Case BriefsHigh Courts

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

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

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

Case BriefsSupreme Court

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

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

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

Case BriefsHigh Courts

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

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

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

Case BriefsSupreme Court

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

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

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

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

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

Case BriefsHigh Courts

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

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

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

Case BriefsSupreme Court

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

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

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

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

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

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

Hot Off The PressNews

Supreme Court: The bench of J.S. Khehar, CJ and Dr. D.Y. Chandrachud, J held that the Government jobs and admissions secured in the reserved category on the basis of fake caste certificates cannot be held valid even if the certificates are found to be fake after a long delay.

The Court was hearing the appeal against the judgment of Bombay High Court where it was held that if a person continues in service for a long period of time and the certificate is found to be fake at a later stage then, he or she may be allowed to continue in the service.

Disagreeing with the Bombay High Court, the Court clarified that the order of the Court shall not be made applicable retrospectively.

Source: PTI

Hot Off The PressNews

Supreme Court: The bench of Dipak Misra and A.M. Khanwilkar, JJ directed the State of Gujarat to give 50 per cent reservation to the in-service candidates for admission to post-graduate medical diploma courses as per the regulations of the Medical Council of India. The reservation is to be granted in the second round of counselling, starting tomorrow for admissions in PG courses. The Court also asked the State Government to define remote rural or difficult areas in which the in-service medical officers will be working.

The in-service medical candidates had challenged the State’s order of granting only 25 per cent reservation to the in-service candidates for admission in PG medical diploma courses. The candidates had pleaded that as per regulation VII of the MCI Regulations, 2000, it is mandatory for the state to reserve 50 per cent of the total seats of government medical college in Post Graduate Diploma Courses for medical officers in the government service, who has served at least 3 years in remote and/or difficult areas.

The Gujarat High Court had, on 05.05.2017, dismissed the petition of in-service medical petitioners on the ground that it was not mandatory for the State Government to follow the rules and regulations issued by the Medical Council of India, particularly the Post Graduate Medical Education Regulations, 2000.

Source: PTI

Case BriefsSupreme Court

Supreme Court: Deciding the validity of the Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of Reservation (To the Posts in the Civil Services of the State) Act, 2002 which provides for grant of consequential seniority to the Government servants belonging to Scheduled Castes and the Scheduled Tribes promoted under reservation policy, the bench of A.K. Goel and U.U. Lalit, JJ declared the provisions of the impugned Act to the extent of doing away with the ‘catch up’ rule and providing for consequential seniority under Sections 3 and 4 to persons belonging to SCs and STs on promotion against roster points to be ultra vires Articles 14 and 16 of the Constitution.

In the present case where the Assistant Engineers of SC/ST category recruited in the year 1987 were promoted to the cadre of Assistant Executive Engineers while in general merit,Assistant Engineers recruited in 1976 were considered for promotion to the said cadre, the appellants argued that the SC/ST candidates got promotion early and on account of consequential seniority, percentage of SC/ST candidates was much higher than the permitted percentage and all top positions were likely to be filled up by SC/ST candidates without general merit candidates getting to higher positions. The appellant had also argued that as a consequence of accelerated seniority to the roster point promotee, the roster point promotee would reach the third level by the age of 45 and fourth, fifth and sixth level in next three, two and two years, however, the general merit promotee would reach the third level only at the age of 56 and retire before reaching the fourth level. This would result in reverse discrimination and representation of reserved category would range between 36% to 100%.

The exercise for determining ‘inadequacy of representation’, ‘backwardness’ and ‘overall efficiency’, is a must for exercise of power under Article 16(4A) of the Constitution. Mere fact that there is no proportionate representation in promotional posts for the population of SCs and STs is not by itself enough to grant consequential seniority to promotees who are otherwise junior and thereby denying seniority to those who are given promotion later on account of reservation policy. If the State wishes to exercise its discretion under Article 16(4A), it is 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. Even if the State has compelling reasons, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely. The Court said that the plea that persons promoted at the same time were allowed to retain their seniority in the lower cadre is untenable and ignores the fact that a senior person may be promoted later and not at same time on account of roster point reservation. Depriving him of his seniority affects his further chances of promotion.

The Court, however, clarified that the judgment will not affect those who have already retired and will not affect financial benefits already taken. Consequential promotions granted to serving employees, based on consequential seniority benefit, will be treated as ad hoc and liable to be reviewed. Seniority list may be now revised in the light of this judgment within three months. [B.K. Pavitra v. Union of India, 2017 SCC OnLine SC 109, decided on 09.02.2017]

 

Case BriefsSupreme Court

Supreme Court: In the petition filed by the Physically Handicapped candidates belonging to Other Backward Classes (OBC), claiming that they are entitled to avail 10 attempts instead of 7 attempts in the Civil Services Examination, the bench of Ranjan Gogoi and Ashok Bhushan, JJ held that the reservation provided to the Physically Handicapped Candidates of General and OBC category is a horizontal reservation. Both being provided 7 attempts to appear in Civil Services Examination, no discrimination or arbitrariness can be found as the Physically Handicapped Category is a Category in itself, a person who is physically handicapped be it Physically Handicapped of a General Category or OBC Category, suffering from similar disability has to be treated alike in extending the relaxation and concessions.

The said challenge was made on the ground that since the attempts for Physically Handicapped candidates belonging to General Category have been increased from 4 to 7, w.e.f. 2007 Civil Services Examination by Notification dated 29.12.2007, there should be a proportionate increase in attempts to be taken by Physically Handicapped Candidates belonging to the OBC Category.

Rejecting the said contention, the Court held that when the attempts of Physically Handicapped candidates of OBC Category and Physically Handicapped candidates of General Category, who appeared in the Civil Services Examination are made equal, and a Physically Handicapped candidate belonging to OBC Category, in addition to 10 years relaxation in age also enjoys 3 years more age relaxation for appearing in the examination, it cannot be said that there is discrimination between Physically Handicapped candidates of OBC Category and Physically Handicapped Candidates of General Category. The reserved category candidate belonging to OBC are separately entitled for the benefit which flow from vertical reservation, and the horizontal reservation being different from vertical reservation, no discrimination can be found when Physically Handicapped candidates of both the above categories get equal chances i.e. 7 to appear in the examination.

The Court also said that the horizontal reservation and relaxation for Physically Handicapped Category candidates for Civil Services Examination is a matter of Governmental policy and it is not in the domain of the courts to embark upon an inquiry as to whether a particular public policy is wise and acceptable or whether better policy could be evolved. The Court can only interfere if the policy framed is absolutely capricious and non-informed by reasons, or totally arbitrary, offending the basic requirement of the Article 14 of the Constitution. [Union of India v. M. Selvakumar, 2017 SCC OnLine SC 58, decided on 24.01.2017]

Case BriefsHigh Courts

High Court of Rajasthan: Amidst the clamour surrounding the issue of reservation of Gujjars, the Bench comprising of MN Bhandari and JK Ranga , JJ., while examining the issue where a challenge is made to the Notification dated 16th October, 2015 issued by the State Government and Rajasthan Special Backward Classes Act, 2015, upheld the challenge against the report submitted by the Other Backward Classes commission recommending 5% reservation, exceeding the ceiling of 50 per cent under the Constitution mandate , to Gujjars and four other caste under the category of Special Backward Classes for appointment in public services and admission in the educational institutions.

The petitioner has moved to the court since the notification and Act of 2015 are against Article 16(4B) of the Constitution as the State Government cannot reserve vacancies of a year beyond 50% and if the Act of 2015 is given effect to, reservation would be beyond the ceiling of 50 per cent i.e. against the vacancies of a year. The petitioner further contends that there exist discrepancies in the report of SBC Commission as 82 castes were identified for consideration and the recommendation has been made only to the extent of 5 castes hence the report of SBC Commission, so as the notification and Act of 2015 should be rejected and set aside .

However, the  respondents urged about the limited scope of judicial review in case of a report being prepared by an expert body therefore, such a report cannot be examined by the court until and unless the report reflects a perverse or impossible view and not merely on the basis of insufficiency of data. Further, the respondent contended that the ceiling of reservation beyond 50 % is upheld by the court in various landmark judgments hence the argument of  the petitioners about ceiling of 50 per cent on reservation in services is not tenable.

The Court while relying on plethora of judgments observed that since the 5 castes now brought under the category of Special Backward Classes were already getting the benefits of reservation for many past years hence the report submitted by the SBC Commission shows no extraordinary reasons because of which the State Government should create a new category in favor of five castes. The Court further quashed the report of SBC Commission to be infructuous as it was not made in the manner required and otherwise directed by the Supreme Court in various judgments. The Court also stuck down the notification and the Act of 2015 in referring to Article 16(4B) of the Constitution of India and the judgments of the Apex Court stating that the ceiling of 50% on reservation on the vacancies of the year, in which they are to be filled, exists and the exception is for the backlog or unfilled post/s of previous year/years. The Court upholding the power of judicial review of the court in case of a report being prepared by an expert body held that since the data in the report has not been collected to the extent it was required thereby being perverse hence the report is open for judicial examination. [Captain Gurvinder  Singh v. State of  Rajasthan,  Writ Petition (Civil) No. 1645/2016, decided on 9th December, 2016]

Case BriefsSupreme Court

Supreme Court: Refusing to interfere with the 10% concession granted by the State of Rajasthan to reserved category candidates in TET by the letter dated 23.03.2011 as on that basis, two recruitment tests have been conducted and candidates who have been selected are now teaching for last number of years, the Court said that the State should bring the relaxation within reasonable limits for future selections as very high percentage of relaxation may amount to compromising with quality which may not be conducive to maintaining standards of education. The Court noticed that except for the State of Andhra Pradesh, no other State has granted such wide range of concessions as the State of Rajasthan did in its letter dated 23.03.2011 and hence, said that in order to impart quality education, we need those teachers who are processed of essential aptitude and ability to meet the challenges of teaching at the primary and upper primary levels.

By guidelines dated 11.02.2011, it was specified that the minimum pass percentage of TET is 60, however, later by a communication dated 23.03.2011, relaxation to the reserved category candidates was granted in minimum pass marks in the TET. The candidates belonging to SC/ST, OBC, SBC and women belonging to General category were to be given 10% relaxation in pass marks in TET. Many candidates belonging to the General category filed writ petitions in the High Court of Rajasthan challenging their selection on the ground that minimum percentage for passing TET was 60% and, therefore, all those candidates belonging to the reserved categories who secured less than 60% in TET could not be declared as having passed TET and were, therefore, ineligible to participate in the selection process.

The Bench of Dr. A.K. Sikri and R.K. Agrawal, JJ said that giving of desired concessions to the reserved category persons ensures equality as a levelling process, however, on the other hand, when it comes to selection process such reserved category candidates have to compete with general category candidates wherein due regard for merit is given. Therefore, only those candidates belonging to reserved category who are found meritorious in selection are ultimately appointed. The Court said that no concession becomes available to the reserved category candidate by giving relaxation in pass marks in TET insofar as recruitment process is concerned. It only enables them to compete with others by allowing them to participate in the selection process. Hence, the reserved category candidates who secured more marks than marks obtained by the last candidate selected in general category, would be entitled to be considered against unreserved category vacancies.

Having said so, the Court said that the effect of the order would be as follows:

  • Those reserved category candidates who secured pass marks on the application of relaxed standards as contained in the extant policy of the Government in its communication dated March 23, 2011 to be treated as having qualified TET examination and, thus, eligible to participate in the selection undertaken by the State Government.
  • Migration from reserved category to general category shall be admissible to those reserved category candidates who secured more marks obtained by the last unreserved category candidates who are selected, subject to the condition that such reserved category candidates did not avail any other special concession. It is clarified that concession of passing marks in TET would not be treated as concession falling in the aforesaid category.

[Vikas Sankhala v. Vikas Kumar Agarwal, 2016 SCC OnLine SC 1154 , decided on 18.10.2016]

Case BriefsSupreme Court

Supreme Court: A three judge bench of Thakur CJ., and Khanwilkar and Chandrachud JJ. while listing the matter for further hearing allowed the interim stay granted by the Gujarat High Court to continue until the next date of hearing. Mr Mukul Rohtagi, Attorney General and  Mr Tushar Mehta, Additional Solicitor General appeared for the State and Mr Gopal Subramanium, Senior Advocate appeared for the respondent. [State of Gujarat v. Dulari Mahesh Basarge2016 SCC OnLine SC 887 , decided on 29-08-2016]

Read the Gujarat High Court post here.

Case BriefsHigh Courts

Madhya Pradesh High Court:  In an order passed by Sujoy Paul J.  upholding the law laid down by the Supreme Court, it was held that the Reserved Category candidates are entitled to be considered against the posts for the General Category and the only requirement shall be that such candidate should be eligible in all respects except for the caste.

In the instant case, two petitions were put before the Court for consideration. In the first petition the petitioner, who was a SC category candidate had been given compassionate appointment against a General category post initially, but the appointment had been cancelled by an order for the reason that no posts in the “SC category” had been vacant. In the second petition, the petitioner being an ST category candidate was denied appointment on the grounds that no post in the “ST category” had been lying vacant.

The Court observed that in both the cases, non-availability of reserved category post was the reason for cancellation and the non-grant of appointment of the candidates. Having heard the submissions of the counsel for the parties, the Court relied on the law laid down in R. K. Sabharwal vs. State of Punjab  (1995) 2 SCC 754 and held that the reserved category candidates cannot be denied appointment against a General category post merely because of being reserved category candidate and are entitled to be considered against a General category post, given that they are eligible in all respects except for the caste. The only test should be that the candidates shall fulfill all eligibility, qualifications, requirements, etc. for the General category post. It was also held in the order that, however, General category candidates would not have any such right to be considered against a reserved category post. The Court held that, in the support the principle law laid down by the Supreme Court, rejection of the petitioner’s candidature/appointment cannot be countenanced. Therefore, the petition was allowed and the impugned orders were set aside. [Jitendra vs. State of M.P., 2016 SCC OnLine MP 1681, Ordered on 20.07.2016]

Case BriefsSupreme Court

Supreme Court: In the matter where the employees of Prasar Bharati, who are ‘persons with disability’ (PWD), had alleged that they have been deprived of the statutory right under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 with respect to the Group A and B posts out of the four A to D Groups of Prasar Bharati, the Court directed the Government to extend three percent reservation to PWD in all identified posts in Group A and Group B, irrespective of the mode of filling up of such posts.

It was contended by the respondents that as per the Regulations framed under the Prasar Bharati (Broadcasting Corporation of India) Act, 1990, Memorandum II provides for reservation in favour of PWD to the extent of three per cent in all the IDENTIFIED POSTS in Prasar Bharati, when these are filled up by direct recruitment. However, it provides for three per cent reservation in IDENTIFIED POSTS falling in Groups ‘C’ and ‘D’ irrespective of the mode of recruitment i.e. whether by direct recruitment or by promotion. As a consequence, the statutory benefit of three per cent reservation in favour of PWD is denied insofar as IDENTIFIED POSTS in Groups ‘A’ and ‘B’ are concerned, since these posts, under relevant regulations of Prasar Bharati are to be filled up exclusively through direct recruitment.

The bench of J. Chelameswar and Abhay Manohar Sapre, JJ rejected the said contention and held that once a post is identified under Section 32 of the 1995 Act, it means that a PWD is fully capable of discharging the functions associated with the identified post. Once found to be so capable, reservation under Section 33 of the 1995 Act to an extent of not less than three per cent must follow. Once the post is identified, it must be reserved for PWD irrespective of the mode of recruitment adopted by the State for filling up of the said post. The Court, hence, held the impugned memoranda to be illegal and inconsistent with the 1995 Act. [Rajeev Kumar Gupta v. Union of India, 2016 SCC OnLine SC 651, decided on 30.06.2016]

Case BriefsHigh Courts

Himachal Pradesh High Court: While rejecting the claim of the petitioner seeking reservation of 3% in promotional post, the division bench comprising of Mansoor Ahmad Mir C.J. and Tarlok Singh Chauhan J., said that  there is no provision under Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995) which provides for reservation to disabled in promotion cases.

The Court minutely analyzed the judgment delivered by the Rajasthan High Court in Arun Singhvi v.  New India Assurance, Civil Special Appeal (W) No.628 of 2010, wherein the Court handled the same difficulty and ruled that the reservation does no longer expand to promotional posts. The Court disagreed with the judgment spelled out by the Division Bench of Punjab & Haryana High Court in Viklang Sangh vs. State of Haryana, CWP No. 12741 of 2009 and said that it has “lost its efficacy and cannot otherwise be considered to be laying down the correct law”. The Court found no infirmity illegality in the judgment passed by the learned writ court. Therefore, dismissing the appeal, the Court rejected the claim of the petitioner. [Partap Singh v. State of H.P 2016 SCC OnLine HP 767, decided on 02.06.2016]

 

Case BriefsHigh Courts

Bombay High Court: Hearing a writ petition, a bench comprising of B.R. Gavai and S.P. Joshi, JJ granted ad interim relief to the Petitioner seeking admission in post- graduate studies by clarifying that change in surname does not reflect change in caste. The Court found that the petitioner indeed possessed a ‘Validity Certificate’ showing his status as a member of the Scheduled Tribes, and the change of his name had been duly notified in the Government Gazette and thereby directed the respondents to consider the petitioner’s claim for admission from the reservation category. [Shantanu Hari Bhardwaj v. State of Maharashtra, 2016 SCC OnLine Bom 3863, decided on 23-05-16]

Case BriefsHigh Courts

Madhya Pradesh High Court: While deciding a public interest litigation (PIL) questioning reservation in promotions, the Court quashed all provisions granting promotions in the MP Public Service Promotion Rules, 2002, which introduced to reservation for SCs and STs in all posts at government departments. The state government in exercise of the powers conferred by the proviso to Article 309 read with Article 16 and 335 of the Constitution of India, relating to determination of the basis for promotion in public services and posts and also, the reservation in promotion in favour of Scheduled Castes and Scheduled Tribes, had made provisions of 20 per cent reservation for SC employees and 16 per cent for ST employees in the service.

The Court decided on the public interest litigation (PIL) filed by R B Rai, Santosh Kumar, SC Pandey and others, who had challenged the 2002 service rules on the ground that they were not in conformity with the law (guidelines) laid down by the Supreme Court in M. Nagaraj v. Union of India, the Supreme Court had laid down certain guidelines while interpreting Articles 16, 16 (4), 16 (4A), 16 (4B) and 335, before making provisions of reservations in promotion with benefit of consequential seniority, filing up of backlog vacancies, lowering of standards of evaluation etc.

The bench comprising A M Khanwilkar C.J. and Sanjay Yadav J.observed that all promotions granted as per 2002 rules would be invalid and stated that “The existing provision relating to reservation, backlog vacancies, carry forward of backlog vacancies contained in the Rules of 2002 runs contrary to the constitutional provisions contained in clause (4A) and (4B) of Article 16 and Article 335 and law predicated in M Nagraj,” observed the High Court. It further stated that “Consequently, various promotions of SCs and STs category made on the basis of these rules of 2002 are held to be non-est in the eyes of law and the persons be placed in the position as if the said Rules never existed and all actions taken in furtherance thereof must be reverted to status quo ante (the situation existing earlier).” The Court had further required the government to satisfy itself after collection of ‘quantifiable’ data in each case to ensure that there is no reverse discrimination vis-a-vis the general category candidates. It was further submitted that the rules are ultra vires also because the other directions as mandated by the apex court have also not been followed. [R.B. Rai v. State of Madhya Pradesh, Writ Petition No.1942/2011, Decided on 30.4.2016]

Case BriefsSupreme Court

Supreme Court: Reviewing its judgment dated 9-1-2015, the Division Bench of Chelameswar and Dr. A.K. Sikri, JJ has held that there is no provision for reservation in public sector banks for  SC/ST categories in promotion of  officers  from one grade/scale to the next, when such promotions are to be made on selection basis i.e. on merits.

The Court however, observed that it is open to the State and the banks to consider whether it is feasible to provide such reservation in the officers’ category and if so up to what level.

 The Court had to decide upon the validity of the Madras High Court’s judgment in the batch of appeals, which had decided that in the matter of promotions in the officer grades, a reservation in favour of SC/ST officers was provided for in the Office Memorandum dated August 13, 1997. The Banks contended that there was no rule of reservation for promotion in Class A (Class I) to the post/scales having a basic salary of more than Rs 5700 per month and the OM at best only provided a concession. The Supreme Court had upheld the Banks’ contention observing that  there was no reservation in respect of promotion by selection within only those Group A  posts carrying ultimate salary of  Rs 5700. However, based on other memoranda, it observed  that reservation existed only in respect of those posts carrying basic pay of up to Rs 5700 per month and with the implementation of the Fifth Pay Commission  Report, It would follow that such reservation was applicable to the post carrying pay scale of Rs 18,300. On that basis, it was held that since pay scale of the posts up to Scale VI was Rs 18,300 reservation is to be provided.  This aspect of the judgment was under review.

The Attorney General Mr Mukul Rohatgi submitted that a fundamental error, apparent on the face of the record had crept in para 34 of the judgment wherein the Court had observed that “reservation is provided in promotion by selection qua those posts which carry an ultimate salary of less than Rs 5700 (pre-revised)” while observing in the earlier portion of the same paragraph that “there is no reservation in promotion by selection in Group A posts which carry an ultimate salary of Rs 5700 per month. In such cases it is only the concession that applies”. In spite of deciding the main issue against the respondents, because of the aforesaid error in the judgment, the said benefit was still bestowed by giving reservations to officers belonging to SC/ST category from Scale I to Scale VI. The Court agreed that it was in conflict not only with the earlier portion of para 34 but the  entire conclusion discussed in the judgment. It is clearly an error on the face of record as no such consequence follows. Consequently, the Court allowed the review petitions  by deleting paras 33 to 36 of the judgment, the directions contained therein as well as the directions contained in para 37 . It was to be replaced with

“33. Result of the aforesaid discussion would be to allow these appeals and set aside the judgment of the High Court. While doing so, we reiterate that it is for the State to take stock of the ground realities and take a decision as to whether it is necessary to make a provision for reservation in promotions from Scale I to Scale II and upward, and if so, up to which post. The contempt petition also stands disposed of.”

Guided by the principle of ex debito justitae as discussed in A.R. Antulay v. R.S. Nayak,(1988) 2 SCC 602 and S.Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595, the Court observed “when an error is pointed out and the Court also finds that there is an error apparent on the face of the record, it would not shy away from correcting that error”. [Chairman  & Managing Director, Central  Bank of India v. Central  Bank of  India SC/ST Employees Welfare Association2016 SCC OnLine SC 19 , decided on  8-1-2016]

Uncategorized

Rajasthan Assembly passed  he Rajasthan Special Backward Classes (Reservation of Seats in Educational Institutions in the State and of Appointments and Posts in Services under State) Bill, 2015 on 22nd September 2015. The Bill provides for five percent reservation of seats in educational institutions in the State and of appointments and posts in the services under the State in favour of the Special Backward Classes, beyond the existing provisions of reservation, for ensuring their advancement and upliftment.

The Special Backward Classes include Banjara, Gadiya Lohar, Gujar, Raika, and Gadariya classes/castes. Persons belonging to creamy layer are excluded from taking the benefit of the reservation. The provision of reservation will exceed the permissible legal limit of 50% reservation in Rajasthan as the reservation under SC, ST and OBC will remain unchanged. However the statement of object and reasons of the Bill provides that as per paragraph 810 of Indra Sawhney v. Union of India, (2000) 1 SCC 168 (where the Supreme Court provided for the upper limit of reservation to be 50 %), if a special case is made out, reservation can be given in excess of 50%. And the Rajasthan State Backward Classes Commission, constituted by the State Government in pursuance of Rajhasthan High Court’s direction in Captain Gurvinder Singh v. State of Rajasthan, 2010 SCC OnLine Raj 4531, stated after analyzing the quantifiable data placed before it that the afore-mentioned classes fulfil all the legal norms suggested in Indra Sawhney case to make out a special case for special status as Special Backward Classes even though the overall reservation exceeds 50%.

On the same day the Rajasthan Assembly also passed the Rajasthan Economically Backward Classes (Reservation of Seats in Educational Institutions in the State and of Appointments and Posts in Services under the State) Bill, 2015. The State Assembly also passed resolutions requesting the State Government to make efforts to get both the Bills included in the Ninth Schedule of the Constitution.