The 77th constitutional amendment of 1995, which was recently extended to Kashmir, restored reservation in promotions as a nine-judge bench of the Supreme Court in Indira Sawhney (1992) while upholding Other Backward Classes reservation based on Mandal Commission recommendations had prohibited Scheduled Caste/Scheduled Tribe (SC/ST) reservation in promotions.

Background –

  • The 81st constitutional amendment was made to overturn the Supreme Court’s decision against the ‘carrying forward’ rule, which permitted the filling of unfilled reserved seats in subsequent years.
  • Similarly, the 85th constitutional amendment was passed in 2001 to restore consequential seniority to promotee SC/ST employees as a ‘catch-up’ rule introduced by the court in Ajit Singh (1999) was causing hardship to SC/ST employees.
  • In Vivekananda Tiwari (2017) case, an advertisement of the Banaras Hindu University (BHU) for teaching positions was challenged. The BHU, like other Central universities, was following the University Grants Commission policy of treating ‘university’ as the unit for the purposes of reservation.

What is new?

Last week, the Union government promulgated an ordinance to undo the Allahabad High Court’s judgment in Vivekananda Tiwari (2017) which had relied on a number of other High Courts and a few apex court judgments such as Suresh Chandra Verma(1990), Dinanath Shukla (1997) and K Govindappa (2009) that had made ‘department’ rather than ‘university’ as the unit of reservation in universities.

Faults with the judgement –

  • We cannot ignore that Article 335 categorically says that “claims” of SC/STs to posts in Centre and the States ‘shall’ be taken into consideration. As opposed to ‘may’ or ‘will’, the use of the word ‘shall’, in law, means mandatory.
  • Our courts have used the differences between ‘cadre’, ‘service’ and ‘post’ to arrive at the conclusion that ‘department’ should be unit of reservation. So though lecturers, readers and professors in a university have the same scale and allowances in their respective cadres, they cannot be clubbed together.
  • Since there is no scope for interchangeability of posts in different disciplines, each single post in a particular discipline is be counted as a separate post. On the face of it this seems to be perfectly logical. But every university spends lot of time in deciding reservation and tries to balance the completive interests and needs of various departments.
  • Even with the ‘university’ as the unit, in over 40 Central universities we have huge under-representation of SCs and STs especially at the level of professor and associate professor. If ‘department’ was allowed to be taken as a unit, these numbers would have been far less.

Example –

If the BHU were to implement reservation based on using ‘university’ as the unit of reservation, 289 posts would have had to be reserved for SCs, 143 for STs and 310 for OBCs. Under the new formula of using ‘department’ as the unit, the number of reserved positions would go down to 119 for SCs, 29 for STs and 220 for OBCs.

Conclusion –

The government deserves appreciation for the ordinance. But we need to do more to improve diversity on our campuses with more SCs, STs, OBCs, Muslims, persons with disabilities and sexual minorities being recruited as faculty as our campuses do not reflect social diversity despite the university being a unit for reservation. Let the score on the diversity index be a major criterion in giving grants to universities.

SourceThe Hindu