Indira Sawhney – I
The Indira Sawhney & Ors Vs Union of India – I (also known as the “Mandal judgement”) is available online in full at http://yfelegal.blogspot.com/ (Thanks to YFE)
Read it in full.
I leave you with a couple of paragraphs from the judgement
What does the expression “Backward Class of Citizens” in Article 16(4) signify and how should they be identified? This has been the singlemost difficult question tormenting this nation. The expression is not defined in the Constitution. What does it mean then?
Reality Check would like to add that the lack of an objective definition of OBCs has the potential to lay this country to waste. Yes, it is that bad. On one hand it denies equality of opportunity to hundreds of millions, on the other it makes a mockery of social justice for the truly deserving.
Today, this OBC quota policy is mired in litigation and there is no end in sight. Without a actionable definition of “backward”, how far can we go before a grand showdown ? The great T.T.Krishnamachari had predicted the impending constitutional mess.
Mr. Krishnamachari asked : “Who is a reasonable man and who is a prudent man? These are matters of litigation”.
. . in response to . .
“What is a backward community”? . . . A backward community is a community which is backward in the opinion of the Government. My honourable Friend Mr. T.T. Krishnamachari asked me whether this rule will be justiciable. It is rather difficult to give a dogmatic answer. Personally I think it would be a justiciable matter. 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.
See links to Indira Sawhney II here “How Kerala got its cream back“
Tamil Dravidian intellectuals and EWS anti-Brahmin spin
It never fails to amaze me how a people can so willingly reject reason and adopt the bad faith. As a group. With no outside pressure. Out of their own free will.
Have I shared this vile Anti-Brahmin cartoon from the Tamils (Dravidian) on my Twitter account?
The artist name signed in Tamil is சித்ரன் (Chitran 2.0) This cartoon is widely circulated in Tamil social media. IT shows a stereotypical fat Tamil brahmin drinking from a large class which is already full while the skinner and smaller OBC are made to share a much smaller class which is nearly empty and the TBrahmin is also stealing from this meager. A complete LIE and the exact opposite has been the case in Tamilnadu. You can see the similarity of the Tamil language propaganda to the Nazi lies and canards against Jews. You have to notice closely, this is NOT a casual drawing, everything is carefully placed. This cartoon however is stolen from Chinese propaganda – repurposed to Dravidian Anti-Brahmin propaganda artwork.
EWS videos use this image and spread misinformation
One of the striking things that outsiders do not know about Tamil is the insane amount of engagement on social media. A 2L sub channel is average. I hoped someone would come forward to document the proliferation of Dravidian channels, maybe I will do it myself. In any case, Kulukkai is a 2.3Lakh Subscriber very popular Dravidian channel in Tamilnadu with over 35 Million views. Read my post “DO not trust any ally who claims this is fringe”.
After the EWS case was lost Dravidians and their allies the Idea of India ecosystem in Delhi have gone into overdrive to build a campaign to launch attacks against the judgment. You can notice pieces in Indian Express, Hindustan Times, The Hindu and others.
Dravidians launched three new books in an event recently. The YouTube videos features Mr P. Wilson DMK MP and Mr G. Karunanidy the AIOBC Federation. The videos can be seen on Kulukkai https://www.youtube.com/@kulukkai/videos
You can notice the cartoon used in the propaganda material. New Delhi lawyers do not understand Tamil hence they dont see this side of the Dravidian Janus face.
Their idea of Social Justice is not what they tell you in English. If India were smart enough to even ask them in the first place.
This G. Karunanidhi clearly exposes his Dravidian version when “Social Justice” was achieved in the first 100% Non Brahmin assembly. This shows the mindset of the highest level of Tamil (D) intellectuals. This is their vision. It isnt about Savarna vs Dalit vs Bahujan etc. I see many Savarnas ministers in the picture below.
I do not even think the Dravidians lost the OBC case. They got by without the Supreme Court touching upon ANY of the key issues. The loss is merely Technical. It is quite possible the judges merely are not that sharp to search and spot the intrigues.
The speeches
- Show the depth of the Dravidian braintrust. They show a deep knowledge of Indira Sawhney, Thakur, and other judgments
- Demonstrate great passion while delivering the oration
- Shows their great energy designing and challenging Laws at the national level. In the Parliament when they had power , unlike the BJP.
- Show expert deftness in dancing very close to the danger line – eg while saying Reservation is about representation – yet avoiding examining the representation in Tamilnadu. This shows the eagerness with which deception and badfaith is embraced.
- Isolating the Brahmins in true Tamil (NonBrahmin/Dravidian) intellectual style. GK says in Tamil “they 76 castes will get benefit of EWS, but trust me they will not get anything. This 10% is only for Brahmins”. Suggesting they will be pushed out.
- Using anti-Brahmin Tamil language cards for YouTube content the images above say in Tamil (P.Wilson) “Conspiracy to destroy reservation. This is the Beginning” (G.Karunanidhy) “Brahmins mete out injustice in the name of the poor“
- Using techniques of expanding scope fallacy. Look at Chief Secys in Delhi – they are all Brahmins. If not Upper Castes. Why look at Delhi? Lets look at Chennai.
- The DMK lawyers against EWS are said to have opened with the Ekalavya story. This type of strategy takes the issue OUT of the plane of rational and contemporary social analysis. Who is the descendant of Eka today? It isnt a “thing” it is an “emotion”. A poorly trained bench can never match this level of determined and planned challenge.
The essential question is “Who will ask these questions”
I see the BJP frightened and the Supreme Court delinquent.
It is about Tamilnadu stupid ! A no bull guide to the EWS judgment
I am going to eschew verbosity and legalese here to present a ‘no bull’ raw view of the issues around the 103rd constitutional amendment. This amendment enabled states to provide reservation up to 10% for the ‘poor among the forward castes’. On Nov 7 2022 the Supreme Court of India ruled in a majority verdict 3-2 to uphold the constitutional amendment.
You can read longer pieces written by me on the matter at “The EWS Quota wrench in the Idea of India process” and “Is the EWS 103rd Amend a constitutional fraud”
Ok first – as promised let first cut the BS. This is not a quota for poor. It is a quota for castes that are not included in any of the reservation categories (SC / ST/ OBC) In other words , the ‘unreserved castes or the forward castes”. The income limit is merely shiny new creamy layer filter for the new quota.
Is a Quota for the hitherto unreserved castes desirable ?
I have been against economic reservation for a long time with the logic “Why should I give my medical seat to you because my dad owns a car ?” Life is about fighting odds. However, that is not the case here. We have a more fundamental problem – the intractability of bringing the OBC quota regime under monitoring. During debates of the First Amendment Ambedkar guaranteed that the Court would scrunitize runaway mischief in classification of castes as “backward”. However that has not happened. During the 2007 OBC quota case Thakur the court with great bombast said that there would a review of castes after “5 or 10 yrs”. That time has come and gone – there has been nothing.
The EWS reservation is nothing but a legislative response to a grand dereliction on the part of the Supreme Court.
Tamilnadu “Dravidian” model is the reason
First of all a capable Supreme Court bench would have started with the most fundamental of questions – What is the necessity to have an EWS quota – if castes X/Y/Z are left behind the automatic checks and balances in the primary OBC quota mechanism would kick in and ensure they are included in the OBC regime. Think hard. Think. This is the level at which Dravidian ideology operates.
Tamilnadu is the state that necessitated the EWS quota in the first place. and it is also the state that is leading the most vigorous opposition to this quota. Almost all states have notified the 10% quota as a matter of search for equilibrium – except Tamilnadu.
Vacuous yet loaded statements like “it is against the philosophy of social justice” should invite curious minds to inquire Tamilnadu. Is Dravidian Anti-Brahmin the philosophy of social justice ?
Tamilnadu specifically the DMK is the primary mover against the EWS reservation. Why is Dravidian movement so inconsolable?
Read on.
Exclusion forms the basis of Tamilnadu reservation
Tamilnadu’s uniqueness is not merely that 69% of seats are reserved or that creamy layer is not excluded which allows multiple generation families to avail the quota. What is unique is that 97% of the population is classified as backward (See my post on NSSO Statistics Handbook showing Demographic data of Tamilnadu) . This is egregious and flies in the face of Supreme Court observations in Indira Sawhney that reservation for all is reservation for none.
But what is missed is the Anti-Brahmin imperative – reservation for all but Tamizh Brahmins is nothing but invidious discrimination against Tamizh Brahmins. This is running unchecked even in this case which resulting in defeat for Dravidians.
I know people would argue that other Tamilnadu castes like Nattukottai Chettiars ( P Chidambaram), Saiva Arcot Vellalas (PTR Palanivel Rajan), Balija Naidus are also impacted but the numbers do not support that. Perhaps they use a cognate caste, perhaps only Tamil Brahmins are face controlled. Regardless, the total absence of support from these community leaders who form the DMK/DK leadership such as Suba Veerapandian, Palanivel Thiagarajan betrays there is something more than meets the eye.
Idea of India jurisprudence accommodation of Dravidian ideology
Tamilnadu was able to get away for 17 years with flouting the basics of Indira Sawhney in both the depth 69% and the width 95% inclusion. Every year the Supreme Court pampered this violation with an extension as they deferred examining the Tamilnadu Reservation Act of 1994 from one year to the next with some spurious bandaid formula. In 2011, after 17 yrs the Supreme Court while disposing all challenges demanded the Tamilnadu Govt to collect quantifiable data to justify its case. For its part the Tamilnadu Govt constituted the Janarthanam Commission which essentially told the Supreme Court what amounts to mind its own business. See “Perpetuating the scourge of caste – P. Radhakrishnan of MIDS”
Why cant Dravidians just give the 3% and gain impenetrable armor?
This is an absolute cardinal question curious minds in New Delhi must ask the Dravidian-Tamil when they present objections.
Lets cut the BS, every caste gets included in Tamilnadu. In that case, Dravidians can give 3% – not 10% and set a limit of 5 Lakhs and be done with it. You would think this is the rational thing to do for a democratic party. Imagine this would seal the mouths of their detractors for good. They certainly are not averse to such quotas – DMK announced 3.5% for Christians (later withdrawn due to communities own rejection) and 3.5% for Muslims. Imagine the peace and unassailable armour it would give the Dravidian ideology. If you do not understand this – you will not be able to understand the deafening noise and why Tamilnadu wants to remove the EWS as a concept itself. Even from other states and centre.
Ready ?
Two reasons why Tamilnadu cannot give the EWS quota.
- Brahmins will come inside – in Tamil பாப்பான் உள்ள வந்துடுவான் – if TamizhBrahmins are given representation the the central weapon of Dravidian activism – the nonstop invective and hate propaganda has no meaning at all. The whole point is to keep a hostile environment alive and slowly remove the Tamil Brahmins from spheres of influence.
- Turns focus Inward. This is even more important than the first. Remember in Tamilnadu the OBC lists are completely opaque, data about individual communities who dominate the lists are kept as the highest level of state secret. Even the Supreme Court is unable or unwilling or cowardly to extract this most basic check (supra). The Dravidian ideology need the Tamil Brahmins to be outside. As long as the Dravidian movement has the “Oustide” to direct energy against they can keep the “Inside” list away from scrutiny. Imagine if Brahmin get their 3% – then there is hardly any point left to abusing them any longer. Hence the public attention will turn INSIDE and pressure for revealing data will instantly shoot up. This will end the “Non Brahmin” collective and transitively the Dravidian ‘movement itself.
As Prof E. Annamalai has explained beautifully the spectacular longevity and political success of the Dravidian movement depends on maintaining the “Non Brahmin” as a unit. The main tool to maintain the “Non Brahmin” is virulent Anti-Tamil-Brahmin saturation propaganda. Today this propaganda dominates Tamil social media like Twitter and YouTube.
Top 6 – spurious and petty arguments from Drav-Tamils on EWS
Here is a list of petty arguments put forth by Tamils (Dravidian bent) which have been swallowed by the less curious and less capable Congress party itself. It is a testament to the Supreme Court judges abilities that such petty stratagems have not been shredded and shown their place.
Reservation is not a poverty alleviation scheme
It isn’t an unjust enrichment scheme either.
Social justice is about representation
Awesome. Then the entire scheme has to be based on representation data. Lets start with Tamilnadu PG Medical data for instance. This is the high echelon goods. Lets see the breakup data by caste.
EWS is against the philosophy of social justice
What is the philosophy of social justice in concrete terms.
Philosophy of social justice is to help historically oppressed castes not Brahmins
How can 97% of Tamilnadu be historically oppressed ? See here it is quacking like a duck and walking like a duck. Hence it is merely a way to enforce an Tamil Brahmin exclusion based on anti-Semitic logic.
103 Amendment excludes poor among OBC
A contradictory claim from the likes of Karti Chidambaram (A Chettiar who is assumed to be in Forward caste list) this also forms the minority dissent of the two judges. Firstly, If reservation is not a poverty alleviation scheme why do you care about poor among OBC? Crocodile tears. Secondly, we are discussing a constitution amendment to enable unreserved castes there is nothing that prevents Tamilians from introducing a 10% sub-quota within the OBC 50% (BC+Muslim+MBC) for poor among the non Brahmins.
All judges are Brahmins
Then why do Tamil-Dravidians who claim to represent all Tamil Non-Brahmins even bother with the court arguments and judgement contents ? Is it to demonstrate that Dravidians are immune from contempt laws. Do you people want a reasonable debate with Anti-Semitic like outlook. How come you people welcomed the same Manuwadi Brahminical judiciary for releasing all of Rajiv Gandhi and 16 others assassins?
the same Brahmins judiciary
We have problem with 8Lakhs income limit the “அரிய வகை ஏழைகள்” rare type of poor people ?
Hmm, in that case you Dravidian-Tamils would have litigated the income criteria. Hence this is a merely a Tequiyyah (an Evil lie) a stratagem. Kerala income limit is 4Lakhs – they are still alive.
These EWS cartoons made by Dravidian-Tamils prove the real nature of people like RCI
Sweet Chellam..!! See how you people have reduced the debate to its bare elements. That is how I like it. Bare faced.
What next
The plan would be to activate the Idea of India ecosystem journalists and lawyer assets and build up a corpus of articles in mainstream media. Then follow up with a review petition. I notice they have already tied up with a constitutional level expert lawyer.
As shown above implementing EWS in Tamilnadu has the potential of ending the Dravidian movement. Hence the extreme noise. All other states have seen the moral argument “If every other caste has a share the judiciary isnt doing its job then I see nothing wrong in a safety net for unreserved?” This simple reasoning cannot be absorbed by Dravidian Tamils because it defeats one of the key imperatives of the Dravidian movement itself. An Anti-Semitic like urge to expel.
On OBC reservation policy in medical education
A major development took place in Madras High Court on Friday June 19, 2020 when the Union Govt filed an affidavit agreeing to OBC reservation for admission to MBBS/PG Medical seats in the “All India Quota”. A lot of misreporting is happening in the mainstream media. Look at these two conflicting reports :
OBC quota in medical seats only in central institutions: Govt informs HC (Hindustan Times)
Centre says it is in favour of OBC quota in medical seats (The Hindu)
So which one is it? I will try to explain the matter in simple terms in this article. This issue is of monumental importance because Post Graduate Medical Studies is the highest echelon professional education degree you can aspire for in this country.
Writing on the reservation policies can be confusing because there are three parts to it. The facts – you need to know how it operates regardless of whether it is desirable or not, how the beneficiaries are selected, qualifications, rules, etc. The core principles – the first principles involved, the anomalies, the judicial failures, the contentious issues regarding equality, the boundary conditions, intra group issues, the merit arguments. The political ramifications – how politics can congeal around these citizenship classes, inside vs outside groups, alliance building where each group works to secure its gains, how the media mischief works. I’ve read far too many articles about the reservation system where these are mixed up and end up in an incoherent jumble. So lets begin.
The facts
How are doctors made in India, how many seats ?
I am going to leave out Dental, AYUSH (natural), and Veterinary — sorry guys!. Just to keep it simple and use round numbers.
There are about 80,000 MBBS (undergraduate) seats and 30,000 MD (post graduate) seats. The post graduate medical includes surgical MS and clinical MD and Diplomas. These distinctions are not important.
The key point : The PG degree is seen as a must have for MBBS doctors. You can see there is a giant funnel gate right there. Of the 80,000 doctors only 30,000 will go on to get a PG degree. The competition is hence fierce and the professional rewards are high. “MBBS doctor” is seen as a different brand.
How is the capacity distribution ,state, centre, private?
Most of the capacity is with the states roughly in 90:10 ratio. For undergraduate: The central govt medical colleges with capacity are the 15 AIIMS which have roughly 1000 seats put together, then the “Delhi and Union Territory colleges” come up with another 500. This is the same for PG as well.
In the state capacity, the states have govt colleges, private non-minority, and private-minority colleges. The government capacity is very affordable and is highly sought after the private colleges are super expensive and have an elaborate cross-subsidy scheme. They surrender a small portion to the govt at a discount and compensate for the tuition loss by charging hefty tuition in the private quotas.
The south has a much higher state govt as well as private capacity. The private capacity is a money spinner a lot of politicians are players in this domain and there are lot of business monopoly games guarded by a complicated and arbitrary NOC/ EC (Essentiality, No Objection) process. This provides these players to extract a monopoly price from this demand. The very small batch sizes 50, 100 intake in UG makes private medical even more expensive. The north-south gap is closing but this is the current lay of the land.
What is this All India quota business ?
To offset the regional imbalances – the central govt instituted an All India Quota in both UG and PG capacity. Per this rule 15% of UG seats and 50% of PG seats are taken from the states and filled using a common merit list. This allows ANY state candidate to apply to these seats.
Timeline:
- 1984 : First broached idea of All India Quota at 25% (Dr Pradeep Jain case )
- 2003 : PG quota for AIQ increased to 50% (Saurabh Chowdhry – CJI Khare time a TMA Pai judge)
- 2007 : 22.% quota for SC/ST within the 50% AIQ (Abhay Nath)
Is this related to NEET?
No this is not related to NEET. Even prior to NEET the AIQ existed – the common exam used to be called AIPMT (for both UG and PG).
What is the reservation policy – it is too confusing ?
The All India Quota fills two capacities —
- seats in central govt controlled institutions (AIIMS, PGIMER, Maulana Azad etc)
- seats taken from each state using the 15% UG/ 50% PG formula.
In (1) the central institutions the standard central govt reservation scheme is followed – same as IITs. This breakup is : 15% SC/ 7.5% ST/ 27% OBC and now 10% FC-EWS , 40% Open Competition. CHECK. No Problem here.
In (2), only the SC/ST is followed. The breakup is : 15% SC/ 7.5% ST 77.5% Open Competition. Problem here.
In the PG level there are roughly 1,000 seats in (1) and 10,000 seats in (2). Now let me introduce the issue.
The OBC organizations demand that in (2) the 27% OBC reservations be imposed.
Can you simplify this further ?
To simplify remove the UG from the contention due to the fact that only 15% is in this category and there is no funnel-gate. Only focus on the PG capacity to zoom in on the crux.
In the 10,000 seats in the All India Quota for PG seats. The demand is to have OBC reservation and shape that along the usual formula (SC/ST/OBC/EWS/Open)
What happened in court in past week ?
The OBC organizations and the Tamilnadu parties filed a petition in the Supreme Court on May 29 2020 demanding that the ongoing admissions to PG Medical Courses be stopped and 27% OBC reservation be applied. (link credit Bar And Bench). This was dismissed on the ground that only Fundamental Rights violations can be taken directly to the Supreme Court , the judges held this was not a fundamental rights case and tossed it to Madras High Court. The parties immediately filed in the Madras High Court. During the hearing the Central Govt Health Ministry filed an affidavit declaring that they are in favour of extending the 27% OBC quota in all seats and that they had filed a similar affidavit in another case already pending in Supreme Court since 2015 in a Writ Petition Saloni Kumari and Onr.
So the issue is back in the Supreme Court where the aforementioned Writ Petition is scheduled to be heard on July 7 2020.
What about the caveat about the overall 50% limit and existing seats cant be disturbed?
I would not think too much about it. This shows that neither the govt nor the judiciary has a “core” level insight into the issues involved. In the Indian framework , what they do is keep the current capacity as-is and add extra capacity to one one group then declare that “why are you bothered? the number of seats are the same for you”. Just a sweetener.
Moreover, the 50% is incorrect, because the new limit is 60% after the FC-EWS quota.
The Tamilnadu sides want immediate imposition of the OBC quota by expelling the 27% unreserved doctors and carving out an exclusive quota. This is as per the scheme of things and a valid demand. The Affidavit declares a rule that the absolute number of seats currently available to the Unreserved (again this is Open competition available for OBC doctors as well) must not be reduced. This means the states have to cough up extra capacity by creating more PG Medical seats for OBC alone. I dont see a huge problem with this – after all these are just MCI rules which dictate the seat capacity. That can be tweaked.
So what is the current situation for this year ?
The govt cited the COVID-19 crisis to claim that disrupting the 2020 PG Medical seats will cause suffering hence it appears that this year PG medical seats may be filled without OBC/EWS reservation. Second, breaking the promise and expelling the general category students AFTER the game is played will be an egregious violation of fundamental rights. Maybe too much even for a “transformative progressive” court.
Part 2 : Core Principles at play
Now lets move to the Core3 topics, these are more fundamental and not linked the legal matters. It is very important we have a proper grip at this level. I dont see this either in the judiciary, government, or any of the think tanks.
What are the reservation dynamics of PG Medical in particular ?
Indian reservation policies are not applied at the level of the degree rather at the micro level at each site. As mentioned, PG Medical is the holy grail of professional education in India. But some specialties in particular are in very high demand – for example M.D. Radiology is the creme, M.D. Dermat is second and so forth. The 27% reservation does not mean 27% of PG seats will go to a group but that 27% of M.D. Radiology in College Hospital X will go to OBC doctors. Each discipline in each college-hospital is divvied up.
Is it true that only 250 OBC got admission in AIQ ?
False. You need to understand that in the 77.5% existing Open Competition all groups can compete. In NEET PG 2018 I have the following numbers : Of the 10,400 seats 2,500 were taken by OBC. Of the 1000 odd seats in AIIMS/Delhi Colleges 257 were taken by OBC in the “OBC quota”. The OBC activists never count the OBC doctors who were admitted in the open competition. When they say “2800 seats denied to OBC” they mean “over and above” the 2500 they got in the open competition. The keyword “Over and Above” was first used by Marc Galanter to describe the Indian Vertical Quota system. See Reference [1] for full list of 2018 AIQ PG Medical seats allotment.
What do you think of the reservation jurisprudence ?
On all #core items, Indian “transformative constitution” jurisprudence comes up a cropper. Very poorly developed tests, incorrect framing of questions, freely adopting spurious arguments, temporizing, inconsistency, sectarianism, grandstanding are in display. For example : Why did the Supreme Court not mention the Saloni 2015 writ petition when dismissing the May 29 case? If reservation was not a fundamental right , why admit the Saloni 2015 petition in SC? Most importantly, this is a wide impact issue affecting how Doctors are made in all of India. How can you keep such a crucial case pending from 2015? It is very important that a major injection of #core is required in these institutions. Our public intellectuals come up woefully short too. Otherwise these anomalies build up and when they crumble at some later date it will a very painful experience for all of us and our kids.
What is the underlying issue with Tamilnadu and OBC?
Tamilnadu is the epicentre of all this action. Why? This is a very important issue that others may not get. In TN, almost everyone 93% to 96% are in reserved category. Roughly 74% are in OBC category (NEET TN 2017-18). This is not the case with any other state. The bald truth is – Tamilnadu reservation categories are designed to exclude the Tamil Brahmins. Nothing else explains the ratio of applicants to MBBS. The other forward castes are likely using a synonym.
Back to the PG issue. I have data from 2018 Tamilnadu state quota of 50%. This is the part where each state applies its own reservation policies on its doctors.
- Of the 1272 PG Medical seats – FC 53, BC-Muslim 63, MBC 318, BC 604, SC 199, SC-Arunthathiyar 33. [Reference 2]
- Only 53 MBBS doctors are from unreserved castes out of 1272 !! Even though the total number of unreserved seats are 394.
This shows that the BC group in Tamilnadu is fully competent and capable and most likely includes forward castes in the mix. The top 30 ranks are OBCs.
Futhermore the Tamilnadu OBC group is divided into the MBC which is a more accurate social justice group. When you collapse to an All India Quota, the MBC group do not get the spots. This only works as a ‘lets get a foot in the door first’ tactic.
The central problem with extending OBC quota to the AIQ list is : it will impact states with OBC doctors who might represent really backward classes, measured using a capabilities test. You should be able to foresee the pressure and pull that will be created if you release such a large OBC doctor contingent from one state.
Are doctors educationally backward ? The limits of reservation entitlement
The Tamilnadu MBBS doctors go through the same courses, live in the same hostel, have the same facilities, then earn well. SC can be said to have suffered from systematic issues, but certainly not the OBCs. I cant imagine how these high specialty courses like M.D Radiology , Anesthesia, will be out of reach of OBC MBBS doctors if they compete with all. Also the creamy layer issue is a joke. The MBBS doctors income is not considered and his/her parents income too from salaries/agri. Very few doctors will fail to qualify for NCL (Non Creamy Layer) certificate. I dislike the creamy layer concept itself. A poor quality judicial invention , a sweetener of the Indira Sawhney (Mandal) era.
Part 3 : The political part
Who is claiming credit ?
None of the parties are coming out of this looking good. The DMK never bothered about this for 14 years ! But once they seized of the matter they moved at a rapid pace. Credit must be given to P.Wilson Advocate and MP.
The BJP govt has filed an affidavit agreeing to this reservation from 2015 but is not stepping up to take credit. They seem like a deer caught in headlights. This lack of confidence is due to not understanding the issue at a core level. The courts are not looking good because who would temporize such a crucial case for 5 years !!
What about the political economy dynamics ?
I group all reservation / social justice matters as #core3. The central idea in all of these case is DATA and SCRUTINY. The court’s central duty is to guard and insist on data otherwise factional politics will drive the country into a low grade democracy. Only a tiny swing group, I call Free Agent voters will really vote on public or national interest matters. In Tamilnadu case, both 71 Sattanathan commission and 82 Justice Ambasankar commission clearly warned that a handful of castes are lopping up the benefits. This will hold true today as well, these winning groups will stick to the political formation that perpetuate these benefits and prevent a study. That is the rational behavior, you cant grudge anyone for that.
So what is your recommendation ?
In all #core3 issue data must be a prerequisite. This must be non-negotiable because ignoring this will exponentially increase the costs of this data becoming public in future. This will lead to violence because it is one thing if chips fall unevenly in open competition but if social engineering results in uneven benefits, people will react.
This is a golden rule that must be followed at a minimum. Whenever you extend reservations into a new frontier, you must insist on a data checkpoint. As I mentioned the OBC Doctors already crossover 25% into the open category. So further reservation for PG does not pass the sanity checks. The irony is something as simple as college admissions to make doctors need a battalion of lawyers, dozens of court cases, supreme court benches. Something must be wrong. No other country has this feature.
The unreserved castes are somewhat protected by the new 10% EWS quota which is a counter weight. Reservation on economic group is like adopting a HORRIBLE idea to offset a BAD idea.
This is a clear sign we are in a race to the bottom.
References :
- NEET PG 2018 Medical All India Quota counseling round 1 results. Pull this into Excel and you can see that OBC won 2500 odd seats. The activists do not count this. 2018 PDF All India Quota Allotment including Central Institutons aiq
- NEET PG 2018 Tamilnadu 50% allotment. Again pull into Excel and count the number of each category. Out of 1272 seats only about 55 are taken by Unreserved candidates. pg-medical-phase-one Tamilnadu PG Medical 2018 allotment
- Common Counter Affidavit filed by Union Health Minister agreeing to provide OBC quota for PG Medical , perhaps from next year onwards Credit to Bar and Bench for the PDF, I had to save a copy on my blog only because links tend to vanish over time) Common_Counter_affidavit_of_R_4_in__W_P_No__8326_of_2020__8324_of_2020___batch_
The EWS quota wrench in the Idea of India process
In 2019, the Narendra Modi govt announced a 10% quota for “EWS – Economically weaker sections” by passing the 103rd Constitution Amendment which introduced Art 15(6) education and Art 16(6) jobs into the Indian constitution.
‘15(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,— (a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5);
In my view, this is the standout accomplishment of Narendra Modi’s first term because it is addressing a core agenda item no 3. Like all core items, these may not create noise but permanently disrupt the earlier idea of India equilibrium. Several controversies have arisen in the wake of this EWS quota. Here I try to answer them in a Q&A format rather than a long winded essay. I believe it is the right format because the questions are as important as the answers to them.
Q1. Why are people opposing quota for all poor , since this is poor from Open Category?
Lets get this common misconception out of the way. The 10% EWS quota announced is only for those NOT covered under reservation. Only those castes who are disqualified from availing OBC, SC,or ST status would be eligible.
On the other hand, since there is no list of Forward castes , in theory anyone can reject their birth caste group and avail of this quota instead. In practice however, this may not make unless there is advantage of doing this.
Q2. It is unconstitutional to give EWS quota
A common strategem of Idea of India groups against #core3 is Justice O Chinnappa Reddy’s famous observation during Indira Sawhney case – ‘reservation is not a poverty elimination program‘ . Dravidian ideologues like the erudite Prof Suba Veerapandian have latched on to this for years justifying the inclusion of the creamy layer in Tamilnadu. This has denied benefits to millions of poor OBCs while enriching the already advanced groups. The correct response to this is :
While it may be true that reservation is not a poverty reduction program, it certainly does not mean ‘reservation is an unjust enrichment program‘.
The Supreme Court is about to start hearing petitions challenging the constitutional validity of the 103rd Constitution Amend starting July 16 2019. But keep in mind , this is a not a review of a law against the existing provisions of the constitution. They are not bound by the usual core3 cases like Thakur (2007), Sawhney (1992), MR Balaji (1962). The upcoming judicial review will be a basic structure test. Think about it, if the Supreme Court were to strike down the 103rd Amend it would be in effect be saying “Helping the poor of the general category is against the basic structure of the constitution” !! This is an extremely bizarre position and would require significant literal obfuscation by the ecosystem to make palatable. The expansion of #core elements across India will make this task much more difficult.
Q3. Do you support EWS quota ?
No. It is crazy. I have already stated during the RTE case , EWS quota gives a permanent benefit on what is a temporary disadvantage. Peoples fortunes change all the time. You cant put a checkpoint at a particular instant and then give a permanent benefit based on that. This is especially true of high echelon goods like MBBS admissions. It is unacceptable that a student has to give up his MBBS seat which determines his entire life trajectory just because his dad committed a crime of owning a flat, or succeeded in a job.
But .. but.. but.. there is a gotcha.. see next question.
Q4. So you dont support EWS, so why are you jumping ?
Well core analysis always look at the entirety of the picture and not unbundle and then pick and choose. There are two issues in the current reservation regime which makes EWS a necessary check.
- The startling delinquency of the judiciary in monitoring of the OBC group. This is the fundamental issue. Until now the idea of India jurisprudence adopts a ‘rational basis’ standard to examine classification of groups. In simple words, it defers to the political players to select their groups for special treatment. The jurisprudence also invidiously discriminates between the INSIDE and the OUTSIDE groups. For example – in the Jat 2015 case the honorable court put a very high evidence bar on entry of outside groups into the inside. But those already on the inside are permanently immune from that same level of scrutiny. I recall blogging the KGB court with much bombast in 2007 Thakur case announced a full monitoring of the OBC group in 5 years or 10 years. Both the deadlines have come and gone.
- There are some mechanics issues with the system that demand a separate quota for unreserved. An example is the Roster System followed in promotions. It can be mathematically proven that the roster system and the consequential seniority issue can wipe out the unreserved , with enough turns of the roster. The effects will be apparent as time goes by and the senior tier retires.
Seen in isolation, the EWS quota is absurd. The full picture demands you have to account for the Idea of India jurisprudence that defers to the political forces to reward the very groups that sustain them. I believe this has major effects – groups like Marathas , Kapus, Patels cannot wait forever biding their time for #IOI jurisprudence to develop a spine , i.e develop a first principles position. The spine.
Q4. What a joke – how is the the 8 Lakhs limit economically weaker ?
In a Dravidian Kazhakam meeting last month, Prof Suba Veerapandian drove home this point to a gullible Tamil audience who cheered – rather mindlessly. He called out “Not only was the EWS quota anti-social justice but the limit of 8Lakhs was a joke.” (paraphrased)
There is some truth to it, how can you call someone who earns 5 times the per-capita as EWS? But the issue is not that simple when you apply a core type analysis. This is going to be really counter intuitive . Follow me, you will get the A-Ha! moment.
Will a 3 lakhs limit be better?
I am going to directly use Tamil Brahmin as a stand-in example to expressly answer the Dravidians. Stay with me.
Say the EWS quota were to be restricted to poor tamil brahmins who earn less than 3Lakh instead of the 8Lakhs. Would the DK then support it? The lower level cadre will say yes. But the upper levels will be quite alarmed. Why? because you have to see all quotas as a state allocation program.
Every state program has a “social-impact-index” independent of the ecosystems efforts to hide it. The poor among the BC , SC, do not get any benefits because the targeting is at the elite layer. The dravidian argument is that targeting the elite benefits the poor via trickledown. A highly specious claim, but be that as it may. To this scheme lets assign a social-impact-index=50, if you introduce a program for poor tamil brahmins at 3L, then you directly and highly efficiently target the poor rather than the elite trickledown, so that has a social-impact-index=100.
Therefore instituting a 3Lakhs cutoff for poor tamil brahmins and having no such program for poor among BC/SC/MBC means the state gives a high-social-impact product to the brahmins and a low-social-impact to the non-brahmins. On the ground this will manifest as a son of a tamizh brahmin dosa master cook getting the benefit directly but the son of a non brahmin parota master getting nothing and waiting for trickle down from the hotel owner.
This kind of anomaly will expose and decimate an elite targeting movement like Dravidianism. Clearly Prof Suba Veerapandian has not really thought it through. A hypothetical smarter BJP would counter this by reducing the income cutoff to 3L and then see how they respond.
Even a 8L cutoff in TN suffers from the issue , because BC/SC/ST students whose parents make less than 8L get no special treatment. But the effects will be more muted than a much lower cutoff. I am willing to bet, while hearing the case the Supreme Court will get caught up in this paradox and miss the nuance completely. They simply have not evolved the bedrock principles to analyze these things beyond superficial.
See this video of Prof Suba Veerapandian delivered to a packed Tamil audience.
Watch the cunning deception here : on one hand they say “Reservation is not a poverty reduction scheme” while justifying the targeting of the elite. But when cornered on that , they switch to economic grounds. In the above clip he says in Tamil ( மாடு மேய்கிறவர்கள் , கூலி தொழிலாளிகள், தன முதுகில் மூட்டை சுமந்து வேர்வை சிந்துபவர்கள் , துப்புரவு தொழிலாளிகள் – இவர்கள் எல்லாம் ஏழை இல்லயாம் , அனால் மாதம் 64கே சம்பாதிக்கறவர்கள் ஏழையாம் ) in English – (those who herd cows, daily wage coolies, those who lift gunny bags on back for a living, those sanitation workers, they are not poor. But Modi govt has announced that 65K per month is EWS.)
The gullible and low info Tamil crowd laps it up and no one on stage has a proper response. Dravidians should not use the gunny back lifter to justify their stand, they should use doctors, professors, and govt servants in defence of their stand.
Q5. Why is this such a hot issue in Tamilnadu alone ? all states notified
If you are a non Tamil, you can skip this section.
Most states across the country , Assam, MP, UP, even Momata’s WB, GJ, MH, have notified the quota or are will notify it next year. What is surprising is even the Dravidian states – Karnataka, Andhra Pradesh, Kerala , Telangana are implementing in various forms. So the question for Prof Suba Vee is – how come your Racial dravidian brothers have no problem with this?
Upon deeper analysis you find the root of Dravidian exceptionalism lies in the numbers. The annual MBBS admission numbers provide a rare peek into the statistics. I monitored the last 5 years and found that only between 4.5 to 7% of the candidate population is classified as Unreserved , i.e. Forward Caste. The similar number for Andhra are roughly 42%, Telangana 47%, Kerala 40%, Karnataka 38 to 42%.
We can have many conversations about social justice and dravidians but the elephant in the room will always be the following. The very real possibility that Dravidian movement at its core is not interested in social justice at all but in outright discrimination against one group. As one judge remarked , if a state scheme gives privileged treatment to 94% of the population then you have crossed the line into reverse discrimination. Unless of course you have data to show that the 6% dominates to the extent that justifies it.
I used to wonder why Dravidian intellectuals Aasi K. Veeramani, Pera Suba Veerapandian, and Dr Pazha Karuppiah never proposed an easy truce settlement. You do not have to like the tamizhbrahmins – to say ‘here take your share and fo’ this truce will leave the Suba Vees in peace to build their glorious Dravidian society. In one stroke you will silence all criticisms of the reservation. After all, Dravidians themselves gave 3.5% to Christians and Moslems. If you do 69% , why not do 72% and in exchange buy complete peace and immunity?
One is helpless but to draw the correct inference from this strident stand. If Dravidians concede the 3% , then they also concede their primary raison-d-etre , which is anti-tamil-brahminism. Their top tier knows that if they give the share, then the thundering speeches of intellectuals like Pala Karuppiah will sound hollow and toothless.
A second , more dangerous issue, is if Tamil Brahmin get the 3%, then the focus will turn inwards into the vastly disparate Dravidian group itself and demands from other castes to get a look into their share. That is always the existential danger in TN politics. Never look under the kimono.
Q5. Is the 10% quota for EWS a ‘slow poison’ for social justice
Stalin thundered recently
Assailing the 10% quota for EWS, Mr. Stalin said it was not only against the Constitution but also detrimental to social justice. Pointing out a report in The Hindu that said that only 1% of the top teaching posts in Central universities were occupied by OBCs, he said while the AIADMK harped on former Chief Minister Jayalalithaa’s efforts in implementing the 69% reservation, the 10% quota would make her achievements go in vain. The present system of leaving 31% seats for open competition candidates was functioning well and there was no need for implementing 10% reservation for EWS, Mr. Stalin argued and charged that the Centre’s proposal was “slow poison” for social justice in Tamil Nadu.
Source : The Hindu
Is giving 10% quota for FC a slow poison for social justice? Well, as per the Justice Party leaders including Mr EV Ramaswamy himself – a complete communal quota is the correct model for social justice. Even Prof Suba Veerapandian announced recently that the ideal scheme is “Every community gets it share” . Their own founders notified the Madras Communal G.O and eventually lead to the Champakam Dorairajan case and the very 1st constitution amendment.
Regarding the statistic that 1% of teaching job in central universities is occupied by OBC, it may true or not. It is not relevant at all. If DMK wants this level of data, then it should constitute a proper Backward Classes commission as instructed by the Supreme Court and demand a study the beneficiaries. If there is backlog and scamming in Central Univ BC teaching spots, that must be fixed. No argument. there.
Q7. What do the results show in TN
The 2019 NEET results expose one of the foundation lies of the Dravidians. That non brahmin are somehow inferior in academics. Year after year, I have proven that brilliant students and toppers come from the non-brahmin tamil community. EVen in 2009, 8 of the top 10 rankers are BC. Merit is NOT the preserve of one group. You cannot allow such a patently bogus and casteist stereotype as the cornerstone of your ideology.
Q8. Any solutions for TN ?
This EWS is not an issue for rest of India or even the Dravidian blood states KL/KA/AP. A solution can be a lower 4% and a lower limit of 3L, but see my previous point for the hazard in this.
In Tamilnadu, I feel this is an existential issue to the hardline anti-brahmin elements within the Dravidian group, while the social justice focused types might accede to it. The hardline is always represented by the elite castes who do not have a social justice vision. For these types – conceding the quota has the effect of immunizing against their rhetorics. Of its most vulgar, virulent, and uncompromising elements like Dr Pala Karuppiah. Their speeches will have no sting left. Like rabid canines barking at passing vehicles as they get left behind in the march of civilization.
/jh
Explaining the 93rd Amendment to the BJP
Recently a former social media volunteer and now an office bearer in the BJP govt at the Centre made the following comment in response to my #RTE tweets.
Let us not blame the Congress, the Right to Education Act as passed by the UPA did not exempt minority institutions – the Supreme Court did. So this is the court’s fault and not the Congress partys.
(from Twitter – dont recall exact words)
Another variant of this I’ve seen with very senior BJP members is “Please do not attack RTE on sectarian grounds, the law is not the problem the Constitution of India is” . The same sentiment is also expressed sometimes as “.. that minority thing is a constitutional issue. Lets not go there – lets talk about teacher training instead“.
This mindset is disturbing on many levels and belies an understanding of the issues. Lets take a deeper look at the 93rd Amendment, history of Article 15, and the Right to Education Act.
REUTERS/B Mathur VM/mk
OBC Quota in Central Institutes used to piggyback
Twin issues that appear to be related but arent. The 93rd Amendment and the OBC Quota. Let us see how the Congress government brilliantly intertwined the two.
I have already written an article titled “A Brief History of the 93rd Constitutional Amendment” where I’ve covered some of the landmark Supreme Court judgments that made Hindu educational institutions gain equal legal status as those run by minorities. I want to pick up where I left off. Lets cut to one of the major efforts of the UPA-1 government, one that took 4 years of extreme effort of Congress to accomplish. The 27% Quota for OBC (Other Backward Castes) in Central Educational Institutions like IIT/IIM/AIIMS/HCU etc.
First, as soon as UPA-1 stormed into power they realized that TMA Pai v State of Karnataka (2002) had to be overturned. The final push came in Aug 2005 when the Supreme Court in a 7-judge bench P.A Inamdar & Ors vs State of Maharashtra affirmed the essential parity in Education between Hindus and Minorities.
Secondly, the OBC quota issue was raked up and had the vociferous support of all the parties. Even within the BJP the OBC bloc seems to have supported the quota. Now here is how the two were mixed up. The UPA used the popular sentiment for OBC quota to piggyback the 93rd Amendment. It is not at all clear to me that you even needed an amendment to provide the OBC Quota. To explore this further you need a little bit of info about the Article 15 of our constitution.
History of Article 15.
Article 15 – the simplest of articles in all countries – had the most harrowing journey in India. The simple diktat was “thou shall not discriminate on basis of ..” The original article read like this
15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.-
15 (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
15 (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.15(3) Nothing in this article shall prevent the State from making any special provision for women and children.
No sooner did the constituent assembly finish its job and the British has left our shores, than this article was subject to mutilation. Tamilnadu’s communal quota in college admissions was cancelled by a unanimous decision of the Madras High Court and then a Full 7 judges of the Supreme Court in State of Madras vs Champakam Dorairajan (1951) . Even before the First Lok Sabha had met – Jawaharlal Nehru and others who had participated in the Constitution making just a few months earlier overturned the Supreme Court’s decision and passed the First Amendment.
The First Amendment added a new clause (4) to Article 15 that read.
“15 (4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”.
Most of the states have been providing quotas to OBCs happily under the cover of Article 15(4) even though it does not specifically mention education. There is no reason why the UPA cant provide the OBC quota in Central Educational Institutions under this same non-obstante clause. But this was presented as an imperative and with overwhelming support of the OBC bloc and JDU deserting the NDA at the last minute the 93rd Amendment was passed.
The 93rd Amendment (at that time known as the 104th Constitution Amendment Bill) added a new clause (5) to Article 15 that read.
“15 (5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.”
Pay attention to the emphasized text to deduce the real intention of the 93rd Amendment. It had nothing to do with the OBC quota at all but everything to do with restoring the minority advantage that TMA-Pai and finally P.A Inamdar had leveled out. Specifically :
- The new Art 15(5) was to abrogate Art 19(1)(g) : By this I mean – Art 19(1)(g) (‘right to carry out an occupation’) which was used by TMA Pai to provide parity to Hindus was rendered waste as far as education was concerned.
- Art 30(1) was to be a non-obstante for the new Art 15 (5) : In other words : nothing in Art 15(5) shall apply to minorities involved in education field.
- Art 15(5) singular purpose appears to be to drive a wedge and elevate Art 30(1) “the minority” and completely abrogate Art 19(1)(g) “the non minority”.
After so many years of observing Indian political economy, I now think that the non-Congress parties are simply not intellectually equipped to see through these things. In any event , the 93rd Amendment passes and becomes an “enabling amendment”. So you may ask “what is an enabling amendment ?”. What was it supposed to “enable” ?
It enabled the grand confiscation that was still to come as the Right of Children to Free and Compulsory Education Act 2009. Also known as RTE.
The Enabling Amendment
This is a curious creature I now know is uniquely Indian. Essentially the court strikes down something as ultra vires (outside powers) of the constitution ; then the politicians go and change the constitution itself to give it that elusive power. Now when the amendment itself is challenged the bar is suddenly very high. The court has to use the ill defined “Basic structure” test. ( Side Note : Justice Dalveer Bhandari thought that the 93rd Amendment was against the Basic structure even without the minority exemption. Luckily for UPA he wasnt around the court much longer)
Once again worth repeating what the Enabling Amendment contained and why the court had no role to harmonize :
- Explicitly exempted minorities in the amendment itself. Rather than depend on the court to harmonize with the protection already in Art 30. This ruled out some harmonizing with Art 30 – such as forcing minorities to admit own religion EWS or to force them to use lotteries.
- Explicitly abrogated Art 19(1)(g) protection to Hindus (non minority) in the amendment itself. Rather than depend on the court to harmonize (for example by severing provisions impinging on full refund & autonomy in selection etc).
Now you can say that this was all just a happy co-incidence.
I was also wondering if the Congress really lucked out and that the amendment was phrased by accident. Look at what Manish Tiwari of the Congress wrote recently about the Indira Sawhney judgment
On November 16, 1992, the Supreme Court by a majority of 6:3 upheld 27 per cent reservation for the socially and educationally backward classes (read Other Backward Castes) provided by the V.P. Singh government while striking down the 10 per cent reservation for economically backward sections of society provided by the successor Narasimha Rao government. ..
Why did 10 per cent reservation for the economically backward cutting across communities not covered by the existing quota architecture not find favour with the Supreme Court? For the simple reason that the Rao government was only paying lip service to the cause of economic reservation.
Kesri ensured that despite the amendment to the earlier Office Memorandum, no economic criterion was ever evolved and presented to the Supreme Court and no enabling constitutional amendment was carried out.
Source DC : State of the Union : Regression for Progression by Manish Tiwari
So there you go. The Congress lawyers have been through this. They knew very well from the ill fated econ quota in the Mandal saga that without an enabling amendment the laws were simply going to be struck down.
This was what they used in the Right to Education Act.
RTE Act as passed did not exempt minorities
As passed by the Parliament the Right to Education Act did not exempt minority institutions. But even I could smell the disaster from my little perch in nowhere land [ “RTE how well thought out is this – Dec 2009” ].
UPA-2 HRD Minister Mr Kapil Sibal met a lot of minority community leaders who were protesting the Right to Education Act. I dont know exactly what transpired. In any case, in no time the RTE was challenged in the Supreme Court and the unaided minority schools got exempted from the law in a 2-1 Decision in Society of Unaided Private Schools Rajasthan vs Union of India (Apr 2012) Why?
Because of two things :
- The enabling amendment did not just keep quiet on minorities but explicitly exempted them – it was a foregone conclusion that the court would strike it down for them. Leaving only the Hindus (non minority) wide open
- The court erred in not using the so called “Doctrine of Severability”. In short this doctrine means that if you chop off too much from a given statute – what is left does not make sense (i.e. is an absurd outcome). I guess only lawyers acquainted with the Lutyens and Supreme Court circuit at a very close level can explain why this happened. For an excellent analysis of this read “RTE Analysis : A question of severability“
Further down the road in May 2014 ; a 5-0 decision in Pramati Edu Society vs Union of India further pushed the RTE and exempted even the aided minority schools from the entire provisions of the act. ( See pp 26 of judgment that uses the exemption in enabling amendment to waive the law)
So to cut a long story short : The so called “Enabling Amendment” allowed the government to pass an ostensibly secular Act and the minorities can get out of it on a mere “facial challenge” – i.e. easy work.
If my friend got this far – I am sure he would realize what we are dealing with here. The 93rd Amendment cannot be divorced from RTE. The latter is built on the former.
/ jh
Jat quota issue and the relative backwardness test
About 10 railway stations are burnt, 60 trains stopped, schools, police stations burnt, a private armory looted, curfew in 6 towns in Haryana, 8 dead, police, paramilitary, and Army called in to douse the flames. This is a snapshot of what is happening in the immediate vicinity of the National Capital Territory of Delhi for the past 2 days.
EXPRESS PHOTO BY GAJENDRA YADAV 19 02 2016.
Why is this happening ? A lot of simplistic comment is floating around the internet and in media op-eds. Almost all of them blaming the Jats for indulging in this kind of violence. Some of the commentators frown on the entire quota system and urge the Jats to be magnanimous and not seek the forbidden fruit. They dont realize that the quota system is a central part of the social and political system of organization known as the “Idea of India”. So its kind of odd that you’d call on a large group to sit outside the main political order. In reality, these commentators don’t want to be bothered with analysis of these issues and would wish the problem would go away.
In this post, I will try to go to the root of the problem in as simple a language I can attempt. From a completely different angle. Hopefully at the end of this you will see that the real culprits may not be the Jats at all
Brief history
Here is a brief recap of the Jat quota issue just enough for you to follow the rest of this post. India provides explicit quotas to various groups of communities. The keyword is ‘group’ not ‘communities’. The largest such group is known as OBC – Other Backward Classes. Various discrete communities / castes are included in these groups, they are maintained as “Lists”. These Lists are maintained for each state – called State Lists, and a single list at the central level called a Central List. The idea is that for Central Govt slots (jobs, college seats, scholarships, central police forces, and a host of other opportunities) they would use the Central list and for State Govt slots they would use the State list. Now you may ask – ‘Well that is weird, how can a caste be in one list and not be in the other“. Hold that question for a moment, you will realize even such simple questions cant elicit an answer.
Jats are in the state lists in a number of states like Rajasthan, Haryana, Delhi, UP, Bihar, HP, Uttarakhand and Gujarat. But they were not in the Central list. This meant they could only access the open category central govt slots and not access the large chunk of slots reserved exclusively for those in the Central OBC List. Due to sustained pressure and rioting. The UPA Govt included them in the Central List in March 2014. Not surprisingly, the other castes already in the central list would not have a new competitor and decide to fight the inclusion of Jats. Keep in mind that within each group (SC/ ST/ OBC) there is open competition among all castes in that list. Welfare associations representing the castes already in the Central List took it to the Supreme Court in a case called Ram Singh and Ors vs Union of India. A two judge bench of the Supreme Court struck down the UPA Govts notification and thus denied entry of Jats into the Central List. As things stand now, the quest is to balance the Jat aspirations with the persuasive qualities of the judgment. That is the brief recap of the genesis and current position of the Jat quota. Notice that I have not paid much attention to various govt bodies like NCBC and ICSSR etc. I believe these institutions are supposed to provide a check but the core rationale behind these institutions are missing.
For that you have to go a bit deeper.
Ram Singh & Ors v Union of India (link)
First thing to notice is the name of the case. It is Ram Singh & Ors vs Union of India. This is a PIL case initiated by an umbrella group called the “OBC Reservation Raksha Samiti” presumably the gentleman Ram Singh was one of the petitioners.. The word “Raksha” in Hindi means protection. Protection against outsiders barging in to the group. This case is therefore the result of inside group resisting the outside group. This may not seem important but forms the core of the issue as we will see.
So how does a caste get into the OBC list ? To answer that you have to refine that question. To get into a state OBC list you can petition the state govt and based on various considerations they may or may not grant that status. This is in fact where the major part of political effort is spent behind the scenes. For the procedure to get on to the Central list you have to go back to the 90’s. When reservation in Central Govt jobs was introduced as part of adopting the Mandal Commission recommendations the act was challenged. In an epic case called “Indira Sawhney & Ors vs Union of India“. The court upheld the quota and directed the govt to set up a body to examine claims of inclusion and exclusion. This body came to be known as the NCBC – National Commission for Backward Classes. The idea is that there would be robust tribunal that would scrutinize the entire program and could examine such claims with great authority. That turned out to be a disaster. The NCBC has not excluded a single group from the list nor has published any break up of utilization of each component. The entire exercise has a fatal flaw. The absence of ground rules. The lack of a single process or tests or even principles. The inability to state the conditions for initial entry into the list and whether the same process would apply to new entrants.
On paper, the recommendation of NCBC is supposed to be binding on the govt. But the NCBC itself isnt doing its job because of lack of ground rules. See how everything is linked back to the original anomaly? The entire chain is based on an absurd premise that you can create these compact lists in a nation of thousands of claimants. Most of us can hold our nose at this and pretend that nothing is wrong. Until a dominant and organized group like the Jats decide to challenge this scheme of things. They demand answers, no answers, then they want in by force. If that is what it takes. The Gujjars, the Vanniars, have all shown the way. For those parroting the “Constitutional Method” let me give you the reality check. A constitutional method requires simple ground rules (first principles) that stand alone. It never works when a court seeks to resolve conflicts between two groups. For that you need a conflict. And that is what the Jats are giving you.
Back to the Jat issue. In 2013, the Congress govt asked the NCBC for an opinion they said ‘no way’ without any convincing data. The Govt decided to go ahead and announce the inclusion of Jats anyway. Now this is the state of affairs as the case lands in the lap of a 2-judge bench of Justice Rohinton Nariman and Justice Ranjan Gogoi.
The judgment examines a lot of issues – particularly the powers of NCBC, the method used by ICSSR (the social agency which conducted a study), and some available data. They ruled against inclusion of Jats in the list on the following reasoning.
The perception of a self-proclaimed socially backward class of citizens or even the perception of the “advanced classes” as to the social status of the “less fortunates” cannot continue to be a constitutionally permissible yardstick for determination of backwardness, both in the context of Articles 15(4) and 16(4) of the Constitution. Neither can any longer backwardness be a matter of determination on the basis of mathematical formulae evolved by taking into account social, economic and educational indicators. Determination of backwardness must also cease to be relative; possible wrong inclusions cannot be the basis for further inclusions but the gates would be opened only to permit entry of the most distressed. Any other inclusion would be a serious abdication of the constitutional duty of the State. Judged by the aforesaid standards we must hold that inclusion of the politically organized classes (such as Jats) in the list of backward classes mainly, if not solely, on the basis that on same parameters other groups who have fared better have been so included cannot be affirmed.
pp 55. Ram Singh & Ors vs UOI
Put simply, what the bench is saying is. “The party is over folks, you cant get in merely because others have got in and they may be better positioned than you“. This is akin to pulling up the ladder after a certain number of groups have acquired the ‘inside’ status. Do we really think a large organized community like Jats (or Marathas or Kapus) will accept this line of reasoning ?
The judgment went on to say that it prefers discovery of new backward classes like the Transgenders who cut across castes. This part of the judgment was celebrated in the media. I fail to see why Transgenders should be given any quota. Accommodation yes, quota no.
Equal or separate processes
In my view, the judgment is fatally flawed on the following point “Determination of backwardness must also cease to be relative; possible wrong inclusions cannot be the basis for further inclusions” I would go a step further and state that the protests currently happening in Haryana turn on the moral unacceptability of this logic.
The judgment actually does a remarkable job summarizing the relative positions of Jats, Ahirs, Yadavs, and Kurmis. Reading the initial parts of the judgment you get the feeling like they are finally about to take the bull by the horns.. consider these factoids.
Uttar Pradesh and Uttarakhand, in the enrolment in higher and technical education, Jats lag behind Ahirs/Yadav
26 (out of 90) MLAs belonging to the Jat community and 4 Members of Parliament (out of 15), (Is this a factor ?)
Kurmis have 11.2% in professional education. Share of Jats is only.0.3% that is way below the share of Ahir and Kurmi shares (UP)
Among the Jats, 7.5% households have at least one member who is graduate, which is lower than the Ahir and Charan (RJ)
Jats with composite score of 1.17 are behind Gujars (1.34) and Ahirs (1.22). On net social standing, the composite score of Jats is 17.24, which is significantly lower than the Gujars (27.14) and Ahirs (19.85). On composite economic score, score of Jats is 16.55, lower than Gujars (19.38) but higher than the Ahirs (14.86). (Delhi)
After collating all this relative information, the judgment completely disappoints.The honorable judges dismiss the comparative data completely as of no relevance.
The question framed should not have been whether the proper procedure was followed in declaring Jats backward. Whether the NCBC rejection was binding and surrounding issues.
The question in my view should have been framed as an Article 14 issue – as an ‘equal protection’ case.
14. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
The above sentence is the much mutilated Article 14 (equality) clause in the Indian constitution. Now I fully understand that the Indian constitution has juxtaposed “Idea of India” doctrine as an exception to “Rule of Law“. Remember that the central proposition in Rule of Law is uniform application and that the central feature of Idea of India is to create separate processes for groups.
Even if this is the case, the equal protection clause must guarantee that every community has the same process to get into the exception category. I repeat that – its not that you cant pick out groups for separate treatment but the process used to pick out groups for such treatment must be uniform.
Now turn to the facts of the OBC lists – the Idea of India jurisprudence has split the population into “Inside groups” (those already included in the list) and “Outside groups” those wanting to get into the list. The biggest problem is that those who are already inside did not go through the same process of measurement that the outsiders are being subject to. This is a gigantic anomaly that cant be brushed aside. This is especially important in a ‘game of spoils’ where there is no stigma to call your self anything as long as there are special and exclusive goods to be had.
Once you cast (no pun) the question as one of equal protection – it is clear that the Jats are being asked to come through a very highly fortified front door while there are others who are inside on much looser criteria through the back door. Also the revisions to the lists are not happening even in boundary conditions like Tamilnadu. This only means that inside group members seem to be permanently immune from scrutiny and even quantifiable relative data to outside groups now will not be accepted.
A relative test
My view is exactly 180-degrees from the judgment. The inclusion and exclusion issues must be purely relative. There cannot be any absolute measure of backwardness because remember that within the OBC group there is a pure meritocracy. The “List” ought to be the central subject of all litigation and the main job of the statutory body and the judicial review process is to preserve the integrity of the list. All it should take for Group-A to declare the entire list invalid is to show that there is atleast one Inside Group that is better off than atleast one Outside Group. At the state level, things are totally absurd. I have proved that in Tamilnadu the situation is out of control. There are no students from the open category getting through PG Medical Tamilnadu Seats in top colleges.
It is also important to not expand the domain where the quotas can be asserted. Especially dangerous is local body quota which distorts the entire democratic process itself. Another live wire is sectarian spending such as group wise scholarships, special schools and vocational training only for some groups, special financing, and such like.
Careful of that Pandora’s box
One of the dismaying phenom in India is the following : The establishment try some mad-scientist experiments with the Rule of Law (which evolved in the west as an outcome of centuries of bloodshed) , the experiment doesnt work, so they drop some assumptions and open an entirely new can of worms. In the previous regime, if there were 8 people who could wrap their heads around the issues, when you drop down a level and open a can of worms only 4 can handle it. This has been going on for too long. Now no one seems to have control of the situation. Some new can of worms ready to be opened are.
Can all states be like Tamilnadu ? Declare 90-95% as backward ?
Can all groups (castes/religions) be given a pro-rata allocation ? Remember this was the issue in Champakam Dorairajan vs Union of India that prompted the first amendment. Stunning we want to go back to the Communal G.O in Madras Presidency after 70 years of Independence.
In any invidious law ; the people always measure their impact with respect to other people. If a Jat aspirant loses a bank job, it is someone else who gets it. This is the source of the tension and only a relative test can soothe it.
Truly a crisis situation. Only next to the rot in our education laws.
SG Punalekar vs Union of India – Bombay HC judgment upholding Minority-only scholarships
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.84 OF 2008
1. Sanjiv Gajanan Punalekar,
Indian Adult aged 42 years, a
practicing advocate, residing at
Flat No.25, Malkani Mahal,
261, Annie Besant Road,
Worli, Mumbai-400 030. … Petitioner
Versus
1. Union of India, Ministry of Minority
Affairs, through Department of Law,
Ayakar Bhavan, Mumbai and others.
2. State of Maharashtra
through Government Pleader.
3. Union of India,
Ministry of Human Resources Department,
Shastri Bhawan,
Dr. Rajendra Prasad Marg,
New Delhi-110 001. … Respondents
Mr. Ashish Naik for the petitioner.
Mr. D.J. Khambatta, Additional Solicitor General with Mr. Rui Rodrigues and Mr. Gulam Ankhad and Nirmal R. Prajapati i/by Dr. T.C. Kaushik for respondent No.1.
Mr. D.A.Nalawade, Government Pleader for State. srk 2 wp-84-08-final
ALONGWITH
APPELLATE SIDE
PUBLIC INTEREST LITIGATION NO.254 OF 2009
Smt. Jyotika Wale,
Age 59, Occ. Social Worker,
R/at L/2, 902, Hariganga, Oppo.
RTO, Yerawada, Pune-6. … Petitioner
Versus
1. Union of India, Ministry of Minority
Affairs, New Delhi .
2. The State of Maharashtra,
Through the Secretary,
Department of Education,
Mantralaya, Mumbai,
Copy to be served on A.G.P. High Court,
Appellate Side, P.W.D. Building,
Mumbai-32. … Respondents
Mr. Aniruddha Rajput with Mr.P.G.Chavan and Mr. Mayur Khandeparkar for the petitioner.
Mr. D.J. Khambatta, Additional Solicitor General with Mr. Rui Rodrigues and Mr.Aditya Mehta and Mr. N.R.Prajapati for respondent No.1. Mr. Mayur Khandeparkar with Mr. Gandhar Raikar for applicant in C.A.No.63 of 2011.
Ms. Neha Palshikar-Bhide, `B’ Panel Counsel for State. srk 3 wp-84-08-final
CORAM : MOHIT S. SHAH, C.J. &
D.G. KARNIK, J.
Judgment reserved on 19th April, 2011
Judgment pronounced on 6th June, 2011
JUDGMENT (Per Chief Justice)
Since both these petitions purporting to be PILs raise common issues of law and facts, the petitions were heard together and are being disposed of by this common judgment.
Broad Controversy
2. PIL 84 of 2008 is filed by a practicing advocate who challenges the “Merit-cum-Means Scholarship Scheme for Students of Minority Communities” issued by the Government of India in the Ministry of Minority Affairs on 1st April, 2008 (Exhibit `A’ to the petition) on the ground that it discriminates against students belonging to the majority community only on the ground of religion. The petitioner has prayed that since the scheme is unconstitutional, it be cancelled.
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3. PIL No.254 of 2009 is filed by a person who claims to be intensely interested, and is involved, in issues relating to women and children. The petitioner is the wife of a retired Executive Engineer, Irrigation Department, Uttar Pradesh and hence has been travelling around the State and the places wherever her husband was posted. This petitioner has challenged the “Scheme of Pre-matric Scholarship for Students belonging to Minority Communities” issued by the Government of India in the Ministry of Minority Affairs on 1st April, 2008. The petitioner has prayed for a direction to the Central Government and to the Government of Maharashtra that the scheme may not be limited to students belonging to the minority communities and may be extended to students not belonging to the minority communities. In the alternative, the petitioner has prayed for a declaration that the scheme is unconstitutional.
4. The salient features of the impugned schemes are set out hereafter.
5. The pre-matric scholarship for studies in a Government or private school from class I to class X, is to be given to a student –
i) who is from a minority community as notified under Section 2(c) of the National Commission for Minorities Act, 1992;
ii) who has secured at least 50% marks in the previous final examination; and
iii) whose parents/guardian are having annual income from all sources not exceeding Rs.1 lakh
30% scholarships are earmarked for girl students. srk 5 wp-84-08-final
6. As far as the second scheme is concerned, the main features of the scheme are that the scholarship for pursuing professional degree and/or post- graduate level technical and professional courses, in a recognized institution in India is to be given to a student-
(i) who belongs to a minority community as defined in the above Act (ii) who has secured at least 50% marks in the last examination, (iii) whose parents/guardian are having annual income from all sources not exceeding Rs.2.50 lakhs.
7. Both the schemes are challenged on the ground that the schemes discriminate against the students belonging to the majority community only on the ground of religion and are, therefore, violative of Articles 14 and 15(1) of the Constitution. It is contended that Article 15(4) permits discrimination only in favour of socially and educationally backward classes, Scheduled Castes and Scheduled Tribes; that a religious community cannot be a “class” under Article 15(4) of the Constitution and that all members belonging to a particular religion per se cannot be termed as “a socially and educationally backward class”. The gravamen of the challenge as formulated by the petitioners is that the sole basis being religion, the classification is violative of fundamental rights of students belonging to the majority community. srk 6 wp-84-08-final
Pre-Matric Scholarship Scheme
8. Writ Petition No.254 of 2009 challenges the pre-matric scholarship scheme for School Students which reads as under:- “CENTRALLY SPONSORED SCHEME OF `PRE-MATRIC
SCHOLARSHIP’ FOR STUDENTS BELONGING TO THE
MINORITY COMMUNITIES.
1. BACKGROUND
The Prime Minister’s New 15 Point Programme for the Welfare of Minorities was announced in June, 2006. It provides that a pre-matric scholarship scheme for meritorious students from minority communities would be implemented.
2. OBJECTIVE
The scholarship at pre-matric level will encourage parents from minority communities to send their school going children to school, lighten their financial burden on school education and sustain their efforts to support their children to complete school education. The scheme will form the foundation for their educational attainment and provide a level playing field in the competitive employment arena. Empowerment through education, which is one of the objectives of this scheme, has the potential to lead to upliftment of the socio economic conditions of the minority communities.
3. SCOPE
The scholarship will be awarded for studies in India in a government or private school from class I to class X, including such residential Government institutes and eligible private institutes selected and notified in a transparent manner by the State Government and Union Territory Administration concerned.
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4. ELIGIBILITY
Scholarship will be awarded to the students who have secured not less than 50% marks in the previous final examination and annual income of their parents/guardian from all sources does not exceed Rs.1 lakh.
5. DISTRIBUTION
Muslims, Sikhs, Christians, Buddhists and Zoroastrians (Parsis) have been notified as minority communities under Section 2(c) of the National Commission for Minorities Act, 1992. The distribution of scholarship among the States/Union Territories will be made on the basis of population of minorities in the States/Union Territories on the basis of Census 2001.
6. EARMARKING FOR GIRL STUDENTS
30% of scholarships will be earmarked for girl students. In case sufficient number of eligible girl students are not available, then the balance earmarked scholarships may be awarded to eligible boy students.
7. SELECTION
As the number of scholarships for minorities available in a year is fixed and limited it is necessary to lay down preference for selection. Inter-se selection weightage is to be given to poverty rather than marks. In case of the renewal applications, such applications would be fully exhausted before the new applications are considered.
8. DURATION
The scholarships will be provided for the entire course. Maintenance allowance will be given for 10 months only in an academic year.
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9. RATE OF SCHOLARSHIP
Actual financial assistance will be provided for admission/tuition fee and maintenance allowance as given below subject to a maximum ceiling indicated against item concerned:
S.No. Item Hosteller* Day Scholars 1 Admission fee from Rs.500 p.a. Rs.500/- p.a. class VI to X subject to subject to actuals. actuals.
2 Tuition fee from Rs.350/- p.m. Rs.350/- p.m. class VI to X subject to subject to actuals. actuals.
3 Maintenance
allowance will be
payable for a period
not exceeding 10
months in an
academic year.
(i) Class I to V Nil Rs.100/- p.m. (ii) Class VI to X Rs.600/- p.m. Rs.100/- p.m. subject to
actuals.
* Hostellers include students who are staying in hostel of the school/institute concerned or those provided by the State Government/Union Territory Administration concerned.
10. IMPLEMENTING AGENCIES;
The scheme will be implemented through the State Government/Union Territory administration.
(Emphasis supplied)
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11. CONDITIONS FOR SCHOLARSHIP: (Important conditions)
(i) Scholarship will be available to the students of minority community studying in Classes I to X. The continuance of award will be subject to securing 50% marks in the previous examination. Maintenance allowance will be provided to hostellers and day scholars.
(ii) The award will be discontinued if a student fails to secure 50% marks in the annual examination except in case of unavoidable reasons to be certified by the Principal/competent authority of the school and recommended by the State Government/Union Territory Administration.
(iii) Scholarship will not be given to more than two students from a family. (iv) Students should be regular in attendance for which the yardstick will be decided by the competent authority of the school. (v) Income certified should be on self-certification basis by way of affidavit on non-judicial stamp paper of self-employed parents/guardian and from employer for employed parents/guardian.
(viii) If a student violates school discipline or any other terms and conditions of the scholarship, scholarship may be suspended or cancelled. The State Government/Union Territory Administration can also directly cancel the award if duly satisfied of the reasons of violation of these regulations governing the scheme.
(x) The State Government/Union Territory Administration will lay down the detailed procedure for processing and sanctioning of scholarship to eligible students.
(xiv) The student obtaining benefits under this scheme shall not be allowed to avail of benefits under any other scheme for this purpose. (xv) A student shall be eligible for only one scholarship for all sources, i.e. SC/ST/OBC.”
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Scholarship Scheme for Professional/Technical Courses
9. The other scheme which is challenged in PIL No.84 of 2008 (Merit- cum-Means Scholarship Scheme for Minority Communities Students) is to provide financial assistance to the poor and meritorious students belonging to the minority communities to enable them to pursue professional and technical courses from recognized institutions in India. Every year, 20,000 scholarships will be distributed among the students of minority communities throughout the country. Based on the state-wise population of these communities, in the State of Maharashtra, out of the total 20,000 scholarships to be given in the entire country, the scholarships to be given to the minority communities are as under:-
Name of community Total number Total number of of
total scholarship scholarships
in in
the Country Maharashtra
Muslims 14585 1084 Christians 2540 112 Sikhs 2028 23 Buddhists 840 617 Parsis 7 4 20000 2040
The features of this scheme are as under:-
(i) Students who get admission to a college to pursue technical/professional courses on the basis of a competitive examination will be eligible to the scholarship. (ii) Students who get admission in technical/professional courses without facing any competitive examination will also be eligible for scholarship. However, such students should have not less than 50% srk 11 wp-84-08- final
marks at higher secondary/graduation level. Selection of these students will be done strictly on merit basis. (iii) Continuation of the scholarship in subsequent years will depend on successful completion of the course during the preceding year. (iv) A scholarship holder under this scheme will not avail any other scholarship/stipend for pursuing the course.
(vi) The annual income of the beneficiary/parent or guardian of beneficiary should not exceed Rs.2.50 lakh from all sources. The rate of scholarship is as under:
Sr.No. Type of Financial Rate for hostler Rate for Day Scholar Assistance
1. Maintenance Allowance Rs.10,000/- per Rs.5,000/- per annum (For 10 months only) annum(Rs.1000 p.m.) (Rs.500 p.m.)
2. Course Fee* Rs.20,000/- per Rs.20,000/- per annum or annum or Actual Actual whichever is less whichever is less
Total Rs.30,000/- Rs.25,000/- * Full course fee will be reimbursed for eligible institutions listed at Annexure-III.
Annexure III is the list of 50 such eligible institutions. The scheme is to be implemented by the State Government which will receive 100% central assistance from the Government of India for the total expenditure under the scheme.
10. As indicated earlier, the gravamen of the challenge to both the schemes is that they are discriminatory against the students of majority community and are based solely on religion and, therefore, violate the fundamental rights of the majority community students under Articles 14, 15(1) and the Schemes are not authorized Article 15(4) of the Constitution. srk 12 wp-84-08- final
Government Reply
11. The Government of India in the Ministry of Minority Affairs has filed affidavit through its Under Secretary on 20th July, 2010 mainly raising the following defences:
I. The main thrust of the Eleventh Five Year Plan (2007-12) is for inclusive growth. The plan states that a major weakness in the economy is the growth not perceived as being sufficiently inclusive for many groups especially Scheduled Castes, Scheduled Tribes and minorities.
II. The impugned Schemes are part of Prime Minister’s New 15 Point Programme for Welfare of Minorities for which announcement was made by the President in his address to the Joint Session of Parliament on February 25, 2005 and by the Prime Minister on the occasion of Independent Day, 2005.
(i) The target group of the programme consists of the eligible sections among the five communities notified as minority communities vide a notification dated 23.10.1993, issued under the provisions of Section 2(c) of the National Commission for Minorities Act, 1992 viz. Muslims, Christians, Sikhs, Buddhists and Zoroastrains (Parsis).
(ii) The objectives of the new 15 Point Programme are as follows:-
(a) Enhancing opportunities for education.
(b) Ensuring an equitable share for minorities in economic activities and employment, through existing and new schemes, enhanced credit support for self-employment, and recruitment to State and Central Government jobs.
(c) Improving the conditions of living of minorities by ensuring an appropriate share for them in infrastructure development schemes.
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(d) Prevention and control of communal disharmony and violence.
(iii) An important aim of the new 15 Point Programme is to ensure that the benefits of various government schemes for the underprivileged reach the disadvantaged sections of the minority communities. The underprivileged among the minorities are, of course, included in the target groups of various government schemes, but in order to ensure that the benefits of these schemes flow equitably to minorities, the new programme envisages location of a certain proportion of development projects in minority concentration areas. It also provides that, wherever possible, 15% of targets and outlays under various schemes should be earmarked for minorities.
III. A High Level Committee (popularly known as “the Sachar Committee”), was constituted to prepare a report on the “Social Economic and Educational Status of the Muslim Community in India” vide notification dated 9th March, 2005. The Committee submitted its report on 17th November, 2006. The Sachar Committee Report brought out the development deficit among Muslims and suggested policy interventions.
IV The merit-cum-means based scholarships scheme for minority community students, which are impugned in the present PILs, in effect, translate the aforestated policy of the Government reflected through the said New 15 Point Programme for the Welfare of Minorities, the decisions of the Government on the recommendations of the Sachar Committee and the thrust of the Eleventh Five Year Plan for inclusive growth. The said scholarships are offered to meritorious students from the underprivileged and disadvantaged category of students amongst the minority communities notified by the Central Government so as to enable them to pursue school education and thereafter professional and technical courses. These scholarships are intended to address the deprivation suffered by the economically, socially and educationally backward sections of all the five notified minorities. The Union of India is duty bound to foster inclusive growth and mainstream these groups, communities etc. lagging behind. No special favour is being srk 14 wp-84-08- final
bestowed on them. Without a programme of affirmative action the gap exiting today cannot be bridged. The scholarships are legal, constitutional and in the public interest. The scholarships are in conformity with the Directive Principles of State policy set out in the Constitution.
V. For the students of other communities placed in similar situations Government has implemented similar schemes being operated by different Ministries/Institutions. For graduate and post graduate studies undertaken by college and university students National Merit Scholarship Scheme run by the Ministry of Human Resource Development, is annexed as Exhibit `F’. Similarly, University Grants Commission, which is funded by the Government of India, has introduced a number of Junior Research Fellowships in Engineering and technology, apart from Junior Research Fellowships in Sciences, Humanities and Social Sciences, which are open to all the eligible candidates from every community. Similarly, Post Doctoral Fellowships in Science, Engineering and Technology have also been instituted by the UGC; apart from Dr. S. Radhakrishnan Post Doctoral Fellowships of 500 slots in Humanities/social Science/Languages. Furthermore, Post Graduate merit scholarships for University rank holders at under graduate level is also in place over and above the said fellowships and scholarships schemes, a provision for P.G. Scholarships to GATE qualified students has also been made.”
(emphasis supplied)
The Government affidavit also gives details of the other pre-matric scholarship and post-matric scholarship for Scheduled Castes, Scheduled Tribes, OBCs and for girl students.
VI) Finally, it is submitted that these very schemes were challenged in a PIL before Gujarat High Court (Special Civil Application No. 2245 of 2008) which came to be dismissed by a Division Bench of Gujarat High Court by judgment dated 20th March, 2009. srk 15 wp-84-08- final
Petitioners’ contentions
12. At the hearing of these petitions, the learned counsel for the petitioners and for the intervenor mainly raised the following contentions:
i) Students belonging to majority community whose parents earn less than Rs.1 lakh/ 2.5 lakhs are discriminated against vis-à-vis the similarly placed students belonging to minority communities. Hence, there is violation of Article 14 of the Constitution.
ii) Article 15(1) prohibits the State from making any discrimination on the basis of religion.
iii) Though clause (4) of Article 15 permits the State to make any special provision for advancement of any socially and educationally backward class of citizens or for the Scheduled Castes and Scheduled Tribes, and clause (3) of the same Article permits the State to make any special provision for women and children, no such special provision can be made in favour of any particular religious community. Religion cannot be the sole criterion for declaring a group of citizens to be a class. Strong reliance is placed on the decisions of the Apex Court in Indira Sawhney v. Union of India, 1992 Supp (3) SCC 217 (para 8), Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1 (para 146), Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1 srk 16 wp-84-08- final
(para 328) and M.R. Balaji v. State of Mysore, AIR 1963 SC 649 (para 21).
iv) To identify a class and to declare it to be socially and educationally backward under Article 15(4), the income, caste/religion and traditional occupational test has to be applied. The respondents have admittedly applied only the twin test of religion and economic criteria. The economic criteria test was rejected by the makers of the Constitution (paras 483 and 484 of Indira Sawhney v. Union of India (supra).
v) Efforts to declare the entire muslim community as backward class has been struck down in the past by the Supreme Court in M.R. Balaji v. State of Mysore, AIR 1963 SC 649 (para 28), Triloki Nath Tiku v. State of J&k, AIR 1969 SC 1 (para 3,6) and State of U.P. v. Pradip Tandon (1975) 1 SCC 267 (paras 20,25,29,37). Strong reliance is also placed on the judgment of five Judge Bench of Andhra Pradesh High Court in Archana Rdddy v. State of Andhra Pradesh, (2005)6 ALT 364 and also on the judgment of seven Judge Bench of the same High Court in T. Murlidhar Rao v. State of Andhra Pradesh, ………………….. srk 17 wp-84-08- final
Respondents’ submissions
13. On the other hand, Mr. Khambatta, learned Additional Solicitor General made the following submissions :-
i) The impugned schemes are based on permissible classification and constitute affirmative action under Articles 14 and 15(1) of the Constitution. They are constitutional even without reference to Article 15(4) of the Constitution.
ii) The burden of proof to impugn a classification under Articles 14 and 15(1) or 16(1) rests on the petitioner;
iii) Minorities/religious communities as specified in the National Commission for Minorities Act, 1992 constitute separate classes.
iv) Article 14 of the Constitution itself recognizes the constitutionality of treating each religion as a separate class. State of Bombay v. Narasu Appa Mali, AIR 1952 Bombay, 84 approved by the Supreme Court in Javed and others v. State of Haryana and others, AIR 2003 SC 3057.
v) Recently, in Praful Goradia v. Union of India 2011(2) SCC 568, the Supreme Court considered constitutional challenge to the grant of subsidy to Muslims who are going to Haj pilgrimage and turned down the challenge which was levelled on the basis of Articles 14, 15 and 27 of the Constitution.
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vi) The provisional amount of direct and indirect taxes collected by Central Government during the financial year 2010-2011 was Rs. 7,72,265 crores. The total education cess collected by the Union Government in respect of direct and indirect taxes during the financial year 2010-2011 (provisional and only up to February 2011) was Rs.28,885 crores, including
a) Primary education cess on direct taxes of Rs.6,080 crores;
b) Secondary and higher education cess on direct taxes of Rs.3,070 crores;
Only a minuscule of total tax revenue or education cess is spent for the impugned scholarship schemes for the advancement of minority groups. Hence, there is no violation of fundamental rights.
vii) The Central Government has also spent Rs.49,356 crores on education including Rs.33,954 crores for school education and literacy and Rs.15,402 crores on higher education. As against the above sums spent on the entire educational system in the country i.e. for all communities in the country, the total expenditure incurred on these two schemes in the year 2010-2011 was only Rs.675 crores out of which- (a) Rs.446 crores (rounded off) on the pre-matric scholarship and
(b) Rs.228 crores (rounded off) on the Merit-cum-Means scholarship for higher studies.
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(viii) Students of other communities in similar situation have the benefit of similar schemes implemented by the Government which are open to all communities. The submission is made on behalf of the Central Government to indicate that it was unable to procure the information regarding the amounts spent by the Central Government on all the scholarship schemes that are applicable to the students belonging to all the communities, other than the amount of Rs.107.99 crores on one particular scholarship scheme for college and university students for the financial year 2010-2011.
(ix) The factors taken into account by the scholarship schemes satisfy the requirements of law. The schemes are reasonable, not discriminatory and constitute best form of effective affirmative action. The scholarships are granted on the basis of a number of factors including academic merit, poverty, gender, minority status and state wise population distribution. Religion is not the only factor determinative of eligibility and instead, eligibility is determined based on a combination of all the factors. Hence, the class identified is based on all these factors and not on the basis of religion alone. Unlike cases of reservations for admission to institutions, there is no impact on students of the other communities.
(x) Alternatively Article 15(4) permits special provisions to be made for socially and educationally backward classes. srk 20 wp-84-08- final
Strong reliance is placed on the Sachar Committee report indicating social and educational backwardness of the Muslim community. The petitioners have not denied the averments made in para 15 of the affidavit-in-reply dated 20th July, 2010 of the Union of India in PIL No.84 of 2008 which indicates that the classes covered by the schemes are socially and educationally backward. (Reliance is placed on P. Rajendra v. State of Madras, AIR 1968 SC 1012 (Para 8).
xi) For judicial review of administrative action in such matters, the standard of strict scrutiny and suspect classification tests of the United States are not applicable in India (Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1 (para 209).
xii) Reliance is also placed on the judgment of Gujarat High Court in Vijay Harishchandra Patel v. Union of India dated 20th March, 2009.
DISCUSSION
14. At the outset, we may refer to the provisions of the National Commission for Minorities Act, 1992 which defines “Minority” for the purpose of Act as community notified as such by the Central Government. There is no dispute about the fact that the following five communities are notified as minority communities; there is also no dispute about the percentage of the minority population as under:-
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Hindus – 81.89%
a) Muslims – 13.40%
b) Christians – 2.00%
c) Sikhs – 1.90%
d) Buddhists – 0.80%
e) Parsis- negligible less than 0.01%)
Sachar Committee Report
15. We may now refer to the Report of the High Level Committee headed by Justice Rajender Sachar which was appointed by the Government of India (Prime Minister’s office) notification dated 9th March, 2005 to prepare a report on the social, economic and educational status of Muslim community in India. The terms of reference of the Committee were as under:- “(a) Obtain relevant information from department/agencies of the Central & State Governments and also conduct an intensive literature survey to identify published data, articles and research on relative social, economic and educational status of Muslims in India at the State, regional and district levels, to address, inter alia, the following questions:-
(i) In which States, Regions, Districts and Blocks do Muslims of India mostly live?
(ii) What is the geographical pattern of their economic activity, i.e. what do they mostly do for a living in various States, Regions and District?
(iii) What is their asset base & income levels relative to other groups across various States and Regions?
(iv) What is the level of their socio-economic development in terms of relevant indicators such as literacy rate, dropout srk 22 wp-84-08- final
rate, MMR, IMR etc? How does this compare with other communities in various States?
(v) What is their relative share in public & private sector employment? Does it vary across States and what is the pattern of such variation? Is the share in employment in proportion to their population in various States? If not, what are the hurdles?
(vi) What is the proportion of Other Backward Classes (OBCs) from the Muslim community in the total OBC population in various States? Are the Muslims OBCs listed in the comprehensive list of OBCs prepared by the National and State Backward Classes Commissions and adopted by the Central and State Governments for reservations for various purposes? What is the share of Muslim OBCs in the total public sector employment for OBCs in the Center and in various States in various years?
(vii) Does the Muslim community have adequate access to education & health services, municipal infrastructure, bank credit & other services provided by Government/public sector entities? How does this compare to access enjoyed by other communities in various States? What is the level of social infrastructure (Schools, health centers, ICDS centers etc.) located in areas of Muslim concentration in comparison to the general level of such infrastructure in various States?
(b) Consolidate, collate and analyse the above information/literature to identify areas of intervention by Government to address relevant issues relating to the social, economic and educational status of the Muslims community.”
(emphasis supplied)
16. We may now refer to the relevant findings given by the Sachar Committee in their Report dated 17th November, 2006. srk 23 wp-84-08- final
Muslim OBCs are not included in the state and central list of OBCs:
Though the State and Central Governments provide for reservation for OBCs, many Muslim OBCs have been excluded from the list of OBCs and therefore do not benefit from the incentives given to OBCs. Those Muslim OBCs which have been included in the lists of OBCs have been clubbed with middle castes of the majority community which have taken away all the benefits of representations in public employment or in educational institutes. Over the years this has resulted in a situation where the educational, economic and employment status of Muslim OBCs is much worse than that of Hindu OBCs and the non OBC Muslims, (Report – pages 200 to 216)
17. Sachar Committee highlights a number of reasons why the Muslim Community in India is socially and educationally backward. Those reasons and also the particulars of educational status of Muslims are as under:- i) Ghetoism
Fearing for their security, Muslims increasingly resort to living in ghettos across the country, especially in the communally sensitive towns and cities. By living together in concentrated pockets, Muslims have been neglected by municipal authorities and facilities such as water, sanitation, electricity, schools, hospitals, banks, ration shops and public transport are in short supply in these areas. Ghetoism therefore has an adverse effect on the social and educational status of Muslims (Sachar Committee Report – page 14)
ii) Identity related concerns:
Muslims carry the double burden of being labelled as “anti-national’ and as being “appeased” at the same time. This has a depressing effect on their psyche. This identity crisis combined with the apparent lack of commitment on the part of the Government often results in a perverse response even to well intended programmes. (Report- pages 11-13 and 25)
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iii) Security :
Communal tensions or any untoward incident in any part of the country is enough to make Muslims fear for their safety and security. The government inaction in bringing to book the perpetrators of communal violence has been a sore point. The lack of adequate Muslim presence in the police force accentuates this problem. (Report – pages 13-14)
iv) Poor Accessess to Schools (discussed in the subsequent paragraphs)
v) Non-availability of Urdu:
The non-availability of the Urdu language in schools is one of the reasons for the low educational status of Muslims. (Report – pages 78 and 79)
vi) Employment and economic conditions of Muslims:
a) Self employment is the main source of income of Muslims. (Report- page 136)
b) The share of workers engaged in street vending (especially without any fixed location) is highest amongst Muslims (Report- page 96)
c) The participation of Muslims is relatively lower in professional, technical, clerical and managerial work (Report- page 103)
d) Many Muslims are engaged in the unorganised sector of the economy and are worst affected by liberalisation. (Report- page 21)
e) The participation of Muslims in regular salaried jobs in much less than that of other socio-religious groups (Report – page 92)
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f) About 38% of Muslims in urban areas and 27% in rural areas live below the poverty line. (Report- page 176)
g) Muslim women are overwhelmingly self-employed in part due to discrimination in formal employment and also due to lack of education and technical skills. This results in low income levels amongst Muslim women and their seclusion from the rest of the community. (Report- page 22)
18. Educational Status of Muslims (Sachar Committee Report Chapter 4)
Muslims lag behind most other communities both at the school level as well as at the graduation/post-graduation level. Muslims have not been able to reap the benefits of planning and have gradually slipped further and further behind other socio-religious groups. (Report pages 15,84 and 85)
The following are a few important figures regarding the literacy and educational status of Muslims:
a) The literacy rate among Muslims is 59.1% which is below the national average of 65.1%. – (Report- page 52.
b) Muslim urban literacy levels are lower than all other socio- religious categories except SC/STs among both genders. (Report- page 53)
c) 25% of Muslim children between the ages of 6 to 14 years have either never attended school or have dropped out (Report – page 58)
d) The majority of Muslim children fail in their matriculation examination or drop out before that. (Report – page 244-245)
e) Less than 4% of Muslims are graduates or diploma holders compared to about 7% of the population aged 20 years and above. (Report – page 64)
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f) Only 1 out of every 25 students enrolled in Undergraduate courses is a Muslim and only 1 out of every 50 students in post-graduate courses is a Muslim (Report – page 68).
g) Muslims constitute only 1.3% of students studying in all courses in all IIMs in India and in absolute number, they were only 63 from out of 4743 (Report Page 68)
h) Muslim parents are not averse to modern or mainstream education for their children and do not necessarily prefer to send their children to madarsas.(Report – page 85)
19. The following analysis in Chapter 4 of the Report of this High Level Committee headed by Justice Sachar gives further insight into reasons for low levels of education in the Muslim community.
“4.1 Low Levels of Education (Report pages 15-16)
As mentioned earlier, education is an area of grave concern for the Muslim Community. The popular perception that religious conservatism among Muslims is a major factor for not accessing education is incorrect. The recognition of their educational backwardness is quite acute amongst a large section of Indian Muslims and they wish to rectify it urgently. There is a significant internal debate about how this should be done. Private minority institutions and Madarsas are seen as the only option available to the community for improving the educational status of the Muslim community. However, others find these to be questionable alternatives pursued by the State neglecting its own responsibility. Relying predominantly on Madarsa and denominational institutions for improving the educational status of Muslims was also seen by some as violating the spirit of the Constitution.
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Poverty- the Main Cause of Low levels of Education
High dropout rates among Muslim students are worrisome. As with many Indians, the main reason for educational backwardness of Muslims is abject poverty due to which children are forced to drop out after the first few classes. This is particularly true for Muslim girls. Little children are expected to provide for their families by working in karkhanas (small workshops), as domestic help or by looking after their siblings while their mothers go to work. It was felt that the incidence of child labour was much higher among Muslims as compared to other SRCs. Poor and illiterate parents cannot afford tuition for their children; nor can they provide the necessary support system at home which has become so essential a part of today’s educational system. The opportunity costs involved in sending children to school is also too high, making it difficult for parents to do so.
Low Perceived Returns from Education
Moreover, a community-specific factor for low educational achievement is that Muslims do not see education as necessarily translating into formal employment. The low representation of Muslims in public or private sector employment and the perception of discrimination in securing salaried jobs make them attach less importance to formal `secular’ education in comparison to other SRCs. At the same time the Community, especially the educated Muslim middle class, finds itself frustrated and alienated because of the lack of presence and opportunities in administrative, policy and political spaces.
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Poor Access to Schools
Many complained that only a few good quality schools, especially Government schools, are found in Muslim areas. The teacher pupil ratio is also high in these schools. This forces Muslim children to go to private schools, if they can afford to, or else to drop out. Schools beyond the primary level are few in Muslim localities. Exclusive girls’ schools are fewer, and are usually at a distance from Muslim localities. This has its repercussions because after any incident of communal violence parents pull out their girls from school fearing their security. Lack of hostel facilities is another limiting factor, especially for girls. This problem gets compounded by the fact that people are unwilling to give rooms on rent to Muslim students. In any case, spending on separate residential facilities, in the absence of hostels, is a great financial burden on Muslim families as rents for accommodation are very high.
School-based Factors
Government schools that do exist in Muslim neighbourhoods are merely centres of low quality education for the poor and marginalized. The poor quality of teaching, learning, absentee teachers, in turn, necessitate high cost inputs like private tuitions, particularly in the case of first generation learners from the Muslim community. This has a negative impact on retention and school completion. Thus, poverty again has a causal link with access to education among Muslims.”
(emphasis supplied)
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20. All that the petitioners have submitted in their written submissions against the Sachar Committee Report is as under:- (i) As per the report 41% Muslims are already availing benefits as OBC. (page 6, Sachar Committee Report).
(ii) According to the report there is insufficient data to know the situation of Muslims and additional data has to be collected. (page 26, Sachar Committee Report).
(iii) Muslims are far better as compared to Scheduled Castes and Scheduled Tribes. (page 53, Sachar Committee Report).
(iv) The Report is not based on data collected by the Sachar Committee but based on data collected by NSSO, 2001 (page 5-6. 51 Sachar Committee Report). The Committee has arrived to the conclusion of backwardness of Muslims by comparing their educational percentage with the national average of education. This national average includes the percentage of Christians, Parsis, Sikhs and Buddhists. These minorities whose percentage of education is included to find out national average has consequentially raised the national average since all these minorities are educationally highly advanced. The conclusions of Sachar Committee are based on skewed arithmetical computation.
(v) According to the NSSO, 2001 data, on which Sachar Committee relies, it is the majority which is lagging behind in education. The statistics show that majority are less educated than minorities in many states and union territories.
21. As far as the above objections are concerned, in the first place, it needs to be noted that the Central Government had relied on the Sachar Committee Report in the affidavit-in-reply which was filed as far back as in July, 2010 specifically indicating that the Sachar Committee Report had brought out the development deficit among Muslims and suggested policy interventions. The srk 30 wp-84-08- final
petitioners did not file any affidavit-in-rejoinder controverting the averments made in para 15 of the affidavit-in-reply that the classes covered by the scheme are socially and educationally backward. We, therefore, find considerable substance in the submission of Mr. Khambatta, learned Additional Solicitor General that the petitioners cannot now be permitted to challenge the findings of Sachar Committee. The decision of the Apex Court in P. Rajendran v. State of Madras, AIR 1968 SC 1012 (Para 8) supports such a submission.
Secondly, the contention that Muslims are better as compared to scheduled castes and scheduled tribes does not necessarily mean that Muslims are not a weaker section of the society.
Even if some of the Muslims are recognized as OBCs, the Sachar Committee was at pains to point out that those Muslim OBCs which have been included in the list of OBC have been clubbed with the middle castes of majority community which have taken away the benefits of representations in public employment and educational institutions and that, therefore, over the years, this has resulted in a situation where the educational, economic and employment status of Muslims OBCs is much worse than that of Hindu OBCs and non-OBC Muslims (Sachar Committee Report pages 202-216).
22. Apart from the above, the petitioners have challenged the impugned schemes by invoking the principles of strict scrutiny test and suspect legislation. Under the strict scrutiny test applied in the United States, an affirmative action by the State would only survive if the courts find compelling evidence that proves without doubt that the affirmative action is narrowly srk 31 wp-84-08- final
tailored and serves only the most compelling of interests. In other words, the affirmative action based on suspect classification may only be used after all other methods have been considered and found to be deficient.
23. However, in Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1 (para 209), the Supreme Court has not accepted the above test and has laid down the following principles:-
“209. The aforesaid principles applied by the Supreme Court of the United States of America cannot be applied directly to India as the gamut of affirmative action in India is fully supported by constitutional provisions and we have not applied the principles of “strict scrutiny” and “suspect legislation” and we have been following the doctrine that every legislation passed by Parliament is presumed to be constitutionally valid unless otherwise proved. We have repeatedly held that the American decisions are not strictly applicable to us and the very same principles of strict scrutiny and suspect legislation were sought to be applied and this Court rejected the same in Saurabh Chaudri v. Union of India. Speaking for the Bench, V.N. Khare, C.J., said : 2003(11) SCC 146.
“36. The strict scrutiny test or the intermediate scrutiny test applicable in the United States of America as argued by Shri Salve cannot be applied in this case. Such a test is not applied in Indian courts. In any event, such a test may be applied in a case where a legislation ex facie is found to be unreasonable. Such a test may also be applied in a case where by reason of a statute the life and liberty of a citizen is put in jeopardy. This Court since its inception apart from a few cases where the legislation was found to be ex facie wholly unreasonable proceeded on the doctrine that constitutionality of a statute is to be presumed and the burden to prove contra is on him who asserts the same.” srk 32 wp-84-08- final
24. Just as there is a presumption that every legislation passed by Parliament is constitutionally valid, unless otherwise proved, there is a presumption that a Governmental action is reasonable and in public interest and it is for the party challenging its validity to show that it is wanting in reasonableness and was not informed with public interest. This burden is a heavy one and it has to be discharged to the satisfaction of the Court by proper and adequate material. The Court cannot lightly assume that the action taken by the government is unreasonable or without public interest because there are a large number of policy considerations which must necessarily weigh with the government in taking action and therefore, the Court would not strike down governmental action as invalid on this ground, unless it is clearly satisfied that the action is unreasonable or not in public interest. (Kasturi Lal LakshmiReddy v. State of J and K, (1980) 4 SCC 1, Para 14).
25. In view of the above authoritative pronouncements of the Supreme Court, it is clear that in absence of any material placed by the petitioners, this Court must proceed with a presumption in favour of the impugned Schemes that they are constitutionally valid. Even otherwise, the findings given in the Report of the High Level Committee headed by Justice Sachar, and particularly the facts and figures highlighted hereinabove and, the reasons for the social and educational backwardness of the Muslim community in India, fully justify the impugned affirmative action taken by the Government of India. srk 33 wp-84-08- final
Affirmative Action under Article 15(1) or Article 15(4)
26. Before proceeding further, we must first deal with the petitioners’ contention that Article 15(4) is a proviso or exception to Article 15(1) and that the impugned schemes are a special provision as contemplated by clause (4) of Article 15. Strong reliance is placed on M.R. Balaji v. State of Mysore, AIR 1963 SC 649. It is vehemently contended that the special provision is made for Muslims, because they are Muslims. Similarly, special provision is made for other minorities only because of their religion.
27. Articles 14, 15 and 16 are part of a string of constitutionally guaranteed rights that together form a comprehensive scheme to ensure equality in all spheres. While Article 14 lays down the broad doctrine of equality, Articles 15 and 16 apply this doctrine to sensitive areas that are historically and socially important. The decision of the Supreme Court in M.R.Balaji v. State of Mysore, AIR 1963 SC 649 strongly relied upon by the learned counsel for the petitioners in support of the contention that Article 15(4) has to be read as a proviso or exception to Article 15(1) has been overruled by the decision of the Apex Court in State of Kerala v. N.M. Thomas (AIR 1976 SC 490), Indira Sawhney v. Union of India, 1992 Supp (3) SCC 217 (paras 741, 742 and 168) and Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1 (para 146).
Articles 15(4) and 16(4) are not exceptions to Articles 15(1) and 16(1) in the sense that classification can be made even apart from Articles 15(4) and 16(4).
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28. Articles 14 and 15(1) of the Constitution permit reasonable classification, that is, classification between two classes of people treated differently, must be based upon intelligible differentia and the differentia must have rational nexus with the object sought to be achieved. Clause (4) of Article 15 would come in, when, and only when, a special provision is made for the benefit of one class at the cost of, or to the detriment of, another class. For instance, reservations for admissions to educational institutions or reservations in public employment would fall under Articles 15(4), 15(5), 16(4) and 16(5) respectively.
When a specified number of seats in professional courses like in medical colleges or engineering colleges are reserved for students belonging to particular categories like Scheduled Castes (7%) and Scheduled Tribes (14%), the other students are necessarily excluded from consideration for admission to such reserved seats and, therefore, there is direct adverse impact on students of other communities. Such reservations can, therefore, be justified only under Articles 15(4), 15(5), 16(4) and 16(5).
29. However, the impugned schemes are quite different from reservations for admissions to educational institutions or reservations in public employment.
The impugned schemes do not take away any benefits already being availed of by students belonging to the majority community or any other community. In other words, there is no adverse impact on the majority community because of the impugned schemes.
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30. It has come on record that the Government of India spent Rs.33,954 crores for school education and literacy for all the communities in the just concluded year i.e. 2010-2011. Out of this outlay, only Rs.446 crores (rounded off) was spent on pre-matric scholarships to students of minority communities (i.e. 1.3% only ). Similarly, out of Rs.15,402 crores spent by the Government of India on higher education in the year 2010-2011, only Rs.229 crores (rounded off) was spent by the Central Government on the merit-cum-means scholarships given to the students of minority communities for higher studies in professional and technical courses (i.e. only 1.5%) as against 18% population of the minority communities. Thus, the impugned scholarships/schemes do not adversely affect the students of the majority community.
31. The fact that for an overwhelming majority of students, whether belonging to the majority community or to minority communities, both school education and higher education is substantially subsidized, is not disputed. Hence, the substantial portion of the outlay of Rs.33,954 crores for school education plus Rs.15402 crores on higher education has gone to the majority community having population of 81.89% (rounded off to 82%). It is not even the petitioners’ case that the benefit obtained by the majority community students from total outlay of Rs.49,356 crores on education is less than 82% and in these proceedings, we are not required to embark upon an inquiry whether the benefits of these outlays have gone to the majority community to the extent of 83%, 85%, 90% or 95%.
In other words, when in 2010-11, the Central Government has spent Rs. 48,671 crores on education for all communities including the majority srk 36 wp-84-08- final
community with 82% population, and the benefits of these outlays have not trickled down to a substantial number of a minority community like Muslims with 13.40% population in the country, the petitioners are obviously not in a position to assert that expenditure of Rs.675 crores on the impugned scholarship schemes (1.4% of the total outlays on education) on all minority communities in the entire country with 18% of the total population has made any adverse impact on majority community students.
32. In Prafull Goradia v. Union of India, 2011 (2) SCC, 568, the challenge raised by the petitioner was noticed as under :- “3. The grievance of the petitioner is that he is a Hindu but he has to pay direct and indirect taxes, part of whose proceeds go for the purpose of the Haj pilgrimage, which is only done by Muslims. For the Haj, the Indian Government inter alia grants a subsidy in the airfare of the pilgrims.”
The petitioner contended that his fundamental rights under Articles 14, 15 and 27 were violated.
The challenge on the basis of Article 27 was that, no person shall be compelled to pay any taxes, the proceeds of which are to be spent for the promotion or maintenance of any particular religion. In the context of this challenge, the Supreme Court has laid down the following principles :- “8. In our opinion Article 27 would be violated if a substantial part of the entire income tax collected in India, or a substantial part of the entire central excise or the customs duties or sales tax, or a substantial part of any other tax collected in India, were to be utilised for promotion or maintenance of any particular religion or religious denomination. In other words, suppose 25% of the entire income tax collected in India was utilised for promoting or maintaining any particular religion or srk 37 wp-84-08- final
religious denomination, that, in our opinion, would be violative of Article 27 of the Constitution.
10. In our opinion, if only a relatively small part of any tax collected is utilised for providing some conveniences or facilities or concessions to any religious denomination, that would not be violative of Article 27 of the Constitution. It is only when a substantial part of the tax is utilised for any particular religion that Article 27 would be violated.
11. …………………….
12. In our opinion, we must not be too rigid in these matters, and must give some free play to the joints of the State machinery. A balanced view has to be taken here, and we cannot say that even if one paisa of government money is spent for a particular religion, there will be violation of Article 27.”
(emphasis supplied)
Paragraph 14 in the above judgment further indicates that the Apex Court turned down the challenge on the basis of Articles 14 and 15 as well, in the following words:-
“14. Hence, in our opinion, there is no violation of Article 27 of the Constitution. There is also no violation of Articles 14 and 15 because facilities are also given, and expenditures incurred, by the Central and State Governments in India for other religions. Thus there is no discrimination.”
33. As has been pointed out by the Government of India through the written submissions, when the students of majority community are getting benefit of highly subsidized school education as well as higher education for which the Central Government provided total sum of Rs.49,356 crores and the total amount spent on both the impugned schemes in the year 2010-2011 was only srk 38 wp-84-08- final
Rs.675 crores i.e. less than 1.4%, it can hardly be said that students of the majority community are discriminated against. In view of this, we have not considered it necessary to wait for figures of the scholarships which were given by the Central Government and the State Government in the year 2010-2011 to all students, irrespective of the community to which they belonged. Some such scholarships are already referred to in the affidavit dated 20th July, 2010 on behalf of the Government of India as indicated in para 11 (V) hereinabove.
34. As indicated above, the schemes of scholarships to students belonging to the minority communities cannot be compared with reservation of seats in educational institutions or reservations in public employment. The impugned scholarship schemes must, therefore, be held to be covered by classification permissible under Articles 14 and 15(1) and not falling under Article 15(4) of the Constitution.
35. It is, however, vehemently contended on behalf of the petitioners that Article 15(1) prohibits the State from making any discrimination on the basis of religion and, therefore, the impugned schemes cannot stand the test of constitutional validity.
36. What Article 15(1) prohibits is discrimination only on the ground of religion, race, caste, sex, place of birth. Under the impugned schemes, the scholarships are granted on the basis of a number of factors including academic merit, poverty, gender, minority status and statewise population srk 39 wp-84-08- final
distribution and thus religion is not the only factor determinative of eligibility. Eligibility is determined based on a combination of all these factors.
37. A bare perusal of the Report of the High Level Committee headed by Justice Sachar clearly indicates that low level of social and educational backwardness of the Muslim community is not attributable only to poverty or only to religion. Ghettoisation, identity related concerns, security concerns etc. are social barriers peculiar to the Muslim community and not to the other poor strata of the society belonging to the majority community. Hence, when a meritorious but poor Muslim student is given a pre-matric scholarship for school education and a post matric scholarship for a professional or technical course, he does not get it merely because he is a Muslim, but because he has to face the social barriers indicated above, which the majority community students belonging to poor strata do not have to face. The very fact that out of every 25 students in under-graduate courses, only one is a Muslim, that out of every 50 students in post-graduate courses, only one is a Muslim and that out of every 100 students in IIMs, only one is a Muslim, substantiates in ample measure the Government submission that the benefits of various Government schemes for the underprivileged have not reached the disadvantaged sections of the minority communities.
38. In other words, as highlighted by Mr. Khambatta, learned Additional Solicitor General, some of the reasons for social and educational backwardness of minorities, most of whom belong to the poor strata of society, are unique to the minority communities. Majority community students, even belonging to the poor strata of society, do not have to face those social barriers like srk 40 wp-84-08- final
ghettoisation, identity related concerns and security concerns which are already indicated in paras 16 and 19 hereinabove. The differentia that poor students belonging to minority communities face social barriers which poor students belonging to the majority community do not have to face, is therefore, an intelligible differentia.
39. We, therefore, find considerable substance in the submission of Mr. Khambatta, learned Additional Solicitor General that when the main thrust of Eleventh Five Year Plan is for inclusive growth and when Article 46 of the Constitution requires the State, interalia, to promote with special care the educational and economic interests of the weaker sections of people, the above differentia have a rational nexus with the object of achieving inclusive growth.
40. In U.P. State Electricity Board and another v. Hari Shankar Jain and others, AIR 1979 SC 65, the Supreme Court has held that since the Directive Principles of State Policy are fundamental in the governance of the country, Article 37 also enjoins upon the Court to keep these principles in mind while interpreting laws. The findings in Report of the High Level Committee headed by Justice Sachar certainly support the stand of the Central Government that the Muslim community is a weaker section of people in India. Hence, the impugned scholarship schemes are made in the process of implementing the Directive Principle embodied in Article 46 of the Constitution.
41. In view of the above discussion, we do not find any fault with either of the impugned schemes, on the touchstones of Articles 14, 15(1), 15(4) and 27 of the Constitution.
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42. In view of the above finding that the impugned scholarship schemes giving incentives only, are based on reasonable clarification supported by Articles 14 and 15(1), and in view of our finding that since the impugned schemes do not have any adverse impact on the other communities and, therefore, Article 15(4) does not come into play, we find it unnecessary to give any finding on the petitioners’ contention that minority communities per se cannot be treated as socially and educationally backward classes falling under Article 15(4) of the Constitution nor do we think it necessary to discuss various judgments cited by the learned counsel on either side on the contentions arising from Article 15(4) of the Constitution which are now pending consideration before the Supreme Court in the appeals arising from the judgments of the Andhra Pradesh High Court rendered by a five Judge Bench and by a Seven Judge Bench on the question of reservations for a minority community.
43. We also find no merit in the petitioners’ contention that minority status should be decided at State level (and not at the national level). The judgments relied upon by the learned Counsel for the petitioners dealt with such a contention –
(i) in the context of district-wise reservations under Article 15(4) and the Supreme Court held that such reservation could not have been provided by the State at the district level; or
(ii) in the context of Article 30, where determination of a linguistic minority can only be done on a State by State basis, rather than on the basis of the country as a whole because States have been divided on linguistic lines.
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In the present case, since we have found that the impugned schemes merely provide for incentives under Article 15(1) to meritorious poor students of communities specified as minorities under the National Commission for Minorities Act, 1992, no further discussion is necessary.
44. The learned counsel for the petitioners would, however, submit that though there is some material in the form of Sachar Committee Report, it is only in respect of Muslims and that, no material is placed on record regarding the other minority communities. It is also contended on the basis of NSSO Data 2001 that at the national level the percentage of education of Christians, Sikhs and Buddhist is higher than the majority.
45. The contention deserves to be rejected for more than one reason. The percentage of population of the communities is as under:- Community Percentage
Hindus 81.89%
Muslims 13.40%
Christians 2.00%
Sikhs 1.90%
Buddhists 0.80%
Parsis less than 0.01%
When so much material in the form of Sachar Committee Report covers 74% of the minority population, the Government schemes cannot be struck down for absence of material on record for the remaining minority population, more particularly when the Court can take judicial notice of the fact that a large number of Buddhists and Christians in this country are those who converted themselves from Scheduled srk 43 wp-84-08- final
Castes or Scheduled Tribes to Buddhism or Christianity. Their social and educational backwardness and the social barriers they face cannot be lost sight of merely because of their conversion to minority religions. Moreover, the economic criterion by way of income limit of Rs.1 lakh (for pre matric scholarships) and Rs. 2.50 lakhs (for scholarships for higher studies) ensures that the benefits are available only to the deprived sections of these minority communities.
46. As regards Sikhs and Parsis, the learned counsel for the petitioners submitted that most of them are affluent and that there is no reason to consider these communities as socially and educationally backward classes, or needing any scholarship schemes.
47. The number of scholarships offered will indicate how negligible is the number of such scholarships given to other minority communities, being Sikhs and Parsis.
Name of community Total number of
scholarships
in
Maharashtra
(i) Muslims 1084 (ii) Buddhists 617 (iii) Christians 112 (iv) Sikhs 23 (v) Parsis 4 2040
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48. Even if there is substance in the petitioners’ contention, those few sikhs and parsis who belong to poor strata of society must be finding it all the more socially traumatic to suffer from serious economic handicaps when their affluent brethren are able to afford schooling in premier schools and higher education in Ivy League institutions. The number of graduate/post-graduate scholarships offered to Sikhs in the entire State of Maharashtra is only 23 out of 2040 and such scholarships offered to Parsis in the entire State of Maharashtra is only 4 out of 2040. In fact, the number of scholarships offered to Parsis in the entire country is 7 (seven) out of total 20,000 merit cum means scholarships for all minorities.
49. Looking to the above figures also, we would have been justified in closing the debate on alleged arbitrariness in making the scholarship schemes available to minority communities other than the Muslim community. But we would not like to rest our conclusions on the logic of numbers only, because the impugned schemes also deserve to be upheld on the basis of “UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities” that was promulgated by United Nations in 1992. The relevant portion of the Preamble to the said Declaration and Articles 4(5) and 5(1) of the Declaration read as under:-
“Considering that the promotion and protection of the rights of persons belonging to national or ethnic, religious and linguistic minorities contribute to the political and social stability of States in which they live.
Emphasizing that the constant promotion and realization of the rights of persons belonging to national or ethnic, religious and linguistic minorities, as an integral part of the development of society as a whole srk 45 wp-84-08- final
and within a democratic framework based on the rule of law, would contribute to the strengthening of friendship and cooperation among peoples and States.”
Article 4(5) – “States should consider appropriate measures so that persons belonging to minorities may participate fully in the economic progress and development in their country.”
Article 5(1) – “National policies and programmes shall be planned and implemented with due regard for the legitimate interests of persons belonging to minorities.”
50. The view that we are taking is also supported by the decision of Gujarat High Court in Vijay Harischandra Patel v. The Union of India and another (Special Civil Application No.2245 of 2008 decided on 20th March, 2009). The Division Bench of Gujarat High Court speaking through Hon’ble Chief Justice Mr. K.S. Radhakrishnan, (as His Lordship then was), examined interalia, the same scholarship schemes which are challenged in the present petitions. The Court held as under:-
“We are, therefore, of the considered view that the funds used to minimise inequalities among minority communities by adopting various social and welfare activities like public safety, health, slum development, improvising the deficiencies in civic amenities, economic opportunities, improving standard of education, skill and entrepreneurship development, employment opportunities, eradication of poverty etc., would no way violate the constitutional principles of equality or affect any of the fundamental rights guaranteed to the members of the other communities.”
(emphasis supplied)
51. We are in complete agreement with the aforesaid view of the Division Bench of Gujarat High Court and we have no hesitation in holding that the srk 46 wp-84-08- final
impugned scholarship schemes for students of minority communities whose parents/guardians income does not exceed Rs.1 lakh (for pre-matric scholarship) or Rs.2.50 lakh (for professional/technical education) and who are required to obtain at least 50% marks in the previous examination are constitutionally valid and do not suffer from any infirmity under Articles 14, 15(1), 15(4) and 27 of the Constitution.
52. It was lastly contended on behalf of the petitioners that even if the scheme is constitutionally valid, it may be directed to be extended to all the communities.
53. The learned Solicitor General has invited our attention to the affidavit in reply indicating various scholarships available to students of all communities. Apart from that, there is nothing to prevent the State from extending the list of beneficiaries under any scheme, as and when the economic resources of the State permit such extension, but the incentives granted to meritorious poor students of the minority communities cannot be faulted with.
54. As per the settled legal position, the State can implement reforms or extend benefits in stages. In Javed and others v. State of Haryana and others, AIR 2003 SC 3057 (Para 17), the Supreme Court has enunciated the following principle:-
“17. The implementation of policy decision in a phased manner is suggestive neither of arbitrariness nor of discrimination. In Lalit srk 47 wp-84-08- final
Narayan Mishra Institute of Economic Development and Social Change, Patna etc. v. State of Bihar and others, (1988) 2 SCC 433, the policy of nationalizing educational institutes was sought to be implemented in a phased manner. This Court held that all the institutions cannot be taken over at a time and merely because the beginning was made with one institute, it could not complain that it was singled out and, therefore, Article 14 was violated. Observations of this Court in Pannalal Bansilal Pitti and others v. State of A.P. and another, (1996) 2 SCC 498, are apposite. In a pluralist society like India, people having faiths in different religions, different beliefs and tenets, have peculiar problems of their own. “A uniform law, though is highly desirable, enactment thereof in one go perhaps may be counter-productive to unity and integrity of the nation. In a democracy governed by rule of law, gradual progressive change and order should be brought about. Making law or amendment to a law is a slow process and the legislature attempts to remedy where the need is felt most acute. It would, therefore, be inexpedient and incorrect to think that all laws have to be made uniformly applicable to all people in one go. The mischief or defect which is most acute can be remedied by process of law at stages.”
55. In view of the above discussion, the petitions are dismissed.
56. We place on record our appreciation for the valuable assistance rendered by Mr. Aniruddha Rajput, learned counsel for the petitioner, Mr. D.J. Khambatta, learned Additional Solicitor General with Mr. Rui Rodrigues, learned counsel for the Union of India and Mr. Khandeparkar for the Intervenor.
CHIEF JUSTICE
D.G. KARNIK, J.
Copy : Mukund Kumar Srivastav vs UP – promotion
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
(Reserved)
Writ Petition No. 1389 (S/B) of 2007
Prem Kumar Singh and others versus State of U.P. and others
Connected with
2. Writ Petition No. 673 (S/B) of 2009
Ram Shabd Jaiswara versus State of U.P. and others
3. Writ Petition No. 1050 (S/B) of 2010
Arvind Sen and others versus State of U.P. and others
4. Writ Petition No. 224 (S/B) of 2010
Arun Kumar Gaur and others versus State of U.P. and others
5. Writ Petition No. 489 (S/B) of 2008
Udai Bhan Pandey and others versus State of U.P. and others
6. Writ Petition No. 492 (S/B) of 2008
Rajendra Prasad Singh and others versus State of U.P. and another
7. Writ Petition No. 1422 (S/B) of 2010
Chandra Mohan versus State of U.P. and others
8. Writ Petition No. 1461 (S/B) of 2010
Dr. Ravindra Pratap Singh versus State of U.P. and others
9. Writ Petition No. 1833 (S/B) of 2008
Om Prakash Singhal and another versus U.P.Jal Nigam and others
10. Writ Petition No. 1600 (S/B) of 2010
Girja Shankar Katiyar versus State of U.P. and others
11. Writ Petition No. 1595 (S/B) of 2010
Mahesh Chandra Awasthi and others versus State of U.P. and others
12. Writ Petition No. 2899 (S/S) of 2010
Ajai Singh and others versus State of U.P. and others
13. Writ Petition No. 1363 (S/B) of 2009
Dr. Jai Nath Singh and others versus State of U.P. and others
14. Writ Petition No. 100 (S/B) of 2010
Smt. Vibha Chopra and others versus State of U.P. and others
15. Writ Petition No. 1850 (S/B) of 2009
Anjul Gangwar and another versus State of U.P. and others
16. Writ Petition No. 603 (S/S) of 2010
Ashok Kumar Singh and others versus State of U.P. and others
17. Writ Petition No. 1725 (S/S) of 2010
Bhagwan Singh Pokharia versus The State of U.P. and others
18. Writ Petition No. 294 (S/S) of 2009
Bal Mukund Srivastava and others versus State of U.P. and others
19. Writ Petition No. 564 (S/S) of 2010
Ram Ji Tripathi and others versus State of U.P. and others
20. Writ Petition No. 3436 (S/S) of 2009
Vinod Kumar Dixit and others versus State of U.P. and others
21. Writ Petition No.4005 (S/S) of 2009
Krishna Kumar Misra and others versus State of U.P. and others
22. Writ Petition No. 706 (S/B) of 2010
Satya Ram Chaudhri versus State of U.P. and others
23. Writ Petition No. 731(S/B) of 2010
Dr. Prema Pandey and others versus State of U.P. and others
24. Writ Petition No. 744 (S/B) of 2010
Sharad Kumar Saxena and others versus State of U.P. and others
25. Writ Petition No. 938 (S/B) of 2010
Om Prakash Singh and others versus State of U.P. and others
26. Writ Petition No. 62 (S/B) of 2009
Prabhu Narain Srivastava and others versus State of U.P. and others
27. Writ Petition No. 63 (S/B) of 2009
Shri Krishna Mishra and others versus State of U.P. and others
28. Writ Petition No. 344 (S/B) of 2009
Randhir Singh and others versus State of U.P. and others
29. Writ Petition No. 393 (S/B) of 2009
Dr. Sultan Ahmad and others versus State of U.P. and others
30. Writ Petition No. 543 (S/B) of 2009
Ishtdeo Shukla and others versus State of U.P. and others
31. Writ Petition No. 1496 (S/B) of 2007
Radha Krishna Gaur and others versus State of U.P. and others
32. Writ Petition No. 963 (S/B) of 2008
Anoop Kumar Saxena and another versus State of U.P. and others
33. Writ Petition No. 1466 (S/B) of 2008
Akhil Kumar Mittal and others versus State of U.P. and others
34. Writ Petition No. 146 (S/B) of 2009
Rajesh Kumar and others versus State of U.P. and others
35. Writ Petition No. 1220 (S/B) of 2009
Kailash Chandra Sharma and another versus State of U.P. and others
36. Writ Petition No. 1749 (S/B) of 2009
Pranvendra Kumar Rao versus State of U.P. and others
37. Writ Petition No. 1109 (S/B) of 2009
Suresh Singh Yadav versus State of U.P. and others
38. Writ Petition No. 33(S/B) of 2010
Puttu Lal versus State of U.P. and others
39. Writ Petition No. 1180 (S/B) of 2008
Ajit Kumar Jain and another versus State of U.P. and others
40. Writ Petition No. 81 (S/B) of 2008
Rajendra Kumar Agrawal and others versus State of U.P. and others
41. Writ Petition No. 638 (S/B) of 2008
Girja Shankar Katiyar versus State of U.P. and others
42. Writ Petition No. 1579 (S/B) of 2007
Dr. Raj Kishore and others versus State of U.P. and others
43. Writ Petition No. 76 (S/B) of 2008
Mukesh Gautam and others versus State of U.P. and others
44. Writ Petition No. 217 (S/B) of 2008
Rajendra Kumar Srivastava and others versus State of U.P. and others
45. Writ Petition No. 221 (S/B) of 2008
Narendra Kumar Kanodia versus The State of U.P. and others
46. Writ Petition No. 1606 (S/B) of 2007
Rajendra Prasad Mishra and others versus State of U.P. and others
47. Writ Petition No. 1384 (S/B) of 2008
Anoop Kumar Saxena and others versus State of U.P. and others
And
48. Writ Petition No. 1824 (S/B) of 2008
Pramod Kumar Pandey versus State of U.P. and others
For the petitioners: S/Sri S.K.Kalia, Senior Advocate, Dr. L.P.Misra, Rajan Roy, Samir Kalia, K.S.Pawar, Ramesh Pandey, Sandeep Dixit, P.K.Srivastava, B.K.Yadav, Pankaj Gupta, Upendra Nath Misra, Sharad Bhatnagar, Ashutosh Singh, Shishir Jain, Farid Ahmad, Umesh Chandra Pandey, S.M.Royekwar, Amit Bose, N.K.Pandey, B.K.Singh, Sudeep Seth, Rajesh Tiwari, Vikas Budhwar, Arvind Kumar, S.C.Shukla, Alok Mathur, Deepak Seth and Vivek Raj Singh.
For the respondents: S/Sri R.N.Trivedi, Senior Advocate, P.N.
Gupta, C.S.C, Mahesh Chandra, K.S.Pawar, Manish Kumar, Brijesh Kumar Jatav, S.C.Yadav, Sanchit S.Asthana, Anand Swaroop Rai, I.P.Singh, P.N.Gupta,
Hon’ble Pradeep Kant, J.
Hon’ble Ritu Raj Awasthi, J.
(Delivered by Hon’ble Pradeep Kant, J.)
This bunch consists of writ petitions relating to the Government servants of Group A, Group B and Group C services in various Government departments of the State, like Vidhan Sabha, Civil Secretariat, Irrigation, Rural Engineering, Agriculture, Statistics, Drugs Control, Consolidation, Education, Medical and Health, Veterinary, Soil Conservation, Fire Service and Public Works Department, etc. and writ petitions relating to corporations, like U.P. Jal Nigam and U.P. Power Corporation Limited, etc.
All the writ petitions raise common challenge to the Uttar Pradesh Government Servants Seniority (Third Amendment) Rules, 2007 and in particular Rule 8-A and similar provisions in the service rules of the Corporations and other departments.
The writ petitions have made a challenge to the aforesaid Rule and also to Section 3(7) of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 as ultra vires Articles 14, 16(4-A) and 335 of the Constitution of India, with a further prayer that the respondents be directed not to provide reservation in the matter of promotion in concerned departments of the Government of U.P. and not to give effect to Rule 8-A aforesaid.
The petitioners also challenge the Government Order dated 17.10.2007, issued for implementing the provisions of Rule 8-A while determining the seniority of the members of service.
Rules 4 and 5, with their proviso of the U.P. Promotion by Selection (on Posts outside the Purview of the Public Service Commission) Eligibility List Rules, 1986, as amended in 1995 and 2001, hereinafter referred to as the Eligibility List Rules, 1986, are also under challenge.
The petitioners are also aggrieved by the Rules of preparation of separate eligibility list for scheduled castes and scheduled tribes for promotion to the posts, for which the criterion of promotion is ‘merit’, under the Eligibility List Rules, 1986, as amended from time to time and the inclusion of scheduled castes and scheduled tribes officers, in the Eligibility List for promotion to the higher post, in the absence of any vacancy in the reserved quota, against the general vacancy, by giving them accelerated seniority.
The writ petitions relating to corporations also raise the same challenge but with an additional ground that merely on issuance of the Government Order, the corporations have amended their Rules without application of mind and without even making an attempt or effort to find out the necessity of framing such a rule.
The main thrust of the challenge in all the writ petitions is that the State Government, grossly in violation of the constitutional provisions, the limitations provided therein and mandate of the Supreme Court in the case of ‘M. Nagraj and others versus Union of India and others’, reported in (2006) 8 SCC 212, has framed rules (Rule 8-A) providing consequential seniority with accelerated promotion. The corporations have likewise adopted the same by amending their rules. On the same plea, they also challenge the very rule of reservation in promotion i.e. Section 3(7) of the Act, 1994 urging that neither at the time of enacting the said provision, nor at any point of time thereafter, any exercise has been done by the State Government as per the constitutional requirement prescribed in Article 16(4-A).
The sheet-anchor argument of the petitioners is that the case of M.Nagraj (supra) upholds the constitutional validity of Articles 16(4-A) and 16(4-B), declaring it to be an enabling provision for reservation in promotion with accelerated seniority. But this does not mean that the State Government was allowed to frame rules of reservation in promotion with or without consequential seniority with respect to scheduled castes and scheduled tribes persons without undertaking the exercise, as detailed in and provided in the said judgment.
Corollary to the aforesaid argument is that the State Government though is empowered to make rules, but neither it is obligatory on it to make such a rule nor such a rule can be framed unless the conditions as enumerated in the judgment of M.Nagraj are found to exist, as the constitutional provisions neither confer any vested right upon the scheduled castes and scheduled tribes persons to seek reservation in promotion, nor to have accelerated seniority; nor at the same time, the State Government can extend them the aforesaid benefit in service without forming an opinion after collecting quantifiable data so as to establish the backwardness of the class and that there is inadequate representation of members of scheduled castes and scheduled tribes in any class or classes of posts in the services under the State. While making such a rule, the command of Article 335 of the Constitution can also not be ignored.
The argument, therefore, is that the State Government, under misconception, or so to say, on misreading of the judgment of the Apex Court in the case of M.Nagraj and without understanding the racio decidendi of the judgment and the principles laid therein, which pronounces the constitutional limitations prescribed in Article 16(4-A), has framed the rules, ignoring the directives of the Supreme Court, on mere assumption that the aforesaid enabling provisions of the Constitution confer power upon them to make a rule for reservation of SCs/STs in promotion and accelerated seniority without any further exercise.
The State Government, in response, has broadly submitted that there was no need to undertake any exercise for finding the quantifiable data to provide reservation in promotion to the members belonging to scheduled castes and scheduled tribes, as the fact that scheduled castes and scheduled tribes indisputably belong to backward classes of citizens and their backwardness not only stands established, but is also clear on the face of it, which does not require any further determination. The creamy layer concept which has been rejected by the Supreme Court in the case of Ashok Thakur versus State of Punjab, (2008) 6 SCC 1, cannot be made applicable to the scheduled castes and scheduled tribes for the purposes of reservation in promotion or for accelerated seniority and that the statements of objects and reasons of the Constitution 77th and 85th Amendments themselves speak that the aforesaid classes has not yet reached the desired equal level to that of the general category persons and, therefore, in the opinion of the State Government, such reserved category requires reservation in promotion and also accelerated seniority, which is nothing but an affirmative action.
Further submission of the respondents is that 21% reservation has been provided to scheduled castes and 2% for scheduled tribes in services and that in view of the chart given by the State Government in the counter affidavit, it is clear that the said target could not be achieved as yet.
In answer to the petitioners’ plea that such reservation in promotion and accelerated seniority will undoubtedly prejudice the accrued right of seniority of general category candidates for consideration of their promotion and would also affect efficiency in administration, of which Article 335 takes care and that it will cause reverse discrimination, it has been submitted by the respondents that the quantifiable data was not required to be collected for the reason aforesaid and if the quota of reserved category remains short, then there cannot be a plea of reverse discrimination, nor giving reservation in promotion in such a situation with accelerated seniority can be said to be in any manner arbitrary, discriminatory or violative of Articles 14 and 16 of the Constitution. Clarifying the aforesaid argument, it has been submitted that granting reservation in promotion with accelerated seniority without compromising with the efficiency in administration is positive and affirmative action for bringing up the members of scheduled castes and scheduled tribes to the equal level to that of general category and while doing so, if some advantage is given to the members of scheduled castes and scheduled tribes category, that in no way takes away any vested right of the general category.
In addition to the aforesaid pleas, several other pleas have also been raised from both the sides, which we would refer to, at appropriate places of this judgment, but before we proceed to decide the validity of the challenge made and the defence put, we find it expedient to respond to the foremost plea of the respondents that the aforesaid Rule 8-A of the U.P. Government Servants Seniority Rules, 1991, hereinafter referred to as the Rules, 1991, was challenged before a Division Bench (Hon’ble Sheo Kumar Singh and Hon’ble Sabhajeet Yadav, JJ) at Allahabad in Writ Petition No. 63127 of 2010 in re: Mukund Kumar Srivastava versus State of U.P. and another, which writ petition has been dismissed upholding the validity of the aforesaid Rule 8-A, therefore, this Court is bound by the said judgment passed by a Bench of equal strength and hence all these petitions need be dismissed only on this ground.
Learned counsel for the petitioners, refuting the aforesaid plea, urged that the said judgment of this Court at Allahabad is per incuriam and further, for the following reasons, it cannot be taken as a binding precedent.
(i)The said writ petition by Mukund Kumar Srivastava was filed on 21.10.2010 and was summarily dismissed on that very date. Summary dismissal of the writ petition cannot create a valid binding precedent.
The Division Bench did not find it necessary to ask the State Government whether they have complied with the directives issued in the case of M. Nagraj, for which neither time was granted to seek instructions to the learned Chief Standing Counsel nor to file a counter affidavit.
The learned Bench upheld the validity of Rule 8-A only on being satisfied that the validity of the constitutional provisions of Article 16(4-A) has been upheld by the Supreme Court and, therefore, any rule framed thereunder has the legal sanctity of the aforesaid constitutional provisions.
(ii)The writ petition challenging the vires of the rules ought not to have been dismissed summarily, particularly when it was brought to the notice of the Court that similar issue is being heard finally at Lucknow Bench, wherein an interim order of stay confirmed by the Apex Court by a reasoned order is in vogue.
(iii)In the body of the writ petition (pleadings), no foundation was laid for challenging the rule (Rule 8-A), wherein the final seniority list dated 8.9.2010 appearing in the Rural Engineering Service Department for Executive Engineers was challenged and a prayer was also made for declaring Rule 8-A as ultra vires and unconstitutional.
The writ petition nowhere made any challenge to the aforesaid rule but for the aforesaid challenge of the seniority list.
(iv)The aforesaid rule has also been held to be valid without addressing on the issue of quantifiable data, regarding backwardness of the class, its inadequate representation in any class or classes of posts in the services under the State and the effect on efficiency in administration, in the absence of which no rule could have been framed and could be sustained in law, for which a positive mandate/directive was issued by the Supreme Court in the case of M. Nagraj which in no uncertain terms restricted the power of the State Government to make any such rule without undertaking the required exercise.
(v)There was neither any challenge to the rule of reservation, namely, Section 3(7) of the Act, 1994 nor to the Eligibility List Rules, 1986 as amended in 1995 and 2001.
Sequel to the aforesaid argument is that the aforesaid judgment of this Court at Allahabad has been rendered in the teeth of the judgment of the Apex Court in M.Nagraj case without testing the rule on parameters laid down by the Supreme Court and without adjudicating upon the issue as to whether the exercise laid down therein was undertaken by the State Government before making the Rule and the conditions engrossed in the constitutional provisions of Article 16(4-A) did exist.
We have gone through the contents of the writ petition filed by Sri Mukund Kumar Srivastava and also the judgment rendered by the Division Bench at Allahabad. The petitioner therein challenged the seniority list of Executive Engineers in Rural Engineering Service Department of Government of U.P. published on 8.9.2010. This seniority list appeared to have been made by applying Rule 8-A. It, therefore, cannot be disputed that the petitioner though may have been aggrieved by the seniority list for many more reasons, but one of the reasons was the application of Rule 8-A while preparing the seniority list. Accepting the plea of the State, for the argument sake, that when the petitioner had challenged the seniority list, which was prepared by applying Rule 8-A, it cannot be said that there was no challenge to Rule 8-A, still it can very well be seen as to whether any challenge was made to Rule 8-A in the said writ petition.
A person might be aggrieved because of the applicability of Rule 8-A as it has lowered down his position in the seniority, but if he does not challenge the said rule and does not lay any foundation for such a challenge, it cannot be said that the said challenge was directly in issue between the parties in the said writ petition. At the most, since there was a prayer made for declaring the said rule ultra vires and unconstitutional, it can be said that the Court could have looked into the aforesaid prayer, but in the absence of any challenge or grounds of challenge, it cannot be said that there was any challenge to the aforesaid rule though the petitioner might have wished that the said rule be declared as ultra vires and unconstitutional because it had affected him adversely.
A prayer for declaring the Rule invalid, without making any challenge to the Rule, obviously would have resulted into the dismissal of the writ petition, as the Court was not required to adjudicate upon the validity of the Rule in view of the pleadings in the writ petitions.
Be that as it may, once the Court addressed itself on the issue of the validity of the aforesaid rule, the same was to be considered in the light of the judgment of the Apex Court in the case of M.Nagraj (supra). For adjudicating upon such an issue, the State Government either should have filed a counter affidavit or have placed all the relevant material before the Court, to show that the Rule impugned was framed on the conditions being present for which due exercise was done. But this was not done.
The Division Bench did proceed with the matter apparently in the light of the judgment aforesaid, but did not address itself on the directives issued by the Supreme Court nor did consider the fulfillment of the constitutional mandate and limitations prescribed thereunder. Merely because the constitutional validity of Article 16 (4-A) was upheld by the Apex Court, it would not automatically give power to the State Government to make the rule without taking recourse to the exercise which was imperatively necessary for the purpose in terms of the mandate of the judgment in M. Nagraj (supra).
Learned Judges after reproducing various paragraphs of the case of M. Nagraj (supra) and feeling themselves to be bound by the judgment of the Apex Court in the said case held as under:
“26. ……. We are of the considered opinion that Rule 8A of 1991 Rules has merely effectuated the provisions contained under Article 16 (4A) of the Constitution of India whereby benefit of consequential seniority has been given to the members of scheduled castes and scheduled tribes due to reservation/roaster in promotion by obliterating the concept of catch-up Rule of seniority. Rule 8A of 1991 Rules specifically stipulates that if any member of scheduled castes or scheduled tribes is promoted on any post or grade in service earlier to other categories of persons, the members of SC/ST shall be treated to be senior to such other categories of persons who are promoted subsequently after promotion of members of SC/ST, despite any thing contained in Rules 6, 7 and 8 of 1991 Rules. In our view, Rule 8A of 1991 Rules has constitutional sanctity of Article 16 (4A) of the Constitution and cannot be found faulty merely on account of violation of judicially evolved concept of catch-up rule of seniority which has been specifically obliterated by Article 16 (4A) of the Constitution. Likewise the said rule can also not be held to be unconstitutional or invalid on account of obliteration of any other judicially evolved principle of seniority or any other contrary rules of seniority existing under Rules 6, 7 and 8 of 1991 Rules, as Rule 8A of 1991 Rules opens with non-obstante clause with overriding effect upon Rules 6, 7 and 8 of 1991 Rules, therefore, we do not find any justification to strike down the provisions contained under Rule 8-A of 1991 Rules on the said ground and on any of the grounds mentioned in the writ petition.”
In para 27 of the judgment, the Division Bench further observed as under:
“In this connection, we make it clear that deletion of said concept of catch-up Rule of seniority and addition of consequential seniority due to reservation in promotion on any post or grade in service are applicable to the member of scheduled castes and scheduled tribes only, whereas inter- se seniority of other categories employees shall continue to be determined according to their existing seniority rules as contemplated by the provisions of Rules 6, 7 and 8 of 1991 Rules, subject to aforestated limitations. Thus the concept of catch-up Rule of Seniority stands obliterated only to the extent of giving benefit of consequential seniority to the members of scheduled castes and schedule tribes on account of their promotion on any post or grade in service due to reservation, therefore, the scope of obliteration of concept of catch-up rule is limited to that extent. In this view of the matter the petitioner is not entitled to get the relief sought for in the writ petition questioning the validity of said Rule 8A of 1991 Rules. Thus we uphold the validity of said Rules and the question formulated by us is answered accordingly.”
The aforesaid reasoning given by the Division Bench at Allahabad nowhere shows that the Court did at all apply its mind to the requirements propounded by the Apex Court in M.Nagraj case (supra) while framing a rule for reservation in promotion with accelerated seniority. The Court never adverted on the question as to whether the State Government had collected any quantifiable data, nor addressed itself to the backwardness of the class, adequate representation, efficiency of administration (Article 335) and reverse discrimination. The Court also did not consider, that reservation in promotion with consequential seniority was only to control the extent of reservation.
The Apex Court while upholding constitutional validity of Rule 16 (4-A) observed that such amendment does not in any way affect the basic structure of the Constitution and it was within the competence of the Parliament to make a provision of the like nature which only enables the State Government to make a rule if there any need actually be. Without answering to the mandate of the judgment of the Apex Court, which is the law of the land and is binding upon all courts under Article 141 of the Constitution of India, the Division Bench gave the final verdict upholding the validity of the rule 8-A, but the judgment does not refer to the existence of pre-conditions regarding which the State was required to undertake an exercise, and solely on the ground that Rule 8-A has been enacted to effectuate the constitutional validity of the provisions of Article 16(4-A), upheld the validity of the Rule.
It is the settled legal position that, the enabling provision though gives power to make law/rule but the rule cannot be framed unless requisite exercise is done and the conditions for making such a rule are found to exist in the opinion of the State Government. This issue, which was the core question for determining the validity of the rule in question was never considered, nor answered by the Division Bench at Allahabad.
On a reading of the judgment of M. Nagraj also, it stands established that the Apex Court has explained the meaning, purport and effect of the Constitutional 77th and 85th Amendments, saying that the aforesaid provisions are enabling provisions, recourse to which can only be made if on collecting the quantifiable data with respect to the backwardness of the class, its inadequate representation on any class or classes of posts in the services under the State, the State forms an opinion for making such a rule. And while making such a rule, restrictions of Article 335 of the Constitution were also to be borne in mind. The Division Bench at Allahabad did not address itself on any such issue.
We also take notice of the fact that, in the writ petition at Allahabad, there was no challenge to the reservation provided in promotion, by the Reservation Act, 1994 or even otherwise, nor any challenge to the Eligibility List Rules, 1986, as amended in 1995 and 2001, which permitted the consideration of promotion of scheduled caste candidates, even against general vacancy, in the absence of any vacancy under the reserved quota, by giving them accelerated seniority, whereas in the present petitions, there is specific challenge in regard to the aforesaid matters.
The Division Bench also did not consider the effect of Rule 8-A alongwith Rules 4 and 5 read with proviso of Eligibility List Rules, 1986, as amended in 1995 and 2001.
A judgment can be said to have been rendered per incuriam when it is passed in ignorance of the relevant provisions of the Act or the Rules, if it suffers from any apparent mistake, it is against any statutory provision of law which provision has not been considered nor discussed or when it is not in consonance with the judgment of Apex Court or so to say, it is against the law laid down by the Apex Court, which is binding on all the Courts, under Article 141 of the Constitution. Reference can be made to following cases.
1. (1988) 2 SCC 602, A.R.Antulay versus R.S.Nayak (para 42).
2. (1990) 3 SCC 682, Punjab Land Development and Reclamation Corporation Ltd. versus Presiding Officer, Labour Court, (para 42.)
3. (2001) 6 SCC 356, Fuerst Day Lawson Ltd. versus Jindal Exports Limited (paras 19, 20 and 21.)
4. (2003) 5 SCC 448, State of Bihar versus Kalika Kuer @ Kalika Singh and others (paras 5,6,8 & 9.)
5. (2004) 7 SCC 558, Nirmal Jeet Kaur versus State of M.P., (para 22.)
6. (2006) 6 SCC 395, K.H.Siraj versus High Court of Kerala,
7. (2006) 9 SCC 643, Union of India versus Manik Lal Banerjee, (paras 11 and 12.)
8. (2010) 5 SCC 513, V. Kishan Rao versus Nikhil Super Specialty Hospital and another (paras 51 and 52).
We also take notice of the fact that Mukund Kumar Srivastava essentially was claiming his promotion on the post of Executive Engineer with effect from 8.7.1986 when persons junior to him were promoted. He made a representation and then filed the writ petition, a mention of which has been made in the judgment itself, as he was given promotion as late as on 20.5.2005. It was in the background of this relief that the writ petition was to be considered, though in the meantime final seniority list came into existence on 8.9.2010 and, therefore, the said list was also challenged.
As already discussed above, there was no pleading at all in the writ petition regarding challenge to Rule 8-A and, therefore, the validity of Rule 8-A was directly not in issue before the Court. There was also no challenge to the rule of reservation in promotion, nor that of the Eligibility List Rules, 1986.
In M.Nagraj’s case, the Supreme Court made it clear that “The point which we are emphasising is that ultimately the present controversy is regarding the exercise of the power by the State Government depending upon the fact situation in each case. Therefore, “vesting of the power” by an enabling provision may be constitutionally valid and yet “exercise of the power” by the State in a given case may be arbitrary, particularly, if the State fails to identify and measure backwardness and inadequacy keeping in mind the efficiency of service as required under Article 335″. Their Lordship of the Division Bench did not address themselves to the aforesaid mandate of the Constitution Bench judgment in M. Nagraj (supra).
The Division Bench at Allahabad, did not enter into the question of exercise of power by the State Government under the enabling provisions of the Constitution and upheld the validity of Rule 8-A only for the reason, that there did exist such a power to enact the Rule, whereas the Apex Court, very clearly has pronounced, that if the given exercise has not been undertaken by the State Government while making a rule for reservation with or without accelerated seniority, such a rule may not stand the test of judicial review.
In fact, M. Nagraj obliges the High Court that when a challenge is made to the reservation in promotion, it shall scrutinize the same on the given parameters and it also casts a corresponding duty upon the State Government to satisfy the Court about the exercise undertaken in making such a provision for reservation. The Division Bench did not advert upon this issue, nor the State Government fulfilled its duty as enumerated in M. Nagraj.
The effect of the judgment delivered at Allahabad is also to be seen in the light of the fact that though the Division Bench at Allahabad did not adjudicate on the dispute with regard to the seniority for which the petitioner Mukund Kumar Srivastava has been relegated to the remedy of State Public Services Tribunal, but upheld the validity of Rule 8-A, which could not be said to be the main relief, claimed by the petitioner.
For the aforesaid reasons and also for the reason, that the present writ petitions do challenge the very rule of reservation in promotion, which challenge we have upheld for the reasons hereinafter stated, because of which the rule of accelerated seniority itself falls to the ground, we, with deep respect, are unable to subscribe to the view taken by the Division Bench at Allahabad and hold that the said judgment cannot be considered as binding precedent having been rendered per incuriam.
While adverting to the merits of the claims raised by the petitioners as well as by the respondents in defence of the rule, we need not reproduce the facts of each and every writ petition, as in substance, where seniority has already been made by applying Rule 8-A or where it was sought to be made, by applying the said rule, both the actions are under challenge.
Writ Petition No. 1389 (S/B) of 2007 filed by Prem Kumar Singh and others is the leading writ petition, on which arguments have been advanced at great length. This writ petition relates to the Irrigation Department of the Government of Uttar Pradesh. The petitioners are members of the U.P. Service of Engineer (Irrigation Department), Groups A and B service and are holding the posts of Chief Engineer Level II, Superintending Engineer, Executive Engineer and Assistant Engineer.
Giving the past position in regard to reservation in promotion, the Government Orders dated 8.3.1973 and 20.3.1974 have been brought on record. The Government order dated 8.3.1973 for the first time provided reservation in promotion to the extent of 18% and 2% respectively for Government servants belonging to scheduled castes and scheduled tribes, where promotion was to be made on the criterion of ‘merit’. Prior to the issuance of the aforesaid Government Order, the reservation was applicable only in the matter of direct recruitment of the Government servants. However, no reservation in promotion was provided in respect of the promotional posts, which were to be filled in on the criterion of ‘seniority subject to rejection of unfit’. Later on, by Government Order dated 20.3.1974, reservation in promotion was also provided on promotional posts which were to be filled in on the criterion of ‘seniority subject to rejection of unfit’ with a rider that this reservation would be available only in such service/posts where the direct recruitments were not to be made beyond 50%.
A perusal of the two Government Orders aforesaid would reveal that the G.O. dated 8.3.1973 clearly considered and stipulated (para 2 of the G.O.) that reservation in promotion on posts which are to be filled up by direct recruitment cannot be provided, as a senior person, if not found unfit in his performance and conduct, was necessarily to be promoted, but very conveniently by the subsequent G.O. dated 20.3.1974, without taking into account the aforesaid declaration made in the previous G.O., the reservation in promotion was applied in the matter of promotion where criterion for promotion was ‘seniority subject to rejection of unfit’. While making this provision of promotion on the posts of promotion where criterion was ‘merit’ or where it was ‘seniority subject to rejection of unfit’, no reason was given as to why such reservation was being made. There was no mention in either of the two G.Os that the Government has undertaken any survey or has collected any data for finding out that in which service and on what post or classes of posts, there was inadequate representation of the scheduled castes and scheduled tribe Government servants.
The matter of reservation with respect to Other Backward Classes became subject-matter of consideration in the case of Indra Sawhney versus Union of India, reported in 1992 Supp. (3) SCC 217 by the Apex Court. The Supreme Court declared on 16.11.1992 that reservation in the matter of promotion was not permissible. However, it was provided that wherever reservations are already provided in the matter of promotion, such reservation shall continue in operation for a period of five years from the date of judgment i.e. 16.11.1992 and within this period, it would be open for the appropriate authorities to revise, modify or reissue the relevant rules to ensure the achievements of the objects of Article 16(4).
The reservation in promotion already made was also protected. The State Government promulgated an Act, known as the U.P. Public Servants (Reservation for Scheduled Castes and Scheduled Tribes) Act, 1993, hereinafter referred to as the Act, 1993, which inter alia provided that on the date of commencement of the said Act, the reservation available to such reserved category shall continue to be applicable for a period of five years from 16.11.1992, but before the expiry of the aforesaid period, the U.P. Public Servants (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, hereinafter referred to as the Act, 1994, was promulgated and the Act, 1993 was repealed.
Section 3(7) of the said Act of 1994 provided that if on the date of commencement of the Act, reservation was in force under Government Orders for appointment to posts to be filled by promotion, such Government Orders shall continue to be applicable till they are modified or revoked.
This provision of the Act, 1994 in fact provided reservation, if not for all times to come in perpetuity, but atleast till the State Government so wished and desired to continue with the reservation in promotion. The Act, 1994 did not prescribe any maximum period during which reservation in promotion could be applied for, but left it entirely to the sweet will of the State Government to continue with the reservation in promotion for any number of years and for any period of time.
The aforesaid enactment was promulgated without determination of quantifiable data, viz. backwardness of the class, inadequacy of representation and without addressing to the provisions of Article 335 of the Constitution, obviously for the reason that 77th and 85th Amendments of the Constitution, each were made after the aforesaid legislation, providing reservation indefinitely by Act of 1994, which was also not in consonance with the dictum of the Apex Court in the case of Indra Sawhney, though the 1993 Act, which provided reservation for a period of five years with effect from 16.11.1992 only, was in keeping with the aforesaid judgment.
Indra Sawhney was a case where matter regarding reservation in promotion was specifically dealt with and the Supreme Court in no ambiguous terms pronounced that reservation in promotion is not permissible, but protected the promotions already made with a leverage that promotion can be made for a further period of five years from the date of judgment in the manner they were being made earlier, subject to revision, modification or re-issuance of any rule, ensuring achievement of the object of Article 16(4) of the Constitution.
Intention of the aforesaid declaration regarding reservation in promotion and protection given therein was with a view to continue with the reservation in promotion for a given period of time and not in perpetuity.
In M.Nagraj, it has been observed that reservation is necessary for transcending caste and not for perpetuating it. Reservation has to be used in a limited sense otherwise it will perpetuate casteism in the country. But what the State Government did, is, that prior to the issuance of the G.O. dated 8.3.1973, reservation was being provided only in the matter of direct recruitment to a certain extent, but on issuance of the aforesaid G.O., the reservation was provided in promotion, but only against those posts where promotion was made on the criterion of ‘merit’ and specifically denying such reservation on the posts where criterion for promotion was ‘seniority subject to rejection of unfit’, saying that under the said criterion, a senior person, whose work and conduct is not questionable, has a right to be promoted first, but giving a go-bye to the aforesaid declaration made by itself, the State Government issued the next G.O. on 20.3.1974 introducing reservation in promotion even against the posts which were to be filled up by following the criterion of ‘seniority subject to rejection of unfit’ with only a rider that such reservation would not be applicable if the posts of direct recruitment are more than 50%.
In view of the law declared in Indra Sawhney, such reservation in promotion could have continued only for a period of five years commencing from 16.11.1992 and, therefore, they were to come to an end in November, 1997 subject to revision, modification or re-issuance of any rule, as directed therein.
The State Government, in the year 1993, enacted the Act, 1993, in which it was specifically provided that reservation in promotion should continue for a period of five years with effect from 16.11.1992, but soon thereafter, before the expiry of the aforesaid period, the Act, 1994 was promulgated, wherein Scheduled castes quota of reservation was enhanced from 18% to 21%. In this Act, the time-limit of five years, which was provided under the 1993 Act was done away with, by providing that reservation in promotion shall continue till the Government Orders are modified or revoked. It apparently means that the reservation in promotion has been extended indefinitely and in any case, till the State Government so desires, the reservation would continue.
If reservation is necessary for transcending caste and not for perpetuating it, it requires consideration whether reservation in promotion could be provided for such an indefinite period and whether the reservation so provided could continue in the wake of the judgment of the Apex Court in M. Nagraj without the State Government having undertaken any exercise to find out whether reservation in promotion in any service under the State, against any post or class posts is actually required in terms of the directives issued in the aforesaid judgment and whether accelerated/consequential seniority need be given to such promotees under the enabling provision of the Constitution viz. Article 16(4-A).
By the Constitution (77th Amendment) Act, 1995, Article 16 (4-A) was incorporated in the Constitution of India, introducing an enabling provision for providing reservation in promotion to scheduled castes and scheduled tribes. This came into force on June 17, 1995. By the Constitution (85th Amendment) Act, 2001, the words “in matters of promotion, with consequential seniority, to any class” were added in Article 16(4-A) with retrospective effect i.e. June 16, 1995. On the strength of aforesaid enabling provision in Article 16(4-A), the State Government issued the U.P. Government Servants Seniority (First Amendment) Rules, 2002, hereinafter referred to as the Rules, 2002, in October, 2002, by which Rule 8-A was inserted in the Rules, 1991, providing consequential seniority also to scheduled castes and scheduled tribes on their promotion by virtue of rule of reservation/roaster. By means of U.P. Government Servants Seniority (Second Amendment) Rules, 2005, hereinafter referred to as the Rules, 2005, the aforesaid provision was omitted and, therefore, it remained no more in force till it has again been introduced by the Uttar Pradesh Government Servants Seniority (Third Amendment) Rules, 2007, hereinafter referred to as the Rules, 2007, which is under challenge.
The validity of said rule granting consequential seniority to the scheduled castes and scheduled tribes in the matter of promotion was assailed in a bunch of petitions before the Apex Court under Article 32 of the Constitution of India and the said matter was referred to the Constitution Bench. Interim orders were also passed in respect to these writ petitions. Some writ petitions were filed before this Court also assailing the validity of Article 16(4-A) and the Rules, 2002, in which common interim orders were passed.
The petitioners in Writ Petition No. 1389 (S/B) of 2007 felt aggrieved as their names for promotion to the posts of Engineer-in-Chief, Chief Engineer, Superintending Engineer and Executive Engineer, as the case may be, did find mention in the eligibility list prepared on August 15, 2007, but in the meantime, since Rule 8-A was introduced in the Rules, 1991 with retrospective effect, the seniority of these engineers in the Irrigation Department was required to be re-determined and on preparation of fresh eligibility list for promotion they believed that their names would go down much below, if Rule 8-A aforesaid is applied.
The petitioners were earlier promoted on the basis of existing seniority and though their names figure in the said eligibility list, but on re-determination of seniority, giving accelerated seniority to the Government servants belonging to scheduled castes and scheduled tribes on the promotional posts, their right would be greatly prejudiced and they will fall outside the eligibility list.
So far as the constitutional validity of Rule 8-A is concerned, the same cannot be challenged on the ground that the State Government has no power to make such a rule, the constitutional validity of Article 16(4-A), the enabling provision having been upheld by the Apex Court, but the manner and the reasons for which such a rule can be enacted, are open to judicial scrutiny. In case the Court comes to the conclusion that the reasons have not come forward and the manner which was required to be adopted in view of the judgment of the Apex Court in M.Nagraj’s case has not been followed, the rules may be rendered ultra vires and unconstitutional.
While considering the validity of Rule 8-A, necessarily the Court has also to consider, whether reservation in promotion provided by the earlier Government Orders and subsequently by the Act of 1994, can be held to be valid, keeping in mind the plea of the petitioners that at the time when the Government Orders were issued, and when the Act of 1994 was promulgated, there was no legal and constitutional protection for providing such reservation in promotion, which provision was introduced only by the 77th Constitutional Amendment.
The State Government has the power to make the rules in terms of Article 16(4-A) only, when the constitutional limitations and the circumstances, viz. the factors enumerated in the judgment of M. Nagraj and the conditions stipulated therein do exist. The State Government cannot frame a rule either of reservation in promotion or for giving accelerated seniority merely because the constitutional validity of enabling provision of the Constitution has been upheld by the Apex Court.
For judging the validity of the aforesaid rule, we have to see what has been held and observed in the case of M. Nagraj. The broad issues that arose for determination in the aforesaid case related to the validity, interpretation, and implementation of the 77th, 81st, 82nd and 85th Constitution Amendment Acts and action taken in pursuance thereof which sought to reverse decisions of the Supreme Court in matters relating to promotion in public employment and their application with retrospective effect.
The Supreme Court in para 43 of the said case observed, that in that case, they were are concerned with the right of an individual to equal opportunity on one hand and preferential treatment to an individual belonging to a Backward Class in order to bring about an equal level-playing field in the matter of public employment. The Apex Court in that case was concerned with conflicting claims within the concept of justice, social, economic and political. It observed as under:
“The conflicting claim of individual right under Article 16(1) and the preferential treatment given to a backward class has to be balanced. both the claims have a particular object to be achieved. the question is of optimisation of these conflicting interest and claims.”
In para 44, the Supreme Court went on to say, “The above three concepts are independent variable concepts. The application of these concepts in public employment depends upon quantifiable data in each case. ……. Backward Classes seek justice. General class in public employment seeks equity. The difficulty comes in when the third variable comes in, namely, efficiency in service. In the issue of reservation, we are being asked to find a stable equilibrium between justice to the backwards, equity for the forwards and efficiency for the entire system. ……….This problem has to be examined, therefore, on the facts of each case. Therefore, Article 16(4) has to be construed in the light of Article 335 of the Constitution. Inadequacy in representation and backwardness of the Scheduled Castes and Scheduled Tribes are circumstances which enable the State Government to act under Article 16(4) of the Constitution. However, as held by this Court the limitations on the discretion of the Government in the matter of reservation under Article 16(4) as well as Article 16(4-A) come in the form of Article 335 of the Constitution.”
Their Lordships, thus, while considering the concept of justice, social, economic and political, in public employment observed that they depend upon quantifiable data in each case and that inadequate representation and backwardness of scheduled castes and scheduled tribes, is the circumstance which enables the State to act under Article 16(4-A) of the Constitution, but limitation on the discretion of the State Government in the matter of reservation under Article 16(4) as well as Article 16(4-A) come in the form of Article 335 of the Constitution.
The point which their Lordships was emphasising, has been very vividly stated as follows: “the point which we are emphasising is that ultimately the present controversy is regarding the exercise of the power by the State Government depending upon the fact situation in each case. Therefore, “vesting of the power” by an enabling provision may be constitutionally valid and yet “exercise of the power” by the State in a given case may be arbitrary, particularly, if the State fails to identify and measure backwardness and inadequacy keeping in mind the efficiency of service as required under Article 335.”
The Court further observed, “Reservation is necessary for transcending caste and not for perpetuating it. Reservation has to be used in a limited sense otherwise it will perpetuate casteism in the country. Reservation is undertaken by a special justification. Equality in Article 16(1) is individual-specific whereas reservation in Article 16(4) and Article 16(4-A) is enabling. The discretion of the State is, however, subject to the existence of ‘backwardness’ and “inadequacy of representation” in public employment. Backwardness has to be based on objective factors whereas inadequacy has to factually exist. This is where judicial review comes in. However, whether reservation in a given case is desirable or not, as a policy, is not for us to decide as long as the parameters mentioned in Articles 16(4) and 16(4-A) are maintained. As stated above, equity, justice and merit (Article 335)/efficiency are variables which can only be identified and measured by the State. Therefore, in each case, a contextual case has to be made out depending upon different circumstances which may exist Statewise.”
The aforesaid observations in M.Nagraj case limits the discretion of the State in applying reservation in promotion and/or giving consequential seniority. In no uncertain terms, the Supreme Court says that the discretion of the State is subject to the existence of ‘backwardness’ and ‘inadequacy of representation’ in public employment, and that backwardness has to be based on objective factors whereas inadequacy has to factually exist. Judicial review intervenes at this stage. The question as to whether reservation in a given case is desirable or not, as a policy, is not for the Courts to decide as long the parameters mentioned in Articles 16(4) and 16(4-A) are maintained. However, in each case, a contextual case has to be made out depending upon different circumstances which may exist Statewise. Reservation under Article 16(4) is intended merely to give adequate representation to backward communities. It cannot be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other employees. A reasonable balance must be struck between the claims of Backward Classes and claims of other employees as well as the requirement of efficiency of administration.
The Supreme Court further observed, “Giving the judgment of the Court in Indra Sawhney, Jeevan Reddy, J stated that Article 16(4) speaks of adequate representation not proportionate representation although proportion of population of Backward Classes to the total population would certainly be relevant. He further pointed out that Article 16(4) which protects interests of certain sections of society has to be balanced against Article 16(1) which protects the interests of every citizen of the entire society. They should be harmonised because they are restatements of the principle of equality under Article 14.”
Dealing with catch-up rule, in para 79, the Supreme Court observed:
“79. Reading the above judgments, we are of the view that the concept of “catch-up” rule and “consequential seniority” are judicially evolved concepts to control the extent of reservation……… Therefore, in our view, neither the “catch-up” rule nor the concept of “consequential seniority” is implicit in clauses (1) and (4) of Article 16 as correctly held in Virpal Singh Chauhan (1995) 6 SCC 684).
The Court also observed, “In our view, the appropriate Government has to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service.”
The Court also held that-
“Clause (4-A) follows the pattern specified in clauses (3) and (4) of Article 16. Clause (4-A) of Article 16 emphasises the opinion of the States in the matter of adequacy of representation. It gives freedom to the State in an appropriate case depending upon the ground reality to provide for reservation in matters of promotion to any class or classes of posts in the services. The State has to form its opinion on the quantifiable data regarding adequacy of representation. Clause (4-A) of Article 16 is an enabling provision. It gives freedom to the State to provide for reservation in matters of promotion. Clause (4-A) of Article 16 applies only to SCs and STs. The said clause is carved out of Article 16(4). Therefore, clause (4-A) will be governed by the two compelling reasons- “backwardness” and “inadequacy of representation”, as mentioned in Article 16(4). If the said two reasons do not exist then the enabling provision cannot come into force. The State can make provision for reservation only if the above two circumstances exist. Further in Ajit Singh (II) this Court has held that apart from “backwardness” and “inadequacy of representation” the State shall also keep in mind “overall efficiency” (Article 335). Therefore, all the three factors have to be kept in mind by the appropriate Government in providing reservation in promotion for SCs and STs.
While considering the question whether the impugned Constitutional Amendments violate the principle of basic structure, their Lordships observed, “….Clause (4) of Article 16, however, states that the appropriate Government is free to provide for reservation in cases where it is satisfied on the basis of quantifiable data that Backward Class is inadequately represented in the services. Therefore, in every case where the State decides to provide for reservation, there must exist two circumstances, namely, “backwardness” and “inadequacy of representation”. As stated above, equity, justice and efficiency are variable factors. These factors are context-specific. There is no fixed yardstick to identify and measure these three factors, it will depend on the facts and circumstances of each case. These are the limitations on the mode of the exercise of power by the State………..If the State concerned fails to identify and measure backwardness, inadequacy and overall administrative efficiency then in that event the provision for reservation would be invalid…………The impugned constitutional amendments are enabling in nature. They leave it to the States to provide for reservation. It is well settled that Parliament while enacting a law does not provide content to the “right”. The content is provided by the judgments of the Supreme Court. If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335 then this Court will certainly set aside and strike down such legislation……..”
In para 104, the Supreme Court further observed, “…..As stated above, be it reservation or evaluation, excessiveness in either would result in violation of the constitutional mandate. This exercise, however, will depend on the facts of each case. In our view, the field of exercise of the amending power is retained by the impugned amendments, as the impugned amendments have introduced merely enabling provisions because, as stated above, merit, efficiency, backwardness and inadequacy cannot be identified and measured in vacuum…..”
Discussing the role of enabling provisions in the context of Article 14, the Supreme Court observed as under:
“106. The gravamen of Article 14 is equality of treatment. ………According to the Constitutional Law of India, by H.M.Seervai, 4th Edn., p.546, equality is not violated by mere conferment of discretionary power. It is violated by Arbitrary exercise by those on whom it is conferred. This is the theory of “guided power”. This theory is based on the assumption that in the event of arbitrary exercise by those on whom the power is conferred, would be corrected by the courts. This is the basic principle behind the enabling provisions which are incorporated in Articles 16(4-A) and 16(4-B). Enabling provisions are permissive in nature. They are enacted to balance equality with positive discrimination……. The enabling provisions deal with the concept, which has to be identified and valued as in the case of access vis-a-vis efficiency which depends on the fact situation only and not abstract principle of equality in Article 14 as spelt out in detail in Articles 15 and 16. …….”
107. ………The object in enacting the enabling provisions like Articles 16(4), 16(4-A) and 16(4-B) is that the State is empowered to identify and recognise the compelling interests. If the State has quantifiable data to show backwardness and inadequacy then the State can make reservations in promotions keeping in mind maintenance of efficiency which is held to be a constitutional limitation on the discretion of the in making reservation as indicated by Article 335. As stated above, the concepts of efficiency, backwardness, inadequacy of representations are required to be identified and measured. That exercise depends on availability of data. That exercise depends on numerous factors. It is for this reason that enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimise these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment. This is amply demonstrated by the various decisions of this Court discussed hereinabove……..However, when the State fails to identify and implement the controlling factors then excessiveness comes in, which is to be decided on the facts of each case. In a given case, where excessiveness results in reverse discrimination, this Court has to examine individual cases and decide the matter in accordance with law. This is the theory of “guided power”. We may once again repeat that equality is not violated by mere conferment of power but it is breached by arbitrary exercise of the power conferred.”
Their Lordships concluded that the object behind the impugned Constitutional Amendments is to confer discretion on the State to make reservation for SCs/STs in promotions subject to the circumstances and the Constitutional limitations indicated therein.
After upholding the validity of enabling provisions aforesaid and observing that under what circumstances and in what manner, reservation in promotion and accelerated seniority can be given to scheduled castes and scheduled tribes Government servants, their Lordships also laid down the test to judge the validity of the impugned State Acts.
Reiterating the boundaries of the width of the power, their Lordships observed, “As stated above, the boundaries of the width of the power, namely, the ceiling limit of 50% (the numerical benchmark), the principle of creamy layer, the compelling reasons, namely, backwardness, inadequacy of representation and the overall administrative efficiency are not obliterated by the impugned amendments. At the appropriate time, we have to consider the law as enacted by various States providing for reservation if challenged. At that time we have to see whether limitations on the exercise of power are violated. The State is free to exercise its discretion of providing for reservation subject to limitation, namely, that there must exist compelling reasons of backwardness, inadequacy of representation in a class of post (s) keeping in mind the overall administrative efficiency. It is made clear that even if the State has reasons to make reservation, as stated above, if the impugned law violates any of the above substantive limits on the width of the power the same would be liable to be set aside.”
The Court further observed, “The test for judging the width of the power and the test for adjudicating the exercise of power by the State concerned are two different tests which warrant two different judicial approaches………..However, the question still remains whether the State concerned has identified and valued the circumstances justifying it to make reservation. This question has to be decided casewise………..The extent of reservation has to be decided on the facts of each case……….In our present judgment, we are upholding the validity of the constitutional amendments subject to the limitations. Therefore, in each case the Court has got to be satisfied that the State has exercised its opinion in making reservations in promotions for SCs and STs and for which the State concerned will have to place before the Court the requisite quantifiable data in each case and satisfy the Court that such reservations became necessary on account of inadequacy of representation of SCs/STs in a particular class or classes of posts without affecting general efficiency of service as mandated under Article 335 of the Constitution.”
In para 119, the Apex Court further observed that, “If the extent of reservation is excessive, then it makes an inroad into into the principle of equality under Article 16(1). Extent of reservation, as stated above, will depend on the facts of each case. Backwardness and inadequacy of representation are compelling reasons for the State Government to provide representation in public employment. Therefore, if in a given case the court finds excessive reservation under the State enactment then such an enactment would be liable to be struck down since it would amount to derogation of the above constitutional requirements.”
The Court concluded as follows:
“121. The impugned constitutional amendments by which Articles 16(4-A) and 16(4-B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling f actors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBCs on one hand and SCs and STs on the other hand as held in Indra Sawhney, the concept of post-based roster with inbuilt concept of replacement as held in R.K.Sabharwal. (i.e. R.K.Sabharwal versus State of Punjab, (1995) 2 SCC 745).
122. We reiterate the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.
123. However, in this case, as stated above, the main issue concerns the “extent of reservation”. In this regard, the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SCs/STs in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. It is made clear that even if the State has compelling reasons as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.”
In the light of the constitutional limits and the circumstances enunciated in the case of M. Nagraj, we have to test the validity of the rule 8-A, Section 3(7) of the Act of 1994 and the Eligibility List Rules, 1986 as amended from time to time under challenge.
Relying upon the judgment of Apex Court in M. Nagraj’s case, arguments of the petitioners can be summarized as under:
(i)By upholding the constitutional validity of Article 16(4-A) as an enabling provision, the State does not get a free hand to frame a rule for reservation in promotion and/or with consequential accelerated seniority.
(ii)For making such a rule for reservation, there must exist compelling reasons of backwardness, inadequacy of representation in a class or classes of posts under the services of the State, keeping in mind the overall administrative efficiency.
(iii)For giving reservation in promotions to Government servants belonging to SCs/STs, there has to be quantifiable data to determine the backwardness of the class, and inadequacy in representation in any class or classes of posts in the services under the State and it should exclude the creamy layer.
(iv) The State has not undertaken any exercise for finding the quantifiable data to measure backwardness and inadequacy of their representation on any class or classes of posts in the services under the State to justify reservation as required.
By preparing separate eligibility lists for promotion of members belonging to scheduled castes, scheduled tribes and general category, as per the provisions of the Eligibility List Rules, 1986, merit is compromised and thus the same is not in conformity with the provisions of Article 335.
(v)Only because of accelerated seniority, promotion of scheduled castes and scheduled tribes cannot be made on the posts where vacancy is of general nature and if so done, it would result in reverse discrimination.
There cannot be any general rule of reservation in promotion with consequential seniority under Article 16(4-A), which needs determination of quantifiable data, to establish backwardness of the class and then inadequate representation on any class or classes of posts in the services under the State.
(vi)The Eligibility List Rules, 1986 stood amended in the years 1995 and 2001, by which a proviso has been added to Rules 4 and 5, which runs absolutely contrary to the constitutional provisions and gives undue advantage of accelerated seniority to scheduled castes and scheduled tribe candidates for being considered on the promotional posts alongwith general category persons against an unreserved vacancy and thus defeat the fundamental right of senior general category persons for consideration of their promotion.
In regard to the plea that the State has not undertaken any exercise for yielding quantifiable data so as to determine nature and extent of backwardness of SC/ST and inadequacy of their representation in any class or classes of posts, to justify reservation, there is not much dispute on the fact situation as no such exercise appears to have been done before providing for reservation in promotion under the Act of 1994, nor before framing the aforesaid rule 8-A.
No such exercise has been undertaken even after the 77th and 85th Constitution Amendments but the reservation in promotion is continuing under the provisions of Section 3(7) of the Act, 1994, even when more than eighteen years have passed when the judgment in Indra Sawhney was delivered.
This also stands fortified by the fact that from the record produced before us, no such attempt appears to have been made nor finds mention therein and rather, the reason for framing Rule 8-A, is that in view of the constitutional validity being upheld of Article 16(4-A) by the Apex Court, the scheduled castes and scheduled tribes Government servants are entitled for reservation in promotion with consequential/accelerated seniority and, therefore, to effectuate and implement the aforesaid provision, the rule has been framed.
The record further shows that in fact after the judgment in M. Nagraj, the only notings and correspondence, which find place therein, including the cabinet decision, reveal that after the judgment in M. Nagraj, the Rules of 2002 which were omitted by Rule, 2005, were being revived in the shape of Rule, 2007. No effort was made before the framing of the Rule for collecting quantifiable data regarding backwardness of the class and their inadequate representation in any class or classes of posts in the services under the State. Thus the only exercise made was to revive the Rules, 2002, which were no more in force.
Needless to reiterate that the State Government was not having any power or authority to frame a rule simply because constitutional validity of an enabling provision of the Constitution has been upheld by the Apex Court, more so when the case of M. Nagraj specifically and categorically prescribes the constitutional limitations in making such a rule.
In regard to the provisions of Reservation in the Act, 1994 and in particular Section 3(7), there was nothing on record, nor has been placed before us to show that any exercise as required under Article 16(4-A) (inserted by the Constitution 77th Amendment Act) was ever done while providing reservation to scheduled castes/scheduled tribes. In other words, when the aforesaid enactment was made, since the Constitution (77th Amendment) Act was not in existence, therefore, there was no occasion nor the State ever thought to undertake any exercise of collecting quantifiable data in respect of backwardness of the class, its inadequate representation on any class or classes of posts in the services under the State. Once the provision of reservation is found not to be backed by the constitutional requirements, such reservation cannot be saved.
In response to the aforesaid argument, it has, however, been contended by the respondent State that Article 16(4-A) permits reservation in promotion with consequential seniority in favour of scheduled castes and scheduled tribes if in the opinion of the State, they are not adequately represented in the services under the State. Emphasis has been laid upon the phrase “in the opinion of the State” urging that the phrase aforesaid does not mean that there has to be an objective satisfaction of the State in matters of this nature. All that is required is an honest conviction based on some material, which was already on record i.e. the Committee’s report of 2001(the report of Social Justice Committee dated 28.6.2001) and the data of recruitment and promotion of SC/ST in the State. According to the respondents, the opinion can be either subjective or objective. ‘Subjective’ means based on an individual’s perceptions, feelings or intentions, as opposed to externally verifiable phenomena. Personal; individual (Black’s Law Dictionary, 9th Edn. Page 1561).
In support of the aforesaid argument, it has been urged that the Constitution in various provisions uses different phrases for the purpose of determining the nature of the discretion vested in the Government. For instance, in some of the Articles, it is provided that the Government may take a decision “if it is satisfied” about the existence of circumstances requiring a particular decision to be taken. Reference may be made to Article 311 (2)(b), 352, 356 and 360. Similarly, the other phrase used in the Constitution is that the Government “may determine”. Reference may be made to Articles 33 and 38(2). In some other provisions of the Constitution, it is provided that the State shall “endeavour to secure” (Articles 43, 43-A, 44, 45, 48 and 49-A). Again when an obligation was to be cast on the Government, it is so provided (Article 49). In many of the statutes, the appropriate authority has to exercise its discretion in the following circumstances:
(I) “if satisfied”
(ii) “Reason to believe”-means coming to a decision on the basis of information. It is objective in nature (AIR 1972 AP 318, K. Munivelu versus The Government of India and others, at page 321). Reference may also be made to Cr.P.C Sections 93 (I), 328 (I), 438; FERA Sections 37, 38; NDPS Act Section 37; Income Tax Act, 1922 Section 34-A and AIR 1971 SC 2451, Sheo Nath Singh versus The Appellate Assistant Commissioner of Income Tax (Central), Calcutta and others.
(iii) “Of the opinion”- are based on speculative matter; on reflection or experience.
(iv) “In its discretion”
(v) “Having regard to” and “conclusive evidence”.
The argument is that though, there may be some over-lapping in the meaning to be given to the aforesaid pharses, it cannot be doubted that if the Constitution or statutory provisions use different words and phrases, it has normally to be interpreted differently. The judgments in the cases of Kanhaiyalal Vishin Das Gidwani versus Arun Dattatray Mehta, (2001) 1 SCC 78, B.R.Enterprises versus State of U.P, (1999) 9 SCC 700, Board of Revenue versus Arthur Paul Benthall, 1955 (2) SCR 842, Oriental Insurance Co. Ltd versus Hansrajbhai V Kodala (2001) 5 SCC 175 have been cited in support of the aforesaid submission that whenever the Constitution or a statute uses different words or phrases, it conveys a different meaning.
Consequently, the respondents plead that the phrase “in the opinion of” in Articles 16(4) and 16(4-A) carries a different meaning than “upon being satisfied”, whereas ‘opinion is subjective, satisfaction may be objective’.
Referring to the “Words and Phrases”, Permanent Edn. 29A, page 493, it is being contended that an opinion is a belief less strong than positive knowledge and the forming of an opinion, therefore, ordinarily involves exercise of discretion in determining the weight to be given to various conflicting considerations, and that an opinion is only that it creates no fact. It is what someone thinks about something, and the thought may be precisely accurate or totally inaccurate, and yet represent the absolute honest conviction or the person who expresses it. It is a notion or conviction founded on probable evidence.
Further, the phrase “in the opinion” does not mean that there has to be an objective satisfaction of the State in matters of this nature. All that is required is an honest conviction based on some material, which was already on record. (Report of Social Justice Committee 2001).
In Indra Sawhney, their Lordships of the Supreme Court had occasion to consider the phrase “in the opinion of the State”. The Court observed that the expression “in the opinion of the State” would mean the formation of opinion by the State which is purely a subjective process. It cannot be challenged in a Court on the grounds of propriety, reasonableness and sufficiency though such an opinion is required to be formed on the subjective satisfaction of the Government whether the identified ‘backward class of citizens’ are adequately represented or not in the services under the State. But for drawing such requisite satisfaction, the existence of circumstances relevant to the formation of opinion is a sine quo non. If the opinion suffers from the vice of non-application of mind or formulation of collateral grounds or beyond the scope of Statute, or irrelevant and extraneous material, then that opinion is challengeable.
The State has been empowered to invade the constitutional guarantee of “all” citizens under Article 16(1) in favour of ‘any’ backward class of citizens only if in the opinion of the government it is inadequately represented. Objective being to remove disparity and enable the unfortunate ones in the society to share the services to secure equality in, ‘opportunity and status’ and any State action must be founded on firm evidence of clear and legitimate identification of such backward class and their inadequate representation. Absence of either renders the action suspect. Both must exist in fact to enable State to assume jurisdiction to enable it to take remedial measures. “Power to make reservations as contemplated by Article 16(4) can be exercised only to make the inadequate representations in the services adequate.” Use of the expression, “in the opinion of State” may result in greater latitude to State in determination of either backwardness or inadequacy of representation and sufficiency of material or mere error may not vitiate as State may be left in such field to experiment and learn by trial and error with little interference from the court, but if the principle of identification itself is invalid or it is in violation of constitutionally permissible limits or if instead of carefully identifying the characteristics which could clothe the State with remedial action it engages in analysis which is illegal and invalid and is adopted not for remedial purposes but due to extraneous considerations then the court would be shirking in their constitutional obligation if they fail to apply the corrective. States’ latitude is further narrowed when on existence of the two primary, basic or jurisdictional facts it proceeds to make reservation as the wisdom and legality of it has to be weighed in the balance of quality pledged and guaranteed to every citizen and tested on the anvil of reasonableness to smoke any illegitimate use and restrict the State from crossing the clear constitutional limits.
The Apex Court further observed, “Judicial Review has come to be one of the ways of obliging government to control itself. A reservation for a class which is not backward would be liable to be struck down. Similarly if the class is found to be backward but it is adequately represented, the power cannot be exercised.. Therefore, the exercise of power must precede the determination of these aspects each of which is mandatory. Since the exercise of power depends on existence of the two, its determination too must satisfy the basic requirement of being in accordance with the Constitution, its belief and thought. Any determination of backward class in historical perspective maybe legally valid and constitutionally permissible. But if in determination or identification of the backward class any constitutional provision is violated or it is contrary to basic feature of Constitution, then the action is rendered vulnerable.”
The Court further observed that the language of clause (4) makes it clear that the question whether a backward class of citizens is not adequately represented in the services under the State is a matter within the subjective satisfaction of the State. This is evident from the fact that the said requirement is preceded by the words “in the opinion of the State”. This opinion can be formed by the State on its own, i.e., on the basis of the material it has in its possession already or it may gather such material through a Commission/Committee, person or authority. All that is required is, there must be some material upon which the opinion is formed. Indeed, in this matter, the court should show due deference to the opinion of the State, which in the present context means the executive. The executive is supposed to know the existing conditions in the society, drawn as it is from among the representatives of the people in Parliament/Legislature. It does not, however, mean that the opinion formed is beyond judicial scrutiny altogether. The scope and reach of judicial scrutiny in matters within subjective satisfaction of the executive are well and extensively stated in Barium Chemicals v. Company Law Board which need not be repeated here. Suffice it to mention that the said principles apply equally in the case of a constitutional provision like Article 16(4) which expressly places the particular fact (inadequate representation) within the subjective judgment of the State/executive.
Thus the opinion of the State may be subjective, but there has to be some material on the basis of which opinion is to be formed. In the absence of any material, that too, when no exercise is done for collecting such material, the opinion of the State would not remain immune from judicial scrutiny, and any action taken on such an opinion, will be liable to be struck off and nullified.
The respondents have not brought on record showing any such exercise or material on the basis of which it could be presumed that there was some material before the State Government to form an opinion for providing reservation in promotion, that too indefinitely, against all posts in all cadres of the services under the State.
Reservation in promotion can only be saved if the State acts in accordance with the enabling provisions of Article 16(4-A). In the absence of any such material being brought on record on exercise having been done, the reservation provided not in accordance with the 77th Amendment and 85th Amendment of the Constitution cannot be allowed to remain in force. In case such reservations are permitted to continue, that would be against the constitutional provisions and against the verdict given by the Apex Court in M. Nagraj and also that of Indra Sawhney.. This will also affect the efficiency in administration, as general category candidates would lose their right of consideration for promotion in the hands of scheduled castes and scheduled tribes candidates under an enactment, which does not have the support of the constitutional provisions, rather which provisions do not allow such legislation, or framing of Rule.
It has also been submitted by the respondents that the principles laid down by the Supreme Court in Indra Sawhney relating to “backward classes”, do not apply in the case of SC/ST, in view of Articles 341 and 342 of the Constitution. Submission is that a caste notified as scheduled caste under Article 341 and scheduled tribe under Article 342 is an established backward class and suffers from backwardness and no exercise for the purpose is required to be done for finding quantifiable data to determine their backwardness and inadequacy in representation.
M.Nagraj considers the judgment of Indra Sawhney and observes that clause (4-A) follows the pattern specified in clauses (3) and (4) of Article 16. Clause (4-A) of Article 16 emphasises upon the opinion of the States in the matter of adequacy of representation. It gives freedom to the State in an appropriate case depending upon the ground reality to provide for reservation in matters of promotion to any class or classes of posts in the services. The State has to form its opinion on the quantifiable data regarding adequacy of representation. Clause (4-A) of Article 16 is an enabling provision. It gives freedom to the State to provide for reservation in matters of promotion. Clause (4-A) of Article 16 applies only to SCs and STs. The said clause is carved out of Article 16(4). Therefore, clause (4-A) will be governed by the two compelling reasons- “backwardness” and “inadequacy of representation”, as mentioned in Article 16(4). If the said two reasons do not exist, then the enabling provision cannot come into force. The State can make provision for reservation only if the above two circumstances exist.
In R.K.Sabharwal and others versus State of Punjab and others, (1995) 2 SCC 745, the Apex Court held that the entire cadre strength should be taken into account to determine the percentage of reservation. It was clarified that the judgment of Indira Sawhney was confined to the initial appointment and not to promotions. The operation of a roaster for filling the cadre strength by itself ensures that the reservation remains within the ceiling limit of 50%. This has been provided in the judgment of M. Nagraj also.
The argument, therefore, that the requirements under Article 16(4) were not to be considered while making rules for reservation with or without consequential seniority under Article 16(4-A) thus cannot be accepted in view of the law laid down by the Apex Court.
In M. Nagraj also, the Apex Court while considering clause (4) of Article 16 of the Constitution, which follows the same pattern, their Lordships observed that the appropriate Government was free to provide for reservation in cases where it was satisfied on the basis of quantifiable data that Backward Class has been inadequately represented in the services. When the State Government fails to identify the two controlling factors i.e. “backwardness” and “inadequacy of representation”, then excessiveness comes in, which may be decided on the facts of each case. In a given case, it may result in reverse discrimination, which the Court has to examine on the basis of facts of individual case and decide the matter in accordance with law.
We, thus, conclude that no exercise as required under the constitutional provisions and as propounded in M. Nagraj was undertaken by the State Government while applying reservation in promotion, that too on all posts in all cadres, and class of posts in the services under the State, nor was there any material collected, to form the required opinion.
This requires us to consider the next plea of the respondent State that there was no requirement of collecting quantifiable data regarding inadequate representation of SCs and STs in the services under the State for framing the rule of reservation in promotion with accelerated seniority.
The argument is that reservation in promotion is continuing right from the year 1973 with the issuance of G.O. dated 8.3.1973 and thereafter by G.O. dated 20.3.1974, which provided reservation in promotion on the criterion of ‘seniority subject to rejection of unit’. Thereafter 1993 Reservation Act and subsequently 1994 Reservation Act were promulgated. To show the inadequacy of representation of SCs and STs and that the representation of STs and SCs in services under the State has not reached the required level, the statement of objects and reasons of the Constitution (77th Amendment) Act, 1995 has been pressed into service. The aforesaid statement of objects and reasons shows that-
1.The members of SCs/ STs have been enjoying facility of reservation in promotion since 1955.
2.The Supreme Court by its judgment dated 16.11.1992 (in Indra Sawhney) has held that Article 16(4) is confined to initial appointment and cannot extend to reservation in the matter of promotion.
3.This ruling of the Supreme Court would adversely affect the interest of the SCs/STs.
4.Since the representation of the SCs/STs in services under the States has not reached the required level, it is necessary to continue the existing dispensation of providing reservation in promotion in the case of the SCs/STs., and
5.The Government had decided to continue with the existing policy of reservation in promotion for the SCs and STs.
The submission is that the effect of the Constitution 77th Amendment is that reservation provided for by the Government Orders dated 8.3.1973 and 20.3.1974 would continue without any further exercise in view of the constitutional provisions, and legislative recognition of the SCs/STs having not reached the required level, there was need to continue such reservation.
Further, the State of U.P. constituted the Social Justice Committee, whose terms of the reference were to ascertain the the relative position of SC/ST/OBC with regard to implementation of reservation in public services in Uttar Pradesh. This Committee was required to examine the history of reservation in Uttar Pradesh and other States as also the report of the National Commission and other relevant documents. The argument is that the said reports were well within the knowledge of the State since before the rules were framed.
Again referring to the statement of objects and reasons to the Constitution (85th Amendment) Act, 2002 amending clause (4-A) to Article 16 and providing for consequential seniority, giving retrospective effect from 17.6.1995, it has been pointed out that the aforesaid objects and reasons provided as under:
1.The Government servants belonging to SC/ST category had been enjoying the benefit of consequential seniority on their promotion on the basis of rule of reservation.
2.The judgment of the Supreme Court in Union of India versus Veerpal Singh, (1995) 2 SCC 715, led to the issue of the OM dated 30.1.1997 by Government of India, which adversely affected SC/ST.
3.The Amendment was being made to negate the effect of OM dated 30.1.2002, in view of the Constitutional Amendment.
4.Mere withdrawal of the aforesaid OM would not meet the desired purpose to give consequential benefits and would require an amendment to Article 16(4-A).
5.Since reservation in matters of promotion was effective from 17.6.1995 (77th Amendment), the 85th Amendment was made retrospective from 17.6.1995. By the aforesaid amendment, it was specifically provided that with effect from 17.6.1995, consequential seniority would be given in matters of promotion.
Justifying the reservation in question and the consequential seniority, the statements of objects and reasons to the two Constitutional Amendments have been greatly relied upon, though with the passage of time, fact situation may change.
The theory that statement of objects and reasons could be referred to only for the limited purpose of ascertaining the conditions prevailing at the time which necessitated the making of the law (Thangal Kanju Musaiar versus M. Venkatachalam Potti, (1955) 2 SCR 1196), has been enlarged in B.Banerjee versus Anita Pan, (1975) 1 SCC 166, wherein it has been held that, “The learned Judges rightly refer to the legislative proceedings, notorious common knowledge and other relevant factors properly brought to their ken. The ‘sound-proof theory’ of ignoring voices from Parliamentary Debates, once sacrificed by British tradition, has been replaced by the more legally realistic and socially responsible canon of listening to the legislative authors when their artifact is being interpreted. We agree with the High Court when it observed: “It is found from the speech of the Minister at the time of introducing the Bill in the Legislature, that the problems of tenants are many; there are landlords of different kinds”.
Reference has also been made to the decision of the House of Lords in Pepper versus Hart, (1993) 1 All.E.R 42, where it has been held that proceedings in Parliament as referred to in Hansard can be utilised as an aid to construction. It has been observed that Parliamentary material as an aid to statutory construction should, subject to any question of Parliamentary privilege, be relaxed, especially, if it was necessary to understand such statement and their effect. It has been submitted that the said judgment made a departure from the hitherto limited approach regarding utilization of Statement of Objects and Reasons and proceedings in the House.
Reference has also been made to Parliamentary Debates while considering the Bill relating to giving consequential seniority which would indicate the position as was standing when the Bill was moved, and the views of the Members of the Lok Sabha.
In nutshell, the argument is that the Parliament gave legislative recognition of the SC/Sts having not reached the required level and, therefore, there was need to continue such reservations, which does not oblige the State Government to make any independent exercise.
In support of the aforesaid plea, it has also been urged that from times immemorial, there has been discrimination against scheduled castes and scheduled tribes in India. They led a sub-human existence. The Constitution itself recognizes such a situation which would be evident from the provisions of Article 15(2)(a), which lays down that no citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to access to shops, public restaurant, hotels and places of public entertainment, or the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. Article 17 prohibits untouchability and declares it to be an offence. Article 23 prohibits trafficking in human-beings and forced labour. Article 24 prohibits engagement of child labour. Article 39-A provides that the State shall secure a legal system which promotes justice on a basis of equal opportunity.
No doubt, the reservation to scheduled castes and scheduled tribes in the matter of promotion could have been considered in the background of historical facts but not without analysing and considering the present fact situation, by taking into account the material which was available with the State since before. The persistent atrocities upon the SCs/STs, which the history witnessed in the country if was the sole consideration for providing reservation in promotion with consequential seniority and the said view/principle would have been accepted by the Apex Court, the plea aforesaid could not have been rejected. But what we find is that in the case of M. Nagraj, the Supreme Court after taking into consideration the Statements of Objects and Reasons to the aforesaid two Constitutional Amendments and also the dictum of Indra Sawhney’s case held that clause (4-A) is carved out of Article 16(4) and, therefore, clause (4-A) would be governed by two compelling reasons as mentioned in Article 16(4) and that the State Government was required to undertake such an exercise, in the absence of which the rules framed would be nullity and would stand vitiated, the plea aforesaid cannot be accepted. Once the Supreme Court after considering the import and effect of aforesaid constitutional provisions has declared the circumstances and the constitutional limitations in providing reservation in promotion with accelerated seniority, no argument can be accepted which is not in consonance with the dictum of the Apex Court.
Their Lordships of the Supreme Court were alive to the historical background, the atrocities which the scheduled castes and scheduled tribes suffered in the country, the statements of objects and reasons of the two Constitutional Amendments, the fact that by a legislative action, the obstacles which were being placed in implementing the rule of reservation in its full enormity, which did mention that the judgments in the cases of Ajit Singh Januja and Veerpal Singh are stumbling blocks in giving benefit of reservation in promotion to the scheduled castes and scheduled tribes, therefore, reservation be continued, still while interpreting the true meaning of Article 16 (4-A) and the intention of the legislation, alongwith the object which is sought to be achieved by said Constitutional Amendments, clearly held that it is only an enabling provision, which automatically does not allow reservation in promotion with or without accelerated seniority, and, therefore, the State is under constitutional obligation to identify the factors of backwardness and inadequate representation in a class or classes of posts in the services under the State, keeping in mind the provisions of Article 335.
The statement of object and reasons and the debates in Lok Sabha, which are being heavily relied upon by the respondents for justifying reservation in promotion, with accelerated seniority, cannot be construed as an exercise undertaken by the State Government for the purposes of enacting the rule, nor they can be made the basis for forming its opinion in terms of Article 16 (4-A).
The statement of objects and reasons alongwith debates in the Parliament, etc. all have led to the insertion of enabling provisions of Article 16(4-A) and 16(4-B) of the Constitution. The enabling provisions though confer power on the State to provide for reservation in promotion, in a class or classes of posts in the services under the State, but the exercise of that power has to be done in the manner prescribed only when the conditions precedent are found to be in existence.
The argument of the respondents that need to collect quantifiable data regarding backwardness of the class and their inadequate representation was not at all essential in the facts and circumstances of the case and their placing reliance upon the historical facts of atrocities inflicted upon the scheduled castes and scheduled tribes and on the statements of Objects and Reasons of 77th and 85th Amendments of the Constitution and also on the pre-existing report of Social Justice Committee, leaves no room for any doubt that the State Government did not undertake any exercise, nor it made any such effort to collect the quantifiable data regarding backwardness of the class or their inadequate representation in any class or classes of posts in the services under the State and therefore, no consideration was made to the directives given in Article 335 of the Constitution also which puts limitations on such exercise while making rule for reservation in promotion with or without consequential seniority.
In this regard, it would be beneficial to quote the pleadings of the parties also. In para 85 of Writ Petition (No. 1389 (S/B) of 2007), the petitioners have stated that it was the constitutional obligation of the State, at the time of providing reservation in the matter of promotion to identify the class or classes of posts in the service for which reservation is required, however, neither any effort has been made to identify the class or classes of posts for which reservation is to be provided in promotion nor any exercise has been done to quantify the extent of reservation. In para 86, they have stated that neither prior nor after the amendments of the Constitution in the year 1995 and again in the year 2001, while inserting Article 16(4-A), the State Government has undertaken any exercise as required under Article 16(4-A) and Article 335 of the Constitution of India. As a matter of fact, if the State had to provide reservation in the matter of promotion, the pre-requisite of Article 16(4-A) ought to have been fulfilled by the State. In para 88, it has been stated that the aforesaid Government Orders as also Section 3(7) of the Act of 1994, referred to above, cannot be said to be in conformity with the constitutional requirements of Article 16(4-A).
In response to the aforesaid pleadings, it has been stated in para 56 of the counter affidavit of the State that the contents of paragraphs 85 and 86 of the writ petition are false and baseless, hence denied in view of the averments made in earlier paras. It is further submitted that after taking information in respect of adequacy of representation of the Scheduled Caste and Scheduled Tribes from the different departments, the decision to provide consequential seniority has been taken by the State by making amendment in the aforesaid Rules. In para 57 of the counter affidavit, it has been stated that the contents of paragraphs 87 and 88 of the Writ Petition are not admitted, hence denied. In reply thereto, it is submitted that the reservation for scheduled Castes and Scheduled Tribes is in conformity with the spirit of Article 16(4-A) of the Constitution of India and is constitutional.
In para 28 of the counter affidavit, the State has made an effort to demonstrate inadequacy of representation in services on the basis of information collected from different departments on 1.1.1995 and 1.1.1996.
The data chart given therein does not conform to the constitutional requirement which necessitated the exercise by the Government with respect to backwardness of the class, their representation in class or classes of posts in the services under the State and efficiency of administration (Article 335). It is also not clear that since how long these posts were not filled and whether they could not be taken up for consideration as back-log vacancies. In sub-para 3 of para 28 of the counter affidavit, the position of present short-listed backlog posts has been mentioned as 26618 which includes direct recruitment posts and promotional posts of groups A, B,C and D category. On the basis of said data, reservation could not have been provided in the matter of promotion.
The data said to have been collected in 1995-1996, firstly did not respond to the constitutional requirements and secondly, they cannot be the basis for making a rule in the year 2007. The respondents’ attempt to justify the insertion of Rule 8-A in the Rules, 1991, by filing a chart contained in Annexure CA-18 to the counter affidavit indicating the total short backlog posts which included Groups A, B, C and D posts i.e. of direct recruitment and promotion and number of posts filled, also does not help them in establishing that any exercise as required was done. The said data is absolutely irrelevant for the purposes of rule of consequential seniority; more so, the said chart is dated 31.12.2007, i.e. subsequent to the data of amendment of the rule, which is 14.9.2007.
The only document which has been shown by the respondents in their counter affidavit in support of their rules is contained in Annexure-18 to the counter affidavit, which does not indicate post/departmentwise representation of the scheduled castes and scheduled tribes category but the said data only indicates the total number of representation of scheduled castes and scheduled tribes in Class A, B, C and D posts relating to backlog posts, earmarked and vacant posts including direct recruitment posts, which is not at all relevant for the purposes of rule of consequential seniority for controlling the extent of reservation.
The provision of consequential seniority has to be text specific and there cannot be an omnibus rule of consequential seniority for being applied to all the cadres of various services under the State including those cadres where the scheduled castes/scheduled tribes are already represented.
Curiously, in para 32 of the counter affidavit, the respondents have stated that rule 8-A has been inserted in 1991 Rules for fulfilling the requirement of Article 16 (4-A) of the Constitution and thereby they have averred that the said amendment is a proof of the fact that in State Government services, the representation of members of scheduled caste and scheduled tribe candidates is not complete. Para 32 of the counter affidavit is quoted below:
“32. That the contents of paragraph 47 of the writ petition are false and misconceived hence denied. By the Uttar Pradesh Government Servant Seniority (Third Amendment) Rules, 2007 after section 8 of Uttar Pradesh Government Servant Seniority Rules, 1991, the Section 8A is inserted to fulfill the requirement of Article 16 (4-A) of the Constitution of India. The aforesaid amendment is a proof of this fact that in State Government Services the representation of members of scheduled caste and scheduled tribe candidates is not complete.”
Detailing the aforesaid facts, it has been stated by the petitioners (of Writ Petition No. 1389 (S/B) of 2007) in their rejoinder affidavit that scheduled castes and scheduled tribes quota on various posts in Group A service in the irrigation department is full and as such the SCs/STs are adequately represented in the service and there is no justification for providing consequential seniority from the date of roster point promotion. As on 30th June, 2007 (forenoon) the quota of scheduled castes and scheduled tribes in various promotional posts in Group A service of the Irrigation Department, with the exception of two reserved posts of Superintending Engineer, was complete. Even against the aforesaid two reserved vacancies, eligible scheduled caste candidates were available and have been promoted subsequently in recruitment year 2007-08. Sri Jai Prakash and Sri V.K.Verma, Chief Engineer, Level-I were promoted as Engineer-in-Chief on 31.7.2007 and 30.11.2007 respectively. Sri Narendra Kumar, Sri Subhash Agarwal, Sri Hari Nandan Sharma, Sri Dharmpal Singh Chauhan, Sri Ashok Kumar Singh Pundir and Sri Jai Prakash Chief Engineer, Level-II were promoted on the post of Chief Engineer Level-I on 26.6.2007, Sri Atar Singh was promoted as Chief Engineer Level-I in the month of August, 2007,Sri Jai Prakash was subsequently promoted as Engineer-in-Chief on 1.8.2007 i.e. within one month of becoming Chief Engineer, Level I.
The vacancies, both unreserved as well as reserved, on the promotional posts i.e. Engineer-in-Chief, Chief Engineer-II, Superintending Engineer, Executive Engineer, for the recruitment year 2007-2008, starting on 1st July 2007 and upto January 2008, with the exception of 5 vacancies on the post of Chief Engineer-I, 3 vacancies on the post of Superintending Engineer and 12 vacancies on the post of Executive Engineer, have been filled by the respondents in the month of December 2007 and January, 2008. Even against the aforesaid vacancies, eligible persons have been considered by the D.P.C and recommendations for promotion have been made but promotion orders have not been issued. Against the sole reserved vacancy on the post of Chief Engineer Level-I, one Sri Ram Awadh has been considered for promotion in the D.P.C held on 22.2.2008, but promotion order has not yet been issued. Similarly even against one reserved vacancy on the post of Superintending Engineer and three reserved vacancies on the post of Executive Engineer, eligible reserved category candidates have been considered by the D.P.C and recommendations for promotion have been made but promotion orders have not yet been issued.
The petitioners No. 4, 5 and 6 of aforesaid writ petition have also been promoted to the post of Chief Engineer-II on 20.12.2007 and 31.12.2007 while petitioners No. 8, 9 and 10 have been promoted as Superintending Engineer on 15.1.2008 and petitioners no. 11 and 12 have been promoted as Executive Engineer on 31.1.2008.
The petitioners thus have shown that requisite number of reserved category officers are occupying/are available for occupying the reserved category posts and the reservation quota on various posts in Group A service in the Irrigation Department is complete.
In fact, the allegation is that as per details given in the chart Annexure RA-1 to the rejoinder affidavit, the number of officers belonging to the scheduled castes and scheduled tribes on the posts of Engineer-in-Chief and Chief Engineer I exceeded the reserved quota. At present also the number of SCs/STs working on the posts of Engineer-in-Chief and Chief Engineer-I exceeds the quota of reservation.
We do not intend to enter into the controversy regarding factual position about the various posts being occupied by the scheduled castes and scheduled tribes candidates in the services under the State in a class or classes of posts in a cadre of service, as it would be for the State to undertake this exercise, but from the pleadings on record, we are satisfied that the State has not considered the said aspect for finding out the quantifiable data to establish backwardness of the class or their inadequate representation in a class or classes of posts in the services under the State.
The reply given in the counter affidavit, thus, does not in any way show that the State has undertaken any exercise for collecting quantifiable data regarding backwardness of the class or that of inadequate representation in class of post or posts in the services under the State, neither at the time of enacting Section 3(7) of the Act, 1994, nor thereafter, nor at the time of framing Rule 8-A, and merely because the State thought that it is the mandate of Article 16(4-A) to provide reservation in promotion with accelerated seniority, the rule has been amended.
Backwardness of the class as well as their inadequate representation have not at all been considered against any class or classes of posts in the services under the State but a general rule for all posts in all services under the State has been framed, that too without any exercise. There are posts of different nature and categories making hierarchy of posts in various services of the State. The representation of the reserved category was to be seen against each class or classes of posts, but nothing of the sort has been done. There is nothing on record to indicate that the requirement of efficiency in administration, as given in Article 335 of the Constitution, was ever taken into account. Merely by giving total number of posts in the services under the State under various categories of posts and showing that they were inadequately represented would not mean following of constitutional limitations and requirements prescribed therein.
While making such a provision under Section 3(7) of the Act of 1994, the State did not undertake any exercise for having quantifiable data with regard to backwardness of the class, inadequate representation and efficiency of administration. If any reservation was to be provided in promotion, the same could have been done only by undertaking the aforesaid exercise in view of the enabling provisions of the Constitution. No exercise was done as required. Therefore, merely because there did exist Government Orders providing reservation in promotion, they would not stand the test of judicial scrutiny in view of the constitutional limitations prescribed and the law declared by the Apex Court.
The object of providing reservation is to remove backwardness, and not to give any undue, or unreasonable advantage at the cost of fundamental right for being considered for promotion, of the senior persons, because they belonged to general category, and also the reservation cannot be provided in perpetuity or for an indefinite period. It has to be periodically assessed.
This is also evident from the fact that Articles 330 and 332 of the Constitution provide for reservation of seats in the House of People and Legislative Assemblies of States for scheduled castes and scheduled tribes respectively and since the Constitution mandated reservation, it also provided maximum time limit for such reservation in Article 334. This makes it clear that the spirit behind Article 334 obviously is that reservation cannot continue indefinitely. So far as reservation in services is concerned, Constitution-framers had taken cautious decision and did not mandate reservation in services and made it only enabling in the form of Articles 16(4) and 16(4-A). In such a situation, the State has to exercise its discretion very cautiously taking into consideration all the limitations as enumerated in the case of M. Nagraj, which, in para 123, says that provision of reservation cannot be extended indefinitely.
In the year 1973, when provision for reservation was applied to merit promotions and in 1974, when it was extended to promotions based on criterion of seniority subject to rejection of unfit, there was no constitutional protection to such provisions. In the Act of 1994 also, when it was enacted, there was no such constitutional back-up, as, for the first time the enabling provision for making reservation in promotion was provided by 77th Amendment of the Constitution in 1995 and of accelerated seniority, by introducing 85th Constitutional Amendment. All Government Orders and enactments in regard to providing reservation in promotion, which do not stand the test of aforesaid constitutional provisions, cannot be allowed to be in force being constitutionally invalid.
M. Nagraj pointedly held that the State is not bound to make reservation for SCs/STs in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment, and that even if the State has compelling reasons as stated above, it will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely. The object of reservation is to remove backwardness and not to create a disbalance in the services under the State on promotional posts amongst the reserved category and general category candidates.
The record produced by learned State counsel reveals that in fact after the judgment of the Apex Court in M. Nagraj, certain representations were made to the State Government for reviving the Rules of 2002 which were made for providing reservation in promotion with accelerated seniority and which were later on omitted in the year 2005, on which opinion of the Law Department of the State was asked for and the Law Department raised certain objections in reviving the said Rules, but later on, approval of the Chief Minister was sought, for revival of the Rules in view of the decision of the Apex Court in M. Nagraj. This note was put up on 27.6.2007 and thereafter the Law Department endorsed the aforesaid Rules and the matter, after approval of the Chief Minister, was to be placed before the Cabinet. The Law Department gave its endorsement on 30.8.2007. The Rules of 2007 were thereafter promulgated with effect from 14.9.2007. On 17.10.2007, the Government Order was issued, in which action in pursuance of the amended Rules, 2007 was directed to be taken, which included the re-determination of seniority by applying the principle of Rule 8-A, thereby correcting the seniority list, which was prepared earlier under the catch-up rule which was made effective from 17.6.1995.
The record also reveals that after the judgment of the Apex Court in M. Nagraj, no exercise was at all done for identifying the class, its backwardness, adequate representation in a class or classes of posts in the services under the State, nor the contents of Article 335 of the Constitution were taken into account,, but merely on enabling provision of Article 16 (4-A) being declared as valid and constitutional, the Rules of 2002 have been revived by the Rules, 2007.
The petitioners have demonstrated in their rejoinder affidavit that promotions are being made on the basis of feeding cadre seniority in view of the interim orders of this Court and reserved category candidates, namely, scheduled castes and scheduled tribes are being promoted in their respective quotas and the quota of 21% is always complete and whenever there is any shortfall, that is not because of non-availability of the candidates belonging to scheduled castes and scheduled tribes but because of inaction on the part of the State in not making exercise of promotion of reserved category in their respective quotas and also that of general category candidates.
Further, representation of scheduled castes and scheduled tribes on a class or classes of posts, cannot be a constant factor, but it is variable and may change with the passage of time, an important factor which ought to have been considered before making a rule of reservation in promotion with consequential seniority.
The State Government has framed a general rule i.e. Rule 8-A making it applicable to all the services under the State and to all the post or class of posts in a sweeping manner, which also cannot be done under the constitutional provisions.
We next need examine the combined effect of the Eligibility List Rules, 1986 as amended in 1995 and 2001, and Rule 8-A. The Eligibility List Rules, 1986, as they stood originally, did not prescribe preparation of any eligibility list separately with respect to scheduled castes and scheduled tribes if the eligibility criteria of promotion was ‘merit’ though it provided for preparation of separate eligibility lists in respect of each year. The said rules were amended by the U.P. Promotion by Selection (on Posts outside the Purview of the Public Service Commission) Eligibility List (First Amendment) Rules, 1995, and rule 4 provided for preparation of three lists to be called as eligibility lists of the senior-most eligible candidates from each of the category, namely, general, scheduled castes and scheduled tribes, separately in the light of vacancies available for each of the said category containing names as far as possible, three times the number of vacancies subject to the minimum of eight.
The concepts of ‘catch-up rule’ and ‘consequential seniority’ are evolved in service jurisprudence and they are for controlling the extent of reservation. The State of U.P. has mechanically inserted Rule 8-A in the Seniority Rules, 1991 under a misconception as if it was the mandate of the Constitution as amended by 85th Amendment. This is further evident by the fact that the Government order dated 17.10.2007 expressly and elaborately mentions that in view of the 85th Amendment of the Constitution, the explanation to Rule 6 of the Rules, 1991 has become redundant and ineffective and as such the State Government has made the arrangement that irrespective of Rules 6, 7 and 8 of the said seniority Rules, the scheduled castes/scheduled tribes Government servants shall be entitled to consequential seniority on being promoted on the basis of reservation/roaster.
Rule 6 of the Rules, 1991 provides as under:
“6. Seniority where appointment by promotion only from a single feeding cadre.- Where according to the service rules, appointments are to be made only by promotion from a single feeding cadre, seniority inter se of persons so appointed shall be the same as it was in the feeding cadre.
Explanation.- A person senior in the feeding cadre shall, even though promoted after the promotion of a person junior to him in the feeding cadre shall, in the cadre to which they are promoted, regain the seniority as it was in the feeding cadre.
By the U.P. Promotion by Selection (on Posts outside the Purview of the Public Service Commission) Eligibility List (Second Amendment) Rules, 2001, a further amendment was made by inserting a proviso to rule 4, which provided that if in a year of recruitment, no vacancy is available for scheduled castes or scheduled tribes but a person belonging to scheduled castes or scheduled tribes, as the case may be, is entitled to be included, by virtue of his seniority, in the eligibility list of the general category candidates, such person shall also be included in the eligibility list of general category candidates.
Rule 5 provided that where the criterion for promotion is seniority subject to the rejection of unfit, the appointing authority shall prepare three lists to be called the eligibility lists of the senior-most eligible candidates from each of the category, namely, general, scheduled castes and scheduled tribes, separately, in the light of vacancies available for each of the said category containing names, so far as may be, in the given proportion. The proviso to this rule says that if in a year of recruitment, no vacancy is available for recruitment, no vacancy is available for scheduled castes or scheduled tribes but a person belonging to scheduled castes or scheduled tribes, as the case may be, is entitled to be included, by virtue of his seniority, in the eligibility list of the general category candidates, such person shall also be included in the eligibility list of general category candidates. Sub-rule (2) of Rule 5 provides that the provisions containing in proviso to rule 4 shall mutatis mutandis apply if preparing an eligibility list under this rule.
The effect of the aforesaid provisions in the Eligibility List Rules is that in the matter of promotion where the criterion is either ‘merit’ or ‘seniority subject to rejection of unfit’, in both cases, if no vacancy is available for scheduled castes and scheduled tribes candidates, even then they are entitled to be included, by virtue of their seniority, in the eligibility list of general category candidates and are to be considered against a non-reserved vacancy on higher post. This means that if accelerated seniority is given to such scheduled castes and scheduled tribes candidates on the post on which they have got the accelerated promotion because of the vacancy being reserved for them, they would steal march over the senior general category persons even in the matter of next promotion, they being entitled to accelerated seniority.
Prior to the aforesaid two amendments in the Eligibility List Rules in the years 1995 and 2001, there was no distinction regarding preparation of the eligibility list with respect to promotion where the creterion was ‘merit’. In 1995 amendment, rule 4 only provided that if the criterion for promotion is ‘merit’, then three separate eligibility lists will be prepared of the senior-most eligible candidates from each of the category, namely, general, scheduled castes and scheduled tribes separately, in the light of vacancies available for each of the said categories. This meant that persons belonging to scheduled castes and scheduled tribes would get their due as per prescribed quota of reservation on any class of posts in the cadre of the service as those vacancies would be filled in only by reserved category candidates, but by virtue of subsequent amendment in 2001, the benefit of accelerated seniority was given to scheduled castes and scheduled tribes by introducing a further proviso to Rule 4. Here, it may be pertinent to mention that by prescribing quota of scheduled castes and scheduled tribes in the services under the State including on the promotional posts, the only requirement could be that the said quota is fulfilled subject to the availability of eligible scheduled castes and scheduled tribes persons.
Rule 5, with its proviso read with its sub-rule (2), had applied this principle of accelerated seniority even in promotions where the criterion is ‘seniority subject to rejection of unfit’ though prior to the said amendment, this was not the requirement.
The Eligibility List Rules, 1986 since make a specific provision for promotion of scheduled castes and scheduled tribes candidates to the next higher post in their cadre of service against the vacancies reserved under their quota, the question of their inadequate representation would hardly arise against any class or classes of posts, as the vacancies earmarked for being filled up by reserved category candidates would be filled up only by the persons belonging to such category and not by any third person. This reservation or earmarking of vacancies on the posts in a particular cadre of service on the basis of their reservation quota, now 21% for scheduled castes and 2% for scheduled tribes, ensures the fulfillment of required quota of candidates belonging to reserved category and, therefore, the requirement of accelerated seniority to such promotees of scheduled castes and scheduled tribes does not appear to be necessary, as it in no way helps in achieving the quota of scheduled castes and scheduled tribes candidates, as the case may be, on a particular post or class of posts in the cadre of service. If the quota is already filled up, there would hardly be any occasion for giving additional benefit in the shape of accelerated seniority to the reserved category candidates for filling up the reserved promotional posts.
The Eligibility List Rules, 1986 thus take care of scheduled castes/scheduled tribes candidates on promoted post and permit their promotion against their identified posts prescribed under their quota. All such posts are to be offered to the scheduled castes and scheduled tribes as the case may be where the general category persons will have no right to be considered. Thus, the scheduled castes and scheduled tribes will be having their full quota in the services under the State against all posts earmarked for them where such quota is available and their right and interest would not be affected adversely if they are not given accelerated seniority. To the contrary, if accelerated seniority is given to the scheduled castes and scheduled tribes without considering the mandate of M. Nagraj case, it would result in reverse discrimination as the persons admittedly senior would become junior to their juniors and that though the quota of scheduled castes and scheduled tribes may be complete on a particular post or class of posts, but even then they will stand senior to the general category persons who earlier could not get a chance of consideration for promotion as the vacancy against which the scheduled castes and scheduled tribes persons were promoted, belong to that very class.
The combined effect of Eligibility List Rules and of consequential seniority to scheduled castes and scheduled tribes candidates will thus lead to reverse discrimination. Proviso appended to Rules 4 and 5 of the Eligibility List Rules in the year 2001 provides that if no vacancy in the quota of reserved candidate is available in a recruitment year and the reserved category candidate according to his seniority is entitled to be kept in eligibility list of general category, then he would be placed in the eligibility list for the post meant for the general category candidates. The said provisio of Eligibility List Rules was inserted with effect from 25.9.2001 when 85th Amendment in the Constitution was not made, which was made on 4.1.2002, therefore, in the Eligibility List Rules, the word ‘seniority’ occurring at various places would mean feeding cadre seniority. The combined effect of Eligibility List Rules and consequential seniority rule, impugned in the present petitions, was not taken into consideration while framing the same.
The effect of such a rule would also be that even though on a particular post or class of posts in the cadre of service, either the quota is full or no reservation can be provided for want of quota, namely, the total cadre strength of the post is less than 5, to make even one post/vacancy available for scheduled caste, the reserved category by virtue of consequential seniority would have a prior right of occupying such a post, which otherwise is general vacancy and that too, by superseding his senior. This will mean not only providing reservation in excess of the quota which means reverse discrimination, but also supersession of a senior person without sanction of law. There may be a case of single post cadre, e.g. the Head of the department, and that post will also be available to persons belonging to scheduled castes and scheduled tribes by virtue of accelerated seniority, superseding the claim and infringing the fundamental right of consideration for promotion of a senior person of general category. This cannot be the intention of rules nor of constitutional provisions. Any promotion made of scheduled castes/scheduled tribe persons beyond the quota prescribed would necessarily result into reverse discrimination. No reservation can be provided by indirect method on a class or classes of posts where there is no quota available for scheduled castes/scheduled tribes. This will also exceed the limit of 50% reservation in service.
While considering the validity of 85th Amendment in the Constitution, regarding consequential seniority, the Apex Court held that “the concept of “catch-up” rule and “consequential seniority” are judicially evolved concepts to control the extent of reservation. The source of these concepts is in service jurisprudence. These concepts cannot be elevated to the status of an axiom like secularism, constitutional sovereignty, etc. It cannot be said that by insertion of the concept of “consequential seniority” the structure of Article 16(1) stands destroyed or abrogated. It cannot be said that “equality code” under Articles 14, 15 and 16 is violated by deletion of the “catch-up” rule. These concepts are based on practices. However, such practices cannot be elevated to the status of a constitutional principle so as to be beyond the amending power of Parliament. Principles of service jurisprudence are different from constitutional limitations. Therefore, in our view neither the “catch-up” rule nor the concept of “consequential seniority” is implicit in clauses (1) and (4) of Article 16 as correctly held in Virpal Singh Chauhan.”
The Supreme Court, therefore, approved the judgment of Union of India versus Virpal Singh Chauhan, (1995) 6 SCC 684 and further observed that the judgment in M.G.Badappanavar versus State of Karnataka, (2001) 2 SCC 666 was mainly based on the judgment in Ajit Singh (I) which had taken the view that the departmental circular which gave consequential seniority to the “roster-point promotee”, violated Articles 14 and 16 of the Constitution. In none of the above cases, was the question of the validity of the constitutional amendments involved. Ajit Singh (I) (i.e. Ajit Singh Januja versus State of Punjab, (1996) 2 SCC 715), Ajit Singh (II) versus State of Punjab, (1999) 7 SCC 209 and M.G.Badappanavar (supra) were essentially concerned with the question of “weightage”. Whether weightage of earlier accelerated promotion with consequential seniority should be given or not to be given are matters which would fall within the discretion of the appropriate Government, keeping in mind the backwardness, inadequacy and representation in public employment and overall efficiency of services. The above judgments, therefore, did not touch the questions which were involved in the case of M. Nagraj.
The 77th and 85th Constitutional Amendments were held to be curative by nature. Article 16(4) provides for reservation for backward classes in cases of inadequate representation in public employment. Article 16(4) was enacted as a remedy for the past historical discriminations against a social class. The object in enacting the enabling provisions like Articles 16(4), 16(4-A) and 16(4-B) is that the State is empowered to identify and recognize the compelling interests of the backward class.
Considering promotion for members of scheduled castes and scheduled tribes against the reserved vacancy, where the general category candidates have no right to be considered and thereafter giving them reservation in promotion with accelerated seniority will amount to supersession, as normally understood, unless the catch-up rule is done away with, the general category persons would regain seniority as and when his turn for promotion comes and he is promoted. But if accelerated seniority is provided to the reserved candidates, the senior person who belongs to general category would lose seniority. This may be permissible under a legal provision backed by constitutional mandate, but while providing such a reservation in promotion with accelerated seniority, the State Government has to consider the conditions/factors which are necessary and widely discussed by the Apex Court in M. Nagraj’s case. In the absence of any such exercise having been done, the rule of reservation and that of accelerated seniority may not pass the test of Articles 14 and 16 of the Constitution.
It is apparent that by operation of Eligibility List Rules, the State is ensuring filling up of all the posts earmarked for reserved category candidates in their quota. If Rule 8-A is also implemented in addition to Eligibility List Rules, 1986 viz. proviso inserted to Rules 4 and 5, the reserved category candidates would get consequential seniority after their promotion and would become eligible for promotion to next higher post over and above their seniors and would be considered for promotion for the posts meant for general category candidates. Such promotion of SCs/STs would exceed the quota of reservation and the same would amount to reverse discrimination which would be violative of Articles 14, 16(1) and 16(4-A) of the Constitution of India.
In case the quota of scheduled castes and scheduled tribes stands already filled up on a post or class of posts in the services under the State (as pleaded by the petitioners in Irrigation Department and other departments), there cannot be a case of inadequate representation of the said category of persons against such post or class of posts. There being no inadequate representation, the question of allowing accelerated seniority i.e. consequential seniority would not arise. If despite quota being full, consequential seniority is given to reserved category persons in promotion, that would intrude upon the fundamental rights of senior persons belonging to general category from being considered for promotion to the next higher post and in their place, reserved category persons would be considered. Thus, the consequence would be that on the one hand, the quota of scheduled castes and scheduled tribes persons is full i.e. they are adequately represented and on the other hand, they will steal march over and above the senior general category persons and would occupy even those posts where the vacancies are not reserved for them. This is the effect of the Rules 4 and 5 read with its proviso of Eligibility List Rules, 1986 read with Rule 8-A alongwith explanation attached thereto.
This leads us to another very important point raised by the petitioners that in a short period of time, all the posts of Heads of the Departments would be occupied by reserved category candidates not because of their merit, but because of giving them reservation in promotion alongwith accelerated seniority. This would certainly cause discontentment and heart-burning amongst the senior members of the service belonging to general category, which would certainly lower down the efficiency in administration.
It is neither the mandate nor the will of the Parliament that irrespective of the adequate representation of the scheduled castes and scheduled tribes on all post or class of posts in the services under the State, promotion with or without accelerated seniority must be given to them. The assumption of the State that Rule 8-A has been inserted for giving effect to the constitutional amendment brought by inserting Article 16(4-A) from the back date is not sustainable. The State government having not undertaken any exercise as per the constitutional requirement and as per the directives of the Apex Court in M. Nagraj case could not have inserted Rule 8-A nor could have amended the Seniority Rules, 1991 accordingly. Reservation in promotion on any class or classes of posts in the services under the State, can neither be provided as a matter of course, nor can it be claimed as a matter of right but can only be provided under compulsive circumstances in consonance with the constitutional provisions.
Here, we may make it clear, that since we have already held that the reservation in promotion presently provided cannot continue, therefore, the import and effect of Eligibility List Rules,1986 shall not be understood to mean that we have in any way approved the reservation. It is only to show the combined effect of Eligibility List Rules,1986 and that of Rule 8-A, this discussion has been made.
Making a rule of reservation in promotion with accelerated seniority without adverting upon the backwardness of the class and inadequate representation on any post or class of posts in the services under the State without following the constitutional mandates and limitations provided therein, leaves no option for us but to hold that the State also remained totally oblivious with respect to the limitations prescribed under Article 335 of the Constitution.
The effect of such reservation in promotion with accelerated seniority was never considered by the State keeping in mind the efficiency of administration, which is bound to be compromised where reservation quota exceeds and results into reverse discrimination. There cannot be any grouse if reserved category persons get their promotion to the higher post in the channel of promotion and may be on the post of Head of the Department, by virtue of their merit after competing with the general category persons, who are senior to them, as was provided in the unamended Eligibility List Rules, 1986, but if such promotions are made ignoring the senior persons, who may be more meritorious, that will be defeating their fundamental right of consideration for promotion to the higher post, which is not permissible. Rule 8-A thus introduced by the Third Amendment Rules, 2007 is ultra vires and unconstitutional.
A similar question arose before the Supreme Court in Special Leave Petition (Civil) No. 6385 of 2010, Suraj Bhan Meena and another versus State of Rajasthan and others alongwith connected petitions, which were filed against the judgment of Rajasthan High Court quashing the notification 25.4.2008 issued by the State of Rajasthan, in exercise its powers conferred by the proviso to Article 309 of the Constitution of India amending the Rajasthan Various Service Rules with effect from 28.12.2002. The effect of the notification aforesaid amounted to giving consequential seniority to candidates belonging to scheduled castes and scheduled tribes.
Challenge was made mainly on the ground that such seniority could not have been given without quantifying the figures of scheduled castes and scheduled tribes candidates to enable a decision to be arrived at that reservation was required in promotion and also to show that the State had to pass such orders for compelling reasons, such as, backwardness and inadequacy of representation, as held by the Apex Court in the case of M. Nagraj.
The main plea was that since the State Government had not complied with the directions given by the Apex Court in M. Nagraj’s case, the notification in question was liable to be quashed. It was further urged that in the case of Indra Sawhney, the Apex Court had held that Article 16(4) of the Constitution did not permit reservations in the matter of promotion. Thereafter, the Constitution (77th Amendment) Act, 1995 was enacted and came into force on 17.6.1995. The Apex Court in subsequent Special Leave Petitions filed by the Union of India and others against Virpal Singh Chauhan and others (1995)6 SCC 684, Ajit Singh Januja and others versus State of Punjab and others (1996) 2 SCC 715 and Ajit Singh II and others versus State of Punjab and others (1999) 7 SCC 209), introduced the ‘catch-up” rule and held that if a senior general candidate was promoted after candidates from the Scheduled castes and scheduled tribes have been promoted to a particular cadre, the senior general candidate would regain his seniority on promotion in relation to the juniors who had been promoted against reserved vacancies. The Parliament on 4.1.2002 amended the Constitution by the Constitution (85th Amendment) Act, 2001 in order to give the benefit of consequential seniority to the reserved category candidates with effect from 17.6.1995. The Apex Court while upholding the constitutional validity of the Constitution (77th Amendment) Act, 1995 and the Constitution (85th Amendment) Act, 2001 clarified the position that it would not be necessary for the State Government to frame rules in respect of reservation in promotion with consequential seniority, but in case the State Government wanted to frame such rules in this regard, then it would have to satisfy itself by quantifiable data, that there was backwardness, inadequacy of representation in public employment and overall administrative inefficiency and unless such an exercise was undertaken by the State Government, the rule relating to reservation in promotion with consequential seniority could not be introduced. Relying upon the decision in the case of M. Nagraj, the notification aforesaid was quashed.
It was the case of the petitioners in the aforesaid SLP that the impugned notification dated 25.4.2008 was liable to be declared ultra vires to the provisions of the Constitution being contrary to the decision of this Court in M. Nagraj’s case.
It was further submitted that withdrawal of the notification dated 1.4.1997 by notification dated 28.12.2002 amounted to negating the judgment of the Apex Court in the case of Ram Prasad versus D.K.Vijay (1999) 7 SCC 251 and, accordingly, the notification dated 28.12.2002 was also liable to be quashed by the Court. In short, the question sought to be decided was whether the State Government was reintroducing a concept which had been replaced pursuant to the orders passed by this Court, which had been found to be ultra vires the provisions of the Constitution.
The Apex Court also took note of the argument that the respondents had not acquired any vested right since the Constitution Amendment Acts had been enacted by the Parliament only with the intention of nullifying the effects of the judgments in the cases of Virpal Singh Chauhan and Ajit Singh II. It was submitted that the Constitution (85th Amendment) Act, 2001 which was given effect to from 17.6.1995, had constitutionally nullified the principle of “regain of seniority” and the principle of “catch-up” which had been explained by the Apex Court in Virpal Singh Chauhan’s case.
The defence put forward by the State of Rajasthan was that the relief praying for a declaration that the benefit of reservation in promotion with consequential seniority should not be given unless the three compelling conditions as indicated in M. Nagraj’s case were fulfilled, was totally misconceived in the absence of any challenge to the order dated 10.2.1975 passed by the State of Rajasthan providing for reservations in favour of scheduled castes and scheduled tribes candidates in promotion. Furthermore, no such prayer had been granted by the High Court. The argument was that the relief prayed for was based on a complete misreading of the decision in M. Nagraj’s case.
After noticing the various arguments raised on behalf of the parties, the Apex Court said that the primary question which their Lordships were called upon to answer was whether the amended provisions of Article 16(4-A) of the Constitution intended that those belonging to the scheduled castes and scheduled tribes communities, who had been promoted against reserved quota, would also be entitled to consequential seniority on account of such promotions, or would the “catch-up” rule prevail.
The Court noticed that the said question has been the subject-matter of different decisions of the Court, but the discordant note was considered and explained by the Constitution Bench in M. Nagraj’s case. On account of reservation, those who were junior to their seniors, got the benefit of accelerated promotions without any other consideration, including performance. Those who were senior to the persons who were promoted from the reserved category were not overlooked in the matter of promotion on account of any inferiority in their work performance. It is only on account of fortuitous circumstances that juniors who belong to the reserve category were promoted from that category before their seniors could be accommodated.
In view of the arguments raised and the legal position as it existed in view of the judgment of the Constitution Bench judgment in the case of M. Nagraj in the light of the Constitution (77th Amendment) Act and the Constitution (85th Amendment) Act, the Supreme Court observed, “In effect, what has been decided in M. Nagraj’s case (supra) is part recognition of the views expressed in Virpal Singh Chauhan’s case (supra), but at the same time upholding the validity of the 77th, 81st, 82nd and 85th amendments on the ground that the concepts of “catch-up” rule and “consequential seniority” are judicially evolved concepts and could not be elevated to the status of a constitutional principle so as to place them beyond the amending power of the Parliament. Accordingly, while, while upholding the validity of the said amendments, the Constitution Bench added that, in any event, the requirement of Articles 16(4-A) and 16(4-B) would have to be maintained and that in order to provide for reservation, if at all, the tests indicated in Articles 16(4-A) and 16(4-B) would have to be satisfied, which could only be achieved after an inquiry as to identity.”
The Court pronounced that the position after the decision in M. Nagraj’s case is that reservation of posts in promotion is dependent on the inadequacy of representation of members of the scheduled castes and scheduled tribes and Backward Classes and subject to the condition of ascertaining as to whether such reservation was at all required. (Underlined by us.) The view of the High Court is based on the decision in M. Nagraj’s case (supra) as no exercise was undertaken in terms of Article 16(4-A) to acquire quantifiable data regarding the inadequacy of representation of the scheduled castes and scheduled tribes communities in public services. With the aforesaid observation, the judgment passed by the Rajasthan High Court was affirmed.
Almost a similar controversy arose before the Himachal Pradesh High Court, where Himachal Pradesh Samanya Varg Karamchari Kalyan Mahasangh, in CWP-T No. 2628 of 2008, challenged the validity of the instructions dated 7th September, 2007 issued by the State of Himachal Pradesh, which made provision for reservations in the matter of promotions with consequential seniority in all classes of posts in the services under the State in favour of the scheduled castes and scheduled tribes. The State by these instructions had taken a decision to make reservation in promotion for the scheduled castes and scheduled tribes in terms of the provisions of Articles 16(4), 16(4-A) and 16(4-B) of the Constitution of India.
The Himachal Pradesh High Court, considering the various pronouncements of the Apex Court and the law laid down therein came to the conclusion that the Apex Court has upheld the constitutional amendments but has laid down that this does not obliterate the constitutional requirements of ceiling limit of 50%, the concept of creamy layer, the sub-classification between OBCs on the one hand and SCs and STs on the other hand, and the concept of post based roaster with inbuilt concept of replacements. It has also been clearly said that the State is not bound to make reservations for scheduled castes and scheduled tribes. However, if it chooses to exercise the power vested in it to make such reservations, the State must collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment. In addition thereto Article 335 relating to efficiency must be also complied with. (Underlined by us.) It is subject to these guidelines that the constitutional validity of the amendments was upheld.
Repelling the plea of the State that no such exercise for collecting any data was required in view of the fact that in the State of Himachal Pradesh, there was already a provision for reservation in promotion prior to the judgment in Indra Sawhney’s case and thus collection of data as mandated in M. Nagraj’s case is not required, the Division Bench of the Himachal Pradesh High Court held, “In Himachal Pradesh, reservation was provided in promotion prior to the judgment in Indra Sawhney’s case. After Indra Sawhney’s case, such reservation could not have been permitted beyond the period of five years.. To get over this judgment, the constitutional amendments were enacted. The Apex Court in no uncertain terms while upholding the constitutional amendments held that the collection of quantifiable data to establish backwardness and inadequacy of representation keeping in view the efficiency of administration of the State is necessary before making reservations. This requirement never existed prior to the judgment. According to the State, it had after due consideration decided to make provision for reservation in promotion much earlier. “Due consideration” is totally different from collecting quantifiable data. This exercise has to be conducted and no reservation in promotion can be made without conducting such an exercise. Therefore, the State cannot be permitted to make reservations till such exercise is carried out and clear-cut quantifiable data is collected on the lines indicated in M. Nagraj’s case”. (Underlined by us.)
The Court also took note of the fact that no clear-cut quantifiable data was placed so as to establish the need for reservation. Merely because the amended provision of the Constitution enables the State to make reservation is no ground not to collect data. Their Lordships further observed, “No doubt under the provisions of Article 16(4-A) the State is entitled to grant consequential seniority on promotion to the members belonging to the scheduled castes and scheduled tribes but there must be data available with the State Government to show that the scheduled castes and scheduled tribes are inadequately represented in the services or in the cadre to which promotions have to be made.”
Rejecting the contention of the petitioners that the concept of creamy layer is applicable to to scheduled castes and scheduled tribes, the High Court of Himachal Pradesh allowed the writ petition, holding that until the State collects data and material establishing the need for reservation by collecting quantifiable data to show backwardness, inadequacy of representation and keeping in mind the overall efficiency of State administration, the State would not be entitled to make reservation in promotion for the scheduled castes and scheduled tribes. The impugned instructions were, therefore, quashed.
Against the said judgment, Special Leave Petition No. 30143/2009 was filed before the Hon’ble Supreme Court. The SLP alongwith Contempt Petition (C) No. 27/2010 was taken up for hearing on 26.4.2010, but the State of Himachal Pradesh made a prayer for withdrawal of the said SLP. The Apex Court passed the following order:
“The State of Himachal Pradesh has issued a Circular on 07.09.2007 as regards the promotion of SCs/STs in the State service. The said circular was challenged by the respondent no. 1 and the circular was quashed by the High Court by the impugned judgment. Learned counsel appearing for the State submits that the circular issued on 07.09.2007 has since been withdrawn as the State intends to collect more details with regard to representation of SCs/STs and to pass appropriate orders within reasonable time i.e. approximately within three months after collecting necessary details and datas. The petitioner would be at liberty to take appropriate steps, if any adverse order is passed. This Special Leave Petition and the Contempt Petition are thus disposed of finally.”
We are, thus, of the opinion that merely because the reservation in promotion was provided prior to the case of Indra Sawhney by means of the Government Orders issued by the State Government which judgment did not permit any reservation in promotion though protected the promotions already made and also allowed reservation in promotion to be continued for a period of five years unless the rules were revised, modified or re-issued, and to overcome the said judgment the constitutional amendments were made, therefore, if the Government was to carry on with the reservation in promotion, it ought to have provided the same by following the mandate of enabling provisions of the Constitution, but without doing so, reservation could not have been extended beyond the period of five years as directed by the Apex Court in the case of Indra Sawhney.
We also take notice of the fact that the State Government enacted the Act, 1994 making an almost permanent provision for reservation, or to say, for indefinite period, which is evident by the fact, that, though more than eighteen years have passed from the date when the judgment in Indira Sawhney’s case was pronounced, the reservation is still continuing in promotion and that too without taking recourse to the constitutional requirements despite the fact that prior to the 77th and 85th Amendments of the Constitution, there was no constitutional provision for such reservation in promotion and after the aforesaid amendments in the Constitution, no exercise has been done by the State in this regard and the same very provisions of reservation are continuing. Obviously, the provision for reservation by Government Orders issued earlier in 1973 and 1974, 1994 Act was provided at a time when there was no constitutional protection to reservation in promotion, nor the Constitution did permit any such reservation, and thereafter without following the mandate of Articles 16(4), 16(4-A) and 16(4-B) of the Constitution, the same is continuing, therefore, such Government Orders and enactments, in particular Section 3(7) of 1994 Act, cannot be held to be valid nor can continue in operation any further unless the State Government undertakes the requisite mandatory exercise for collecting quantifiable data regarding the backwardness of the class, its inadequate representation in class or classes of posts in the services under the State, of course without compromising with the efficiency in administration, as per the dictates of the constitutional provisions of Article 335.
Further, providing reservation in promotion with accelerated seniority was a separate issue, which ought to have been considered in the light of the Eligibility List Rules, 1986. Even if on collecting the quantifiable data in respect of the backwardness of the class and its inadequate representation on the promotional posts in the services under the State, such a reservation be permissible, in the presence of the Eligibility List Rules, 1986, where three separate eligibility lists are to be prepared for considering promotion of general category and scheduled caste/scheduled tribe category persons against their reserved vacancies, there would hardly be any reason or requirement under the Constitutional provisions to provide accelerated seniority to such promotees under reserved category. The reason being that on promotion so made of reserved category persons against the vacancies of reserved quotas, there would rarely be a case of inadequate representation even if backwardness of the class is established. It is only in a case where both the two factors, namely, backwardness of the class and inadequate representation on a class or classes of posts in the services under the State do exist that question of granting accelerated seniority may arise, but even in such a case, the State has to satisfy that no compromise is made with the efficiency in administration and such a rule does not violate the essence of Article 335 of the Constitution, nor it results into reverse discrimination.
In the absence of any exercise having been done as already discussed and referred to above, by first providing reservation under Section 3(7) of the Act of 1994 and thereafter with accelerated seniority to scheduled castes and scheduled tribe Government servants by inserting Rule 8-A in the Rules, 2007, the State has in fact violated the equality clause and has made the aforesaid statutory provision and rule without following the constitutional mandate and requirements thereof. Rule 8-A and Section 3(7) of the Act, 1994, therefore, cannot be protected and have to be declared ultra vires to the provisions of the Constitution.
We are, therefore, of the considered opinion that neither the Government Orders of 1973 and 1974 could be said to be validly issued, nor the enactment, namely Section 3(7) of the Act of 1994 can be protected, as the said provision was enacted when there was no constitutional protection to reservation in promotion and after the Constitutional 77th and 85th Amendments, no exercise as required under the constitutional provisions and elaborately explained in the case of M. Nagraj, has been done till date to find out whether reservation in promotion on any class or classes of posts is necessary or not. No such exercise has been done also when Rule 8-A has been enforced in 2007, by revising the Rules of 2002.
In case the State intends to provide reservation in promotion, it has to undertake an exercise for collecting quantifiable data with respect to backwardness of the class, their inadequate representation in a class or classes of posts in the services under the State and of course in the light of Article 335 of the Constitution. The State is free to make such an exercise if it so desires.
In regard to the writ petitions connected with this bunch, which relate to various corporations, viz. UPPCL, Jal Nigam, U.P.Avas Evam Vikas Parishad, etc. suffice would be to mention that apart from other pleas as raised in Writ Petition No. 1389 (S/B) of 2007 Prem Kumar Singh and others versus State of U.P. and others, a further plea has been raised that these corporations have amended their Rules only on issuance of the Government Order even without undertaking any exercise to find out quantifiable data for giving promotion to SC/ST candidates. They have not applied their mind at all whether reservation with or without accelerated seniority is at all necessary in their department/corporation. In many of the writ petitions, there is specific plea that the quota of scheduled castes and scheduled tribes already stands filled up, but even then accelerated seniority is being sought to be given to reserved category candidates.
Likewise, all other writ petitions which relate to different departments of the State Government, also raise the same challenges, as has been raised in the case of Prem Kumar Singh.
Thus, all the writ petition in the bunch do not require any separate discussion and for the reasons aforesaid, they shall also be governed by the present judgment.
For the reasons given above and the discussions made, we declare the provisions of Section 3(7) of the Act, 1994 and that of Rule 8-A of the U.P. Government Servants Seniority (Third Amendment) Rules, 2007 as invalid, ultra vires and unconstitutional. Consequently, the Government Order dated 17.10.2007 is also hereby quashed.
In view of our finding that reservation in promotion as provided under Section 3(7) of the Act, 1994 is no more available, the Eligibility List Rules, 1986 as amended in 1995 and 2001, in so far as they provide for preparation of separate eligibility lists of general category and scheduled castes and scheduled tribes candidates with accelerated seniority, lose their significance and shall remain no more operative.
Consequent to the aforesaid declaration, we quash all the seniority lists, which have been prepared by applying Rule 8-A and are subject-matter of challenge in their respective writ petitions in the bunch. This direction will equally be applicable to all the departments of the State Government and the Corporations, etc.
We further clarify that in case the State Government decides to provide reservation in promotion to any class or classes of posts in the services under the State, it is free to do so after undertaking the exercise as required under the constitutional provisions, keeping in mind the law laid down by the Apex Court in the case of M. Nagraj. But till such an exercise is done and enactment/Rule is consequently made, no reservation in promotion on any post or classes of posts under the services of the State including the corporations, etc. shall be made henceforth. However, all promotions already made as per the provision/rule of reservation, where the benefit of Rule 8-A has not been given, while making the promotions, shall not be disturbed by the declaration aforesaid and shall stand protected.
All the writ petitions are, therefore, allowed. Costs easy.
January 4, 2011
LN/-
Kerala 10% quota to poor in big trouble
Yet another spawn of the the scrutiny free quota regime has landed in New Delhi. The Supreme Court now has to pull another rabbit out of its hat to square it with its own earlier inscrutable judgments and long rope policy.
The matter
The Kerala Govt under Mr Achutanandan in 2008 had announced a 10% quota to below poverty line “upper castes” . To be precise upper caste here means, castes currently not allowed to access a quota benefit.
There was a hue and cry among the castes / communities availing of this adhoc benefit. The Muslim Jamath Council challenged the policy in the Kerala High Court. Here is the state general secretary of the Jammath. In this context, it is important to note all Muslims in Kerala are OBC.
Addressing a press meet, Mr. Pookunjhnu said the government would be betraying the backward classes by implementing economic reservations criteria for higher education. It should change its stance on raising the concerns of only 18 per cent of the population who were crying for economic reservations against the majority backward classes for whom the Constitution had provided reservations for social justice, he said.
Source : Hindu (emp mine)
The Kerala High Court rejected their arguments last year.
“These communities must realise that government’s over indulgence in extending various benefits will only stunt their growth and time has come to awaken these communities from the slumber of satiated insouciance”, the court had said.
Source : DH
Subsequently the Muslim Jamath Council and the Christian Service Society approached the Supreme Court. The matter was posted to a two judge bench of Jus Singhvi and Dattu which heard it today. Justice Dattu recused himself from the case as he was involved with its disposition as the Chief Justice of Kerala High Court in 2010. As of now, the case has bounced back to Chief Justice Kapadia who will post it to another bench.
The main argument of the Muslim Jammat Council and Christian Service is :
The Council, in its appeal, submitted that the State had no power to make reservation in the matter of admission to educational institutions solely on the basis of the economic condition of individual students.
There was no provision “in the Constitution giving the power or authority to the State to make law or rules or regulations reserving seats in educational institutions on the sole criteria or basis of the economic condition of students.”
The Council argued that reservation was permissible only for the advancement of socially and educationally backward classes of citizens and for Scheduled Castes/Scheduled Tribes and any section of the forward community was ineligible and disqualified constitutionally from making any special provision.
Source : Hindu (names the Christian Society in print edition but edited on web)
The responses of the bench was merely to question the locus standi of the complainants.
During the resumed hearing, Justice Singhvi asked counsel for the first petitioner: “Is it a registered society. Can you represent the society and espouse the cause for others. What is your interest? How many such organisations are there in Kerala?”
When counsel said there were many such organisations, but the petitioner was authorised to espouse the cause, Justice Singhvi said: “There are many organisations but the question is who authorises them to speak for the community. Hundreds of self-appointed champions of particular groups are there. Affected individuals could have come to the court directly.”
Source : Hindu
Reality Check comments
Consider the tragedy of the situation. These communities who are included in the backward list avail of benefits even when their annual income is upto 4.5 Lakh. This is not considering the blanket creamy layer immunity to various groups. Yet, they cant stomach a 10% quota for poor forward community students who have to be below the poverty line to avail of the benefits. In other words, a Rs 4.5 Lakh per-annum group cant stomach his benefits extended to a Rs 11,000 per-annum group.
But the Christian and Muslim groups have two important questions in front of the court.
- What is the rationale for a) including anyone and b) keeping them in the OBC list ? All Kerala Muslims and a number of Christians (except Syrian Christians) are in the OBC list. They have been there for decades and thousands of people have benefited to the detriment of thousands of others.
- The constitution amendment only allows for SEBC (Socially and educationally backward).
It has far reaching consequences :
- They are on a strong wicket. The court has never laid down any guidelines nor imposed any scrutiny of classification. In fact, the court noted in 1996 that 80% of all open seats went to castes classified as OBC in TN. They papered over such an astonishing data point.
- They want the 10% quota for their communities too. The problem is all poor in their communities are already covered, it is just that the rich ones don’t let the benefits percolate. Pushing this point further only means that the creamy layer should be revised downwards to that the poor benefit.
- Clearly a 10% quota to BPL forward community will be greatly effective in terms of social justice the the existing OBC quota which is lopped off by a few at the higher end. The poor among these communities will then envy the safety net available to the forward communities and start questioning the entire system.
- The idea has been burnt into Indians that once a community gets an adhoc benefit – it is permanent – but only as long as their benefit protector is kept in good humour.
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The real test of the Supreme Court is whether it can scrutinize this adhoc runaway division of citizens. It started it in the Champakam Dorairajan case by giving the state a long rope with little data overhead. It failed in 2007. This failure will manifest itself in ways you cant imagine.
The mysterious disappearance of all big ticket items from the voting booth.
Related Kerala stories on blog : Indira Sawhney I, Creamy Layer – A Kerala story
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