Hot Off The PressNews

In pursuance of insertion of clauses 15(6) and 16(6) in the Constitution, vide the Constitution (One Hundred and Third Amendment) Act, 2019 and in order to enable the EWSs, who are not covered under the existing scheme of reservations for the Scheduled Castes, the Scheduled Tribes and the Socially and Educationally Backward Classes, Department of Personnel and Training has notified that 10% reservation would be provided for EWSs in Central Government posts and services in direct recruitment vacancies to be notified on or after 01.02.2019.

This information was provided by the Union Minister of State (Independent Charge) Development of North-Eastern Region (DoNER), MoS PMO, Personnel, Public Grievances & Pensions, Atomic Energy and Space, Dr Jitendra Singh in a written reply to a question in Rajya Sabha today.

Ministry of Personnel, Public Grievances & Pensions

[Press Release dt. 28-11-2019]

[Source: PIB]

Case BriefsHigh Courts

Punjab and Haryana High Court:  Amit Rawal. J. dismissed the writ petition where the language of the advertisement clearly indicated the instruction for the selection.

A petition was made to quash the result of the Ex-Serviceman under BCA Category and Ex-Serviceman category as the same were not in accordance with instructions.

Sachin Jain and Naman Jain, Counsels for the petitioner submitted that the petitioner was retired from the Indian Army under Short Service Commission and had a disability of 20 percent and belonged to OBC (Non-Creamy Layer). An advertisement was made by HPSC for recruitment of the Ex-Serviceman and preferences were given to disabled Ex-serviceman having disability between 20 percent to 50 percent. The petitioner applied for the same post with all the requisite documents. The petitioner has been sanguine of selection was flabbergasted noticing the result that he was not selected. An Ex-serviceman suffering from a disability between 20% to 50% was to be given preference against dependents of those killed/disabled beyond 50% and thereafter, other Ex-servicemen can be considered for appointment.

Kanwal Goyal, counsel for the HPSC submitted that the decision of HPSC for not shortlisting the names of the petitioner in the written examination was correct as marks secured in the preliminary exam was less than cut off marks. It was also submitted that the reservation was to be applied at the time of final selection and not prior to that and thus urged for the dismissal of the writ petition.

The court opined that the language of instructions reveals that reservation to be applied for recruitment not to be made through competitive examination. Preliminary examination is not a competitive examination and thus the contention of the petitioner that violation of non-application of reservation at the time of preliminary examinations failed and the writ petition was dismissed. [Deepak Vaishnav v. HPSC, CWP No. 16637 of 2019 (O&M), decided on 01-08-2019]

Case BriefsSupreme Court

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

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

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

Hot Off The PressNews

Supreme Court: The 5-judge Constitution Bench comprising of CJ Dipak Misra and Kurian Joseph, R.F. Nariman, S.K. Kaul and Indu Malhotra, JJ., held the decision in M. Nagaraj v. Union of India, (2006) 8 SCC 212, bad in law to the extent it requires quantifiable data for reservation in promotions because it is contrary to the decision in Indira Sawhney v. Union of India, 1992 Supp (3) SCC 217. Also, Nagraj judgment does not require any reconsideration.

The Nagraj judgment raised the question of reservation in promotions for members of the SC/ST communities and Apex Court had laid down the criteria regarding the same in M. Nagaraj v. Union of India, (2006) 8 SCC 212.

The Supreme Court held that the conditions laid down in the Nagaraj judgment need to be struck down as the condition of proving backwardness violates the 9-Judge Bench decision in Indira Sawhney v. Union of India, 1992 Supp (3) SCC 217.


Case BriefsHigh Courts

Allahabad High Court: The petitioner approached the Court under Article 226 challenging the validity of the Ordinance for Admission to LLM Course insofar as it provides that 80% seats shall be filled up from amongst Lucknow University Law Graduates that is, the petition challenged the institutional reservation in the University.

The counsel for petitioner cited Dr. Pradeep Jain v. Union of India,  (1984) 3 SCC 654, in which the Supreme Court though upheld the institutional reservation, but only to a reasonable extent i.e. up to 50% of the total seats contending that the ordinance ran contrary to this judgment and also, the subsequent judgment, Saurabh Chaudri  v. Union of India, (2003) 11 SCC 146, which reiterated what the Court held in Pradeep Jain. It was further contended that the twin test of reasonable classification is not satisfied if the ordinance comes into operation. The twin test is (i) reasonable classification based on some intelligible differentia and (ii) the justifiability on the basis of the nexus between the classification and the object sought to be achieved.

The counsel for respondent contended exactly opposite of what the petitioner contended and further argued that the National Law Universities and other Universities including private Universities have adopted grading system in their Universities and as such the students of these Universities are securing more marks (up to 90%) in LL.B. Examination, whereas the students of the University are generally securing 70-75% marks and hence, in absence of grading system in the University, students of the University are not in a position to get admission in other Universities.

On hearing both the parties, the Court observed that by the impugned Ordinance two classes of the applicants, who appeared for Admission to LLM Course run by the University as identifiable groups of candidates have been created; the one class of candidates are those who are Lucknow University Law Graduates and other class of applicants are those who are having their Bachelor’s Degree in Law from other institutions/Universities.

The Court noticed that the reason given is that institutional reservation to the extent of 80% seats is being provided to secure the interest of students passing their Bachelor’s Degree Course from the University and even, no statistical data was submitted by the University as a step in defending the ordinance. As a result, the writ petition was allowed and ordinance was accordingly struck down and it was directed to re-frame the ordinance in consonance with the laws laid down by the Supreme Court. [Atul v. State of Uttar Pradesh, 2017 SCC OnLine All 444, decided on 14.02.2017]