The latest Supreme Court Judgment should be a source of joy to all open category people

In a landmark decision, the Supreme Court has enunciated provisions regarding reservation in promotion. In a case arising out of reservations in promotion of Assistant Engineers in the State of Uttarakhand, the Supreme Court has ruled that the provisions of Article 16 (4) are merely enabling. They confer no right whatsoever on candidates. If the State decides as a policy not to provide promotion in reservation, the Courts cannot issue orders to the effect that it should be so provided.

Click here for a version of this article in Marathi  

In this context it is good to note that after formation of the State of Uttarakhand, which was carved out of Uttar Pradesh, the then existent laws and rules were adapted by the new State. Policies regarding reservations too, were continued. Yet, some pleasant changes were made. Amongst them was that the percentage of OBC reservation was reduced from 21% to 14%.  Another major decision was taken by the Uttarakhand Government on 05.09.2012, when it was decided that all posts in public services in the State shall be filled up without providing any reservations to the Scheduled Castes and Scheduled Tribes. In the proceeding of that date, all the Government orders in contravention of this policy were superseded.

The said decision was challenged by an employee belonging to the Scheduled Castes. The High Court of Uttarakhand allowed the writ petition and decided that the proceeding Dt. 05.09.2012 was contrary to law. The respondent in this petition i.e. the State of Uttarakhand sought a review of the judgment. On review, the High Court decided that the State should gather quantifiable data to assess the adequacy or otherwise of representation of SC and ST employees in services of the State, and after considering the same decide whether to provide reservations in promotion.

What is the percentage of open category people?

On the other hand, some other employees filed a writ petition in the High Court seeking directions to the effect that the government prepare separate lists of candidates belonging to General, Scheduled Castes and Scheduled Tribes category in order to consider them for promotions. The writ petition also sought further directions to the effect that the government appoint a committee for promotion to Scheduled Castes and Scheduled Tribes candidates after applying reservation as per the rules existent at the time of their appointment. The rules provided reservations in promotion. The High Court ruled that the government should implement reservations in promotion. Further, it was directed that only candidates belonging to SC and ST category should be promoted so that the quota as provided for the said categories was fulfilled.  

The Supreme Court, by its order Dt 07.02.2020 decided that the State can as a policy decide not to provide reservations in promotion. The decision of Uttarakhand High Court directing the State to gather quantifiable data was set aside in view of the fact that the government already had collected the same. The Supreme Court has in this judgment clarified the position of reservations in promotions, constitutionality of policy of reservations and collection of quantifiable data.  

The points that were considered while hearing matters arising out of the above two matters were

1)       Whether the State Government is bound to make reservations in public posts?

2)       Whether the State Government is bound to consider adequacy of representation of persons belonging to Scheduled Castes and Scheduled Tribes on the basis of quantifiable data before deciding not to provide reservations?

Ultimately, both the questions were answered in the negative. The decision of Uttarakhand government not to provide reservations in promotion to the employees of SC and ST categories was adjudged to be perfectly valid.

Following are the highlights of the Supreme Court judgment:

1)       The State is not bound to make reservation for Scheduled Castes and Scheduled Tribes in matters of promotions.              

2)       Inadequacy of representation of SC and ST categories in public employment is a matter within the subjective satisfaction of the State. Whether to provide reservation or not is solely within the discretion of the State, but the decision should be supported by quantifiable data.

3)       All decisions regarding reservation on the basis of lack of adequate representation asre open to judicial scrutiny.

4)       Collection of data regarding reservations is necessary only when reservations are to be provided. Because the State is not bound to provide reservations, there is no need for the State to provide data to show that there is adequate representation of SC and ST category candidates.

5)       Courts cannot direct that all vacancies should be filled from the SC and ST categories only.

The judgment of the Supreme Court should be welcome news for all open category candidates and people against the excesses of reservation. It is good in itself that somewhere in India there has been reduction in percentage of reservation. It is great to know that a State decides not to provide reservations in promotion at all. And it should be a source of profound joy for all right thinking people that the Supreme Court has sided with the prudence exercised by the State of Uttarakhand.

Tailpiece: Search of the entire 23 page document gave a heartening result. There is no mention of the word “merit” anywhere.

                                                                             © Adv. Shrirang Choudhary

Will the Supreme Court stay the implementation of Maratha reservation ?

The Supreme Court will hear the SLPs filed by Dr. Uday Dhople, Sanjeet Shukla of Youth For India (YFE), Rajshri Patil and others on 5th February on the point of stay. Despite availing ample time to file their Counter-affidavit, the Government of Maharashtra filed an application seeking adjournment of the hearing scheduled on 4th February. Admission to postgraduate medical courses is the most urgent issue for which stay is necessary. 

Faulty implementation of policy, despite there being a savings clause in the SEBC Act, by which the reservation should not have been extended to that batch resulted in the Nagpur Bench of Bombay High Court cancelling admissions of students on the basis of SEBC reservation for the 2019 batch. The Supreme Court affirmed this order. 

Most egregiously, the GoM promulgated the infamous Ordinance overriding the Nagpur Bench order confirmed by the Supreme Court. In the event, Postgraduate medical batch of 2019 suffered despite a Court order in their favour. Later on, the Maratha reservation was upheld by the Bombay High Court. It is against this order that the petitioners are in the Supreme Court. For better understanding of the issues at stake, it would be beneficial to understand why the Maratha reservation was stayed by the Bombay High Court in 2014.

Salient points in the case of Sanjeetkumar vs. State of Maharashtra 

According to the Supreme Court’s decision in Indra Sawhney, reservation exceeding 50% is against constitutional principles. However, in exceptional circumstances if the backwardness of a community and inadequacy of representation can be proved by quantifiable data this limit can be exceeded. The validity of such reservation exceeding 50% can be examined by Courts. 

Dr. Ambedkar, in his speech in the Constituent Assembly had opined that if the reservation is to be consistent with the principle of equality of opportunity enshrined in the Constitution, it must be confined to a minority of seats. If reservation for a collection of communities comes to 70%, thereby limiting the unreserved to 30%, it will not be giving effect to the first principle i.e. equality of opportunity.

Mandal Commission had included the Marathas in ‘Forward Hindu Castes and Communities’.

Mandal Commission in 1990, National Backward Classes Commission in 2000 and the State Backward Classes Commission in 2008 and 2013 have rejected representations of the Maratha community to be considered as socially and educationally backward class.

Marathas were essentially kunbis, however from the 14^th century onwards, they advanced themselves socially, educationally and politically because of their customs and occupation.

There has been no caste wise census since 1921. The State Government’s assumption that Maratha community is 32% of the population cannot be accepted to justify the reservation of 16%

The documents on record do not prove that there are exceptional circumstances to extend benefit of reservation to Maratha community.

Extension of benefit of reservation to a particular community due to exceptional circumstances can only be considered when the said class could not make social and economic progress because of social oppression or deprivation or social discrimination against or social segregation of the community in whose favour reservation is to be extended.

In Indra Sawhney, having noted that backward classes in India constitute majority of the population, Justice Reddy still held that ceiling limit of 50 per cent on reservations is a binding rule and not a rule of prudence.

The Rane Committee Report suffers from several glaring flaws, which go to the root of the matter.

Imposing reservations on private unaided institutions constitutes an unreasonable restriction upon the fundamental right guaranteed by Article 19(1)(g) to establish and run educational institutions. Hence this reservation will not be applicable to such institutions.

In so far as reservation in public employment is concerned, applying the law laid down by the Constitution Benches of Supreme Court in the years 2006 in the case of M. Nagaraj and in July 2014 in the case of Rohtas Bhankhar, the percentage of reservations cannot be in excess of 50%.
 
Points to be noted
 
The only difference between the Ordinance extending reservation to Marathas in 2014 and the SEBC Act 2018 is that the later is purported to be based on the recommendations of the report of the Maharashtra States Backward Classes Commission headed by Justice Gaikwad. better known as the Gaikwad Commission Report. Said report is not yet made public. it was not tabled in the Legislative Assembly nor was the Action taken Report issued before its recommendations were accepted and reservation was extended to the Maratha community.

Tailpiece:   The reason mentioned for seeking adjournment is that annexures to the report have not yet been translated and that the Counter affidavit is not ready. It would be interesting to see whether any action is taken against responsible officials for their negligence and lack of due care towards the petitioners and the Supreme Court.

© Adv. Shrirang Choudhary 

A call to raise the issue of interim stay to the implementation of SEBC Act

The matters filed by Dr. Uday Dhople and Devendra Jain against Maratha reservation are listed before the Supreme Court on 4th February 2020.

The State of Maharashtra has sought adjournment on various grounds mentioned in the letter submitted before the Registrar of the Supreme Court.

This is applying delaying tactics in its worst form.

The State had more than six months to do whatever was required. The Counter Affidavit should have been ready by now. Concerned officials should be held accountable for their negligence of duty towards the Court and the petitioners.  

However, the pretexts for adjournment are not at all justified.
Both the CJI and J. Gawai know Marathi, there is no need to translate the report. 

In fact, the report, which is not yet made public does not need be referred to while deciding two issues, which are crucial. 

1) Is the breach of 50% limit set in Indra Sawhney justifiable ?

2) Whether the creation of a new category SEBC is in contravention of the newly amended Articles 342 and 336 of the Constitution ?

The Counsel should press for stay in case the State pleads for an adjournment. The malafides shown in promulgating the Ordinance, the breach of assurance given to the Supreme Court while seeking extension of time to complete PG admissions in 2019, flagrant violation of norms while implementing EWS reservation, all of this and the essential merits of the case against the vires of the SEBC Act would be relevant facts for the Court to consider while deciding interim applications for stay. 

It is time for huge protests against the attitude of GoM. All sorts of social media should be flooded with calls for interim stay of the continuation of this atrocious policy of unconstitutional and illegal reservation. Calling upon all concerned to understand the issue. 

Adv. Shrirang Choudhary

Supreme Court and Maratha reservation