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Constitutionality of reservation in matters of education and public employment

Originally the fundamental rights in the constitution of India to do not provide for reservation of any kind on the grounds of caste, or social and educational backwardness. However, the Art 330 and 332 provides for reservation of seats in the state and union legislatures for the SC and ST.

State of Madras v Champakam Dorairajan.

In this case, the madras Govt had by a G.O reserved seats in medical and engineering colleges for different communities on the basis of religion, race and caste. The GO was held void by the supreme court because it classified students on the basis of caste and religion irrespective of merit.

Subsequent to this Article 15(4) was added by the constitution (1st amendment) act 1951 to overturn the Chamapkram Judgement.

Article 15(4) states that:

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.

After this amendment the Kaka Kalekar committee was constituted to find out the grounds on which reservation should be provided.

The two most contentious issues in the application of Article 15(4) as well as Article 16(4) have been:

(i) Determination of backward classes.

Backward classes is not defined in the constitution. Article 340 however empowers the president to appoint a commisision to investigate conditions of socially and educationally backward classes. On the basis of the report of the commission, the president may specify as to who are to be considered as backward classes. In Balaji v State of Mysore, the Mysore Govt issued an order under Article 15(4) reserving seats in the medical and engineering colleges of the state as follows- backward Classes 28%, more Backward Classes 20%, Sc And ST 18%. Thus 68% of the seats were reserved and only 32% were made available in the merit pool.The court held that the sub classification made by the order between backward classes and more backward classes was not justified under article 15(4). Backwardness as envisaged by the article must be both social and educational and not either social or educational. Caste cannot be the sole test for ascertaining backwardness. Poverty , occupation, place of habitation are relevant factors and need to be taken into consideration. The impugned order, however proceeds only on the basis only on the basis of caste without regard to other factors and that is sufficient to render the invalid.

  • In Jayasree v. State of Kerala, the supreme court held that neither caste by itself nor poverty by itself is a determining factor of social backwardness.
  • P Rajendran v State of Madras- SC upheld the test of backwardness which was solely based on caste and was contravening to Balaji Judgement.
  • KC Vasanth Kumar v State of Karnatka – Both caste and poverty would be relevant factors in determining backwardness and caste cannot be the sole criteria as the term used in Article 15 is class and not caste. Both social and educational backwardness should be kept in ind before formulating a reservation policy.

(ii) Extent or quantum of reservation

In Indra Sawhney v UOI well known as the mandal commission case, the supreme court by 6:3 majority held- The sub classification of backward classes into more backward and backward for the purpose of Article 14(5) can be done but as a result of sub classification , the reservation cannot exceed more than 50%. Reservation in Promotion was denied.

State of UP v Pradeep Tandon- The court held that reservation could not be made on grounds of being from rural area. Rural element does not make a class.

Transplantation to backward class by adoption marriage or conversion:

  • High Caste Girl Marrying a Schedule Tribe- Not entitled to benefits of reservation
    Dr. Neelima v Dean PG Studies AP Agricultural University- it has been held that a high caste girl marrying a boy belonging to Scheduled Castes is not entitled to the benefit of reservation available to STs.
    In Meera Kanwaria v Sunita, if a female of a high hindu caste marries a person belonging to the Schedule Castes , she is not entitled to the benefit of reservation under 15(4) and 16(4).
  • Low caste girl marrying a high caste husband-
    Vijay Laxmi v State of HP- A low caste wife is entitled to continue having the benefits of reservation even after marrying a high caste person.
  • Rameshbhai Dabhai Naika vs State Of Gujarat-
    The question was whether a person whose mother belongs to ST and the father belongs to upper caste is entitled for the affirmative action of the state.

It was held that the offspring will take the caste of the father and this presumption will act stronger when the father is from the upper caste.

It was also held that a person transplanted to a lower caste through marriage, adoption or conversion is not entitled to the benefit of reservation in 15(4) or 16(4) because he got an advantageous start in life by virtue of being from the higher caste.

Reservation in matters of Public employment- 16(4)

Art 16(4) of the Indian Constitution states that- Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the service under the State.

Explaining the nature of Art. 16(4), the Supreme Court has stated that it is “an enabling provision” conferring a discretionary power on the state for making any provision or reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the state, is not adequately represented in the service of the state.

The scope of article 16(4) is much wider than 15(4) because there are no qualifying words which limit the definition of backwardness.

In Devdasan v. Union of India, the carry forward rule was considered and was struck down on the ground that reservation under 16(4) cannot exercise to deny reasonable equality in matters of public employment. In this case the reserved seats were carried forward due to which the number of reserved seats exceeded 50%.

Carry forward rule

If all the reserved posts are not filled in a year for want of suitable candidates from those classes, then the shortfall is to be carried forward to the next year and added to the reserved quota for that year, and this could be done for the next two years.

In Indra Sahwney v UOI, the suprme court overruled Devdasan v Union of India held that the carry forward rule valid so long as it did not in a particular year exceed 50% of vacancies.

Reservation in Promotion

In State of Kerala v NM Thomas -The question was whether it is permissible to give preferential treatment to SCs and STs under clause 1 of art 16. The court upheld the validity of reservation in matters of promotion.
In A.B.S.K Sangh v UOI , The railways had reserved more than 50% of the seats. the court upheld reservation in promotion and also upheld the carry forward rule.

In Indra Sahwney v UOI, with respect to reservation in promotion, the court held that reservation is confined only to initial recruitment and not in promotion. The carry forward rule was upheld but the reserved seats should not exceed more than 50%.

The Constitution 77th Amendment Act 1995-

In order to overturn the Indra Sahwney Judgment, the court passed the 77th amendment act which allowed reservation in matters of promotion.
The constitutional validity of 77th amendment was challenged in Ashok Kumar Thakur v State of Bihar. The court upheld its constitutional validity.

Catch UP Rule
This concept first appeared in Union of India v Virpal Singh. It was held that if a reserved category candidate is promoted earlier than his senior( general candidate), but when the general candidate also gets promoted later, he would regain his seniority. The seniority between the general and reserved candidates would continue to be governed by their panel position. Accelerated promotion due to seniority does not give accelerated or consequential seniority.

Consequential Seniority rule- It is also called accelerated seniority, if a reserved candidate is promoted earlier than the general (senior) candidate, the reserved candidate would be considered senior even after the general candidate is promoted to the same position.

In Ajit Singh Juneja v state of Punjab-1 and M.G. Badappanavar v State of Karnataka the court applied the consequential seniority rule.

The 81st Constitutional amendment removed the 50% ceiling for backlog vacancies which was put in the case of Indra Sawhney.

The 85th amendment gave the benefit of consequential seniority in case of reservation in promotion.

The constitutional validity of the amendments was challenged in M Nagraj V Union of India and the court upheld the validity of the amendments.

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