8 lakh 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:

5 acres of agricultural land and above;
Residential flat of 1000 sq ft and above;

iii. Residential plot of 100 sq yd and above in notified municipalities;

Residential plot of 200 sq yd and above in areas other than the notified municipalities.”

A bare reading of the definition seems to be clear, comprehensive and unambiguous, but subsequent paragraphs of this article show this definition grossly violates Articles 14[9], 15[10] and 16[11] of the Constitution.

An arbitrary definition

“It is an injustice to treat unequals as equals, just as it is an injustice to treat equals as unequals.”– Aristotle.

Reservation of OBC is based on rule of exclusion which excludes socially advanced sections of people from OBC category (creamy layer) from the purview of reservation. Criteria for determining creamy layer are given under Annexure II of Official Memorandum on Issue of Instructions on Reservation for the Scheduled Castes, Scheduled Tribes and Other Backward Classes in services under the Government of India.[12] Out of 6 categories that have been set out for determining creamy layer among OBCs, one category is income/wealth test. Sons and daughters of persons having gross annual income of Rs 1 lakh or above for a period of three consecutive years would fall within the creamy layer and would not be entitled to get the benefit of reservation available to the Other Backward Classes.[13] The income slab for ascertaining the creamy layer sections was subsequently raised to Rs 2.5 lakhs, Rs 4.5 lakh, Rs 6 lakhs vide different notifications. The current income slab for creamy layer status has been raised to Rs 8 lakhs per annum.[14] Therefore, income/wealth test to determine rule of exclusion (creamy layer) and rule of inclusion (EWS) for the benefit of reservation is same.

By employing only income/wealth test to determine the category for EWS reservation, the Government has bypassed a catena of Supreme Court judgments[15], where the Court has held that neither income by itself nor caste by itself can be the sole criteria to determine social backwardness, and both income and caste together are relevant in determining the backwardness of citizens but, nevertheless, the Government has brought reservation solely based on economic factor. Not much scrutinising on the debate whether or not it is constitutionally valid to make economic factor sole criteria to determine EWS reservation; this paper will remain focus on analysing the “economic factor” already set by the Government to determine EWS reservation.

Before further examining the income/wealth test of EWS reservation through a hypothetical situation, it is pertinent to understand the meaning of “socially and educationally backward”. In Indra Sawhney v. Union of India[16] the following observation was penned down:

The expression “backward class of citizens” is neither defined nor explained in the Constitution…. However, the backward class or classes can certainly be identified with reference to caste along with other criteria nature of traditional occupation or trade, poverty, place of residence, lack of education and these factors are not exhaustive and in communities where caste is not recognised by the above recognised and accepted criteria except caste criterion…a caste is also a class of citizens and if the caste as a whole is socially and educationally backward, reservations can be made in the favour of the caste.

Considering a hypothetical situation, where there are 2 families, one is General category (herein referred as Family A) and the other is OBC category family (herein referred as Family B). Each has 4 members – father (businessman), mother (housewife), candidate, and a minor sibling. For many consecutive years, Family A’s annual income was Rs 8,50,000 (including from all sources such as salaries, agriculture, traditional artisanal professions, etc.) and pay tax accordingly, but due to temporary loss in business, their 2020-2021 annual income dropped to Rs 7,00,000 (including from all sources such as salaries, agriculture, traditional artisanal professions, etc.).Therefore, for the year 2020-2021, Family A falls under the definition of economic weaker section and the candidate can claim reservation under EWS category. On the other hand, Family B generally has annual income of Rs 6,00,000 (including from all sources such as salaries, agriculture, traditional artisanal professions, etc.) but due to unpredictable profit in business for 3 consecutive years the family income has raised to Rs 8,00,000 (including from all sources such as salaries, agriculture, traditional artisanal professions, etc.). This implies that now a candidate from Family B falls under creamy layer status and cannot claim reservation. This implies that backward class community who are socially and educationally deprived for years but only due to economic growth in 3 consecutive years they are not been given reservation benefit, but parallel to this, general category community who are neither socially nor educationally nor economically deprived but due to loss in business in a single year will make them eligible for reservation.

The Central Government tries to explain the differences between Rs 8 lakhs income test of EWS criteria and creamy layer criteria on the basis of definition of “family”, constituents of “annual income” and considering 3 consecutive years in OBC and prior year annual income in EWS. But from this hypothetical situation it can be concluded that despite the differences between the two Rs 8 lakh income slabs, the Government are treating unequal equally and therefore violate Article 14 of the Constitution.

Even though Central Government accepts the proposal to increase the income limit of Rs 8 lakhs to 12 lakhs for determining the creamy layer among OBCs17, the over-inclusive nature of Rs 8 lakh income slabs for determining EWS category will still make it a problematic policy to implement.

An over-conclusive definition

In India, the income tax structure is designed in such a way that up to Rs 2,50,000 annual income, no tax rate is levied. Above Rs 2,50,000, different tax rate is imposed according to different income slab. It is pertinent to note that neither in existing tax regime nor in new tax regime, Rs 8,00,000 is made upper limit or lower limit of any income tax slab. The present government reports that for Financial Year 2018-2019 till February 2020, only 1% of the Indian population pays income tax. Meaning thereby, out of 138 crore populations, only 5.78 crore individuals are taxpayers and out of these total taxpayers, only 1.46 crores individual filed income tax returns above Rs 5 lakhs income tax slab.18It would be wrong to argue that due to tax evading practices in India there are so few taxpayers. As per the data released by the Government, 75% Indians have annual income less than Rs 5lakhs and 17% Indians have income between Rs 5 lakhs to 10 lakhs.19 According to the Government’s Economic Survey 2020-2021, per capita income of India in 2020-21 is Rs 1,26,96820, which means the average Indian earns Rs 1.3 lakhs (approx.) in a year. These statistical data implies that the bulk of population will be eligible for EWS reservations within Rs 8 lakhs income bracket, making it an unreasonable and irrational threshold.

Inequality among Indian States

In a country like India, where inter-State disparity and regional income inequality prevails across the Indian States21, Government has imposed Rs 8 lakh income cap as a uniform income-based threshold which is uniformly adopted across the country. As per RBI Handbook of Statistics on Indian States, per capita net State domestic product for the year 2020-2021 is highest in Goa (Rs 4,72,216) followed by Sikkim (Rs 4,24,454) and Delhi (Rs 3,54,004) and lowest in Bihar (Rs 46,292), Uttar Pradesh (Rs 65,431) and Jharkhand (Rs 75,587).22 This implies that State economic production value attributed to per person of Goa, Sikkim and Delhi is much higher than that to per person of Bihar, Uttar Pradesh and Jharkhand. Under this background, it can be concluded that majority population from Bihar, Uttar Pradesh, Jharkhand and other low per capita (NSDP) States will fall under 10% EWS reservation. Therefore, Rs 8 lakhs income criterion is over-inclusive.

On the substratum of the above discussion, it can be very well stated that the scheme of EWS reservation suffers from the vice of non-application of mind by the authority concerned, as the Union Government had “mechanically” adopted Rs 8lakhs cut-off without endeavouring to undertake any appropriate exercise before determining the criteria for EWS reservation. This act of arbitrariness by the Government manifests flagrant violation of the constitutional mandate of Article 14.

Is even10% valid

The Report of the National Backward Classes Commission states forward Hindu caste and communities (which includes Brahmins, Bhumihars, Rajputs, Marathas, Jats, Vaishyas-Bania, Kayasthas and other forward Hindu castes) constitute 17.58% of the population.23 In addition to these 17.58%, Buddhist (0.67%) and Jains (0.47%) are also not covered under any scheme of reservations. This data has been recently used by the Supreme Court in deciding the civil appellate/original jurisdiction case Jaishri Laxmanrao Patil v. Chief Minister (also called Maratha Reservation case).24 Based on the calculation of above data, it can be estimated that the total population outside the purview of reservation benefit in India is not more than 20%. For 20% socially and educationally forward population, the Government has reserved 10% seats in government jobs and education institutions with over-inclusive income brackets.

Though 50% has been set as the maximum limit for caste-based reservation, but this ceiling can be crossed in extraordinary circumstances.25Unfortunately, the Government is treating the underline situation as extraordinary in order to validate the breaching of 50% reservation ceiling while implementing 10% EWS reservation. Before delving into the discussion of whether the present matter falls within the ambit of an extraordinary situation, it is necessary to understand what comes under an extraordinary situation. Indra Sawhney case26 has given illustration regarding certain extraordinary situation in para 810 of the said judgment:

… 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 Supreme Court in para 475 of Maratha Reservation case27agreed that the expression “in far-flung and remote areas” incorporates geographical test and “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” incorporates social test. In the same paragraph of the abovementioned case, the Supreme Court held that:

475 … one of the social conditions in para 810 (of Indra Sawhney case28) is that (not) being within the mainstream of national life, the case of Maratha does not satisfy the extraordinary situations as indicated in para 810 of Indra Sawhney29, as the Marathas are in the mainstream of the national life….30

The above discussion makes it clear that due to over-inclusive nature of EWS definition, people from mainstream of national life are also covered for the benefit of reservation and therefore, the present case does not quench the extraordinary situations as specified in Indra Sawhney judgment31. Overstepping the 50% reservation maximum cap without there being any instance of extraordinary circumstances clearly flouts Articles 14 and 16 of the Constitution, which makes the enactment ultra vires.32

Under this background, it would not be wrong to conclude that the EWS reservation scheme criteria have been implemented without taking due consideration of gross domestic product (GDP)/per capita income, inter-State economical differences, rural urban purchasing power and other various data. This is a blatant manifestation of political moves in the guise of policy implementation with a lack of up-to-date and quantifiable data. In the line of a series of recent judgments, the Supreme Court and High Courts33 have called attention to the significance of quantifiable data as a mandatory prerequisite for the reservation scheme in education and employment. In Jaishri Laxmanrao Patil v. Chief Minister34, the Supreme Court reiterated the observation held in M. Nagaraj v. Union of India35 that if they are making provisions related to reservations, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation. The Supreme Court in Maratha Reservation case36 has struck down the reservation policy for Maratha as the Government could not back up the reservation policy with appropriate, adequate and quantifiable data. Same might be the fate of EWS Reservation policy, if the authority concerned could not come up with the necessary modification in tuned with appropriate and quantifiable data.

Conclusion

In India, the “reservation” is getting deceptively complex with each passing day. Judiciary with its legal power consistently engrossed in simplifying the puzzle posed by the regular conflicting interest between the Indian politicians, who once in 5 years deliberate on “reservation” as their election manifesto to secure their vote bank and the stakeholders, who for the entire 5 years agitate either “for” reservation or “against” reservations. The present Government by bringing EWS reservation has though chosen bold path but with wobble steps which, if get implemented will result in more harm than good. Considering the present scenario, the Supreme Court can lead the case to three different possible situations: first, upheld the 103^rd Constitutional Amendment Act, 2019; second, partially upheld by recommending certain modification in income bracket and quantum of seats reserved; and third, quash the 103^rd Constitutional Amendment Act, 2019 on basis of sole economic criterion and exceeding 50% reservation cap. Whether the Supreme Court ends the controversy with these expected outcomes or adopts a different strategy to decide the case is yet to be seen.

*5th year student, B.A-LL.B, National University of Study and Research in Law, Ranchi. Author can be reached at subhashni.kumari@nusrlranchi.ac.in.

[1]Constituent Assembly Debates, Vol. 7, 30-11-1948 speech by Dr B.R. Ambedkar, p. 702.

[2]Government of India, Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training, Official Memorandum No.36039/1/2019-Estt (Res) (notified on 31-1-2019).

[3]Constitution (103rd Amendment) Act, 2019, Arts. 15(6) and 16(6).

[4] Janhit Abhiyan v. Union of India, 2020 SCC OnLine SC 624.

[5]State of Bombay v. F.N. Balsara, AIR 1951 SC 318.

[6] 2022 SCC OnLine SC 75.

[7] Huntington Cairns, A Note on Legal Definitions, 36 Columbia Law Review 1099, 1099 (1936),

<https://www.jstor.org/stable/1117047>.

[8]Government of India, Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training, Official Memorandum No.36039/1/2019-Estt (Res) (notified on 31-1-2019).

[9]Constitution of India, Art. 14.

[10]Constitution of India, Art. 15.

[11]Constitution of India, Art. 16.

[12] Government of India Ministry of Personnel, Public GrievancesandPensions Department of Personnel & Training Official Memorandum No.36011/6/2010-Estt.(Res), (Notified on 25-6-2010),

<https://documents.doptcirculars.nic.in/D2/D02adm/36011_6_2010-Estt.(Res).pdf>.

[13] Government of India Ministry of Personnel, Public Grievances and Pensions Department of Personnel &Training Office Memorandum No. 36012/22/93-Estt. (SCT) (Notified on 8-9-1993).

[14] Government of India Ministry of Personnel, Public Grievances and Pensions, Department of Personnel &Training Office Memorandum No. 36033/1/2013-Estt. (Res.) (Notified on13-9-2017).

[15]Janki Prasad Parimoo v. State of J&K, (1973) 1 SCC 420; K.S Jayasree v. State of Kerela, (1976) 3 SCC 730.

[16]1992 Supp (3) SCC 217, para 243.

17Rahul Srivastava, Centre Considering Proposal to Revise Income Criteria for Determining Creamy Layer among OBCs,India Today (3-2-2021), <https://www.indiatoday.in/india/story/centre-considering-proposal-to-revise-income-criteria-for-determining-creamy-layer-among-obcs-1765327-2021-02-03>.

18Only 1% Indians Pay Income Tax, Government Tells Lok Sabha, Business Today, <https://www.businesstoday.in/latest/economy-politics/story/only-1-percent-indians-file-income-tax-govt-tells-lok-sabha-273519-2020-09-21> (last visited on 8-1-2022).

19Only 1% of Taxpayers Earn over Rs 50 Lakhs: Government Data, Times of India, <https://timesofindia.indiatimes.com/business/india-business/people-earning-less-than-2-5-lakh-constitute-57-of-taxpayers-govt-data/articleshow/77519141.cms> (last visited on 10-1-2022).

20Statistical Appendix: Economic Survey 2020-21, <https://www.indiabudget.gov.in/economicsurvey/doc/Statistical-Appendix-in-English.pdf> (last visited on19-1-2022).

21Government of India, Ministry of Finance Department of Economic Affairs Economic Division, Economic Survey 2020-21, Vol. 1, Ch. 4, Inequality and Growth: Conflict or Convergence, 121-149,

<https://www.indiabudget.gov.in/economicsurvey/doc/echapter>.

22RBI Handbook of Statistics on Indian States Report, <https://rbidocs.rbi.org.in/rdocs/Publications/PDFs/16T_241121E38C1EC7A0CE444BB1D875B6CBAC913B.PDF > (last visited 8-1-2022).

23Government of India : Report of the Backward Classes Commission (Mandal Commission Report), Part 1, Vol. I, p. 56.

24 (2021) 8 SCC 1.

25 Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217.

26 1992 Supp (3) SCC 217, 735.

27 JaishriLaxmanrao Patil v. Chief Minister, (2021) 8 SCC 1, 247.

28 1992 Supp (3) SCC 217.

29 1992 Supp (3) SCC 217.

30 Jaishri Laxmanrao Patil v. Chief Minister, (2021) 8 SCC 1, 247, para 475.

31 1992 Supp (3) SCC 217.

32 Jaishri Laxmanrao Patil v. Chief Minister, (2021) 8 SCC 1, 254, para 493.

33 V.V.Saminathan v. Govt. of T.N., 2021 SCC OnLine Mad 5646.

34 (2021) 8 SCC 1, 245, para 466.

35 (2006) 8 SCC 212.

36 Jaishri Laxmanrao Patil v. Chief Minister, (2021) 8 SCC 1.

Cases Reported Supreme Court Cases

2022 SCC Vol. 2 Part 4

In 2022 SCC Volume 2 Part 4, read a very interesting decision, wherein a death row convict subjected a 5-year-old girl to rape, killed her by strangulation, and then disposed of her body, tied in a gunny bag, into a stream and the 3-Judge Bench of the Supreme Court finding hope for reformation and rehabilitation commuted his death sentence to life imprisonment. [Irappa Siddappa Murgannavar v. State of Karnataka, (2022) 2 SCC 801]

Short Notes: 6

Central Educational Institutions (Reservation in Admission) Act, 2006 (5 of 2007) — S. 3 provisos 2(a) & (b) and Ss. 3(i), (ii) & (iii) and Ss. 2(i-a) & (i-b) (as amended in 2012): Manner of interpretation and applicability of special provisions of amended S. 3 provisos 2(a) & (b) excluding general provisions of Ss. 3(i), (ii) & (iii), explained in detail. Amended S. 3 proviso 2 is applicable to University located in State of Manipur which is one of the States of “Specified North-Eastern Region” in terms of S. 2(ia). S. 3 provisos 2(a) & (b) is applicable to “Specified North-Eastern Region” in S. 2(i-a) and not limited only to the tribal States covered by the Sixth Schedule to the Constitution. This became possible after the amendment of S. 3 and insertion of S. 3 provisos 2(a) & (b) by the Central Educational Institutions (Reservation in Admission) Amendment Act, 2012 (Amendment Act). [Kshetrimayum Maheshkumar Singh v. Manipur University, (2022) 2 SCC 704]

Re S. 3 provisos 2(a) & (b) and Ss. 3(i), (ii) & (iii) and Ss. 2(i-a) & (i-b) (as amended in 2012), Central Educational Institutions (Reservation in Admission) Act, 2006 (5 of 2007) manner of interpretation and applicability of special provisions of amended S. 3 provisos 2(a) & (b) excluding general provisions of Ss. 3(i), (ii) & (iii), explained in detail. [Kshetrimayum Maheshkumar Singh v. Manipur University, (2022) 2 SCC 704]

Constitution of India — Sch. X Paras 2(1)(a) and (2) r/w Art. 191(2): Judicial interference with disqualification order issued under by Speaker under the provision, when permissible and warranted, explained. [Kshetrimayum Biren Singh v. Speaker, Manipur Legislative Assembly, (2022) 2 SCC 759]

Re Sch. X Paras 2(1)(a) and (2) r/w Art. 191(2), Constitution of India judicial interference with disqualification order issued under by Speaker under the provision, when permissible and warranted, explained. [Kshetrimayum Biren Singh v. Speaker, Manipur Legislative Assembly, (2022) 2 SCC 759]

Education Law — Professional Colleges/Education — Medical and Dental Colleges — Reservation of seats/Quota/Exemption/Priority in Medical/Dental Institutions — Generally —Postgraduate/Superspeciality courses: State Government providing reservation for in-service doctors in superspeciality courses in final stages of admission for the academic year 2020-2021, held, cannot be permitted. [Prerit Sharma v. Bilu B.S., (2022) 2 SCC 751]

State Government providing reservation for in-service doctors in superspeciality courses in final stages of admission for the academic year 2020-2021 cannot be permitted. [Prerit Sharma v. Bilu B.S., (2022) 2 SCC 751]

Electricity Act, 2003 — S. 9 and S. 2(15) r/w S. 42(4) — Electricity distribution system — Wheeling charges for use of distribution system: Additional surcharge on wheeling charges under S. 42(4), if consumer does not receive supply of electricity from the distribution licensee but uses the system, is not applicable to captive consumers. Ordinary consumers under S. 2(15) to whom S. 42(4) is applicable, clarified. Rationale why such additional surcharge is justified, explained. Rights of captive consumers distinguished from ordinary consumers. Captive consumers, held, do not have an obligation to pay additional surcharge under S. 42(4) even if they are not receiving electricity from the distribution licensee. [Maharashtra State Electricity Distribution Co. Ltd. v. JSW Steel Ltd., (2022) 2 SCC 742]

Re S. 9 and S. 2(15) r/w S. 42(4), Electricity Act, 2003 qua wheeling charges for use of distribution system, captive consumers, do not have an obligation to pay additional surcharge under S. 42(4) even if they are not receiving electricity from distribution licensee. [Maharashtra State Electricity Distribution Co. Ltd. v. JSW Steel Ltd., (2022) 2 SCC 742]

Energy, Power and Electricity — Electricity — Tariff — Exemption provision: Repealing statute withdrawing exemption provided in repealed statute in simple, clear and unambiguous language, said exemption provision, held, needs to be interpreted literally and applied rigorously and strictly. Recourse cannot be had to any other principle of interpretation, when the words are clear and unambiguous. Thus, held, charitable educational institutions registered under the provisions of the Societies Registration Act and/or under the Maharashtra Public Trusts Act, are not entitled to any exemption from levy/payment of electricity duty on or after 8-8-2016 i.e. from the date on which Maharashtra Electricity Duty Act, 2016 (2016 Act) came into effect. [State of Maharashtra v. Shri Vile Parle Kelvani Mandal, (2022) 2 SCC 725]

Repealing statute withdrawing exemption provided in repealed statute in simple, clear and unambiguous language, said exemption provision needs to be interpreted literally and applied rigorously and strictly. Recourse cannot be had to any other principle of interpretation, when words are clear and unambiguous. [State of Maharashtra v. Shri Vile Parle Kelvani Mandal, (2022) 2 SCC 725]

Labour Law — Domestic/Departmental Enquiry — Acquittal in criminal proceedings — Effect: Principles reiterated regarding invocation of cl. (1)(g) of Sch. IV of the MRTU & PULP Act, 1971, for setting aside dismissal order. Applicability of said cl. (1)(g), also explained. [Maharashtra SRTC v. Dilip Uttam Jayabhay, (2022) 2 SCC 696]

Motor Vehicles Act, 1988 — S. 173 — Appeal: Growing number of appeals by claimants, insurers and vehicle owners against award passed by Tribunal are resulting in large pendency of appeals before various High Courts. Idea of “Motor Vehicle Appellate Tribunals” mooted and detailed suggestions given. [Rasmita Biswal v. National Insurance Co. Ltd., (2022) 2 SCC 767]

Penal Code, 1860 — Ss. 302, 376, 364, 366-A and 201 — Rape and murder of 5 yr old girl by strangulation: Low age of victim cannot be considered as only or sufficient factor by Supreme Court for imposing death sentence. Sentences awarded to appellant under Ss. 376, 364, 366-A and 201 IPC, upheld. However, considering mitigating circumstances, death sentence awarded under S. 302, is commuted to life imprisonment with stipulation that appellant shall not be entitled to premature release/remission before undergoing actual imprisonment of 30 yrs. Further held, further sentences awarded shall run concurrently and not consecutively. [Irappa Siddappa Murgannavar v. State of Karnataka, (2022) 2 SCC 801]

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 — Ss. 24(1)(a), 25(1) and 114(1) & (2) — Acquisition proceedings: Saving of provisions of the Land Acquisition Act, 1894 and retrospectivity of provisions of the 2013 Act, explained in detail. [Maharashtra Vidarbha Irrigation Development Corpn. v. Mahesh, (2022) 2 SCC 772]

Re Ss. 24(1)(a), 25(1) and 114(1) & (2), Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 saving of provisions of Land Acquisition Act, 1894 and retrospectivity of provisions of the 2013 Act, explained in detail. [Maharashtra Vidarbha Irrigation Development Corpn. v. Mahesh, (2022) 2 SCC 772]

Case Briefs Supreme Court

SC allows Tamil Nadu to grant 50% reservation for in-service doctors in Super Specialty Medical Courses

Supreme Court: In the issue relating to the reservation of 50% Super Specialty seats for in-service candidates in Government Medical Colleges in the State of Tamil Nadu, the bench of L. Nageswara Rao and BR Gavai*, JJ has refused to extend the interim protection which was granted for the academic year 2020-2021

The Supreme Court had, on 27th November, 2020 directed that counselling for admission to Super Specialty medical courses for the academic year 2020-2021 shall proceed without providing for reservation to in-service candidates/doctors. The Court had specifically observed that the process for admissions to Super Specialty medical courses started on 3rd August, 2020, and it was made clear to all the competing candidates that there shall be no reservation to Super Specialty medical courses.

The impugned G.O. was issued on 7th November, 2020, i.e., after the admission process had begun. Hence, what weighed with this Court while passing the interim order dated 27^th November, 2020 was that the rules of the game were changed after the admission process had begun. However, the Court had specifically clarified that it had not expressed any opinion on the validity of said G.O. It also made amply clear that the said direction would be operative only for the academic year 2020-2021.

The Court, hence, held that no case was made out for continuing the interim protection which was granted for the academic year 2020-2021 vide interim order dated 27th 24 November, 2020. The State of Tamil Nadu would, however, be at liberty to continue the counselling for academic year 2021-2022 by taking into consideration the reservation provided by it as per the said G.O.

[N. Karthikeyan v. State of Tamil Nadu, 2022 SCC OnLine SC 331, decided on 16.03.2022]

*Judgment by: Justice BR Gavai

Counsels

For appellants: Senior Advocates Dushyant Dave, Shyam Divan and Gopal Sankaranarayanan

For UOI: ASG Aishwarya Bhati

For State of Tamil Nadu: Senior Advocate CS Vaidyanathan and AAG Amit Anand Tiwari

For In-service Doctors: Senior Advocate P. Wilson

Also read

No reservation for in-service doctors in Super Specialty Medical Courses for the academic year 2020-2021; holds SC

Case Briefs Supreme Court

Caste can be the starting point for providing internal reservation but not the sole basis: Supreme Court

Supreme Court: In a case relating to reservation of seats in Educational Institutions, the bench of L. Nageswara Rao* and BR Gavai, JJ has observed that while caste can be the starting point for providing internal reservation, it is incumbent on the State Government to justify the reasonableness of the decision and demonstrate that caste is not the sole basis.

After demand was made by various communities to provide for internal reservation, within the reservation provided to ‘Most Backward Classes (MBCs) and Denotified Communities (DNCs), a letter was written by the Government to Justice M. Thanikachalam, the Chairman of Tamil Nadu Backward Classes Commission, to give his opinion regarding the possibility of providing internal reservation amongst the communities listed as MBCs and DNCs within the 20 per cent reservation made available to them. Justice M. Thanikachalam promptly recommended sub-categorization amongst the MBCs and DNCs based on the proportion of their population.

Immediately thereafter, on 24.02.2021, a bill for special reservation within the 20 per cent reserved for MBCs and DNCs was placed before the State Legislative Assembly. On the same day, the bill was passed and it received the assent of the Governor on 26.02.2021.

By the Tamil Nadu Special Reservation of seats in Educational Institutions including Private Educational Institutions and of appointments or posts in the services under the State within the Reservation for the Most Backward Classes and Denotified Communities Act, 2021, reservation of seats in educational institutions, including private educational institutions, and reservation in appointment or posts in the services under the State were provided in the following manner: ten and a half per cent for ‘Part-MBC (V) Communities’, seven per cent for ‘Part-MBC and DNC Communities’ and two and a half per cent for ‘Part-MBC Communities’. In terms of the Schedule annexed to the 2021 Act, ‘Part-MBC(V)’ consists of Vanniakula Kshatriya community (including Vanniyar, Vanniya, Vannia Gounder, Gounder or Kander, Padayachi, Palli and Agnikula Kshatriya), ‘Part-MBC and DNC’ comprise 25 communities from the MBCs and 68 DNCs and the remaining 22 communities of MBCs come under the category of ‘Part-MBC’.

The 2021 Act was declared as unconstitutional by the Madras High Court by holding that the State Legislature has no competence to enact the 2021 Act.

The High Court further found that the internal reservation made only on the basis of caste is violative of the Constitution. It was of the opinion that there was no quantifiable data relating to the population, socio-economic status and representation of the backward classes in the services.

While the Supreme Court partly disagreed with the High Court and held that there is no bar on the legislative competence of the State to enact the 2021 Act, it agreed with the conclusion that there is no substantial basis for classifying the Vanniakula Kshatriyas into one group to be treated differentially from the remaining 115 communities within the MBCs and DNCs, and therefore, the 2021 Act is in violation of Articles 14, 15 and 16.

Key highlights of the 87 pages long judgment

The 105th Amendment Act being prospective in operation, it is the 102nd Amendment Act which held the field at the time of enactment of the 2021 Act.
As the 2021 Act dealt with sub-classification and apportionment of certain percentage of reservation for the purpose of determining the extent of reservation of communities within the MBCs and DNCs, it is a permissible exercise of power by the State Government under Article 342-A of the Constitution. Prior to the 105th Amendment Act, what was prohibited for the State to carry out under Article 342-A is the identification of SEBCs, by inclusion or exclusion of communities in the Presidential list of SEBCs. It is clear that the exercise of identification of MBCs and DNCs had been completed by the State pursuant to the 1994 Act.
There is no bar to the sub-classification amongst backward classes. The State’s competence in the present case to enact the 2021 Act is not taken away on this ground as, admittedly, the Presidential list of SEBCs is yet to be published, making the question of tinkering with such list redundant.
Detailing the extent of reservation for communities already identified as MBCs and DNCs, which is the thrust of the 2021 Act, cannot be said to be in conflict with the 1994 Act, as determination of extent of reservation for various communities was not the subject matter of the 1994 Act.
To differentiate a particular class / category from others, there should be a substantial distinction which clearly demarcates that class / category. In the instant case, there was no justification for how the Vanniakula Kshatriyas can be treated as a different class and meted out preferential treatment, being one amongst the 116 communities, who have all been considered on the same footing till the enactment of the 2021 Act and were, therefore, eligible to claim the benefit of undivided 20 per cent reservation.
Population has been made the sole basis for recommending internal reservation for the Vanniakula Kshatriyas, which is directly in the teeth of the law laid down by this Court.

[Pattali Makal Katchi v. A. Mayilerumperumal, 2022 SCC OnLine SC 386, decided on 31.03.2022]

*Judgment by: Justice L Nageswara Rao

Counsels

For Appellants: Senior Advocates Dr. Abhishek Manu Singhvi, P. Wilson, Rakesh Diwedi, Mukul Rohatgi, C.S. Vaidyanathan, M. N. Rao and Radhakrishnan

For respondents: Senior Advocates Dr. Rajeev Dhawan, R. Balasubramanian, K. M. Vijayan, S. Nagamuthu, Gopal Sankaranarayanan, V. Prakash, Jaideep Gupta and Colin Gonsalves

Case Briefs Supreme Court

Interchangeability of unfilled posts of SC/ST category can be done only by the department concerned, not by appointing authority : SC

Supreme Court: The bench of Indidra Banerjee and JK Maheshwari*, JJ the interchangeability of the vacant unfilled posts of SC category may be possible due to not having eligible candidates by the department concerned but not by appointing authority.

Factual Background

The Court was deciding the case where the appellants have applied for the post of (Elementary Trained Teachers) ETT in9 the category of Backward Class. Pursuant to the advertisement, selection process was carried out and appointment letters were issued to the selected candidates. All the notified posts of Backward Classes have been filled up merit wise after the direction of the High Court. In the said process of selection, 595 posts of SC/ST category remained unfilled on account of “non availability” of eligible candidates in the said category. The appellants claimed appointment against those vacant posts of SC/ST category on the anvil of policy instructions regarding “Reservations of vacancies in State Government Services of members of Backward Classes”, issued by State of Punjab. The aforesaid Policy letter provide for “de-reservation/interchangeability” of the post from SC/ST category to OBC category or vis-à-vis in a contingency of non-availability of eligible candidates belongs to SC/ST or OBC, as the case may be. The appellants submitted various representations to the concerned authorities on the basis of the said Policy letter for interchangeability of the posts of SC/ST into OBC category, which as per appellants was not considered in a right perspective. Now by order impugned as per the statement made by the State Government those posts are being readvertised, without redressing their grievance. It is the grievance of the appellants that the unfilled posts of SC/ST category may be filled from the eligible candidates of Backward Class category, directing interchangeability of the said vacant posts.

Analysis

The Court explained that de-reservation of any reserved vacancy which is to be filled up by direct recruitment or by promotion cannot be done by the appointing authority. In case due to non-availability of the eligible candidates of any of the category, the posts remain unfilled, the appointing authority may request to the Department of Welfare of Scheduled Castes and Backward Classes for de-reservation of the said unfilled vacancy. On such request after recording satisfaction, if necessary or expedient in the public interest, subject to the condition to carry forward the said vacancy against subsequent unreserved vacancy the order may be passed by the said department.

Thus, in the context of Punjab Schedule Castes and Backward Classes Reservation in Service) Act, 2006 also it was observed that the de-reservation or interchangeability may be possible with a rigour to exercise such power by the department, namely; Department of Scheduled Castes and Backward Classes and not by appointing authority.

Examining the impugned Policy letter, the Court observed that those instructions are not in contravention of the provisions of Section 7 of the 2006 Act; in fact, it is as per the spirit of the 2006 Act.

The Court also took note of the fact that the merit list was prepared in furtherance to the advertisement of the year 2015-2016 and to accommodate the candidates of the said merit list. Thereafter interchangeability for unfilled 595 vacancies of SC/ST category has been prayed for. Hence, issuance of such direction after 6 years of notifying the selection list for filling up the unfilled vacancies of SC/ST category by OBC would be wholly unjustified. In addition, the selection list prepared in the year 2016 would not survive after the lapse of a long time to fill up the vacancies after interchangeability.

Also, rejection of claims of appellants by the departmental authorities relying upon wrong instructions or mentioning incorrect fact of withdrawal of Policy letter would not confer any right to appellants to claim the reliefs.

“Such an act of the departmental authorities may be deprecated but it would not confer any right to the appellants to seek direction of interchangeability of the unfilled 595 posts of ETT of SC/ST category to OBC category.”

[Mandeep Kumar v. UT Chandigarh, CIVIL APPEAL NO. 1908 OF 2022, decided on 06.03.2022]

*Judgment by: Justice JK Maheshwari

For appellants: Senior Advocate P.S. Patwalia

For Respondents: Advocate Karan Bharihoke

Case Briefs High Courts

Cal HC | Court grants relief considering ranks and scores sufficient for Trainee Reserve Category in the Government College

Calcutta High Court: Moushumi Bhattacharya, J. decided on a petition which was filed being aggrieved by a notice cancelling a provisional eligibility list and the revised scores and ranks which were made available on the website of the Board.

Writ petitioners have served as nurses in government hospitals and seek to be placed in the Trainee Reserve category in colleges offering Post-graduate and graduate degree courses. A “Trainee Reserve” seat is a coveted post since the Trainee Reserve gets full pay from the Government and is not required to take leave from service for the duration of the course.

Petitioners applied for Post Basic B.Sc. (Nursing) courses as Trainee Reserve candidates. They were aggrieved by a notice cancelling a provisional eligibility list dated 23-11-2021 and the revised scores and ranks which were made available on the website of the Board on 03-12-2021. They challenged the unilateral cancellation of the list published on 09-11-21 and the consequential change of marks and rank in the revised Rank Card without notice to the petitioners.

The affidavit of the Board indicated that the Answer Keys sent by the West Bengal University of Health Sciences were not separated in two separate parts and that the Board decided to issue the notice dated 23-11-2021 cancelling the provisional list pursuant to considering the requests of candidates who had personally approached the Board on 18-11-2021. The affidavit sought to absolve the Board of any error or latches and put the blame on the West Bengal University of Health Sciences. It also mentioned that the writ petition suffers from misjoinder and non-joinder of necessary parties since the West Bengal University of Health Sciences has not been made a party to the Writ Petition. Further, writ petitioners cannot challenge the first round of counselling after having participated in the same.

The affidavit of the State contains a statement that a technical error took place at the time of evaluation of the OMR sheets. They were compelled to cancel the provisional list on 23-11-2021 since the Board cancelled the merit list.

The Court considered the view that the petitioners were entitled to relief. It should be reiterated that the petitioners’ ranked and scores were sufficient to secure seats in the Trainee Reserve Category in the Government colleges even without the petitioners undergoing the counselling process. The respondents, particularly the West Bengal Joint Entrance Examinations Board were directed to consider the ranks and scores of the petitioners as published on 09-11-2021 before the said list was cancelled by the notice dated 23-11-2021 for placement in the available vacant seats for admission to the Post Basic Bask (Nursing) and M.Sc (Nursing) courses.[Soumi Das v. State of West Bengal, 2022 SCC OnLine Cal 401, decided on 01-03-2022]

Mr Parha Sarathi Das and Mr Hafiz Ali, Advocates for the petitioners

Mr Swapan Kumar Dutta and Mr Dipankar Das Gupta, Advocates for the State

Mr Amitava Chaudhuri, Mr Moniruzzaman, Mrs Mololeena Chaudhuri and Mr N. Roy, Advocates for WEJEEB.

Suchita Shukla, Editorial Assistant has reported this brief.

Case Briefs High Courts

Ker HC | “Marrying a Christian man would not wipe off the benefit of reservation granted to a scheduled caste persons”, HC reiterates caste of a person is to be decided on the basis of birth

Kerala High Court: Raja Vijayaraghavan V, J., held that marrying a Christian man would not wipe off the benefit of a reservation granted to scheduled caste persons.

The petitioner was born in the Hindu-Kuravan community, which is included in the list of Scheduled Castes in the State of Kerala. After acquiring requisite qualifications, the petitioner applied for the post of Lower Primary School Teacher, pursuant to notification issued by the Kerala Public Service Commission. On being asked to upload the caste certificate, the petitioner approached the Village Officer and submitted an online application for obtaining the certificate.

The grievance of the petitioner was that the Tahsildar refused to issue the certificate on the ground that the petitioner had married a person belonging to the Christian community. The petitioner asserted that she was born as a Hindu – Kuravan and did not have an advantageous start in life being born in a forward caste. The petitioner submitted that marrying a Christian man would not wipe off the benefit of reservation granted to persons such as the petitioner as all through her life she had been suffering all handicaps and disadvantages for having been born as a member of the scheduled caste.

The Bench observed that since the petitioner was born as a Hindu Kuravan, there was no justification on the part of the respondents in rejecting the application on the ground that she had married a person belonging to the Christian community. Additionally, certain observations were made by the Bench:

There is a clear circular of the Ministry of Home Affairs, Government of India stating in emphatic terms that a person who is a member of a Scheduled Caste or a Scheduled Tribe would continue to be a member of that of Scheduled Caste or Scheduled Tribe, as the case may be, even after his or her marriage with a person who does not belong to a Scheduled Caste or a Scheduled Tribe.
The preamble of Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 states that the Act was enacted in order to curb effectively the evil practices of securing such certificates by persons other than those belonging to Scheduled Castes and the Scheduled Tribes for claiming the benefits of reservation and such other benefits meant for the Scheduled Castes and the Scheduled Tribes and to make provision for prescribing punishment therefor and to provide for matters connected therewith or incidental thereto.

The Presidential notification issued under Article 341 showed that members of the Hindu-Kuravan community are entitled to be treated as Scheduled Caste.

The basis of reservation under Article 15(4) and 16(4) of the Constitution is to provide additional protection to the members of the Scheduled Castes and Tribes as a class of persons who have been suffering for a considerable length of time due to social and economic backwardness.
The object of Article 341(1) of the Constitution is to provide additional protection to the members of the Scheduled Caste having regard to the economical and educational backwardness from which they suffer.

Similarly, in Sunita Singh v. State of U.P., (2018) 2 SCC 493, the Supreme Court had occasion to observe that the caste or community of a person is to be decided on the basis of her/his birth in the said community.

Hence, the Bench opined that the Village Officer proceeded on the wrong basis that by marrying a person belonging to the Christian community, the petitioner would lose her right as a member of a scheduled caste and she would thereby be disentitled to a certificate showing the community to which she was born. The Bench also noted that even the rejection order was not properly communicated. Consequently, the authority concerned was directed to re-consider the request made by the petitioner and issue the community certificate as prayed for, within a week. [Jyothsna A v. Kerala Public Service Commission, WP(C) No. 22994 of 2021, decided on 20-10-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: T.R.Jagadeesh, V.A.Vinod, Gyothish Chandran and B.Ratheesh, Advocates

For the Respondent: Nisha Bose, Senior Government Pleader

Hot Off The Press News

P&H HC | 75% employment reservation for locals; HC orders stay on controversial Haryana State Employment of Local Candidates Act

Punjab and Haryana High Court: By a momentous ruling, the Division Bench of Ajay Tewari and Pankaj Jain, JJ.,[i] imposed stay on implementation of the controversial Haryana State Employment of Local Candidates Act, 2020 (3 of 2020).

Acting in furtherance of the key poll promises made by Dushyant Chautala’s Jannayak Janta Party (JJP), a partner of BJP in Haryana ahead of the Assembly polls in the state in 2019 for providing 75 per cent reservation in the private sector[ii], the BJP led government had enacted the Haryana State Employment of Local Candidates Act 2020. The object of the Act reads as:

“To provide seventy-five percent employment of local candidates by employer in the State of Haryana and for matters connected therewith and incidental thereto.”

As per Section 1(5) of the Act, the Act is to be applicable to all the Companies, Societies, Trusts, Limited Liability Partnership firms, Partnership Firm and any person employing ten or more persons and an entity, as may be notified by the Government.

The provision that created furore among industrialist particularly relates to Section 4 which obligates every employer to employ seventy-five percent of the local candidates with respect to such posts where the gross monthly salary or wages are not more than fifty thousand rupees or as notified by the Government.

Although, extending some liberty to the employers the Act provided that the but the employer may restrict the employment of local candidates from any district to ten percent of the total number of local candidates, meaning thereby, reservation limit could be restricted district wise to 10% at the discretion of the employers. Further, the Act is to remain in effect for a period of 10 years from the date of its commencement.

The Haryana government last year had notified that its act of implementing 75% reservation for local people in private jobs with a monthly salary ceiling of ₹50,000 will come into force from January 15, 2022.

Owing to its restrictive and anti-competitive nature demands had been raised by various industrial associations for revisiting the provisions of the Act contending that it will lead to multinational firms moving out of the state.[iii]

The industry bodies including Gurgaon Industrial Association had been assailing the Act for being in contravention to the Constitution, particularly Article 14 and 19 (1)(g), argued that the law is against the provisions of the Constitution and also against the basic principle of meritocracy which meant the Act is promoting anti-competitiveness in the State. The rationale behind assailing the Act was,

“It will affect the industry productivity and industrial competitiveness and post-Covid 19 recovery of industry, the pleas said, adding that the government by introducing this policy of “son of the soils” want to create reservation in the private sector, which is an infringement of constitutional rights of the employees and citizens of India because private sector jobs are based on the skills and analytical bent of mind of employees.”[iv]

On the contrary, the State had defended the Act stating that industrialisation and urbanisation in the State had resulted in huge land acquisition reducing the employment opportunities in the agriculture sector, therefore enactment was made observing the compelling situation of increasing unemployment in the State. The government said that the reservation being on the basis of domicile it in manner frustrated the Constitutional mandate, as what is prohibited under the Constitution is reservation on the basis of ‘place of birth’ not employment on the basis of ‘domicile’.

(To be updated with the Order)

[i] https://prsindia.org/files/bills_acts/acts_states/haryana/2021/Haryana%20Act%203%20of%202021.pdf

[ii] https://www.hindustantimes.com/cities/chandigarh-news/high-court-stays-haryana-law-on-75-job-quota-in-private-sector-101643874484713.html

[iii] https://www.indiatvnews.com/news/india/high-court-stays-haryana-government-75-percent-reservation-for-locals-in-private-jobs-2022-02-03-757805

[iv] https://www.hindustantimes.com/cities/chandigarh-news/high-court-stays-haryana-law-on-75-job-quota-in-private-sector-101643874484713.html

Kamini Sharma, Editorial Assistant has reported this story.

Legal RoundUp Supreme Court Roundups

Supreme Court January 2022 Roundup: Probe in PM Modi’s Security Lapse; NEET UG/PG Reservation; Suspension of BJP MLAs; and more

“Merit is not solely of one‘s own making. The rhetoric surrounding merit obscures the way in which family, schooling, fortune and a gift of talents that the society currently values aids in one‘s advancement.”

Neil Aurelio Nunes v. Union of India, 2022 SCC OnLine SC 75

STORY OF THE MONTH

“Reservation is not at odds with merit”; Here’s why SC upheld OBC reservation in NEET PG and UG Admissions in AIQ quota

In a detailed judgment, the bench of Dr. DY Chandrachud and AS Bopanna, JJ has upheld the Constitutional validity of the reservation for OBC candidates in the AIQ seats for PG and UG medical and dental courses and noticed that while an open competitive exam may ensure formal equality where everyone has an equal opportunity to participate, however, widespread inequalities in the availability of and access to educational facilities will result in the deprivation of certain classes of people who would be unable to effectively compete in such a system.

UNMISSABLE STORIES

COVID-19/Omicron surge yet again forces Supreme Court to extend period of limitation for filing of cases

After the Supreme Court Advocates-on-Record Association approached the Court in light of the spread of Omicron, the new variant of the COVID-19 and the drastic surge in the number of COVID cases across the country, the 3-judge bench of NV Ramana, CJ and L. Nageswara Rao and Surya Kant, JJ restored the order dated 23.03.2020 and directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi judicial proceedings.

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PM Modi Security Lapse: “War of words no solution”; SC appoints Committee headed by Justice Indu Malhotra to look into the matter

After a massive security lapse that left Prime Minister Narendra Modi stuck on a highway in Punjab for 20 minutes on January 5, 2022, the 3-judge bench of NV Ramana, CJ and Surya Kant and Hima Kohli, JJ has formed a committee to be chaired by Justice Indu Malhotra, former Supreme Court Judge.

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NEET 2021-22: Supreme Court allows Counselling with 27% Quota for OBCs and 10% Quota for EWS in All India Quota

Considering the urgent need to commence the process of Counselling, the bench of Dr. DY Chandrachud* and AS Bopanna, JJ, has directed that counselling on the basis of NEET-PG 2021 and NEET- UG 2021 shall be conducted by giving effect to the reservation as provided by the notice dated 29 July 2021, including the 27 per cent reservation for the OBC category and 10 per cent reservation for EWS category in the All India Quota seats.

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Suspension of 12 Maharashtra BJP MLAs for one year “grossly illegal”; worse than expulsion, disqualification or resignation

In a big relief to the 12 BJP MLAs who were suspended by the Maharashtra Legislative Assembly, by resolution dated 05.07.2021, for a period of 1 year due to “indisciplined and unbecoming behavior resulting in maligning the dignity of the House”, the 3-judge bench of AM Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ has held that the said resolution is unconstitutional, grossly illegal and irrational to the extent of period of suspension beyond the remainder of the concerned (ongoing) Session.

Read more…

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“Can’t allow Devas and its shareholders to reap the benefits of their fraudulent action”; SC upholds NCLAT’s order to wind up Devas

“If the seeds of the commercial relationship between Antrix and Devas were a product of fraud perpetrated by Devas, every part of the plant that grew out of those seeds, such as the Agreement, the disputes, arbitral awards etc., are all infected with the poison of fraud.”

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Arcelor Mittal Nippon Steel India Limited to pay the purchase tax of Rs. 480 Crores as SC sets aside Gujarat HC verdict

In a major blow to Essar Steel Limited, now Arcelor Mittal Nippon Steel India Limited), the bench of MR Shah* and Sanjiv Khanna, JJ has set aside the Gujarat High Court verdict wherein it was held that Essar was entitled to the exemption from payment of purchase tax as per the Notification dated 05.03.1992, which was issued under Section 49(2) of the Gujarat Sales Tax Act, 1969. As a result Essar will now have to pay the purchase tax of Rs.480.99 crores.

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Dowry Death| Woman meting out cruelty to another woman deserves no leniency. Mother-in-law must protect daughter-in-law, not harass her: SC

“Being a lady, the appellant, who was the mother-in-law, ought to have been more sensitive vis-à-vis her daughter-in-law.”

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Can Demand of Money for Construction of a House be Treated as a Dowry Demand? SC answers in a 2002 case where a 5-months pregnant woman set herself on fire

“A push in the right direction is required to accomplish the task of eradicating this evil which has become deeply entrenched in our society.”

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Pension is not a bounty; Lack of financial resources no excuse for taking away vested rights by way of retrospective amendments

The bench of Ajay Rastogi and Abhay S. Oka, JJ has held that an amendment having retrospective operation which has the effect of taking away the benefit already available to the employee under the existing rule indeed would divest the employee from his vested or accrued rights and that being so, it would be held to be violative of the rights guaranteed under Articles 14 and 16 of the Constitution.

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Cal HC had no jurisdiction to quash CAT Principle Bench’s transfer order in Alapan Bandhopadhyay Case, holds SC, based on this Constitution Bench Law holding ground since 1997

The 2-judge bench of AM Khanwilkar and CT Ravikumar, JJ has reiterated the position laid down by the Constitution Bench in L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, that any decision of such a Tribunal, including the one passed under Section 25 of the Administrative Tribunals Act, 1985 could be subjected to scrutiny only before a Division Bench of a High Court within whose jurisdiction the Tribunal concerned falls.

EXPLAINERS

CASES REPORTED IN SCC

2021 SCC Vol. 9 Part 1

Ranging from Arbitration, Service Law to Family Law, this Volume 9 Part 1 brings in some very carefully and expertly analysed Judgments

2021 SCC Vol. 9 Part 2

In this part read a very interesting decision expertly analysed by our editors. Supreme Court ruled that the trustees are required to

SCC Snippets

Are Clients Or Courts Bound By Lawyer’s Statements Or Admissions As To Matters Of Law Or Legal Conclusions?

Case Briefs High Courts

AP HC| LGBTQ+ community’s right to reservation; Can a transgender claim to be appointed by reservation in spite of failure to secure minimum cut off marks in screening test? HC answers

Andhra Pradesh High Court: In a significant case wherein, a transgender had approached the Court seeking benefit of reservation for appointment in police department, M. Satyanarayana Murthy, J., denies to issue direction to the State in favour of the petitioner. The Bench, however, remarked,

“The State is unconscious of the directions issued by NALSA and failed to provide a specific column meant for gender identity for transgender in the proforma of application in the Notification dated 01.11.2018 and did not provide any reservation to transgenders, as they are socially and educationally backward and not in a position to compete with ordinary men and women.”

Factual Matrix

In the instant case, one Matam Gangabhavani, a transgender approached the Court seeking to declare Notification vide Rc.No.216/R&T/Rect.1/2018 dated 01-11-2018 as illegal, arbitrary and violative of Articles 14, 15, 19 and 21 of the Constitution as it did not make any provision for reservation of appointment of transgender persons contrary to the decision of the Supreme Court in National Legal Services Authority v. Union of India, (2014) 5 SCC 438. The petitioner also urged for a direction to the respondents-Police Recruitment Board to make appropriate provision for transgender persons and further direct the respondents to appoint the petitioner on the post of Stipendiary Cadet Trainee Sub-Inspector of Police on the vacant post, kept apart for the petitioner in terms of High Court order dated 13-02-2018.

The petitioner, a male by birth, underwent Sexual Reassignment Surgery in the year 2003. The case of the petitioner was that pursuant to the recruitment notification, the petitioner applied for the post of Stipendiary Cadet Trainee, however since there were only two categories provided for disclosure of gender namely, “Male” and “Female” the petitioner was forced to mention identity as female while registering for the examination.

Though, the petitioner appeared for the first round of recruitment process i.e Preliminary Written Test, could not obtain minimum required marks. Therefore, the petitioner claimed benefit of reservation by relying on the decision of NALSA v. Union of India (2014) 5 SCC 438 by contending that there is reservation for various categories of castes, yet no reservation is provided for transgenders category; despite the transgenders being the most disadvantaged class who cannot compete with male or female genders. Finally, it was contended that, when the petitioner was the sole transgender appeared for the examination, though identifying as female, the petitioner must be selected by providing reservation in the light of Transgender Persons (Protection of Rights) Act, 2019.

Case before Central Administrative Tribunal

The petitioner filed O.A.No.23 of 2019 before Andhra Pradesh Administrative Tribunal challenging the impugned Notification, however the same was dismissed on the following grounds:

“a) That the recruitment as per the notification is being proceeded with respect to men and women vacancies only;

b) The notification is not a general notification for applications from all gender and that the notification is gender specific;

c) When the notification for recruitment is gender specific, a transgender person is not entitled to compete for the said post along with men and women.

d) The reliefs claimed in O.A.No.23 of 2019 relate to decisions to be taken by the Government concerned in the Constitution of India as well as specific laws relating to recruitment and appointment to public post.”

Observations and Opinion

Observing that concept of “proportional equality” expects the States to take affirmative action in favour of disadvantaged sections of the society within the legal framework of liberal democracy, the Bench stated that the petitioner being a transgender was entitled for proportional equality as the State is expected to take affirmative action in favour of disadvantaged section of the society, and the transgenders are cursed by everyone; living in distressed condition and are being put to harassment in different ways, both physically, mentally and sexually by different persons. The Bench added,

“More so, their number is minimum in the State, but they are not being provided proportional equality in the employment and are totally neglected by the State without providing even a column in the application form for gender identity of transgender, thereby, it amounts to denial of an opportunity in employment treating them unequals with men and women.”

Therefore, the Bench held that such discrimination of transgender from men and women could be said to be arbitrariness, being opposed to reasonableness, and antithesis to law. Hence, the Bench stated, failure to provide sufficient opportunity in the employment by providing a specific column for identity of third gender in all employment notifications, treating them as equals with men and women and failure to provide employment to them, though they are eligible is nothing but arbitrariness in the State’s action.

“Though, transgender is a person recognized in the epics, the lawmakers, including the Constitutional framers did not take note of their existence and treatment of transgenders on par with others.”

Whether the Notification was Illegal and Arbitrary?

Since the impugned Notification was issued based on the subsisting rules of reservation in the State, strictly adhering to the subsisting rules, the Bench held that the notification could not be declared as illegal and arbitrary. Even to construe that the respondent violated the direction issued by the Supreme Court in NALSA v. Union of India (2014) 5 SCC 438, the direction was only to take steps for providing reservation to transgenders based on their social and educational backwardness, it was only a positive obligation on the State and in the absence of any steps taken by the State, failure of its instrumentalities to provide reservation to transgenders did not make the notification impugned in this writ petition invalid. At best, such failure may attract contempt being filed before the competent court.

Hence, the Bench held that there was no ground to declare the impugned notification as illegal or arbitrary.

Analysis and Findings

In NALSA v. Union of India (2014) 5 SCC 438., the Supreme Court had directed the Centre and State Governments to take steps to provide reservations to transgenders in employment and to take steps to treat the 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. Hence, the direction issued by the Supreme Court was only to the extent of taking steps to treat transgenders as socially and educationally backward classes of citizens, but not for creating reserving particular percentage of posts to transgenders.

Though a clarification was issued by the Principal Secretary to Government, Home (Legal.II) Department vide Memo.No.830231/Legal.II/A1/2020 dated 29-09-2020, for appointment of meritorious, eligible transgender person either against a woman vacancy or man vacancy, based on merit, since there are no reservations for transgenders, the Bench held that the aforementioned Memo would not extend any such benefit to the transgender persons in terms of the judgment in NALSA v. Union of India (2014) 5 SCC 438.

Differentiating the case of K. Pritika Yashini v. Tamil Nadu Uniformed Services Recruitment Board, 2015 SCC OnLine Mad 11830, wherein a minor relaxation was given to the transgender woman who had qualified in all the tests, the Bench stated that the same had no application to the case of the petitioner for the reason that the petitioner did not qualify herself even in the preliminary examination, having secured 28% in Paper-I and 21% in Paper-II. Opining that if, for any reason, the petitioner secured marks and got through the preliminary examination and if there is any variation in the physical tests, the principle laid down in the above judgments could be applied, the Bench stated,

“The intellectual levels of men, women and transgender may vary to a little extent. But the Rules did not permit appointment of transgender without securing minimum qualifying mark.”

Further, even the Transgender Persons (Protection of Rights) Act, 2019 and Transgender Persons (Protection of Rights) Rules, 2020 are silent regarding provision for reservation in public employment or any government establishments to transgender persons. Therefore, the Bench held that the Court could not issue any direction to provide reservation to the petitioner based on sex or social status, more so, when a direction was issued by the Supreme Court to extend all kinds of reservation in cases of admission in educational institutions and for public appointments.

Verdict

Considering that the direction issued by the Supreme Court in NALSA v. Union of India (2014) 5 SCC 438, is suffice to provide reservation in cases of admission in educational institutions and for public appointments, the Bench refused to issue any direction to the State to provide reservations to transgender. However, the directions were made to the State to study the representation of transgenders for public employment, their number in the State, benefits extended to them without discriminating from men and women and provide necessary reservations if they are not represented adequately in the public employment.

Further, since the minimum marks were not fixed based on gender, but based on social status, more particularly, their backwardness and inadequacy of their representation in the public employment, the Bench denied to issue direction to the respondents for selection of the petitioner as Stipendiary Cadet Trainee Sub-Inspector. Consequently, the petition was dismissed. [Matam Gangabhavani v. State of Andhra Pradesh, 2022 SCC OnLine AP 200, decided on 21-01-2022]

Appearance by:

For the Petitioner: M Solomon Raju, Advocate

For the State: Additional Advocate General II

Kamini Sharma, Editorial Assistant has out this report together

Case Briefs High Courts

Ker HC | Persons with disability are a homogenous class irrespective of social classification; such classification can’t be impeached by linking it with Art. 16 or Art 15

Kerala High Court: N. Nagaresh, J., held that it is by virtue of the statute mandating reservation for disabled persons that persons with disability are treated as a homogenous class irrespective of social classification and such a valid classification cannot be sought to be impeached by way of linking it with Article 16 or Article 15 to claim on same reservation for SC/ST candidates.

Factual Matrix

The petitioner, a participant of NEET Examination, 2021 belonged to Scheduled Caste community. The grievance of the petitioner was that as per the Prospectus and various Government Orders, 10% of the Government seats in Government Medical Colleges were reserved for SC/ST candidates; however, the reservation provided by the State was discriminatory in nature. The petitioner alleged that while providing reservation to persons with disabilities, the respondent adopted a criterion to reserve 5% of the seats available after leaving the seats set apart under Clauses 4.1.1 and 4.1.2. However, while granting reservation to Scheduled Castes and Scheduled Tribes, the respondent adopted a different criteria under Clause 4.1.5 by reserving seats leaving the seats set apart under Clauses 4.1.1, 4.1.2, 4.1.3 and 4.1.4 resulting in marginal reduction of number of seats reserved for Scheduled Castes and Scheduled Tribes.

Therefore, the petitioner challenged the Clause 4.1.5 of the Prospectus on the ground that the two classes entitled for reservation were discriminated among them and such adoption of criteria lead to the marginal decrease in the available seats for the SC/ST candidates. The petitioners argued that the condition prescribed in Clause 4.1.5 of was highly arbitrary, unreasonable and violative of the principle of equality enshrined in Article 14 of the Constitution and hence liable to be interdicted.

On the contrary, the State argued that it is for the State to decide as to how the principle of reservation is to be applied and the petitioners cannot maintain a prayer seeking a direction to adopt different criteria from that adopted by the State as the State has sufficient authority to decide how the principle of vertical reservation should be applied.

Analysis and Observations

Persons having disability form a homogenous class by themselves where disability is not on the basis of social backwardness but on the basis of physical disability. Noticing that the claim of the petitioners for reservation was traceable to Article 15 which is an enabling right, while the claim of the PWD persons traces to a statute promulgated for the purpose of implementation of a Constitutional mandate, the Bench held that such a valid classification cannot be sought to be impeached by way of linking it with Article 16 or Article 15.

Therefore, the Bench concluded there was no violation of Article 14, as it postulates equal treatment for equally placed persons that is to say unequals can be treated unequally. The Bench observed,

“Persons claiming social reservation fall in one compartment and persons with disabilities who are included in the quota fall on a different distinct compartment so there arises no question of violation of Article 14 of the Constitution.”

Further, the Bench emphasised that reservation itself is not a matter of right and the Constitutional provision is only enabling in nature. The State can provide for separate and exclusive channels of entry or sources of admission, the validity whereof cannot be determined on the constitutional principles applicable to communal reservations.

Accordingly, it was held that such two channels of entry or two sources of admission were valid provisions, when the classification was based on an intelligible differentia with a laudable object sought to be achieved. The petition was dismissed for being devoid of merit. [Sumith V Kumar v. State of Kerala, WP(C) No. 21885 of 2021, decided on 11-01-2022]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: K.Siju, S.Abhilash and Anjana Kannath, Advocates

For the Respondents: P.G.Pramod, Government Pleader and Titus Mani for R7

Case Briefs Supreme Court

P&H HC directs State to provide sports quota of 3% in Government Medical/Dental Colleges instead of 1% provided in policy decision. Such mandamus impermissible, holds SC

Supreme Court: Explaining the scope of writ jurisdiction, the bench of MR Shah* and BV Nagarathna, JJ has held that the State Government’s action taking a policy decision to prescribe a particular percentage of reservation/quota for a particular category of persons, cannot be interfered with by issuance of a writ of mandamus, directing the State Government to provide for a particular percentage of reservation for a particular category of persons other than what has been provided in the policy decision taken by the State Government.

The Court was deciding the appeal against the Punjab and Haryana High Court verdict where the High Court had directed the State to issue a fresh notification providing for 1% reservation/quota for children/grand children of terrorist affected persons/Sikh riots affected persons in all private unaided nonminority Medical/Dental institutions in the State of Punjab and had further directed that the said reservation/quota shall apply to management quota seats as well and further directed that the fresh notification shall also provide for a sports quota of 3% in Government Medical/Dental Colleges.

The State of Punjab framed its Sports Policy in the year 2018 which provided that 3% reservation in admissions will be provided for graded sports persons. However, by order dated 25.07.2019, a conscious decision was taken by the Government of Punjab to provide 1% reservation for sports persons. The said order was passed taking into consideration Clause 10 of the Sporty Policy, 2018.

The Court noticed that while it was true that as per clause 8.11(v), 3% reservation for sports persons has been provided, however, it is to be noted that clause 10 permits/allows any other department to have specific policy providing for reservation for sports persons other than 3%. Also, the order has been issued and 1% reservation/quota for sports persons is provided after taking into consideration the Sports Policy, 2018. Therefore, a conscious policy decision has been taken by the State Government to provide for only 1% reservation/quota for sports persons.

The Court, hence, held that the High Court has committed a grave error in issuing a writ of mandamus and directing the State Government to provide for 3% reservation/quota for sports persons, instead of 1% as provided by the State Government.

“The High Court has exceeded its jurisdiction while issuing a writ of mandamus directing the State to provide a particular percentage of reservation for sports persons, namely, in the present case, 3% reservation instead of 1% provided by the State Government, while exercising powers under Article 226 of the Constitution of India.”

Therefore, the impugned common judgment and order passed by the High Court insofar as directing the State to provide for 3% reservation for sports persons and/or provide for a sports quota of 3% in the Government Medical/Dental Colleges was found to be unsustainable and was hence, set aside.

[State of Punjab v. Anshika Goyal, 2022 SCC OnLine SC 86, decided on 25.01.2022]

*Judgment by: Justice MR Shah

Counsels

For State: Senior Advocate Meenakshi Arora

For writ petitioners: Senior Advocate P.S. Patwalia

Case Briefs Supreme Court

“Reservation is not at odds with merit”; Here’s why SC upheld OBC reservation in NEET PG and UG Admissions in AIQ quota

Supreme Court: In a detailed judgment, the bench of Dr. DY Chandrachud and AS Bopanna, JJ has upheld the Constitutional validity of the reservation for OBC candidates in the AIQ seats for PG and UG medical and dental courses and noticed that while an open competitive exam may ensure formal equality where everyone has an equal opportunity to participate, however, widespread inequalities in the availability of and access to educational facilities will result in the deprivation of certain classes of people who would be unable to effectively compete in such a system.

It is important to note that considering the urgent need to commence the process of Counselling, the Court had, on January 7, 2022, directed that counselling on the basis of NEET-PG 2021 and NEET- UG 2021 shall be conducted by giving effect to the reservation as provided by the notice dated 29 July 2021, including the 27 per cent reservation for the OBC category and 10 per cent reservation for EWS category in the All India Quota seats. Read here

Purpose of Reservation

The underlying rationale of the reservation policy that seeks to remedy the structural barriers that disadvantaged groups face in advancing in society. Reservation is one of the measures that is employed to overcome these barriers. The individual difference may be a result of privilege, fortune, or circumstances but it cannot be used to negate the role of reservation in remedying the structural disadvantage that certain groups suffer.

Special provisions (like reservation) enable disadvantaged classes to overcome the barriers they face in effectively competing with forward classes and thus ensuring substantive equality. The privileges that accrue to forward classes are not limited to having access to quality schooling and access to tutorials and coaching centres to prepare for a competitive examination but also includes their social networks and cultural capital (communication skills, accent, books or academic accomplishments) that they inherit from their family. The cultural capital ensures that a child is trained unconsciously by the familial environment to take up higher education or high posts commensurate with their family‘s standing. This works to the disadvantage of individuals who are first-generation learners and come from communities whose traditional occupations do not result in the transmission of necessary skills required to perform well in open examination. They have to put in surplus effort to compete with their peers from the forward communities.

On the other hand, social networks (based on community linkages) become useful when individuals seek guidance and advise on how to prepare for examination and advance in their career even if their immediate family does not have the necessary exposure. Thus, a combination of family habitus, community linkages and inherited skills work to the advantage of individuals belonging to certain classes, which is then classified as “merit” reproducing and reaffirming social hierarchies.

What is “merit”?

““Merit” is not solely of one‘s own making. The rhetoric surrounding merit obscures the way in which family, schooling, fortune and a gift of talents that the society currently values aids in one‘s advancement.”

Thus, the exclusionary standard of merit serves to denigrate the dignity of those who face barriers in their advancement which are not of their own making. However,

“While examinations are a necessary and convenient method of distributing educational opportunities, marks may not always be the best gauge of individual merit. Even then marks are often used as a proxy for merit. Individual calibre transcends performance in an examination. Standardized measures such as examination results are not the most accurate assessment of the qualitative difference between candidates.”

At the best, an examination can only reflect the current competence of an individual but not the gamut of their potential, capabilities or excellence, which are also shaped by lived experiences, subsequent training and individual character.

Hence, the meaning of “merit” itself cannot be reduced to marks even if it is a convenient way of distributing educational resources. When examinations claim to be more than systems of resource allocation, they produce a warped system of ascertaining the worth of individuals as students or professionals. Additionally, since success in examinations results in the ascription of high social status as a “meritorious individual”, they often perpetuate and reinforce the existing ascriptive identities of certain communities as “intellectual” and “competent” by rendering invisible the social, cultural and economic advantages that increase the probabilities of success.

For instance, if a high-scoring candidate does not use their talents to perform good actions, it would be difficult to call them “meritorious” merely because they scored high marks. The propriety of actions and dedication to public service should also be seen as markers of merit, which cannot be assessed in a competitive examination. Equally, fortitude and resilience required to uplift oneself from conditions of deprivation is reflective of individual calibre.

Hence. merit should not be limited to individual agency or but it should be envisioned as a social good that advances equality because that is the value that our Constitution espouses.

Whether after graduation, an individual is entitled to reservation on the ground that they belong to a class that suffers from social and educational backwardness?

The Court observed that it cannot be said that the impact of backwardness simply disappears because a candidate has a graduate qualification. Indeed, a graduate qualification may provide certain social and economic mobility, but that by itself does not create parity between forward classes and backward classes. In any event, there cannot be an assertion of over-inclusion where undeserving candidates are said to be benefitting from reservation because OBC candidates who fall in the creamy layer are excluded from taking the benefit of reservation. Thus, we find that there is no prohibition in introducing reservation for socially and educationally backward classes (or the OBCs) in PG courses.

Why is reservation for OBC candidates in the AIQ seats for UG and PG medical and dental courses constitutionally valid?

Articles 15(4) and 15 (5) are not an exception to Article 15 (1), which itself sets out the principle of substantive equality (including the recognition of existing inequalities). Thus, Articles 15 (4) and 15 (5) become a restatement of a particular facet of the rule of substantive equality that has been set out in Article 15 (1);
Merit cannot be reduced to narrow definitions of performance in an open competitive examination which only provides formal equality of opportunity. Competitive examinations assess basic current competency to allocate educational resources but are not reflective of excellence, capabilities and potential of an individual which are also shaped by lived experiences, subsequent training and individual character. Crucially, open competitive examinations do not reflect the social, economic and cultural advantage that accrues to certain classes and contributes to their success in such examinations;
High scores in an examination are not a proxy for merit. Merit should be socially contextualized and reconceptualized as an instrument that advances social goods like equality that we as a society value. In such a context, reservation is not at odds with merit but furthers its distributive consequences;
Articles 15 (4) and 15 (5) employ group identification as a method through which substantive equality can be achieved. This may lead to an incongruity where certain individual members of an identified group that is being given reservation may not be backward or individuals belonging to the non-identified group may share certain characteristics of backwardness with members of an identified group. The individual difference may be a result of privilege, fortune, or circumstances but it cannot be used to negate the role of reservation in remedying the structural disadvantage that certain groups suffer;
The scheme of AIQ was devised to allot seats in State-run medical and dental institutions in which students from across the country could compete. Providing reservation in the AIQ seats is a policy decision of the Government, which will be subject to the contours of judicial review similar to every reservation policy;
Clause 11 of the information bulletin specifies that the reservation applicable to NEET-PG would be notified by the counselling authority before the beginning of the counselling process. Therefore, the candidates while applying for NEET-PG are not provided any information on the distribution of seat matrix. Such information is provided by the counselling authority only before the counselling session is to begin. It thus cannot be argued that the rules of the game were set when the registration for the examination closed.

[Neil Aurelio Nunes v. Union of India, 2022 SCC OnLine SC 75, decided on 20.01.2022]

*Judgment by: Justice Dr. DY Chandrachud

Counsels

For petitioners: Senior Advocates Arvind Datar, Shyam Divan and Anand Grover and AORs Charu Mathur, Vivek Singh, Subodh S. Patil

For Respondents: SG Tushar Mehta, ASG Nataraj, Additional Solicitor General, ASG Vikramajit Banerjee and Senior Advocates P Wilson, Mariarputham

Case Briefs High Courts

MP HC | Difficult Areas vis-a-vis Difficult Services, Issues of reservation and incentive marks; HC puts an end to the battle between Doctors and State

Madhya Pradesh High Court: The Division Bench comprising of Sujoy Paul and Arun Kumar Sharma, JJ., held that the Demonstrators and Tutors working in cities/urban areas are to be treated as ‘in-service candidates’ as neither the relevant order nor the rule precludes the Medical Officers working in urban areas or hospitals from benefit of being ‘in-service candidate’. The Bench remarked,

“If we hold that the Demonstrators and Tutors are eligible despite being posted in towns (not covered under difficult, rural or remote areas) as in-service candidates and petitioners are not, it will divide a homogeneous class of ‘in-service candidates’ and will create a class within the class without there being any rationale and justification for the same.”

The interesting conundrum in the instant case was whether the petitioners, MBBS qualified Doctors rendering their services as regular employees in the Department of Health Services, State of M.P. fall in the category of ‘in service candidates’ and whether they have separate channel of entry in P.G. Course as per order dated 19-08-2021 issued by the State Government.

As per the Government order dated 19-08-2021, the reservation/separate channel of entry to the extent of 30% in P.G. Degree Course was made. The order covered Demonstrator, Tutors and the Medical Officers, the category to which present petitioners belonged. Further, as per the as per Rule 2(k) of M.P. Chikitsa Shikisha Pravesh Niyam 2018, the petitioners were covered in the definition of “serving employees”.

The petitioners urged that 30% reservation/separate channel of entry, earmarked for Degree Seats for Demonstrator/Tutors/Medicals Officer which made the petitioners being Medical Officers entitled to such reservation yet they were treated to be eligible only for open seats.

Difficult Area vis-a-vis Difficult Services

Evidently, a policy decision dated 28-03-2021 was issued to provide additional marks/incentive to the serving candidates. However, the benefit of incentive was confined to the candidates working in rural, remote and difficult areas.

Although, Harda and Indore, where petitioners were admittedly working did not fall under the umbrella of “difficult area”, the petitioners argued that the policy was issued in Pre-Covid era and considering the fact that Indore and Harda District Hospitals were also difficult areas where the petitioners were rendering their service 24×7 during Pandemic era, they must be treated to be performing difficult service, and therefore, the benefit of the order dated 28-03-2019 must be extended in favour of petitioners as well. Citing the decision in Malpe Vishwanath Acharya and others Vs. State of Maharashtra, (1998) 2 SCC 1, the petitioners submitted that a provision of law may be valid at the time of its issuance but may lose its relevance by efflux of time. Therefore, the petitioners urged that during Pandemic, since all the Doctors working in District Hospitals became vulnerable and worked at the cost of their and families’ lives, they should be included in the category of difficult posting/area.

Accordingly, the Bench accepted the stand of State that under Regulation 9 (8) of the MCI PG Regulations 2000 emphasis is on ‘difficult area’ and not on ‘difficult services’.

(a) Whether ‘in-service candidates’ includes doctors posted in District Hospital, Harda and Indore respectively?

Opining that a conjoint reading of the Government Order dated 19-08-2021 and the rules leaves no room for any doubt that definition of ‘in-service candidate’ is wide enough to include the medical officers and that admittedly, petitioners were working as Medical Officers in District Hospitals, the Bench held that there was no impediment which deprived the petitioner from right of consideration in Post Graduate Degree Course as a separate channel of entry.

Rejecting the argument of the State that the relief claimed by the petitioners was contrary to Medical Council of India (MCI) Regulations and the State Government cannot legislate contrary to the Regulations framed by MCI as prescribing standard of education on Pan India basis is within the domain of MCI, the Bench ruled that there is no Regulation of MCI which deprives the present petitioners for consideration as in-service candidates as the condition of service in “difficult area” as required under Regulation 9(8) is applicable to ‘Diploma Course’ and not the course in question i.e. Postgraduate Degree Course. The Bench stated,

“This argument pales insignificance because present matter does not relate to Diploma Course. Thus, Regulation 9(8) has no application and no other regulation for this purpose is brought to the notice of this Court.”

Since the governing rule (Admission Rules) brought the petitioners within the zone of consideration, the Bench held that the petitioners had a separate channel of entry being Medical Officers in earmarked 30% total seats of Postgraduate Medical Courses.

(b) Whether the petitioners are entitled to get incentive of marks as per circular/order dated 28-03-2019?

The Order dated 28-03-2019 provided for 10% additional marks to the doctors who had their place of posting in the last one and a half year in a ‘difficult area’ as defined under Regulation 9(8). The petitioners, claiming to be serving in difficult situation during pandemic demanded parity with those candidates whose place of service was classified as difficult area and consequently, the petitioner were seeking to get the benefit on 10% incentive marks on that basis.

Accepting the stand of the State was that Regulation 9(8) is very clear that emphasis is on ‘difficult area’ and not on ‘difficult services’ and the area in which petitioners were working were not difficult areas at all, and further observing that the order dated 28-03-2019 was not called in question, the Bench held that the said order is a policy decision taken by the Government which could not be lightly disturbed. The Bench added, the policy decision can be interfered with on limited grounds and when it was not even challenged, it has to be read as such and the Court cannot re-write and insert something which is not there in their policy decision. Accordingly, the claim of the petitioners was rejected with regard to incentive marks.

Conclusion

In view of foregoing analysis, the Bench held the following:

Rules – Definition of ‘in-service candidates’ also includes the Medical Officers working in District Hospital whether or not such Hospital is situated in difficult, remote or rural area. Thus, they are entitled to be considered as special entry under 30%.
MCI Regulations – Regulation 9(8). This regulation is applicable to Diploma Course and not to Degree or Post Graduate Degree Course. No provision was brought to the notice of the Court to show that posting at remote, difficult or rural area is essential to become in-service candidate for Post Graduate Degree Course.
Government – The scope of judicial review is very limited. The Government is best suited to take a policy decision which can be interfered with if shown to be palpably arbitrary, discriminatory or unconstitutional. The order dated 28-03-2019 is not arbitrary, discriminatory or unconstitutional.
‘Difficult area’ does not include “difficult services” rendered in District Hospital Indore and Harda. Thus, question of grant of incentive marks to the petitioners does not arise.
The petitioners fell in the category of ‘in-service candidates’ for the purpose of Postgraduate Medical Courses and the respondents had erred in not treating them in the said category in the impugned chart/table uploaded on the official website. Accordingly, the impugned entries of the chart/table were set aside.

Consequently, the State Government was directed to treat the petitioners as in-service candidates for Postgraduate Degree Course and consider their claim in accordance with law. [Vijendra Dhanware v. State of Madhya Pradesh, W.P. No.25819 of 2021, decided on 14-01-2022]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For petitioners: Shri Siddharth Gupta, Advocate.

For respondent/State: Shri Piyush Dharmadhikari, Govt. Adv. for respondents 1, 2 and 4.

Shri Anoop Nair, Advocate for respondent 3.

Case Briefs Supreme Court

No more uncertainty over fixation of percentage of reservation for OBC and SC/ST candidates; SC interprets Section 3 Second Proviso of CEI Act, 2006

Supreme Court: The bench of L. Nageswara Rao and Hima Kohli, JJ has held that the formulae for fixing the percentage of reservation for the SC and ST candidates and for determining the percentage of seats to be reserved for OBC candidates under the second proviso of Section 3 of the Central Educational Institutions (Reservation in Admission) Act, 2006, ought to be gathered from the same source and any other interpretation would lead to uncertainty.

Factual Background

The Court was hearing the appeal from the judgment of the Manipal High Court wherein it was held that after the amendment of the Central Educational Institutions (Reservation in Admission) Act, 2006 , in the year 2012, on introduction of the Central Educational Institutions (Reservation in Admission) Amendment Act, 2012 , Manipur University is required to follow the reservation norms of 2% for the candidates belonging to Scheduled Caste, 31% for the Scheduled Tribes and 17% for the Other Backward Classes for purposes of admission in the University.

The candidates belonging to the SC category and had applied for admission in various Post Graduate courses, had questioned the purported reduction of the quota for SC category candidates from 15%, as prescribed in Section 3 of the Reservation Act to 2% and filed a writ petition in the High Court of Manipur. It was contended that the Amendment Act was legislated to ensure that reservation for SC and ST candidates as prescribed in Section 3 of the Parent Act, should not be reduced from the benchmark of 15% and 7.5% respectively. Rather, the Amendment Act contemplates that the percentage of reservation for SC and ST candidates earmarked in Section 3 of the Parent Act could be increased even to the detriment of the earmarked percentage of reservation for OBC candidates, to ensure that the overall limit of 50% reservation for SC and ST candidates taken collectively, is not disturbed in any manner.

Analysis

Observing that once the two provisos were inserted in Section 3 of the Parent Act by virtue of the Amendment Act, the general norms of reservation as laid down in Clauses (i), (ii) and (iii) of Section 3 of the Parent Act had to be restricted in terms of the said provisos, the Supreme Court gave the following explanation:

While the first proviso deals with “State seats”, if any, in a CEI situated in tribal areas referred to in the Sixth Schedule to the Constitution, the second proviso addresses a situation where there are no State seats in a CEI and the seats reserved for the SC/ST candidates exceeds the percentage specified under Clauses (i) and (ii) of Section 3 (viz., 15% seats for SCs plus 7.5% for STs, totalling to 22.5% seats) or if the combined seats reserved for the SC and ST candidates exceeds the sum total of the percentage as specified under Clauses (i) and (ii).

Two riders have also been dovetailed in the second proviso to Section 3, namely Clauses (a) and (b).

- Clause (a) of the second proviso, contemplates a situation where seats referred to in the second proviso are less than 50% of the annual permitted strength on the date immediately preceding the date of commencement of the Amendment Act.
- Clause (b) provides for a situation where such seats are over 50% of the annual permitted strength on the date immediately preceding the date of commencement of the Amendment Act.

In a situation contemplated in Clause (a) of the second proviso, a restriction has been imposed on the total percentage of seats required to be reserved for OBC candidates under Section 3(iii) of the Parent Act by limiting them to the balance seats available after factoring in the combined percentage of seats specified in Clauses (i) and (ii) of Section 3 of the Parent Act, falling short of 50% of the annual permitted strength.

But in circumstances contemplated in Clause (b), the Act recognizes the fact that no seats need be reserved for the OBC candidates under Clause (iii) of Section 3 of the Parent Act. However, this is subject to the condition that the extent of reservation of seats for SC and ST candidates shall not be reduced when it comes to CEIs established in “Specified north eastern region”.

“This goes to demonstrate that the underlying intent of the Amendment Act was to secure a particular percentage of seats through reservation for a set of candidates and leave some space for capping of seats for OBC candidates, depending on the circumstances contemplated in Clauses (a) and (b) of the second proviso to the amended Section 3.”

The Court, hence, held that the reference point of the period for determining the reservation quota for OBC candidates must be the same as that of the SC and ST candidates for the simple reason that for working out the reservation quota for OBC candidates would necessarily require one to find out in the first instance, as to what would be the difference between 50% of the annual permitted strength and the combined existing percentage for the SC and ST candidates, as obtained on the date immediately preceding the date of commencement of the Reservation Act.

It was observed that,

“Both the issues are so interlaced that to determine the percentage of reservation for OBC candidates, one would have to undertake an exercise of determining the percentage of seats to be reserved for SC and ST candidates, all within the four corners of the second proviso inserted in Section 3 of the Parent Act. Any other interpretation sought to be assigned to the second proviso to Section 3 inserted post-amendment, would make the proviso itself unworkable and redundant and is, therefore, impermissible.”

The Court made clear that the general rules of reservation have been encapsulated in Clauses (i), (ii) and (iii) of Section 3 of the Parent Act. But when it comes to CEIs established in States falling under the definition of “Specified north eastern region”, categorized in Section 2(ia) introduced by the Amendment Act, the two new provisos appended to Section 3 would govern the norms of reservation which prescribes a different criteria, vis-à-vis the main provision and would apply irrespective of whether they are situated in areas covered by the Sixth Schedule to the Constitution or not.

[Shri Kshetrimayum Maheshkumar Singh v. Manipal University, 2022 SCC OnLine SC 12, decided on 05.01.2022]

*Judgment by: Justice Hima Kohli

Counsels

For appellant: Advocate Punam Kumari

For Respondents: Advocates Ashutosh Dubey, Shivendra Dwivedi

Case Briefs Supreme Court

NEET 2021-22: Supreme Court allows Counselling with 27% Quota for OBCs and 10% Quota for EWS in All India Quota

Supreme Court: Considering the urgent need to commence the process of Counselling, the bench of Dr. DY Chandrachud* and AS Bopanna, JJ, has directed that counselling on the basis of NEET-PG 2021 and NEET- UG 2021 shall be conducted by giving effect to the reservation as provided by the notice dated 29 July 2021, including the 27 per cent reservation for the OBC category and 10 per cent reservation for EWS category in the All India Quota seats.

The order came after the notice issued by the Directorate General of Health Services in the Union Ministry of Health and Family Welfare on 29 July 2021 was challenged by the doctors who appeared in the NEET- PG 2021 examination.

The notice implements a 27 per cent reservation for Other Backward Classes1 (non-creamy layer) and a 10 per cent reservation for the Economically Weaker Section, while filling up 15 per cent undergraduate and 50 per cent post-graduate All India Quota seats in pursuance of the National Eligibility cum Entrance Test. The notice takes effect from the current admission year, 2021-2022.

It was argued before the Court that there cannot be any reservation for the OBC and EWS category in the AIQ seats in NEET-PG and that the criteria for the determination of the EWS category notified by O.M 36039/1/2019 (OM 2019) was unconstitutional.

On 25 October 2021, the Union Government of its own accord deferred the counselling due to the pendency of the petitions. Thereafter, the Union Government filed an affidavit justifying the EWS criteria on 26 October 2021 stating that the criteria was adopted after due deliberation within the Ministry of Social Justice and Empowerment and all the concerned stakeholders.

The Union Government formed the Panday Committee on 30 November 2021 to review the criteria for identifying EWS. The Committee submitted its report on 31 December 2021. Thereafter, the Union Government filed an affidavit before this Court accepting the recommendations of the Committee including the recommendation that the existing criteria for identifying EWS be retained for the present admission year 2021-2022.

While the Supreme Court observed that the formulation of the reasons in the interim order on the EWS reservation would take some time, it upheld the validity of the OBC reservation in the AIQ seats in NEET-PG and NEET-UG and directed that the counselling be conducted in order to ensure that the admission process is not dislocated.

The Court further directed that,

The criteria for the determination of the EWS notified by OM 2019 shall be used for identifying the EWS category for candidates who appeared for the NEET-PG 2021 and NEET-UG 2021 examinations;
The validity of the criteria determined by the Pandey Committee for identification of EWS would prospectively for the future be subject to the final result of the petitions; and
The petitions shall be listed for final hearing on the validity of the EWS criteria as recommended by the Pandey Committee in the third week of March 2022.

[Neil Aurelio Nunes v. Union of India, 2022 SCC OnLine SC 21, decided on 07.01.2022]

*Judgment by: Justice Dr. DY Chandrachud

Counsels

For petitioners: Senior Advocates Arvind Datar, Shyam Divan and Anand Grover and AORs Charu Mathur, Vivek Singh, Subodh S. Patil

For Respondents: SG Tushar Mehta, ASG Nataraj, Additional Solicitor General, ASG Vikramajit Banerjee and Senior Advocates P Wilson, Mariarputham

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Factual Background

Tribunal’s ruling

High Court’s Ruling

Supreme Court’s Ruling

*Judgment by: Justice MR Shah

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Introduction

Definition of economic weaker section —A game changer

Inequality among Indian States

Is even10% valid

Conclusion

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*Judgment by: Justice BR Gavai

Also read

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Key highlights of the 87 pages long judgment

*Judgment by: Justice L Nageswara Rao

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Factual Background

Analysis

*Judgment by: Justice JK Maheshwari

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Suchita Shukla, Editorial Assistant has reported this brief.

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Kamini Sharma, Editorial Assistant has reported this brief.

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STORY OF THE MONTH

UNMISSABLE STORIES

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Kamini Sharma, Editorial Assistant has out this report together

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Factual Matrix

Analysis and Observations

Kamini Sharma, Editorial Assistant has reported this brief.

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Purpose of Reservation

What is “merit”?

Whether after graduation, an individual is entitled to reservation on the ground that they belong to a class that suffers from social and educational backwardness?

Why is reservation for OBC candidates in the AIQ seats for UG and PG medical and dental courses constitutionally valid?

*Judgment by: Justice Dr. DY Chandrachud

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Difficult Area vis-a-vis Difficult Services

Conclusion

Kamini Sharma, Editorial Assistant has reported this brief.

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Factual Background

Analysis

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