Revision as of 10:57, 6 October 2020

The Patels' stand on inclusion in OBC quota; Graphic courtesy: The Times of India, August 27, 2015

The guiding principles

I: The intentions of the founding fathers

Dhananjay Mahapatra, Parties act for quota, but not for caste abolition, Jan 02 2017 : The Times of India

The Bihar government [in 2016] decided to provide 50% reservation in subordi nate judiciary -21% to extremely backward classes, 16% to scheduled castes, 12% to OBCs and 1% to STs. There would be horizontal reservation of 35% for women and 1% for differently abled persons in all categories.

By introducing reservation in judiciary after consulting the Patna high court and Bihar Public Service Commission, the Nitish Kumar government has removed the basic objections of the Supreme Court, which on March 14, 2000 had quashed Bihar Reservation of Vacancies in Posts and Services (for SCs, STs and OBCs) Act, 1991[State of Bihar Vs Bal Mukund Sah]. The 1991 law had mandated reservation in judicial officers jobs up to 14% for SCs, 10% for STs, 12% for extremely backward classes, 8% for OBCs, 3% for economically backward women and 3% for economically backward.

The Constituent Assembly in 1949 had discussions on reservations for backward classes in government jobs. Many members expressed apprehension about misuse of the term `backward' without it being defined in the Constitution itself.

H N Kunzru had said: “whether any class is backward or not should not be left to the law courts to decide. It is our duty to define the term.“ T T Krishnamachary had said: `It does not apply to a backward caste... It says class. It is a class which is based on grounds of economic status or on grounds of literacy or on ground of birth?“ Parties have forgotten class and replaced the word with caste over the decades.

B R Ambedkar, as chairman of the drafting committee, had said: “We have to safeguard two things, namely , the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the state, then, I am sure they will agree that unless you use some such qualifying phrase as `backward' the exception made in favour of reservation will ultimately eat up the rule altogether.Nothing of the rule will remain.“

The Constituent Assembly rejected the proposal to reserve constituencies for minority community. But, it provided for reservation of seats for the SCs and STs in the legislature for 10 years. After the expiry of a decade, this provision gets renewed for another 10 years to perpetuate reservation through politics. Probably this is the reason why we see there is a race among affluent communities to get branded as backward. They have spilled on to the roads in Haryana and Gujarat demanding backward status to get reservation in government jobs and admission to state-run educational institutions.

The Constituent Assembly did not envisage this as a fall out of Article 16(4) that carved out an exception to the fundamental right to equal opportunity . The exception has now been perpetuated by the political class.

The report of the first Backward Class Commission headed by Kaka Kalelkar on March 30, 1955 had talked of reservation to socially and economically backward classes on the basis of caste hierarchy and their representation in government and industrial jobs.Immediately after submitting the report, Kalelkar had written to the President requesting its rejection saying reservation and other re medies recommended on the basis of caste would not be in the interest of the society and country .

Mandal commission report of December 31, 1980 had evolved 11 rough and ready indicators or criteria for determining backwardness under three major heads -social, economic and educational.The V P Singh government notified 27% reservation to backward classes (other than SCs and STs) in government jobs in September 25, 1991.

Reservation can't destroy equality

If ‘general candidates’ more meritorious than ‘reserved:’ don’t eliminate them

Mahir Haneef, Reservation can't destroy equality, says Kerala high court, Jan 5, 2017: The Times of India

The Kerala high court has declared as unconstitutional a clause in National Eligibility Test (NET) qualifying norms, finding that it could eliminate general-category candidates even if they are more meritorious than candidates from reservation categories. This violates the right to equal opportunity of general-category candidates, the court said.

A single bench of the court gave the ruling after considering two petitions, including one filed by Nair Service Society, challenging the criteria fixed for qualifying in NET.

From the candidates who secured minimum qualifying marks in the NET, a merit list was prepared by selecting the top 15 per cent based on aggregate marks. For the three papers of NET, candidates belonging to categories such as OBC, SC, ST, and persons with disabilities had to score only 5-10 per cent lower marks to secure a pass. In the merit list prepared on the basis of aggregate marks, separate categories were maintained for OBC, SC, ST, and PWD.

It was alleged by the petitioners that such classification resulted in the number of candidates qualifying in NET from reservation categories to be much higher than the general category as more candidates secure minimum qualifying marks in reservation categories due to the lower qualifying marks. This infringes upon the right of general category candidates' fundamental right of equal opportunity in matters relating to public employment, they contended.

Ruling in favour of the petitioners, the court said in the judgment, "When more than 50% of the vacancies in the post of Assistant Professor in Universities and Colleges are open vacancies and when NET qualification is mandatory for staking a claim for selection in the said vacancies, a criterion which is likely to eliminate more than 50% of the candidates from general category from acquiring the NET qualification cannot be said to be a valid one, especially when they, or at least a substantial number among them, are more meritorious than the candidates who are NET qualified from the reserved categories. For the aforesaid reasons, I have no hesitation to hold that the impugned criteria would infringe the fundamental right to equal opportunity guaranteed to the candidates belonging to the general category under Article 16(1) of the Constitution and hence unconstitutional." The criterion to be adopted to ensure the right of the reserved categories in a case like this should be one which would ensure justice to the candidates belonging to the reserved categories, equity for the candidates belonging to the general categories, and one that would ensure standards of the higher education system, the court said.

Guiding principles: The 50% ceiling

Three landmark SC judgements

Dhananjay Mahapatra. Cong quota plan for Patels may not pass judicial test, November 12, 2017: The Times of India

Use Of 9th Schedule Won’t Give Breach Of 50% Cap SC Immunity

Congress party’s election eve promise to enact a law to carve out separate quota for Patidars in Gujarat and make it immune from the scrutiny of the Supreme Court by inserting the legislation in the Ninth Schedule of the Constitution will be in conflict with three landmark SC judgements.

Both the elements in the promise — one, a separate quota in jobs over and above the ceiling of 50% fixed by the SC; and second, attempt to innoculate it from judicial scrutiny — have been frowned upon by two 9-judge bench judgments, as well as a five-judge bench ruling of the SC.

In Indra Sawhney judgement, popularly known as Mandal verdict which upheld 27% reservation for OBCs with exclusion of the creamy layer, the SC bench had by 6-3 majority on November 16, 1992 categorically ruled that total reservation in government jobs cannot exceed 50% of the vacant posts advertised, and that there shall not be any reservation in promotion.

With the upholding of 27% reservation for OBCs, the total reservation in jobs, including a combined 22.5% for the Scheduled Castes and Scheduled Tribes, the total quantum of reservation stands capped at 49.5%. This leaves scope for providing a mere 0.5% reservation for any other category that a political party may wish to classify as a class of citizens who are socially and economically backward and, thus, deserving of quota support. Then again, the identification of the beneficiary has to be done through a separate mechanism, like the Mandal Commission did in 1980s.

The apex court emphasised the inviolability of the 50% cap again while considering reservation in promotion in October 2006. A fivejudge SC bench in M Nagaraj reiterated the general principle laid down in Indra Sawhney case, saying, “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.”

“We reiterate that 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,” it had ruled.

The perception, popular within the political class, that a legislation becomes immune from judicial scrutiny when inserted in Ninth Schedule of the Constitution, was blown away by a nine-judge SC bench in I R Cohello case on January 11, 2007. The SC held that insertion of a law in the Ninth Schedule will not save it from being struck down if, on judicial scrutiny, the law was found to be violating fundamental rights.

The bench held: “The constitutional validity of the Ninth Schedule Laws on the touchstone of basic structure doctrine can be adjudged by applying the direct impact and effect test, that is the (fundamental) rights test, which means the form of an amendment is not the relevant factor, but the consequence thereof would be determinative factor.”

1992 Sawhney: SC on financial status, 50%

Dhananjay Mahapatra, Will need to cross twin Mandal verdict barriers, January 8, 2019: The Times of India

Will the NDA government’s 10% quota for economically backward classes overcome twin barriers — no reservation based on a person’s financial status and capping quota at 50% — erected by the Supreme Court in its 1992 Indra Sawhney judgment facilitating the 27% reservation for OBCs?

The NDA government hopes to overcome both barriers. First, by introducing “economic backwardness” as a new criteria in Article 16(4) of the Constitution, which so far had recognised only social and educational backwardness as twin criteria for reservation. And second, the SC had itself clarified that 50% cap applied only to quota for such classes and there could be other grounds for reservation.

In the Indra Sawhney judgment, the SC had considered the September 25, 1991 office memorandum issued by the P V Narasimha Rao government for implementation of Mandal Commission report for 27% reservation to OBCs and had introduced 10% reservation for economically backward classes. The SC had struck down the 10% quota saying “though the criteria is not yet evolved by the government, it is obvious that the basis is either the income of a person and/or the extent of property held by him. The impugned memorandum does not say whether this classification is made under Clause (4) or Clause (1) of Article 16.”

1992 SC clarification gives govt hope

Reservation of 10% of vacancies among open competition candidates on the basis of income/ property-holding means exclusion of those above the demarcating line from those 10% seats. The question is whether this is constitutionally permissible. We think not. It may not be permissible to debar a citizen from being considered for appointment to an office under the state solely on the basis of his income or property-holding,” the SC had ruled.

Taking note of this, the NDA government has decided to move a constitutional amendment to insert “economically backwardness” as a ground, in addition to socially and educationally backward, for grant of reservation. If this constitutional amendment, once it is passed by Parliament, is challenged, the SC would have to undertake a fresh exercise to test validity of economic backwardness as a criteria for reservation.

Interestingly, it was the SC which had insisted on weeding out affluent among the OBCs from reaping quota benefits and had asked the Centre to exclude “creamy layer” among SEBCs from quota to ensure that only poor among them were benefited.

In the 1992 judgment, the SC had fixed 50% as the maximum limit of reservation in government jobs. “The 27% reservation provided by the memorandum in favour of backward classes is well within reasonable limits. Together with reservation in favour of SCs (15%) and STs (7.5%), it comes to a total of 49.5%... The irrefutable conclusion that follows is that the reservation, contemplated in clause 4 of Article 16, should not exceed 50%.” Will this 10% quota for the economically backward violate that 50% quota limit?

Interestingly, what gives hope to the NDA government is the SC’s clarification — “we are also of the opinion that this rule of 50% applies only to reservation in favour of backward classes made under Article 16(4)”. It had also said: “While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people.”

Talking of wide diversity and many sections in farflung areas being out of the mainstream because of the peculiar condition faced by them, the SC had said: “...some relaxation in this strict rule (50% cap) may become imperative. In doing so, extreme caution is to be exercised and special case made out.”

So, NDA would have to show the SC how it carved out a special case for poor among general category to provide them with 10% reservation.

Rajasthan HC strikes down 5% quota for Gujjars, 4 others

Joychen Joseph, Raj HC strikes down 5% Gujjar quota, Dec 10 2016: The Times of India

The Rajasthan high court scrapped the Rajasthan Special Backward Classes (SBC) Reservation Act 2015 that provisioned for 5% quota to five communities, including Gujjars.

The court struck down the notification of October 2015, saying there were “no extraordinary circumstances“ to allow the state's overall reservation in government jobs and education institutes to go beyond the 50% cap. Following the notifica tion, the overall reservation in the state reached 54%, which was in violation of the 50% cap set by the Supreme Court.

The Act had provided 5% reservation in jobs and educational institutes to five communities: Gujjars (Gurjars), Banjara (Baldia, Laba na); Gadia-Lohar (Gadolia), Raika (Rebari, Debasi) and Gadaria (Gaadri, Gayari).

The division bench of Justice M N Bhandari and J K Ranka passed the 199-page judgement on a writ petition filed by ex-Army Capt Gurvinder Singh, the Samta Andolan Samiti and others. The division bench found fault also with the SBC Commission, which was headed by Justice (retd) I S Israni, which studied the status of 82 OBC communities in the state. The high court said there were many discrepancies in the SBC Commission report, so its recommenda tions cannot be accepted.

It said the SBC Commission failed to consider Article 16(4B) of the Constitution, which forbids reserva tion exceeding 50%, and used the Indra Sahwney case judgement to arrive at wrong conclusions.

2019:  States using EWS quota to breach cap

Subodh Ghildiyal, States using EWS quota to breach cap, March 9, 2019: The Times of India

Raj, MP Have Already Crossed The 50% Limit On Reservation

In a direct fallout of upper caste reservations, states are using the Centre’s 10% EWS quota as cover to increase the quantum for backward classes beyond the 50% ceiling which they were unable to do earlier — a move that threatens to open the floodgates on total reservation possible and complicate the already nettlesome issue.

Rajasthan last month passed 10% EWS quota in the state and on Wednesday, Madhya Pradesh followed suit. In both states, the total reservation has touched a high 64% and 70% respectively.

States were expected to introduce quota for “the poor among upper castes” after the Centre’s landmark decision this January to introduce economic criteria for reservation in jobs and educational institutions through a constitutional amendment.

However, the crucial, and controversial, aspect of the Centre’s decision was to take reservation beyond 50% — a ceiling imposed by the Supreme Court. The government has defended it as legally sustainable by arguing that the halfway barrier on quotas was limited to “backward classes” while EWS quota is not on caste but on economic criteria.

Irrespective of the soundness of the defence, states have come to view the EWS quota as a convenient shield to do what was impossible earlier — take the OBC quota beyond 50%.

The modus operandi, as evidenced in MP and Rajasthan, is that states introduce EWS quota to “legally” take reservations beyond 50%. And alongside, they bring legislations to increase quota for SCs or STs or OBCs.

While Rajasthan did it to provide 5% quota for Gujjars, MP used the opportunity to hike its OBC quota from 14% to 27%.

It is now to be seen if more states would follow Rajasthan and MP, and hike ‘backward class’ quota under the cover of EWS. If the trend holds, the fear is that there would be no bar on total reservation.

There are sure to be complications ahead. With the clubbing of sorts of EWS and backward classes’s quota on the issue of breaching of 50% ceiling, any legal examination of one is likely to involve that of the other. It would not only open the viability of EWS quota to legal scrutiny but also pit the two quotas against each other.

Till now, such attempts automatically hit the judicial firewall — like Rajasthan’s post-2009 manoeuvres on Gujjar front, Maharashtra law on Marathas, Jats in Haryana and some of the other states. While the Centre has claimed that EWS quota is beyond the 50% ceiling, many view it as a politically difficult argument to make to stop the states from hiking SC/ST/ OBC reservation above the halfway mark. Also, no political party would be willing to lean on this logic which is sure to appease the upper castes but antagonise the “backward classes”.

The modus operandi, as seen in Rajasthan and MP, is that states introduce EWS quota to ‘legally’ take reservations beyond 50%. And alongside, they bring legislations to increase quota for SCs/ STs/ OBCs

OBC reservations

A history

The Times of India, Aug 31 2015

A brief history of violent agitations seeking caste-based reservations (affirmative action); Graphic courtesy: The Times of India, August 27, 2015

Social engg now a race for backward status

Dhananjay Mahapatra

The Morarji Desai government had set up a commission headed by B P Mandal on January 1, 1979, to identify socially and educationally backward communities to provide them with reservation in government employment. The commission, in its report in December 1980, recommended 27% reservation to other backward classes (OBCs).

In 1990, the V P Singh government dusted out the report and implemented its recommendations.Protests and judicial scrutiny could not impede the new political mantra -social engineering.

Two decades later, social engineering got a facelift when the Centre extended the 27% OBC quo ta to admissions in educational institutions. This too got the thumbs up from the Supreme Court.

Though it upheld extension of OBC quota in college admissions, the SC had expressed its view against the perpetuation of reservation. It disapproved of the politically motivated tendency to swell the list of OBCs. It had suggested a comprehensive study on OBCs to exclude those which had benefited from quota to shake off the historical social and educational disadvantages. Will a ruling party ever bite the survey bullet when elections continue to be fought on caste lines? They have scant regard for repeated SC rulings to limit the quota to 50% of the total availability of jobs or seats in colleges. In many states, it touches the 70% mark.

As space for merit shrinks in jobs and educational institutions, a cauldron of frustration is getting fuelled by competent youngsters, left behind by the not-so-competent armed with an OBC certificate. No wonder, the Jat community agitated and succeeded in getting OBC status. The SC had to step in and rescind the Centre's decision.

In the Ashoka Thakur judgment, which upheld 27% quota for OBCs in educational institutions, the SC underlined the recent trend of `forward' castes seeking `backward' status.

It warned, “When more and more people aspire for `backwardness' instead of `forwardness', the country itself stagnates.“

The SC had also warned, “While affirmative discrimination is a road to equality , care should be taken that the road does not become a rut in which the vehicle of progress gets entrenched and stuck. Any provision for reservation is a temporary crutch. Such crutch by unnecessary prolonged use should not become a permanent liability .“

While striking down quota for Jats in Ram Singh vs Union of India (March 17, 2015), the SC had said the determination of social and educational backwardness to warrant award of reservation benefits to a community must be based on contemporary data and not historical perception.

The SC had asked that if government after government claimed to have achieved all round development of the country and communities, why were more and more communities getting included in the list of OBCs and not a single exclusion? Was this the meaning of all-round development that more and more communities were getting backward? No ruling party dare order a survey that would deprive communities of reservation as they fear losing votes in a geographic unit whose demographic equation has been virulently afflicted by politically crafted social engineering which has divided communities on the lines of those who have the OBC tag and those who don't.

In the Ram Singh judgment, the SC had said reservation should reach the most deserving. The yardstick to determine which community deserved reservation should be evolved using contemporary standards and must necessarily move away from caste-centric definition of backwardness, it had said.

“The perception of a self-proclaimed socially backward class of citizens or even perception of the `advanced classes' as to the social status of `less fortunate' cannot continue to be a constitutionally permissible yardstick for determination of backwardness,“ it had said.

Till political parties muster enough courage to undertake a comprehensive study and exclude communities which, through reservation, have climbed high enough in the socio-economic ladder, many Hardik Patels will emerge as rallying points for frustrated young victims of reverse discrimination.

PSU staffers’ children denied UPSC jobs under quota

Subodh Ghildiyal, December 9, 2017: The Times of India

For the fifth year in succession, the Centre has rejected the wards of OBCs employed in PSUs who passed the UPSC civil services examinations but were categorised by the government as belonging to the "creamy layer".

It is learnt that the department of personnel and training has rejected the claims of over 20 OBC candidates who were waiting to be allocated the service for training.

While the OBCs rejected for 2016 batch are said to number around 20-25, such candidates number around 50-60 over five batches since 2013. The list of 2016 batch has been finalised but OBC candidates who were dubbed as belonging to the "creamy layer", have not been allotted services, said some from the aggrieved camp. The final list of DoPT suggests likewise.

Interestingly, on Friday, the government issued a "reserve list" to fill extra 109 posts and the rejected OBCs of 2016 batch don't figure in it either. "Creamy layer" refers to the well-off among OBCs who are not eligible for Mandal reservations.

What makes contentious the simple issue of "creamy layer" is the methodology used by the central government in calculating it for wards of backwards employed in PSUs as against those working in the central and state governments.

The Madras high court in September rejected the Centre's method of calculating the "creamy layer" for candidates whose parents are working in PSUs. The HC judgement, reported exclusively by TOI, said the principle for determining "creamy layer" should be the same for PSUs/private sector and the government. Significantly, the Centre has filed an appeal against the Madras HC order in the Supreme Court, and has secured a stay.

The "creamy layer" formula lays down that Group A and Group B (except in certain conditions like age of promotion) are ineligible for quotas while others are eligible provided their annual income from other sources is not above Rs 8 lakh. The critical bit is that annual income doesn't include the salaries of parents. While the Centre has been applying this "exclusion criteria" for wards of persons employed in central and state governments, in case of PSUs/private sector, the Centre has been calculating the "creamy layer" on the basis of salaries of parents.

This "discrimination" was challenged by two successful OBC candidates in the Madras HC and is also the basis for an ongoing case in the Delhi HC. The scope for confusion stems from the fact that the Centre has not yet worked out the table to determine which posts in PSUs fall under Group A, B, C and D as happens in the government - a process called "equivalence of posts".

On August 31, the Madras HC bench of Justices H G Ramesh and G Jayachandran turned down Centre's and DoPT's challenge against the order of the Central Administrative Tribunal in favour of Rohith Nathan and G Babu whose parents worked in PSUs/private sector. They had cleared the UPSC exam but were denied OBC quotas after being ruled as belonging to the "creamy layer".

As reported by TOIon July 17, 2016, the National Commission for Backward Classes had written to the government about the anomaly, warning there could be a backlash from the backwards if DoPT officials did not rectify their methods of calculating the "creamy layer" for PSUs. In its judgment, HC has ruled that if salary of parents employed in government isn't a criteria for assessing "creamy layer", the salary of a PSU employee "as a test for identifying creamy layer brings in the element of hostile discrimination".

HC faults Centre’s exclusion of wards of PSU employees

Subodh Ghildiyal, Delhi HC slams govt’s ‘creamy layer’ criteria, March 26, 2018: The Times of India

Ruling Gives Hope To 12 OBC IAS Aspirants

The Delhi high court has slammed the Centre’s method of calculating the “creamy layer” for wards of persons from “Other Backward Classes” working in PSUs — a key reason behind the rejection of many OBC aspirants for IAS and other elite services over the last five years.

In a crucial judgment last week, the HC directed the Centre to recalculate the “creamy layer” for petitioners within eight weeks – reviving hopes that they may be able to join the civil services after being rejected earlier.

“Creamy layer” pertains to better off individuals among OBCs, who are ineligible for Mandal reservations.

The Delhi HC judgement has major implications for OBC aspirants for central services. While the order pertains to 12 OBC aspirants who cleared UPSC’s Civil Services Examination in 2015 before being turned down, it may boost the case of, by an estimate, over 60 candidates who have been rejected in last few years.

More crucially, it may have a serious bearing on the way the Centre calculates “creamy layer” for OBC children with PSU background --alleged to be “discriminatory” when compared to “backwards” employed in central and state governments.

The Delhi HC order follows a similar one by the Madras High Court in August 2017, directing the Centre to use the same formula for both categories of OBCs.

The controversy revolves around differing principles applied to determine “creamy layer”.

According to government guidelines, while Group A and Group B are ineligible for Mandal quotas, others are eligible if their annual income from other sources does not exceed Rs 8 lakh. The annual income does not include salaries of parents.

While DoPT has been determining the “creamy layer” for PSU background by including the salaries of parents, it has been excluding the salaries of parents employed in central or state governments – putting the first category at a disadvantage.

The DoPT told the Delhi HC that “creamy layer” for PSU candidates follows the principle spelt out in its communication of October 14, 2004. On the other hand, the petitioners argued that the October 14 order “discriminates the employees of PSUs visa-vis the government employees, and ought to be quashed”. In its order, the high court agreed with the petitioners.

In August 2017, the Madras HC had ruled that if salary of parents employed in government is not a criteria for assessing “creamy layer”, the salary of a PSU employee “as a test for identifying creamy layer brings in the element of hostile discrimination”. Though the Centre has appealed against the Madras HC order in the Supreme Court, it is to be seen how it reacts to the Delhi high court judgement.

The confusion over “creamy layer” is a result of the Centre’s failure to determine the posts in PSUs as falling under Group A, B, C and D as happens in the government – a process called “equivalence of posts”.

The govt’s method of calculating the ‘creamy layer’ for wards of people from Other Backward Classes working in PSUs has come in for criticism from the high court

Inclusion of more castes in list of beneficiaries

1989-2016: Agitations for reservations

The Hindu, September 23, 2015

1. Jats : In a 64-page judgment in March this year, a Bench of Justices Ranjan Gogoi and Rohinton Fali Nariman struck down the March 4, 2014 notification issued by the then UPA government to include the Jats in the Central list of OBCs for the nine States. Read more

2. Gujjars : Agitations by Gujjars over reservations have been a near-annual event in Rajasthan since 2006. In May this year, the Rajasthan government announced that it would provide the community 5 per cent reservation in jobs. Read more

3. Vanniyars : In 1989 the Vanniyars - along with several other communities in Tamil Nadu - were given the Most Backward Class (MBC) status. Being the single largest MBC group, this reservation benefited the Vanniyars most.

4. Patels : Riots, arrests, a curfew and eight deaths later, the mass movement now appears poised to take on a national shape. It began as a rally in Visnagar town in Gujarat early July, but two months on, the Patel-agitation for OBC status — with 22-year-old commerce graduate Hardik Patel at the helm — has galvanising tens of thousands of people across the State. Riots, arrests, a curfew and eight deaths later, the mass movement now appears poised to take on a national shape.

Quota games: The race backwards

The Times of India

Subodh Ghildiyal | TNN

With No Govt Daring To Carry Out Prescribed Purge Of Communities From OBC List, Purpose Of Reservations Defeated

The joke is that if Jats and Marathas are backward, then may as well put Thakurs and Brahmins on the OBC list and end the farce. With Jats recently put on the central list of backward classes, the day is not far when Marathas and Jat-Sikhs too will be in queue for quotas in jobs and education.

It’s a strange race where more and more communities, dominant in contemporary times, want to be categorized as backward castes or OBCs. The sole objective: Availing the 27% job quotas. Despite the clout of these resourceful groups, the weak-kneed political class has caved in to demands, fearing their wrath in the elections.

If UPA2 accorded Jats OBC status at its last cabinet meeting, it was after electoral calculations about how the decision would benefit the alliance. Days ago, the National Commission for Backward Classes had “rejected” the proposal, saying Jats were “not socially or educationally backward”.

Congres is not the first villain. The blame lies with former PM Atal Bihari Vajpayee who promised the community backward status on an election trail in Rajasthan and fulfi lled the promise in 1999. The irony: Rajasthan’s Jats were included in the central OBC list, but weren’t considered backward in the state.

Now, with the sounding of theelectionbugle,wordhasleaked about how the Maharashtra government is ready to carve out job quotas for Marathas. Akali Dal began demanding OBC status for Punjab’s ruling class — the Jat Sikhs.

The modus operandi is simple: Powerful groups demand backward status and up the ante around elections. Parties, wary of attracting their hostility, nod and begin seeing political wisdom in the demand. Finally, it’s clinched.

In two decades of the Mandal Commission that instituted the central quotas for OBCs, the number of backward communities has swelled from 1,352 to 2,404 castes. The race for “backwardness” and a pliant political class have played havoc with the system designed to help those weaker groups that still suffer discrimination. Experts point to a dichotomy. The farming communities were “shudras” in the caste system. Post land reforms, they’ve achieved social and economic mobility to be rid of historical stigma, says Vivek Kumar, a sociologist with Delhi’s Jawaharlal Nehru University. “These communities shouldn’t get quota benefits because most would fall in the creamy layer (economic status beyond which an OBC isn’t eligible for quotas),” he argues.

The political expediency trap is messing up the tenuous social balance. The inclusion of Jats in the OBC list in 1999 triggered the Gujjar agitation. They insisted that they be put in the Scheduled Tribe list. The agrarian Gujjars lamented that resourceful and educated Jats had cornered quota benefits at their expense.

The Gujjar push was met with resistance from Meenas, a dominant ST community that loathed a competitor for its share of tribal quota, resulting in a bloodbath between the ‘martial’ groups that put the country on edge in 2007.

Many believe the open-ended process of identifying backwards provides the opening for “motivated” inclusions in the OBC list. The government can put a deadline to the process. “65 years of independence is enough to have found the backwards,” an expert says.

While the political class has been quick to capitulate to demands, it has been reluctant to bite the bullet on “exclusion” – a purge of the OBC list of communities that have made progress with time. Section 11(1) of the NCBC Act that identifi es backwards, says the OBC list should be revised every 10 years.

The fear is that communities which have made progress and run the risk of exclusion are the ones with social and economic clout to scare the political class. Post the Jat decision, OBC activists and intellectuals lament that the endless inclusions in the backward category would render redundant the concept of reservations. Many see it as an upper caste conspiracy.

That may not be far from the truth if reservations are not uncoupled with the interests of the political class and applied strictly for the purpose they were conceived.

THE EVER-GROWING LIST

MANDAL COMMISSION

1993

27% reservation in central jobs and education. Since then, number of backward castes up from 1,352 to 2,404

Section 11(1) of National Commission of Backward Classes Act says government should, every ten years, purge the OBC list of communities that have ceased to be backward

In 20 years since Mandal came into force, the purge has not happened even once

A purge can exclude strong communities like Jats, Yadavs, Kurmis and some from south India, from the OBC list

In 1999, former PM AB Vajpayee promised Jats backward status at a poll rally in Rajasthan. The state’s Jats were included in the central OBC list, but weren’t ‘backward’ in the state. Gujjars followed with their demand for ST status

Demands for inclusion in quotas, 2016, ’17

Demands from communities to be included in quotas, 2016, ’17
Graphic courtesy: October 29, 2017: The Times of India

See graphic, ‘Demands from communities to be included in quotas, 2016, ’17 ’

Cannot deny reservation on the basis of a private book

AmitAnand Choudhary, Centre relied on pvt book to deny OBCs job quota, December 3, 2017: The Times of India

In a peculiar case, the Centre relied on a book on caste composition of Uttarakhand to deny reservation benefit to OBC candidates who had passed the recruitment exam for constables in CRPF in 2010, on the ground that their castes were not mentioned under the OBC list in the book.

After a seven-year legal battle, the candidates finally won the case and an SC

bench directed the Centre to appoint them under OBC quota and admonished the government for relying on a “private book” to deny reservation benefit to them.

The Centre had notified 78 vacancies in CRPF (nine reserved for OBCs, besides 13 backlog OBC vacancies). Candidates belonging to Saini, Momin (Ansar), Gujjar and Kahar communities applied for appoi ntment under OBC quota. They cleared the exam but when resultswere declared, the government considered them in the general category on the ground that their castes were not mentioned under the OBC list in the book ‘Swamy’s Compilation on Reservations and Concessions’.

The confusion arose as the recruitment process was initiated in the same year when Uttarakhand was carved out of UP and the National Commission for Backward Classes (NCBC) had not created a separate central list of OBCs for the hill state.

The commission had said the UP list would be followed in Uttarakhand but the Centre preferredto go by the aforementioned book.

Advocate Indu Malhotra, appearing for theCentre, said only one caste was included in the central list for the state in 2010 and the candidateswere notcoveredunder it. Other OBCs were included in the central list only in 2011, she added. The NCBC, however, told the court that it had made it clear at the time that the UP list of OBCs was to be used for Uttarakhand also.

The bench said, “It is clear from the affidavit filed by NCBC that a decision was taken in 2010 to apply the central list prepared for UP to the state of Uttarakhand till the list of OBCs for Uttarakhand was finalised... There cannot be any doubt that the candidates belong to the castes included in the list of OBCs for UP and were entitled to be considered for the posts reserved for OBCs.

“This practice of relying upon private books for defeating the rights of citizens is deprecated,” it said.

States: the position in

The position in the various states

As in 2019, Jan

Castes eligible in various states for central government quotas, as in 2019 January.
From: Shankar Raghuraman, Almost All Indians Can Now Have A Quota, January 8, 2019: The Times of India

See graphic:

Castes eligible in various states for central government quotas, as in 2019 January.

Andhra Pradesh

December 2017/ Andhra approves 5% Kapu quota, breaches SC’s ceiling

AP OKs 5% Kapu quota, breaches SC-set ceiling, December 3, 2017: The Times of India

The Andhra Pradesh assembly unanimously passed a legislation to provide 5% reservation for the Kapu community in government jobs and educational institutions.

Meeting a long-pending demand of Kapus, the government has included the community in the backward classes by creating a separate category ‘F’.

In the absence of only opposition party YSR Congress, which is boycotting the session, leaders of ruling Telugu Desam Party (TDP) and its coalition partner Bharatiya Janata Party (BJP) participated in the debate on the bill.

Backward classes welfare minister K Atchan Naidu tabled the bill. Chief minister N Chandrababu Naidu and other members spoke on the bill. It was later passed unanimously with a voice vote.

Naidu said his government had fulfilled a promise made to Kapus in 2014 elections. He assured the House that steps will be taken to ensure that the benefits of development and welfare schemes reached Kapus.

The state cabinet had earlier accepted recommendations of the Manjunatha Committee, which examined the demand of Kapus and suggested earmarking five per cent for them.

As this legislation will take the overall quantum of reservation in the state to over 50 per cent, the cap fixed by the Supreme Court, the state government will request the Centre to amend the Constitution and include the legislation in Schedule IX to insulate it from any court ruling.

Bihar

November 2016/ Ashoka Thakur and Jat community judgments

The Times of India, Nov 16 2015

Dhananjay Mahapatra

Bihar polls: 65-year-old war to defeat caste system bites dust

One thing was clear. As always, Bihar voted on caste lines

Chairman of the Constitution drafting committee B R Ambedkar, who himself was a victim of the caste system, led the fight against it. Ambedkar had said, “On 26th uary, 1950, we are going to enJanuary , 1950, we are going to enter into a life of contradictions. In politics, we will have equality and in social and economic life we will have inequality . In politics, we will be recognising the principle of `one man one vote and one vote one value'. If our social and economic structure continues to deny the principle of one man one value, how long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? “If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up.“

After 65 years, can we say we have achieved the goal of wiping out caste system from our social life? The framers of the Constitution provided for reservation in public employment to backward classes to help them counter years of discrimination and slowly assimilate in the mainstream.

In the Ashoka Thakur judgment which upheld 27% quota for OBCs in educational institutions, the SC in 2008 had underlined the recent trend of `forward' castes seeking `backward' status. It warned, “When more and more people aspire for `backwardness' instead of `forwardness', the country itself stagnates.“ The SC had also warned, “While affirmative discrimination is a road to equality, care should be taken that the road does not become a rut in which the vehicle of progress gets entrenched and stuck. Any provision for reservation is a temporary crutch. Such crutch by unnecessary prolonged use should not become a permanent liability .“

While striking down quota for Jats in Ram Singh vs Union of India (March 17, 2015), the SC had said the determination of social and educational backwardness to warrant award of reservation benefits to a community must be based on contemporary data and not historical perception.

Rajasthan

2015: 68%

The Times of India, Sep 23 2015

Raj govt breaches 50% bar, quota now at 68%

The Rajasthan assembly passed two bills granting 5% reservation to Gujjar-led special backward classes (SBC) and 14% to economically backward classes (EBC), taking the total quota quantum in the state to almost 68% -well over 50%, the ceiling that twice got quota laws of the state rejected. The Vasundhara Raje government also pushed through resolutions urging the Centre to place the twin bills in the 9th schedule of the Constitution to buffer them from legal scrutiny.

Raje's decision came a day after Mohan Bhagwat stirred a storm by suggesting that the reservation system be reviewed. In hiking reservations in jobs and educational institutions, Rajasthan chief minister Vasundhara Raje may have been moved by her state-level compulsions.

But the controversial move of the saffron satrap who just fended off a determined Congress bid to corner her on her links with controversial cricket administrator Lalit Modi may also help the party outside the state, especially because of its sheer timing.

The state government secured passage of the two bills designed to reserve another 19% of seats in educational institutions and government jobs, that is, over and above the 49% already “reserved“.This comes at a time when the BJP is under attack from its opponents over Mohan Bhagwat's remarks on reservations.

Bhagwat's comments suggesting that quotas needed to be de-politicized and the issue of who all should get reservation benefits be examined by a group of experts have been interpreted by BJP's diverse opponents as Sangh Parivar's alleged opposition to reservations.

The charge, if it sticks, can play havoc with BJP's prospects in assembly elections in Bihar where both JD(U) and RJD have tried to revive the Mandal faultlines and turn the contest into a backward versus forward affair. However, Raje's action, cynical in terms of its brazen disregard of the Supreme Court-mandated 50% cap on quotas as well as the certainty of it being struck down by judiciary at the first turn, serves the purpose of showing that BJP can travel to the same extraor dinary lengths as its rivals to appease the clamour for quotas.

Bhagwat's remarks caught BJP unawares not just because they coincided with the party's determined drive to wrest control of Bihar with the help of a rainbow coalition comprising upper castes, OBCs sans Yadavs and Kurmis, most backward castes and Dalits.

His comments on reservations, certainly the way they were portrayed in certain quarters, interferes with Sangh Parivar's plans to make inroads among Dalits, a project which has got underway with an outreach to the Scheduled Castes and the canonization of B R Ambedkar in the saffron pantheon.

In the last Lok Sabha elections, the BJP outpolled Congress among Dalits with Modi's projection as an OBC contender for prime minister helping the party net backwards which had been alien territory for it.

“In Bihar, BJP has OBC leaders like Sushil Modi, Nand Kishore Yadav and Prem Kumar who have always occupied top positions. We have always received significant support from MBCs and Dalits who were given short shrift by parties which serves the interests of individual caste leaders and so people will laugh at the suggestion that we, that too at a time when our PM is an OBC himself, are opposed to quotas.That said, however, the remark was avoidable,“ said a BJP functionary who insisted on anonymity .

Gujjars

The Indian Express, December 10, 2016

Mohammad Hamza Khan

Rajasthan High Court strikes down Gujjar reservation

The court pointed out several flaws in the SBC reservation while saying that the ceiling of 50 per cent can be exceeded in exceptional cases. The Rajasthan High Court struck down five per cent reservation for Gujjars and four other castes under the Special Backwards Classes (SBC) category, underlining that reservation should not be provided “to achieve political goals”.

“Five castes (Gujjars, Banjaras, Gadarias, Raikas and Gadia Lohars), earlier falling in the category of OBCs and getting benefit of reservation, have been brought in the category of SBCs to provide five per cent reservation exceeding the ceiling of 50 per cent,” the court said. “…it is not that the Gujjars/Gurjars and others were having no representation either for admission in the educational institutions or in services.’’

The court noted that data for establishing the backwardness of the five communities had not been collected to the extent required. “In those circumstances, recommendation of the SBC Commission (for reservation) can be said to be perverse,” the court said. “The SBC Commission and the state government have failed to discharge their obligation as per the directions of the apex court to collect quantifiable data.’’

The court pointed out several flaws in the SBC reservation while saying that the ceiling of 50 per cent can be exceeded in exceptional cases. It added that reservation “should not be made solely based on caste’’. The court observed that reservation to achieve political goals results in caste-based agitations. “It was recently seen in the state of Haryana where agitators disrupted normal life of the citizen.’’

The law granting the reservation was passed last year taking the reservation in the state to 54 per cent.

Rajasthan Gujjar Aarakshan Sangharsh Samiti leader Himmat Singh Gujjar said community will agitate again. “We will agitate the same way as before,” he said. “There is BJP government at the Centre and in the state and we kept telling them to see to it that that the (reservation) Act is included in the Ninth Schedule of the Constitution (to make it immune to judicial scrutiny),’’ he said.

Rajasthan to hike OBC quota to 26% including Gujjars

Bhanupratap Singh, Raj to hike OBC quota to 26%, include Gujjars, August 19, 2017: The Times of India

The Vasundhara Raje government reached an agreement with Gujjar leaders, assuring them to split the other backward class (OBC) quota, after increasing it from 21% to 26%. From the increased OBC quota, 5% will be granted to the five “most backward“ OBC communities, which includes Gujjars and four others that were earlier grouped as the special backward classes (SBC).

Under the new arrangement, there will be no SBC category as it does not have constitutional approval. Instead, there will be OBC and `Most OBC' categories.

The government will bring in a bill to this effect in the state assembly during the upcoming monsoon session.

The decision was finalised after a ministerial sub-committee's talks with Gujjar leaders, including Kirori Singh Bainsla, late Thursday night. During the earlier round of talks last week, Gujjars had threatened to re-launch their quota agitation. By increasing the OBC quota from 21% to 26%, the total reservation in the state would once again shoot to 54%. As per Supreme Court guidelines, the total quota in jobs and institutes for reserved categories in the state cannot go beyond 50%.

Rajasthan, Oct 2017: OBC quota is 26%; breaches 50% limit

Raj raises OBC quota to 26%, but breaches 50% limit, Oct 27 2017: The Times of India

The Rajasthan assembly passed a bill providing 5% reservation for Gujjars and four other communities in jobs and education by enhancing quota in the OBC sub group from 21% to 26%. But this could be legally challenged as it takes the total reservation in the state to 54%, more than the permissible 50% fixed by the Supreme Court. The total quota breakup in the state now reads: OBC 26%, SCs 16% and STs 12%. The state government had tried to provide additional quota to these communities twice earlier, but the moves were struck down by the Rajasthan high court on technical ground.

Rajasthan, Dec 2017: 1% quota for Gujjars, 4 other communities

Rajasthan gives 1% quota to Gujjars, 4 other communities, December 23, 2017: The Times of India

The Vasundhara Raje government on Friday announced one per cent reservation for Gujjars and four other castes by creating a new category — most backward classes (MBC). This will take the total reservation in the state to 50%, which is the limit for quotas permitted by the Supreme Court.

The move is aimed to woo Gujjars ahead of byelections to the Alwar and Ajmer Lok Sabha constituencies in a few months as well as assembly elections which are scheduled in the state by November. However, Gujjars have rejected the government move saying that it wants nothing short of 5% quota exclusively for the community within the 50% limit.

The government announced the creation of MBCs through a notification on Friday and included Gujjars, Banjara, Gadia-Lohar, Rebari and Gadaria in it. “These communities were identified as the most backward by the OBC Commission and on the basic of the Commission’s report, they have now been provided with 1 per cent additional reservation under the MBC category. Along with this 1 per cent, they will continue getting quota benefits under the other backward classes (OBC) category,” Rajasthan minister for social justice and welfare Arun Chaturvedi said.

Telangana

SC/ST/OBC quota for rural polls kept within 50%

KCR govt limits SC/ST/OBC quota to 50% for rural polls, December 17, 2018: The Times of India

The Telangana government has promulgated an ordinance restricting reservations to a maximum of 50% for Scheduled Castes, Scheduled Tribes and other Backward Classes to enable conduct of elections to panchayat raj institutions in the state. The Telangana Panchayat Raj (Amendment) Ordinance, 2018, was signed by state Governor ESL Narasimhan.

“In pursuance of the judgments of the Supreme Court, the upper ceiling of 50% vertical reservations in favour of SCs/STs/OBCs should not be breached in the context of local self government,” reads the new “Chapter-VIII-A” inserted in the ordinance.

“Accordingly, the seats and offices to be reserved for Backward Classes shall be so determined duly keeping in view the requirement of reservation in respect of SCs, STs therein, that the total number of seats/offices reserved for the SCs, STs and Backward Classes (BCs) shall not exceed 50% of the total number of seats or as the cases may be, in the respective local bodies, in the manner prescribed,” it said.

The Hyderabad high court had directed the Telangana government to complete the election process for the members of gram panchayats and the offices of the sarpanch in the gram panchayats within three months from October 11.The term of the local bodies ended on August 1 this year.

The state government then moved the Supreme Court seeking permission to enhance the total quota to 67 per cent, beyond the 50% ceiling fixed by the top court, which was rejected.

The government wanted to raise the total quota percentage in proportion to population of the backward classes in the state.

Earlier, the Telangana Panchayat Raj Act-2018 enacted by the state legislature provided reservations of seats and offices in gram panchayats, mandal praja parishads and zilla praja parishads in favour of members belonging to Scheduled Tribes/Scheduled Castes on the basis of their proportionate percentage in population, to the total number of seats and offices.

The Act also provided that the number of seats and offices reserved for Backward Classes shall not be less than 34% of the total number of offices of the members in such Panchayat Raj bodies in the state. The Telangana Assembly was dissolved in September this year before the expiry of its term. In the assembly elections , the ruling TRS under K Chandrashekar Rao retained power.

Committees’/ commissions’ recommendation

2018, UP: Only 7% be given to Yadavs, Kurmis

Pankaj Shah, UP panel suggests just 7% quota for Yadavs, Kurmis, December 18, 2018: The Times of India

The four-member social justice committee set up by the BJP government in UP for categorising various sub-castes within OBC has suggested that of the total 27% quota meant for OBCs, only 7% reservation be given to Yadavs and Kurmis. The panel is of the opinion that the two castes are not only culturally but also economically and politically influential.

Yadavs form the core vote base of Samajwadi Party while Kurmis happen to be key voters of BJP ally Apna Dal.

The committee, headed by Justice Raghvendra Kumar, has in all categorised OBCs into 79 sub-castes. The report is likely to be tabled by backward welfare minister and BJP ally SBSP’s chief Om Prakash Rajbhar in the winter session of the UP assembly which is scheduled to start from Tuesday. Rajbhar has also threatened to launch a mass agitation beginning December 24 if the recommendation of the panel report is not made applicable ahead of the Lok Sabha polls.

The report, submitted to the UP government, has given maximum mileage to More Backward Castes including Lodhs, Kushwahas and Telis, proposing 11% reservation for them. The 400-page report (of which TOI has a copy) says employment opportunities to More Backward Castes were just half of their population.

The Most Backward Castes like Rajbhar, Ghosi and Qureshi (among the Muslim community) are proposed to be given 9% reservation, the report says. According to the report, these communities are either engaged in class III or class IV category jobs or are completely jobless.

The report points out that some of the sub-caste within the OBC got socially, economically and educationally stronger after getting benefited by reservation provisions. The increase in their population and education level made them politically influential. It adds: “It has been seen that only a few sub-castes have been able to get benefit of reservation, while most of them have been left out.”

Creamy layer

OBC creamy layer raised to Rs 8 lakh/ 2017

Soon, new commission to examine sub-categorization of OBCs: Arun Jaitley, Aug 23, 2017: The Times of India

HIGHLIGHTS

The Commission is expected to submit a report within 12 weeks of the appointment of a chairperson, Jaitley said

The NCBC has recommended 3 sub-categories of OBCs

The recommendation was made to distinguish between extremely backward classes and 'forward' groups among the OBCs.

NEW DELHI: The government will soon set up a commission to examine the sub-categorization of 'Other Backward Classes', or OBCs, even as it has raised the OBC creamy layer criterion to Rs 8 lakh from Rs 6 lakh, announced finance minister Arun Jaitley.

The commission is expected to submit a report within 12 weeks of the appointment of a chairperson, Jaitley added. The National Commission for Backward Classes (NCBC) has in its report to the government recommended sub-categorisation within the OBCs into three categories, reported PTI in July.

The NCBC has recommended sub-categorisation within OBCs into Extremely Backward Classes (Group 'A'), More Backward Classes (Group 'B') and Backward Classes (Group 'C'), MoS for Social Justice and Empowerment Krishan Pal Gurjar said. "It has been recommended that the Extremely Backward Classes should be grouped into a separate group which could include aboriginal tribes, vimukta jatis, nomadic and semi- nomadic tribes, wandering classes etc," the minister said.

The recommendation was made to distinguish between extremely backward classes and 'forward' groups among the OBCs. "This has been recommended on the grounds of equity and fair play by not equating these Extremely Backward Classes with the forwards among the backward classes," said the minister.

2018: PSU (creamy layer) wards do not get reservation in civil services

Subodh Ghildiyal, Creamy layer tag deprives PSU wards of civil services, August 26, 2018: The Times of India

Axe On 29 OBCs Despite HC Flaying Govt’s Method Of Calculation

The concept of “creamy layer” for one group of OBCs — wards of employees of PSUs — continues to be muddled. In keeping with past years, the government has again deprived reservation benefits to 29 successful OBCs in UPSC examinations for elite services like the IAS and IPS.

Twelve OBCs were left out of the UPSC list in 2012, 11 in 2015 and four in earlier years, as per the figures compiled by the aggrieved group.

Crucially, the axe on these OBCs this year comes despite a Delhi high court judgment in March which slammed the Centre’s method of calculating the “creamy layer” for wards of employees of PSUs.

At the heart of the controversy lies what has been termed “hostile discrimination”. “Creamy layer” identifies the better off individuals among OBCs, ineligible for Mandal reservations.

However, the Centre in recent years has resorted to different methods to calculate “creamy layer” for employees of central and state governments, and of PSUs.

According to government guidelines, while Group A and Group B are ineligible for Mandal quotas, others are eligible if their annual income from other sources does not exceed Rs 8 lakh. Importantly, the annual income does not include salaries of parents.

While DoPT has been determining the “creamy layer” for PSU background by including the parents’ salaries, it has been excluding the salaries of parents employed in central or state governments — putting the first category at a disadvantage.

Disagreeing with the discrimination, the Delhi HC had ruled that the government employ similar formula for all categories of backward candidates. But if the “service allocation list” of 2017 UPSC exam is any evidence, the government has not changed its method.

Shashank Ratnoo, an advocate in the case who is also an aggrieved UPSC candidate, said, “There is no stay on the court order. The government did not change the method to calculate the creamy layer for PSU candidates even for the 2016 batch. We have filed a contempt petition. It has done it again for the 2017 batch.”

Before the Delhi HC order, the Madras HC had in August 2017 directed the Centre to use the same formula for both categories of OBCs. However, the Madras order was stayed by the court.

The DoPT had told the Delhi HC that “creamy layer” for PSU candidates follows the principle spelt out in its communication of October 14, 2004. On the other hand, the petitioners argued that October 14 order “discriminates the employees of PSUs vis a vis the government employees, and ought to be quashed”. In its order, the HC agreed with the petitioners.

Twelve people from the OBC category were left out of the UPSC list in 2012, 11 in 2015 and four in earlier years, as per compiled figures

 Exclude ‘creamy layer’ from SC/ST reservations: SC, 2018

Dhananjay Mahapatra, September 27, 2018: The Times of India

But Gives Relief On Quota In Promotions

In a historic decision, a five-judge Constitution bench of the Supreme Court ruled that the “creamy layer exclusion” principle, till date applied only to OBCs, can be extended to Scheduled Castes and Scheduled Tribes to deny reservation to the “elite” among these underprivileged communities.

The order of Chief Justice Dipak Misra and Justices Kurian Joseph, R F Nariman, Sanjay Kishan Kaul and Indu Malhotra overshadowed the relief they gave to the Centre, states and SC & ST government employees in exempting states from collecting quantifiable data on backwardness to justify reservation in promotion for the two categories.

The bench said their backwardness has been recognised as inherent to them after statutorily provided scrutiny to warrant inclusion in the list of scheduled communities under Presidential Order to get reservation benefits.

The requirement to furnish quantifiable data, laid down by the apex court in the M Nagraj case in 2006, to justify reservation in promotions for SC & ST employees has held up elevation of serving employees from the two categories, leading to restiveness in their ranks. But the extension of “creamy layer” criterion is sure to temper the happiness over the bench doing away with the mandatory requirement to back up the case for promotion in quota by marshalling data on backwardness.

‘Creamy layer shouldn’t bag all coveted jobs’

The CJI -led bench unanimously agreed to extend the “creamy layer exclusion” principle to SCs and STs and said: “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 Scheduled Castes and Scheduled Tribes, it does not in any manner tinker with the Presidential List under Articles 341 or 342 of the Constitution of India,” it said.

“The caste or group or subgroup named in the said list continues exactly as before. It is only those persons within that group or sub-group, who have come out of untouchability or backwardness by virtue of belonging to the creamy layer, who are excluded from the benefit of reservation,” Justice Nariman wrote for the bench.

While doing away with the stipulation to collect data to justify quota in promotion for SCs & STs, the bench turned down the demand of the petitioners for reconsideration of the Nagraj judgment. In upholding the validity of Article 16(4A) providing promotion in reservation to SC and ST government employees, the SC had in the Nagraj case put three caveats that almost turned out to be a spanner in its implementation.

Writing the unanimous 58-page judgment for the bench, Justice Nariman said the Nagraj ruling need not be sent for reconsideration to a sevenjudge bench while correcting the only mistake in it.

Law ministry’s opinion/ 2019

Subodh Ghildiyal, ‘Wealth test’ tweak to help determine OBC creamy layer?, March 15, 2019: The Times of India

The law ministry has said that “salary” and “agricultural income” should not be included in the “wealth test” of OBCs whose parents work in PSUs and banks, to determine if he belongs to the “creamy layer” — an opinion which can upend the Centre’s stance on the issue which has created a permanent source of career crisis for the youth of this category.

Agreeing with the law ministry’s opinion, Parliament’s “committee on welfare of OBCs” has told the Centre that it should ensure that “salaries” and “agri income” are not considered in the “wealth test” for any category of OBCs.

“Creamy layer” is the section of backward castes which is considered economically advanced and ineligible for reservations. The department of personnel and training has been treating the OBCs from PSU background differently from those working in state or central governments.

The guiding charter (1993 OM) has laid down that Group A and Group B (with caveats) are ineligible for quotas while others are eligible provided their annual income is not above Rs 8 lakh. It states that annual income does not include the “salaries” of parents and “agricultural income”.

The Centre has been applying this “exclusion criteria” for wards of persons employed in central and state governments, but in case of PSUs and banks, the Centre has been calculating the “creamy layer” on the basis of salaries of parents, putting the latter at a disadvantage.

While the high courts of Madras and Delhi had slammed the Centre and asked them to apply the same principle for both categories of OBCs, the government chose to file an appeal in the Supreme Court.

Now, the law ministry has given a categorical opinion contradicting the Centre’s stand.

To a clarification sought by Parliament’s “committee on welfare of OBCs” through Congress MP B K Hariprasad, the law ministry said that “category II-C” (PSUs/banks etc) would be subjected to the “wealth test” (section VI) mentioned in the 1993 OM. It has said that exclusion of “salaries and agri-income” counts for both the categories.

It contradicts the stance taken by the DoPT in its affidavit in the SC — that not clubbing of “salary” and “agri-income” was not applicable to OBCs from PSU background.

The law ministry has said that ‘salary’ and ‘agricultural income’ should not be considered for the ‘wealth test’ of OBCs whose parents work in PSUs and banks

Why defining creamy layer bar is difficult

January 9, 2019: The Times of India

As a debate rages over whether a Rs 8 lakh income limit for accessing the proposed 10% quota for the economically weak is too generous, studies show that the narrowing income gap, particularly between OBCs and general castes, makes exclusion a problem for the existing quotas too.

It was after considerable negotiations that the creamy layer income criteria for OBCs was raised to Rs 8 lakh in 2017 after a gap of four years. The process faced resistance of backward groups which pointed to the castebased essence of the Mandal recommendations even as equitable access remains problematic.

With the closing of income gaps between OBCs and general castes, the number of those likely or who are eligible to benefit from reservations is broadly comparable to those in the non-reserved sections.

The Rs 8 lakh income bar for the new quota mirrors the existing creamy layer regulations for the OBC quota and a study by a non-profit People Research on India’s Consumer Economy (PRICE) shows that the weighted intra-caste deviation in income between OBC and general caste household in metros was 160 and 177 where the average all-India national income of a little under Rs 2 lakh was taken as 100.

The study, released in 2014, reflects trends that have not altered much. In boom towns, the ratio is 167 and 163 and for developed rural areas it is 156 and 136. For emerging rural areas it was 87 and 97. Overall the weighted scores are 97 for OBC and 122 for GCs.

The government has argued that the Rs 8 lakh limit is taken from the creamy layer criteria and even a monthly income of around Rs 66,000 is not enough to support professional education for children. With incomes of OBC households looking more comparable, the gains and losses of the income bar might be similar too.

In its more recent 2016 pan-India survey, PRICE has noted that average incomes are much lower than anticipated among various consumer groups. Going by middle class characteristics like regular earnings, ownership of vehicles and appliances, a large section of population does not qualify.

Separating the “true” middle class and the rich, there is a large swathe of middle India. In this ‘in between’ section, barely 20% have regular salaried jobs. The average income is around Rs 15,000 a month. The study found that the richest 20% account for 45% of income.

Double reservation benefit

SC upholds UPSC ban

SC upholds UPSC ban on double reservation benefit

TIMES NEWS NETWORK

From the archives of The Times of India 2007, 2009

New Delhi: The SC upheld the validity of a civil services examination (CSE) rule virtually stopping double quota benefit for reserved category candidates who qualify on merit after competing under general quota.

A bench comprising Chief Justice K G Balakrishnan and Justices S H Kapadia, R V Raveendran, B Sudershan Reddy and P Sathasivam quashed a Madras High Court order which had termed the CSE rule 16(2) as unconstitutional. Rule 16(2) provides an opportunity to reserved category candidates, who rank among the general category, to fall back on their backward class status and improve their service choice. The improved service so availed by the reserved category candidate would then be counted against the quota posts specified for that service.

For example, if a reserved category candidate secures a rank in general category that fetches him Indian Revenue Services, then he could avail his backward status to improve his service and even get IAS.

Under Rule 16(2), the IRS post so vacated by the candidate by falling back on his SC, ST or OBC status, would then be offered to a general category candidate next in the waiting list. The HC had termed Rule 16(2) as unconstitutional as it was detrimental to the intention of socially affirmative action provided under the law.

Challenging this judgment, the Centre and a host of petitioners termed the HC ruling anomalous. Appearing for one of the petitioners, advocate Anirudh Sharma had argued that it would amount to giving reservation over and above the specified percentage of posts reserved for SCs, STs and OBCs. The SC had on June 1, 2008, stayed the HC judgment.

Writing the unanimous verdict for the five-judge bench, CJI Balakrishnan said, “Candidates who avail the benefit of Rule 16(2) and are adjusted in the reserved category should be counted as part of the reserved pool for the purpose of computing the aggregate reservations.”

Economically backward classes quota

Unconstitutional, contrary to fundamental rights: Guj HC

The Times of India, Aug 05 2016

HC quashes Guj's 10% upper caste quota

In a setback to the Gujarat government, the high court here has quashed the former's decision to set aside 10% quota within the general category for upper caste families with low income of up to Rs 6 lakh per annum.

A division bench of Chief Justice R S Reddy and Justice V M Pancholi held that the ordinance reserving quota for upper castes on the basis of their income was “unconstitutional and contrary to fundamental rights guaranteed to the petitioners under Articles 13(2), 14, 15 and 16 of the Constitution“.

The court said that income cannot be considered as the basis for the social backwardness of a community .Observing that the state go vernment had no power to make such provisions, the high court directed it to cancel admissions granted under the 10% economically backward classes (EBC) quota. This will require reshuffling of admissions, especially in engineering and other professional courses.

The high court, however, granted two weeks to the government to approach the Supreme Court.

Gujarat minister Nitin Patel said the government would challenge the high court order in the apex court.

The high court rejected the government's contention that the EBC quota was not reservation, but a classification. The court also noted that the provision violated the maximum 50% reservation norm. The court also pulled up the state government for its false claim that the policy was formulated after a survey.

2019: Eligibility criteria tougher than OBC ‘creamy layer’

Subodh Ghildiyal, Eligibility criteria for EWS quota tougher than OBC ‘creamy layer’, January 23, 2019: The Times of India

The gover nment may have said the eligibility criteria for “economically weaker sections” (upper castes) quota would be the same as for OBCs, but its orders have made it tough for the new quota category.

The office memorandum issued by the DoPT states that families with “gross national income” below Rs 8 lakh would be identified as EWS. It clarifies that “income” shall include income from all sources.

It is a significant change from the criteria laid out to identify the “creamy layer” for Mandal classes that are ineligible for quotas. The “creamy layer” comprises persons with “gross national income” of Rs 8 lakh or above. The income, however, does not include “income from salaries or agricultural land”.

The difference between the two sets of criteria imply that upper castes who would qualify for quotas would have to be significantly weaker financially since parent’s salary as well as any earning from farm would be included in income.

Besides, for the EWS category, families would be automatically excluded if they own farm land of five acres, residential flat of 1,000 square feet or residential plot of 100 square yards in notified municipalities or residential plot of 200 square yards in areas other than notified municipalities.

The stringent exclusionary norms would leave out a vast section of non-SC/ST/ OBC from the new quota regime, especially those in the lower middle classes.

However, social justice commentators argue that “income/wealth test” for upper castes cannot be at par with the OBCs.

The distinction likely flows from the fact that quotas for Mandal classes stem from their socio-educational backwardness rather than economic. The latter was more of an afterthought to ensure that needy OBCs benefitted from the quotas which would otherwise be cornered by “forwards among backwards”.

Elected bodies, reserved seats in

Legislative seats: basis for reservation is 2001 census

2001 census to be used for reserving seats for SCs/STs: SC | Mon, 3 Jul 2017 | PTI

The constitutional scheme that the 2001 census data would be used for giving proportionate representation to Scheduled Castes (SCs) and Scheduled Tribes (ST) in Lok Sabha and legislative assemblies is "unambiguous", the Supreme Court said today.

A bench of Chief Justice J S Khehar and Justice D Y Chandrachud was hearing a plea of NGO Public Interest Committee for Scheduling Specific Areas (PICSSA) that 'Limbu' and 'Tamang' communities, belonging to ST category, have been denied proportionate representation in West Bengal and Sikkim.

The plea, filed by lawyer Prashant Bhushan, also referred to the rise in ST population in Sikkim and West Bengal and said that the not reserving the seats for them amounted to "denial of constitutional rights of the STs".

The population of Limbu and Tamang communities was 20.60 per cent in 2001 and it rose to 33.8 per cent in 2011, it said, adding that in Darjeeling area of West Bengal, the ST population rose to 21.5 per cent in 2011 from 12.69 per cent of 2001.

"It is very clear that for proportionate representation, the census of 2001 shall be considered till 2026. There is no ambiguity," the bench said, adding that the constitutional scheme clearly stipulated as to which census would be used for reserving the seats.

As the bench expressed unwillingness, Bhushan sought time which led to the adjournment of the hearing to tomorrow.

The PIL has sought direction to the Centre, the poll panel and the two states to take steps for proportional representation of STs, as guaranteed under Articles 330 (reservation of seats for SCs and STs in the House of People) and 332 (reservation of seats for SCs and STs in legislative assemblies of states) of the Constitution, to prevent violation of Article 14 (Equality before law).

The petition said in the Tribes Advisory Council (TAC) established in West Bengal on March 6, 2012, there were no elected members of STs from the three hill area subdivisions of Darjeeling district.

"Moreover, the state assembly elections in 2016 had no reserved ST seat and hence had no implementation of articles 170 and 332 of the Constitution notified as per census 2011.

The delimitated [delimited?] assembly seats in Darjeeling hills presently consist of elected non-ST members," it said.

Politicians seek SC/ ST wives to boost careers

The Times of India, August 22, 2016

Eram Agha

In UP reserved seats, aspiring netas seek SC|ST wives

Iglas assembly constituency in Aligarh district, which goes to the polls with the rest of UP in 2017, is seeing matrimonial offers with a difference. Reserved for scheduled caste (SC) candidates, aspiring politicians are seeking brides who can be put up as candidates in the elections, just so the former can live their political ambitions. One of these hopefuls is Ravinder Singh. “I want to stand for elections on public demand. But Iglas is reserved for SC candidates and I am OBC. I want to marry an SC girl who is educated,“ sa ys an ad doing the rounds. He adds, “No dowry .“ Singh has got 10 offers so far.

Three months ago, BJP leader Meghraj Singh married a Dalit girl to, in his words, “pursue my political dreams through my wife“.

In Iglas itself, Rashtriya Lok Dal (RLD) leader Harcharan Singh, then 38, married Sulekha Chaudhury , then 32, nearly 12 years ago. Chaudhury was an SC. Harcharan Singh wants his “eligible“ wife to stand for elections from Iglas. Iglas constituency has been reserved for 25 years, of which 10 years have gone by .

“For 2017, my wife shall be the face of my politics,“ said Harcharan, defending his marriage as apolitical. “We got married years ago and there was no politics behind it.But now I want to live my political aspirations through her,“ he added.

“It used to be a general seat earlier and Chaudhury Rajinder Singh was our leader then.I have always been attached to Lokdal party and worked for it. People know me, but since I am OBC I do not have a chance,“ Ravinder Singh said.

“I have nurtured this constituency . Now if I marry an SC girl I can serve the people through her,“ Singh said. His situation is similar to that of BJP leader and zila panchayat member Meghraj Singh, who divorced his wife for “personal reasons“ and married an SC girl named Kusum Chaudhury three months ago to, in his words, “pursue my political dreams through my wife“.

“I was actively involved in the Ram Mandir movement, but have been helpless ever since the seat got reserved. I want to be an MLA but now I will have to live the life through my wife,“ the BJP leader said. Singh is quick to add, “Of course, she is capable of doing things on her own, from getting a ticket to fighting elections.“ Instances of political alliances to take advantage of reservations are not new in Uttar Pradesh, particularly at the panchayat level.

The trend of elected women leaders “outsourcing“ their power to sons and husbands has been analysed by experts in the past, particularly with regard to panchayat elections, where the male members wield the actual power in reserved seats.

Faculty quota

Departments- subjects and not institution will be the unit

SC dismisses govt’s plea to review faculty quota verdict, February 28, 2019: The Times of India

The Supreme Court on Wednesday refused to re-examine its verdict which held that reservation for SCs, STs and OBCs for appointment as teachers in universities and colleges should be decided with regard to departments and subjects rather than treating the institution as a unit.

A bench of Justices U U Lalit and Indira Banerjee dismissed review petitions filed by the Centre and University Grants Commission and said there was no error in the verdict and it didn’t require reconsideration. The court had on January 22 upheld the Allahabad high court order which had ruled that reservation should be granted department/subject wise.

“Grounds in the review petitions were also raised and gone into when the special leave petitions were considered by this court. The decision rendered by the high court was found to be correct and the special leave petitions were dismissed. The court also noted that similar challenge raised on behalf of certain individual petitioners had also been rejected earlier. Taking totality of the circumstances, the submissions raised by the University Grants Commission and Union of India were not accepted and the petitions were dismissed. We have gone through the review petitions and do not find any error apparent on record to justify interference in review jurisdiction,” the bench said.

While adjudicating a petition challenging reservation for teaching staff in Banaras Hindu University, the HC had ruled educational institution should not be treated as a unit to grant reservation and it should be given department-wise.

False caste certificates

Beneficiaries must lose benefit when forgery discovered

Dhananjay Mahapatra | Terminate jobs, studies of those faking caste: SC | Jul 07 2017 | The Times of India (Delhi)

The Supreme Court ruled that those using fake caste certificates to avail of quota for admissions to educational institutions or getting government jobs must lose the benefit the moment the forgery is discovered.

Despite clear directions from the SC to adopt “zero tolerance“ against those using fake certificates to illegally usurp seats in educational institutions and government jobs, there have been instances where HCs have permitted such persons to continue in their jobs because they had put in several years in service. In other instances, HCs have permitted students to complete studies after paying fine for using fake caste certificate to gain entry into educational institutions.

Settling a major issue in determining castes which belong to the scheduled category in Maharashtra, a bench of CJI J S Khehar and Justice D Y Chandrachud said leniency by the HCs must stop forthwith as those who used fake caste certificates had criminal intent to usurp the benefits reserved for persons belonging to oppressed and socially and educationally backward communities.

Writing the judgment for the bench, Justice Chandrachud said leniency to such people would amount to depriving a genuine beneficiary of hisher dues. He said the person found usurping benefits with fake caste certificate must face prosecution.

The issue for consideration before the bench arose from Maharashtra, where a full bench of the Bombay HC had held that even when the caste certificate was invalidated by the SC, the person who used this to get the job could continue in service considering the long period he had spent in the job. This judgment had a spiralling effect as smaller benches followed this to grant similar benefit.

Setting aside Bombay HC's judgment, the SC bench reminded HCs that in 1994, the SC had cancelled the admission of one Kumari Madhuri Patil midway through her BDS course after the scrutiny committee found her caste certificate to be forged.

“It is true that the applications for admission to educational institutions are generally made by a parent, since on that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status certificate. It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude.“

The court had also laid down a procedure for fast scrutiny of caste certificates.“In case the certificate obtained or social status claimed is found to be false, the parent guardiancandidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the state or the Union or elections to any local body, legislature or Parliament,“ it had said.

Judiciary: quotas in

HC: No quotas in Maharashtra judicial posts

Shibu Thomas, Nov 11, 2015: The Times of India

No quotas for judicial posts in Maha, rules Bombay HC

Reservations are not applicable for judicial posts in Maharashtra, the Bombay high court ruled.

In an important order, a division bench of Justices Ranjit More and Rajesh Ketkar rejected a plea that sought implementation of 3% reservation for persons with disabilities to the posts of civil judges and judicial first class magistrates.

“The reservation in judiciary by the state without consulting the high court or without concurrent recommendation of the HC is an encroachment on such exclusive powers,“ said the judges, while pointing to Supreme Court judgments that had said an “independent judiciary is a basic structure of the constitution and the HC alone can recognise vacancies and the reservation (to judicial posts) even if provided by the state.“

The court was hearing a petition filed by Sushil Sonawane, an advocate, who has cerebral palsy . Sonawane had sought implementation of the reservation provided under the Persons with Disabilities Act for the posts of civil judges and JMFCs.

SC, 2019: HCs should relax minimum marks if no SC/STs qualify

Dhananjay Mahapatra, Ease norms for SC/STs to be judges: Top court, January 23, 2019: The Times of India

A Supreme Court bench headed by Chief Justice Ranjan Gogoi expressed concern over the Kerala high court not finding a single candidate from the reserved category crossing the threshold of minimum percentage of marks for appointment as judicial officers in trial courts.

The HC informed the SC that for the preliminary examination it had fixed 35% as qualifying marks and 40% for the main examination. Only three candidates qualified for the interview and none were found suitable for the post of judicial officer, it said. Over 2,700 candidates had competed for 45 posts of judicial officer and only 31 general category candidates could be selected, it added.

The bench of CJI Gogoi and Justices L N Rao and Sanjiv Khanna said that in such situations, HCs should relax the minimum percentage of marks, maybe from 35% to 30% depending on the situation at hand.

“It is surprising that in a state like Kerala you can’t find 45 candidates for judicial officers’ posts,” it said.

Relax minimum marks for reserved category: CJI

Talking of the general scenario where representation of SCs, STs and other backward classes in services was below the level proportionate to their population, the CJI said, “For reserved category, HCs can relax minimum percentage of qualifying marks to give them representation in judiciary. Otherwise, reserved category candidates can never pass the examination and the posts earmarked for them will always remain vacant.”

The CJI said minimum marks were being relaxed for reserved category candidates in examinations for recruitment in other services and HCs could examine this aspect to take appropriate steps.

Data received by the law ministry from HCs last year showed that SCs comprised less than 14% of judges in the subordinate judiciary and STs about 12%. The percentage of posts of judicial officers for SCs was less than their share of the population, which stands at 16.6% according to the 2011 Census. Tribal representation is higher than their population, which is 8.6% of India’s total headcount. Women judicial officers constituted 28% of judges in the subordinate judiciary.

Jurisdiction of quotas

SC/STs can get quota in home state only: SC, 2018

AmitAnand Choudhary, SC/STs can get quota in home state only: SC, August 31, 2018: The Times of India

A Constitution bench of the Supreme Court held that Scheduled Castes or Tribes can avail of benefit of reservation in government jobs only in their home states and can’t access quotas in other states where they might have migrated.

Upholding the “son of the soil” principle, the bench said if a person’s status migrates with him it will amount to depriving the rights of SC/STs of the host state. The bench passed the order in view of the contradictory stand taken by the apex court in earlier verdicts. The Delhi HC, while dealing with the issue of reservation in subordinate services, had referred the matter to the SC under Article 134A of the Constitution for authoritative adjudication on the issue.

SC: Communities notified as SC/ST in relation to a state

A five-judge bench of Justices Ranjan Gogoi, N V Ramana, R Banumathi, M M Shantanagoudar and S Abdul Nazeer noted on Thursday that a particular community is notified as SC or ST in relation to a state and that concept would become “nugatory” (of no value) if migrants from other states are in its ambit. “Unhesitatingly, therefore, it can be said that a person belonging to a scheduled caste in one state cannot be deemed to be a scheduled caste person in relation to any other state to which he migrates for the purpose of employment or education,” the court said.

The bench said the expression ‘in relation to that state or Union Territory’ and ‘for the purpose of this Constitution’ used in Articles 341 and 342 means benefits of reservation would be within the geographical territories of a state or UT, Justice Gogoi said in his judgement. “If the special privileges or the rights granted to scheduled castes or scheduled tribes in a particular state are to be made available in all states and if such benefits are to be carried from state ‘A’ to state ‘B’ on migration, the mandate of Article 341/342 would get compromised,” it said. The apex court also held that the state could not tinker with list of SCs or STs by including other castes or tribes, saying this can be done only by Parliament and states doing so will lead to constitutional anarchy.

“The upshot of the aforesaid discussion would lead us to the conclusion that the Presidential Orders issued under Article 341 in regard to scheduled castes and under Article 342 in regard to scheduled tribes cannot be varied or altered by any authority including the court. It is Parliament alone which has been vested with the power to so act, that too, by laws made. SCs and STs thus specified in relation to a state or a UT do not carry the same status in another state or UT. Any expansion or deletion of the list by any authority except Parliament would be against the constitutional mandate,” it said.

…except for  Delhi Subordinate Services, which are central services

AmitAnand Choudhary, Pan-India quota rules apply to DSS too: SC, August 31, 2018: The Times of India

Observing that anyone who lives inside India can never be considered an outsider in Delhi, the Supreme Court on Thursday said people belonging to Scheduled Castes and Scheduled Tribes who migrated to the capital from other states could not be denied benefit of reservation in government jobs.

Although a five-judge constitution bench held that a person notified as SC/ST in one state could not claim the same status in another state, it ruled by a majority of 4:1 that pan-India reservation rule would apply to Delhi Subordinate Services as they were part of central services and thus open to SCs/STs from across the country.

The majority verdict came from Justices Ranjan Gogoi, N V Ramana, M M Shantanagoudar and S Abdul Nazeer. Disagreeing with them, Justice Banumathi ruled that job quota in services in a Union Territory should be limited to those SCs/ STs notified as such by the UT concerned.

Writing the majority verdict, Justice Gogoi said subordinate services in the NCT of Delhi were part of Central Civil Services and reservation benefits must extend to all and should not be restricted to SCs/STs specified in the presidential order for Delhi. The bench did not examine the issue concerning other UTs and left it to be adjudicated by an appropriate bench.

“So far as the NCT of Delhi is concerned, pan-India reservation rule in force is in accord with the constitutional scheme relating to services under the Union and the states/UTs,” the majority verdict said.

“These clearly are general central services and perhaps, it is owing to this state of affairs that the Union of India in its affidavit has stated that members of the Delhi Administrative Subordinate Services are the feeder cadre for Central Civil Services Group B (DANICS). It is for these reasons that the policy (of pan-India eligibility) is consistently adopted,” the bench said while agreeing with the Centre’s stand.

Justifying its decision for pan-India rule for reservation in Delhi, the bench quoted a previous SC verdict. “Delhi is not just a part of India. It is megapolitan...people from all parts flock to this outsized city. But we can’t exaggerate this factor, for the presence of farther regions like the south and the northeast, population-wise, is minimal...” it said.

Dissenting with her four colleagues, Justice Banumathi said, “If pan-India reservation is to be extended to UTs like Delhi, Chandigarh, Puducherry, Andaman and Nicobar Islands or Daman and Diu for Group ‘C’ and ‘D’ services for which recruitments are made by the respective UTs, the very object of the constitutional scheme of uplift of SCs/ STs of these UTs will be defeated. All-India reservation to the services under UTs including Delhi will be against the mandate of Articles 341 and 342 of the Constitution.”

She said there could not be any distinction between states and UTs on this issue. “Even though UTs are centrally administered, each UT has its own identity. Each of the UTs would be bound by their respective presidential order of SCs/STs for giving benefit of reservation in employment,” she said.

Marriage, conversion

Reconverted SCs entitled to all the benefits

The Times of India

Feb 28 2015

SC: Reconverted Dalits must get quota benefits

In a landmark judgment, the Supreme Court has ruled that if a person with Dalit ancestry reconverts to Hinduism, he would get back his caste status and benefit of reservation. “A person who is born to Christian parents who had converted to Christianity from Scheduled Caste Hindu can avail the benefit of caste certificate after his embracing Hinduism, subject to other qualifications,“ a bench of Justices Dipak Misra and V Gopala Gowda ruled on Thursday .

“There cannot be any soundness of logic that he cannot avail the similar benefit because his grandparents were converted and he was born to parents who were Christian,“ said Justice Misra, who authored the judgment for the bench.

The bench laid down a three-fold criteria for a re-converted person to get back his caste status and consequential benefits accruing to that caste for employment and education.The only caveat is that on reconversion, the dalit community must accept himher as a member of the community .

“There must be absolutely clear cut proof that he belongs to the caste that has been recognized by the Constitution (Scheduled Castes) Order, 1950; there has been reconversion to the original religion to which the parents and earlier generations had belonged; and there has to be evidence establishing the acceptance by the community ,“ the bench said.

The case was related to the refusal of Scheduled Caste certificate to one K P Manu, whose great grandfather belonged to Hindu Pulaya community in Kerala. Manu's father had embraced Christianity and took a new name, Verghese, and married Mariam, who earlier belonged to the Hindu Ezhava community and had converted to Christianity.

Marriage: SC/ST woman to retain tag

Swati Deshpande | TNN

From the archives of The Times of India 2007, 2009 2010

Mumbai: The Bombay high court on Friday held that a woman belonging to the SC/ST category by birth would retain her caste even after marrying a man who was from an upper caste.

The bench of Justices B H Marlapalle, Abhay Oka and R Y Ganoo said that a woman would not lose her caste by marriage and it did not change to that of her husband’s. In fact, as ruled by a Constitution bench of the SC,

‘‘Caste is acquired by birth and does not undergo a change by virtue of marriage or even adoption.’’ The apex court had also laid down that a woman from a general category married to a SC/ST man would also not automatically gain voluntary mobility into the backward caste.

The ruling came in a case of where a man and his family members were seeking protection from arrest last year in a criminal case filed against them under the SC and ST (Prevention of Atrocities) Act for abusing his SC wife.

Married to Muslim, woman barred from ST seat

Married to Muslim, woman barred from ST seat, July 3, 2018: The Times of India

The Nagpur bench of the Bombay high court dismissed the nomination of a Gond Scheduled Tribe (ST) woman for contesting the panchayat elections from a reserved seat, citing her marriage with a Muslim man. The onus of proving that she isn’t following Islamic rituals but continues to be a Gond ST lies on the woman, the HC observed.

Shaheda Tabassum’s nomination — for contesting the Panchayat Samiti resident’s election as an ST candidate from Kurkheda subdivision in Gadchiroli — was rejected after her rival Manoj Sidam moved the HC, demanding the dismissal of her candidature.

Tabassum had filed the nomination in her paternal name, Sharda Deorao Uike, as the seat was reserved for an ST candidate. She was originally an ST and embraced Islam after marriage, which makes her a non-ST and thus ineligible to contest the election, the petitioner pointed out.

“In the facts of the case and considering the proposition laid down in the SC judgment, it’s held that the woman is not eligible to contest the election as an ST candidate,” a division bench comprising justices Bhushan Dharmadhikari and Zaka Haq said.

Marriage to SC does not make wife an SC

AmitAnand Choudhary, Caste decided by birth, can’t be changed by marriage: SC, January 20, 2018: The Times of India

Sets Aside KV Teacher’s Appointment

The caste of a person is unalterable and cannot change after marriage, the Supreme Court said on Thursday, setting aside the appointment of a general-category teacher who used reservation benefits to join the Kendriya Vidyalaya 21 years ago on the ground that she was married to a Scheduled Caste man.

A bench of Justice Arun Mishra and Justice M M Shantanagoudar said the woman, who had risen to the post of vice-principal in the school, was not entitled to reservation as she was born in an upper caste family.

“There cannot be any dispute that the caste is determined by birth and the caste cannot be changed by marriage with a person of Scheduled Caste. Undoubtedly, she was born in ‘Agarwal’ family, which falls in general category and not in Scheduled Caste. Merely because her husband belongs to a Scheduled Caste category, she should not have been issued with a caste certificate showing her caste as Scheduled Caste,” the bench said.

In 1991, the Bulandhahr district magistrate issued the woman a caste certificate identifying her as a member of the Scheduled Caste. Based on her academic qualifications and caste certificate, she was appointed as a postgraduate teacher in 1993 at Kendriya Vidyalaya, Pathankot. During the course of her service, she completed her M.Ed.

Two decades after her appointment, a complaint was filed alleging she had illegally taken the benefit of reservation. After an inquiry, the local authorities cancelled her caste certificate and Kendriya Vidyalaya terminated her job in 2015.

Challenging the KV’s decision, she approached the Allahabad high court, which upheld her termination. She then approached the SC.

Taking into account her unblemished service of more than two decades, the apex court modified the HC ruling, saying the order of termination from service shall be treated as one for compulsory retirement.

“While exercising leniency, we have also kept in mind that she has neither played fraud nor misrepresented before any of the authorities for getting the caste certificate... while continuing in service based on the caste certificate. No questions were raised against her till the complaint in question came to be lodged, even when the authorities had seen the high school certificate, marks sheet etc. showing her caste as Agarwal at the initial stage,” the bench said.

Muslims: quotas for

From the archives of The Times of India 2007, 2009

Andhra HC strikes down Muslim quota

Says Law Based On Dubious Data May Spur Conversions

TIMES NEWS NETWORK

A seven-judge bench of the Andhra Pradesh high court headed by chief justice A R Dave on Monday struck down as “unsustainable” the state law providing 4% reservation in educational institutions and jobs for 15 Muslim groups deemed backward by the state government.

The bench described findings of the AP Backward Classes Commission — on which the quota law had been based — as ‘unscientific’. Within hours of the verdict, chief minister K Rosaiah said his government would move Supreme Court in appeal and vowed to restore the ‘AP Reservation in Favour of Socially and Educationally Backward Classes of Muslims Act, 2007’.

In a 5-2 majority ruling, the court found that the Commission neither evolved any criteria nor published these before inviting objections. It had merely stated that it had followed the two criteria evolved by the Mandal Commission for identification of Socially Economic Backward Classes (SEBC) among non-Hindu community.

Chief Justice Dave, speaking for himself and Justices A Gopala Reddy, V Eswaraiah and G Raghuram, said the enactment was religion-specific and potentially encouraged conversions and was thus unsustainable. The bench said the commission relied excessively on data collated by the Anthropological Survey of India, which was meant for determining the profile of the Indian population and not for deciding on affirmative action for Muslims.

A backgrounder, as in 2018

Syed Akbar, Telangana assembly elections 2018: Muslims and reservations—A conundrum in Telangana, November 27, 2018: The Times of India

What is the current status of Muslim reservation in Telangana?

Backward classes among Muslims now get four per cent quota in government jobs and professional courses including medicine. The current quota is subject to final judgement of the Supreme Court.

Do all Muslims get the benefit?

No. Only educationally and socially backward sections among Muslims get the benefit. Creamy layer concept also applies. Social groups like Syeds, Pathans, Mashaik, Irani, Arab, Bohras, Khojas, Memons, Jamayat and Navayat are excluded.

Is the quota based on religion?

Select backward groups among Muslims based on their professional trades are included. For instance: artisans, washermen, quilt makers

Are backward classes among Muslims eligible to contest polls from seats reserved for BCs in local and civic bodies?

Yes. Muslim social groups, which are eligible for quota in professional courses and government jobs, can contest from backward class reserved wards/divisions.

What is the current legal status of the Muslim quota?

Andhra Pradesh High Court had struck down the legislation on Muslim reservations in 2004, 2008 and 2010. The High Court order was challenged in Supreme Court in 2010. The apex court stayed the High Court order. Reservation for backward classes among Muslims is now subject to final order of the Supreme Court.

What is the history of Muslim reservation in Telangana/Andhra Pradesh?

The demand first began in 1960s. It, however, took a concrete shape in 1994 when state government issued orders (Go Ms No, 30 dated August 25, 1994) granting quota for Muslims and 14 other social groups. The government order (GO) was not implemented due to change in government. A decade later, Rajasekhar Reddy government issued orders giving five per cent quota (GO Ms No 33 dated July 12, 2004). Owing to legal hurdles, the quota was later reduced to four per cent.

Did the state government follow due procedure of law?

A BC Commission headed by Justice Dalwa Subrahmanyam was appointed and it recommended four per cent quota based on a socio-economic survey of Muslims groups by retired civil servant PS Krishnan.

What is the socio-economic status of Muslims?

A majority of Muslims are daily wage earners and mostly self-employed doing petty works for a living. According to Rajinder Sachar committee report, the condition of Muslims is worse than Dalits

Did the quota benefit BCs among Muslims?

Every year about 20,000 students stand to benefit

What are the new promises to the community?

Telangana Rashtra Samithi (TRS) promised 12 per cent quota in 2014 based on Tamil Nadu model. The TRS government also passed resolution in the state assembly and sent it to the Centre for approval. Centre turned it down.

What political parties say now?

Chief minister K Chandrasekhar Rao blames Prime Minister Narendra Modi, accusing him of being communal. Bharatiya Janata Party (BJP) president Amit Shah says no quota based on religion. Congress promises implementation of quota.

‘Panel’s approach is non-scientific’

Hyderabad: The AP Backward Classes Commission’s procedural error in determining Muslim backwardness was fatal to its report and its consequent recommendation, the state’s high court said while striking down affirmative action for the community.

‘‘The fast track approach adopted by the commission was nothing but a non-scientific method,’’ Justice Dave said. It was neither ‘‘legal nor sustainable’’, he declared. The action of the panel was also criticized for its reliance on recommendations made by P S Krishnan, a retired IAS officer deputed by the state to conduct the survey on the commission’s behalf. The appointment of Krishnan is ‘protanto invalid’, the bench said and faulted the panel for relying on his findings.

Echoing the majority view in a separate judgment, Justice Meena Kumari said the investigation by the panel was not based on real facts, data or analysis and was without proper survey. The commission limited its survey to six districts in three days, she said.

Justice Prakash Rao aired the minority view holding that the bench was not called upon to adjudicate the list but was only required to answer a legal reference. He said that the government had some data before it on which it acted and thus could not be faulted. Justice DSR Varma said he did not agree with the majority view and would give his rea2sons shortly. The Advocate General sought suspension of the order which was rejected by the bench.

The Andhra government has long struggled to provide quotas for Muslims, who were first given reservation in July 2004, a month after Y S Rajasekhara Reddy came to power.

Telangana: backward Muslims gets 12%

Krishna Prasad, T'gana raises reservation for backward Muslims to 12%, April 17, 2017: The Times of India

The Telangana assembly on Sunday passed a bill to provide 12% reservation to backward Muslims and 10% to Scheduled Tribes, taking the quantum of quota to 62% in jobs and education.

With the quota percentage crossing the Supreme Courtmandated 50% cap, the state government, which has modelled the bill around the Tamil Nadu formula, will request the Centre to incorporate it in the Ninth Schedule of the Constitution to avoid court scrutiny. The bill was unanimously passed after five agitating BJP MLAs were suspended by the speaker and marshalled out of the House. A special session was convened to hike the quota, which was a poll promise of the ruling TRS in the state.

“This day will go down in history books. The TRS has fulfilled another promise by hiking reservations for poor Muslims and STs. I will take the battle to Delhi, if the Centre fails to approve the hike. My government will not hesitate to approach the Supreme Court,“ said CM K Chandrasekhar Rao.

“Are Muslims not our citizens? When backward groups in every caste and religion are being provided with relief, why not Muslims,“ he asked.

As of now, reservation for Muslims in the state stands at 4%, under the OBC category , and the STs at 6%. KCR also hinted at an increase in reservation for Scheduled Castes by another 1%-2%.

Promotions

The issues

Dhananjay Mahapatra, August 17, 2018: The Times of India

Without disturbing entry-level reservation for SCs and STs, the Supreme Court on Thursday mulled examining the feasibility of graded reduction in quota in promotion and whether creamy layer elimination could give the most backward SCs/STs better prospects for social advancement.

“The quantum of reservation for SC and ST employees cannot be same for the first as well as last promotion,” a bench of Chief Justice Dipak Misra and Justices Kurian Joseph, R F Nariman, Sanjay Kishan Kaul and Indu Malhotra said after attorney general K K Venugopal said M Nagaraj judgment of 2006 had held that putting caveats for providing quota in promotion to SC/ST employees would negate the constitutional mandate for reservation under Article 16(4A).

Justice Nariman said, “You (the governments) cannot have population of SCs and STs as a criteria for quota in promotion at all levels. As you go up, perhaps it should be less. Even if you take class of posts, for third promotion, the quantum should be less. You cannot have uniform quota for all levels of promotion.” The bench said three points had emerged for consideration — one, quantifiable data to assess backwardness; two, whether creamy layer criteria be applied for quota in promotion; and three, the adequacy of representation of SC/ST employees in various posts or cadre. “We will decide whether we need to refer this to a sevenjudge bench or a clarification of the Nagaraj judgment will suffice,” the bench said.

CJI Misra added, “We need to examine whether the Nagaraj judgment of 2006 introduced the concepts of creamy layer and quantifiable data for establishing backwardness and adequacy of representation of SC/ST in posts for promotions, which are not provided for in the Constitution. In Indra Sawhney judgment, SC had said no quota in promotion and to overcome this, Parliament had enacted Article 16(4A).”

Venugopal said the test of backwardness and creamy layer would apply to other socially and economically backward classes and not to SC/STs, who still suffered class bias and stigma of untouchability. “Getting a job through reservation has not taken away the imprint of caste stigma.

That is why they must also get accelerated promotion in employment through reservation,” he added. The AG said the creamy layer criteria could be inserted only by Parliament and not by courts.

No quota in PSU bank promotions: SC, 2016

The Times of India Jan 9 2016

Exactly a year after holding that officers belonging that officers belonging to the Scheduled Castes and Scheduled Tribes can claim reservation in promotion from level 1 to level VI grade, the Supreme Court on Friday admitted that it had committed a mistake while passing the verdict and clarified that there can be no reservation in promotion.

SC: SC/STs can't claim quotas for govt job promotions

The Times of India, Mar 12, 2016

Amit Anand Choudhary

In a landmark verdict, the Supreme Court ruled that scheduled caste and scheduled tribe members cannot claim quota as a right in government job promotions, saying states were not constitutionally obliged to give preferential treatment to any community in promotion. A bench of Justices Dipak Misra and Prafulla C Pant said the government was not bound by any constitutional provision to frame a policy for reservation in promotion and the court could not order making reservation in promotion mandatory. Referring to Articles 16(4), 16(4-A) and 16(4-B) of the Constitution mandating socially affirmative action to help dsadvantaged groups, the court said states were not bound to make reservation for SCs/STs in promotion.

It said the provisions allowed the government to exercise discretion and provide for reservation only after collecting quantifiable data showing backwardness of a class and inadequacy of their representation in public employment.

Article 16(4-A) provides that nothing shall prevent the state from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services in favour of SCs and STs which, in the opinion of the state, were not adequately represented.

Present Reservation , quota system do not deliver social justice , it only enables political parties to gain political mileage.Economically weak families do not get protection while there are Rich , ... Read

The bench refused to direct Uttar Pradesh government to carry out an exercise to find the representation of SCs/STs in government jobs to frame a policy for reservation in promotion. "The state is not bound to make reservation for SCs and STs in matter of promotions. Therefore, there is no duty. In such a situation, to issue a mandamus to collect data would tantamount to asking the authorities whether there is ample data to frame a rule or regulation. This will be in a way, entering into the domain of legislation," the bench said.

The Constitution granted discretionary power to the government to frame law for reservation in promotion and the government could not be forced to bring regulation on the issue, the bench said. "The courts do not formulate any policy, remains away from making anything that would amount to legislation, rules and regulation or policy relating to reservation. The courts can test the validity of the same when they are challenged. The court cannot direct for making legislation or for that matter any kind of subordinate legislation," the bench said while rejecting a PIL seeking a direction to the UP government to grant reservation in promotion.

2018: SC allows SC/ST quotas for promotions

AmitAnand Choudhary, In big relief to Centre, SC OKs SC/ST quotas for promotions, June 6, 2018: The Times of India

1955- 2018: the legal position of SC/ST quotas for promotions
From: AmitAnand Choudhary, In big relief to Centre, SC OKs SC/ST quotas for promotions, June 6, 2018: The Times of India

Stay Lifted, But Govt Must Abide By Guidelines

In a shot in the arm for the Modi government, facing flak over the Supreme Court striking down automatic arrest under the law on prevention of atrocities against Dalits and tribals, the apex court on Tuesday allowed the Centre to implement the long-stalled reservation in promotion policy.

While quotas in promotions will be in “accordance with law”, which will mean under-representation of scheduled castes and tribes must be established while also ensuring administrative efficiency is not compromised, the SC decision to lift the stay will open the doors for implementation of the policy.

In 2006, the apex court had itself upheld constitutional amendments for quota in promotion in government jobs while calling for data on extent of backwardness, which has not proved easy to quantify. The contentious issue, pressed aggressively by BSP and Dalit activists and supported by all major political outfits, has been caught in a legal tangle and judicial stays.

With governments failing to comply with guidelines, various high courts quashed the decision on granting reservation in promotion from 2011 onwards. Punjab and Haryana HC quashed the reservation policy in the income tax department and this was followed by other HCs.

In August 2018, the Delhi high court quashed the Centre’s office memorandum issued in 1997 on implementing the policy and also set aside all such promotions in the last 20 years.

SC/ST promotion quota: Can govt fulfil norms?

In an appeal filed by the Centre, the apex court had in 2015 directed to maintain status quo. Even now, as the Centre and the states begin implementation of quotas, the action is liable to be challenged on similar grounds such as representation and efficiency, but the Centre has the opportunity to present evidence of having done so.

With the policy is at a standstill over the last seven years, Centre sought the green signal to go ahead and implement reservations. Additional solicitor general Maninder Singh, appearing for the Centre told a vacation bench of Justices A K Goel and Ashok Bhushan the government had a constitutional duty to promote its employees as per law.

“There had been no promotion. All promotion is stayed. I am government and it is my duty to promote my employee as per the law. It is not that Nagaraj order is not to be complied with,” Singh said. The ASG placed before the bench an order passed by another bench of SC allowing reservation in policy during pendency of the case and pleaded the court to pass similar order.

Senior advocate Shanti Bhushan and lawyer Kumar Parimal, appearing for anti-quota activists, opposed the Centre’s plea and said the issue has been referred to a Constitution bench and any interim order should be passed by that bench.

The court, after a brief hearing, made it clear that the Nagaraj order pertaining to collecting quantifiable data had to be followed. “It is made clear that the Union of India is not debarred from making promotions in accordance with law, subject to further orders, pending further consideration of the matter,” the bench said.

Though the Centre is upbeat, doubts remain whether it will be able to fulfill guidelines fixed in the Nagaraj case to give quota in promotions in government jobs.

A brief history of the case

Subodh Ghildiyal, Promotion quota a bone of contention for decades, June 6, 2018: The Times of India

The clash between proand anti-reservation blocs culminated in the Supreme Court’s Nagaraj judgment of 2006, which ruled “promotion quota” could only be provided if the state furnished quantifiable data showing “backwardness and inadequacy of representation” of SCs/STs in public jobs.

The judgment effectively ended the quota, resulting in a major controversy that has not died down since.

“Promotion quota” has been in place since 1955. However, the Supreme Court in Indira Sawhney judgment (Mandal Commission) observed quota could only be given for initial appointment and not in promotion. It was seen as stalling the decades-old provision for Dalits and tribals.

In 1995, the Centre passed the 77th constitution amendment Act to continue with “promotion quota”.

However, in 1997, five Office Memorandums were issued by DoPT on various aspects of “promotion quota” like backlog and relaxation of marks, putting brakes on quota. It triggered what came to be known as “5 OM agitation.”

The Vajpayee government in 2000 passed three constitutional amendments – 81st, 82nd and 85th – to override the controversial OMs.

Following the Nagaraj judgment, pressure began to build on UPA which, in 2012, sponsored a bill in Rajya Sabha to obviate the need for states to collect data on backwardness and inadequacy of representation. While the RS passed the bill on December 17, 2012, it was opposed in Lok Sabha and has remained pending since.

Despite the drama over the SC judgment on Tuesday, it is not clear if “promotion quota” has been restored to the pre-Nagaraj era. If not, it may not mean much to the SCs and STs.

Quotas not applicable on…

Single vacancies: SC

The Times of India, Sep 24 2015

Dhananjay Mahapatra

The Supreme Court ruled that reservation for scheduled castes, scheduled tribes and other backward classes would not apply if the government was filling a single post in a cadre. However, it clarified that if a person from the reserved category was already in government employment and eligible for the single post through departmental promotion, then appointing him to the single post would not be vitiated.

Referring to two earlier judgments, a bench of Justices Dipak Misra and P C Pant said, “It is eminently explicit that reservation for a single post in a cadre will keep the general members of the public in total exclusion and the question of reservation will arise when there is plurality of posts in the cadre.“

The bench married the two earlier orders to enunciate that if a person from reserved category , already employed with the government, was appointed to the single post through due process of prom otion, it would not fall foul of an earlier Constitution bench judgment which barred reservation for single posts.

The Constitution bench in the `Postgraduate Institute of Medical Education and Research, Chandigarh vs Faculty Association' case in 1998 had held that “in a single post cadre, reservation at any point of time on account of rotation of roster is bound to bring about a situation where such a single post in the cadre will be kept reserved exclusively for the members of backward classes and in total ex clusion of the general members of the public“. “Such total exclusion of general members of the public and cent per cent reservation for the backward classes is not permissible within the constitutional framework,“ it had said.

A year later, in 1999, the SC n Punjab vs R N Bhatnagar had said that when posts in a cadre were to be filled from wo sources -departmental promotion and direct recruitment -once both entered a common cadre, their birthmarks disappeared and they got completely integrated in he common cadre.

Failed students: quota no shield for them: Delhi HC

The Times of India, Jun 19 2015

The Delhi high court refused to grant relief to a second-year undergraduate student at Guru Gobind Singh Indraprastha University whose admission was cancelled after he failed to clear his previous four semesters. The HC further said, “Since the appellant was found ineligible after the second academic break, his admission stood automatically cancelled. Therefore, there is no question of any further chance only on the grounds of him being an SCST,“ a division bench of Justices Mukta Gupta and VP Vaish said.

Rejecting the plea of Gourav Joshiya, who was pursuing Bachelor of Technology from Amity School of Engineering and Technology , the bench upheld the single judge order refusing another chance to the student for clearing the exams and said the opportunity would have been given to him if he had been able to satisfy the necessary eligibility criteria.

“To attain an egalitarian society, we have to urgently remove socio-economic inequalities. Therefore, in order to promote weaker sections of the society , an educational institution must provide all forms of additional assistance to bring them at par with general category students. The appeal of the appellant may have been allowed on this ground alone, if he would have been able to satisfy necessary eligibility criteria for continuance of his admission with the respondents,“ the bench said.

Gourav had challenged a single judge order of May 25, denying him a chance to reappear in the examinations to get admitted to the third year. In his appeal, Gourav claimed he had sent a mercy application to the university's committee in October 2014, but through a notification on November 7, 2014, it was rejected and his admission was also cancelled.

He had contended that the judge had misconceived that he had to appear in 10 papers, whereas he had to appear only in five. The university , however, told the court that during the academic year 2012-13 and 2013-14, Gourav had reappeared in the failed papers of first year and second year but could not clear them and hence failed to secure the minimum credits for promotion to third year.

Reserved category candidates against open merit posts

SC allows OBC under Unreserved category/ 2020

Dhananjay Mahapatra, June 16, 2020: The Times of India

Merit breached the iron wall of quota as the Supreme Court permitted a Madhya Pradesh OBC woman, who topped the merit list, to join as an assistant professor in geography from posts earmarked for unreserved category women candidates.

Madhya Pradesh sets aside 33% of all posts in government jobs, except those in the forest department, for women. This is sub-divided into four categories — unreserved, SC, ST and OBC. For the 84 posts advertised for assistant professors, 26 were reserved for women candidates. Of these, 12 were for unreserved, four for SCs and six each for STs and OBCs.

Sadhna Singh Dangi, who competed as an OBC candidate, topped the merit list and the government appointed her in the unreserved category since she performed better than all unreserved category candidates. She had not sought eligibility on the basis of caste quota. One Pinki Asati and many others challenged this decision before the Madhya Pradesh HC, which on April 29 quashed the list of selected candidates and said it was impermissible to draft in an OBC candidate in the unreserved category and appoint her to a post earmarked for the latter.

The Indore bench of the HC ruled that in a case of compartmentalised reservation, no migration from reserved to unreserved category was permissible even if the candidate belonging to reserved category had not availed any benefit of reservation for securing eligibility and had got a seat in the unreserved category solely on merit.

Further strengthening compartmentalised reservation, the HC had said, “A candidate not falling in the merit list of unreserved category cannot be brought from any other category belonging to OBC, SC or ST in order to accommodate against horizontal quota of unreserved women category.” The HC had said meritorious OBC category women candidates would be accommodated against the six posts of assistant professors available for that category and they could not eat into the 12 unreserved category posts.

A Supreme Court bench of Justices U U Lalit, M M Shantanagoudar and Vineet Saran entertained Dangi’s appeal and stayed the HC order, paving the way for her and other meritorious reserved category candidates to be appointed as assistant professors in posts earmarked for the unreserved category. The SC asked the parties to file their responses to the appeal in two weeks.

Sub- categorisation/ -classification/ -reservatiom

2020: SC’s judgement

AmitAnand Choudhary, After ’04 no, SC yes to quota within quota, August 28, 2020: The Times of India

Holding that benefits of reservation are being enjoyed only by certain groups within Scheduled Castes, Scheduled Tribes and socially and educationally backward classes (OBCs) leading to inequalities within the reserved classes, the Supreme Court ruled that the government can give preferential treatment by way of sub-categorisation of some sections of SCs, STs and OBCs in reservation.

A five-judge bench of Justices Arun Mishra, Indira Banerjee, Vineet Saran, M R Shah and Aniruddha Bose said sub-classifications of SCs, STs and OBCs could be allowed by the Centre, which means some would get ‘reservation within reservation’ to end disparities within quota.

SC: Subdivision will bring equality and end disparity

The court said there is a cry (for sub-categorisation) and caste struggle within the reserved class and sub-classification would bring equality and end disparity.

The SC’s verdict, however, is not a final word on the issue for the time being as the matter will be adjudicated by a seven-judge bench because Thursday’s judgment is in contradiction with the apex court’s 2004 verdict by which sub-classification was not allowed, also by a five-judge bench.

Upholding validity of the Punjab law for reserving 50% vacancies within Scheduled Castes to Balmikis and Mazhabi Sikhs, the court said the state cannot be deprived of the power to take care of the qualitative and quantitative difference between different classes to take ameliorative measures. It said if sub-classification is denied, it would defeat the principle of right to equality by treating unequal as equal and noted that the scavenger class continued to remain more or less where it was.

Differing with the 2004 verdict, the bench said the present quota policy is causing more inequality.

While a larger bench will deliver a final ruling, the SC decision is likely to set off a few political tremors as the subclassification proposal has been fiercely resisted by more dominant SCs, STs and OBCs.

“The State’s obligation is to undertake the emancipation of the deprived section of the community and eradicate inequalities. When reservation creates inequalities within the reserved castes itself, it is required to be taken care of by the State (by) making sub-classification and adopting a distributive justice method so that State largesse does not concentrate in (a) few hands and equal justice to all is provided,” the bench said.

’Benefits not trickling down to poorest of poor: SC”

AmitAnand Choudhary, Quota benefits not trickling down to poorest of poor: SC, August 28, 2020: The Times of India

The Supreme Court ruling favouring ‘reservation within reservation’ for those castes and classes within SCs/STs/OBCs that have not benefited and continued to languish is in line with various orders in which it favoured re-examination of the existing policy to ensure that benefits of the quota system reach to the people who need it.

The SC has, in recent times, favoured changes in reservation policy so that benefits are not usurped by a few groups within a category.

A Constitution bench had in April held that lists of SCs, STs and OBCs for providing reservation are not “sacrosanct and unalterable”. It suggested that beneficiaries should be revised by the government by removing those who have become affluent over the years and adding those who remain needy.

It had that said benefits of reservation were being availed by some communities over the last 70 years and they have become well-off economically and socially. It said benefits had not trickled down to all sections and there is dissatisfaction within the ‘reserved’ class that can be addressed by revising the list.

“Now there is a cry within the reserved classes. By now, there are affluents and socially and economically advanced classes within SCs and STs. There is voice by deprived persons for social upliftment of some of the SCs and STs, but they still do not permit benefits to trickle down to the needy. Thus, there is a struggle within, as to worthiness for entitlement within reserved classes of SCs, STs and OBCs,” the court had said.

Agreeing with the contentions that the government is required to revise the lists, the court had said: “It can be done presently without disturbing the percentage of reservation so that benefits trickle down to the needy.”

Giving its ruling, the five-judge SC bench said, “Reservation is a very effective tool for emancipation of the oppressed class. The benefit by and large is not percolating down to the neediest and poorest of the poor.”

2004 EV Chinnaiah case

Subodh Ghildiyal, SC judgment puts focus on widely debated Dalit ‘creamy layer’ issue, August 28, 2020: The Times of India

The five-judge Supreme Court order [in 2020] upholding states’ right to undertake sub-categorisation of SCs /STs is significant because it would now stand as a neutralising counterweight to the earlier 2004 EV Chinnaiah judgment that declared it as unconstitutional.

2006: M Nagraj case

April 4, 2018: The Economic Times

SC rules out early bench formation on SC/ST

The verdict had said that the creamy layer exclusion principle, applicable in grant of quota to Other Backward Classes (OBCs), cannot be applied to Scheduled Castes and Scheduled Tribes for promotions in government jobs.

The 2006 verdict in the M Nagaraj versus Union of India had ruled out the application of creamy layer exclusion principle for SC-ST employees.

The bench, while referring the matters to the CJI, had also referred to earlier verdicts of 1992 Indra Sawhney and others versus Union of India (popularly called Mandal Commission verdict) and 2005 E V Chinnaiah versus State of Andhra Pradesh which had dealt with creamy layer exclusion principle for OBCs.

In one of the matters, the Maharashtra government, through its resolution in 2004, had granted reservation to Scheduled Castes, Scheduled Tribes and DeNotied Tribes, Nomadic Tribes, Special Backward Category and Other Backward Classes in job promotions also.

The apex court had said that clarity was required on the application of creamy layer principle in a situation of competing claims within the same races, communities, groups or parts of SC/ST communities notied by the President under Articles 341 and 342 of the Constitution.

Technical posts: reservation exempted

1975 HRD order exempts technical institutes from quotas

Akshaya Mukul | Sep 27, 2016, Recalling 1975 order only way for IIM faculty quota? The Times of India

The dominant view in many IIMs is that the only way to resolve the demand for reservations in faculties in the premier institutes could be through the withdrawal of the 1975 HRD ministry order that exempted them from having quotas.

One IIM director said, "We are bound by the 1975 order. There has been no other order from HRD ministry invalidating exemption from reservation to SCs/STs/OBCs." He said, the 1975 order was first issued in 1974 for School of Planning & Architecture giving it exemption from reservation in teaching jobs. The order said SPA being a technical education institute, it is being allowed an exemption.

"It is for the HRD ministry to find out how an order meant for technical institutes was extended to IIMs that were management institutes," one IIM director said putting the blame on the ministry for creating confusion. In 1975, an exemption was given to IIM Ahmedabad and soon other IIMs adopted it.

IIM directors also point out that withdrawal of 1975 order cannot be done in haste. "If the order was issued after a Cabinet decision, then HRD will have to seek Cabinet approval. It is not going to be easy," one director said, adding that it also needs to be found out what was the policy before 1975. Even if the proposed IIM bill allows reservation in faculty jobs, the earlier order has to be withdrawn, points out an IIM director.

PG medical quota not binding on states: SC

TIMES NEWS NETWORK

The Times of India

New Delhi: In a ruling having a major ramification for medical education, the Supreme Court on Wednesday held that the Centre’s decision to provide quota for SCs and STs in post-graduate medical courses did not automatically bind the state governments to follow suit and implement it in their medical colleges.

It took note of the fact that the Centre has provided for reservation to SC and ST candidates in the All India Entrance Examination for MD/MS/PG Diploma and MDS courses and also in the All-India quota PG seats, but firmly handed down the ruling that “the same cannot automatically be applied in other sections where state governments have power to regulate.”

Moreover, the Bench comprising Chief Justice K G Balakrishnan and Justices P Sathasivam and J M Panchal appeared disinclined to grant a direction to the states to follow the example set by the Centre. It upheld the Haryana government’s decision not to provide quota in PG medical courses.

“In our view, every state can take its own decision with regard to reservation depending on various factors,” said Justice Sathasivam. It said: “Article 15(4) is an enabling provision and the state is the best judge to grant reservation for SC/ST/Backward Class categories at PG level in admissions and the decision of the state of Haryana not to make any provision for reservation at the PG level suffers no infirmity.”

It accepted the Bhupinder Hooda government’s explanation that reservation in undergraduate medical courses is being provided strictly as per their policy but the PG level education in medical education was governed by the Medical Council of India (MCI).

Super-specialty (medical) posts

‘Only merit, no quota in super-specialty posts’

Dhananjay Mahapatra TNN

The Times of India 2013/07/19

The Supreme Court on Thursday blocked caste-based reservations in appointments to faculty posts in AIIMS (All India Institute of Medical Science), saying merit alone should count at the super-specialty level. “There were certain services and posts where either on account of the nature of duties...or the level in the hierarchy... merit alone counts,” a constitution bench said, quoting from the judgment in the Indira Sawhney case that upheld 27% quota for OBCs in central services

AIIMS faculty posts

SC rules out reservation in AIIMS faculty posts

The apex court blocked castebased reservations in appointments to faculty posts in AIIMS saying constitution benches of the court had warned against reservation at super-specialty level.

“There were certain services and posts where either on account of the nature of duties attached to them or the level in the hierarchy at which they stood, merit alone counts. In such, situations, it cannot be advised to provide for reservations,” a five-judge constitution bench of Chief Justice Altamas Kabir and Justices S S Nijjar, Ranajan Gogoi, M Y Eqbal and Vikramjit Sen said quoting from the judgment by a nine-judge bench delivered in Indira Sawhney case.

The court quoted from Indira Sawhney verdict: “... in respect of certain posts, application of rule of reservation may not be advisable in regard to various technical posts including posts in super specialty in medicine, engineering and other scientific and technical posts.”

University teaching posts

Allahabad HC, 2017: treat department/subject (not university) as a unit

Eram Agha, Government to Move Supreme Court Against Allahabad HC Order on UGC Faculty Quota Policy, March 22, 2018: News 18

On April 7, 2017 Allahabad High Court had allowed a plea which challenged an advertisement brought out by Banaras Hindu University (BHU), seeking to quash the clauses that assured reservation of SCs, STs and OBCs in teaching faculty.

New Delhi: After seeking legal opinion on University Grants Commission’s directive on SC, ST and OBC faculty quota, the Ministry of Human Resource Development has decided to file a Special Leave Petition (SLP) in the Supreme Court against the decision by the Allahabad High Court.

On April 7, 2017 Allahabad High Court had allowed a plea which challenged an advertisement brought out by Banaras Hindu University (BHU), seeking to quash the clauses that assured reservation of SCs, STs and OBCs in teaching faculty.

The court ruled, “The respondent University will carry out the exercise of applying reservation to the posts under advertisement treating the department/subject as a unit for all levels of teachers rather than treating the university as a unit.”

After the directive became public, the Parliamentary Committee on the Welfare of Schedule Castes and Schedule Tribes made recommendations to form an inter-ministerial committee and re-look at the UGC's directive that tweaks quota policy. The government received their recommendations and has decided to file an SLP in the apex court, seeking a relook at the order.

The inter-ministerial committee of officials from the Law Ministry, UGC, Social Justice and Empowerment Ministry and DoPT and was headed by UGC chairperson DP Singh. The committee had advised the government to rethink the new directive and seek legal opinion because the “quantum of SC/ST/OBC teachers would be adversely affected under the new formula”.

The committee debated over the issue and found consensus in continuing with the system of implementing reservations on the basis of the institution as a whole rather than newer regulation that calls for reservation of the SC/STs on the basis of taking the department as a whole.

In October 2017, UGC issued a directive which directly affected the recruitment of SC/ST/OBC teachers. It found opposition from within the government. Recently, the Social Justice and Empowerment Minister Thawar Chand Gehlot asked HRD minster Prakash Javadekar for a rollback of the policy.

Gehlot said in the letter that the government was duty-bound to ensure proper representation of marginalized sections in teaching position and that the circular contradicts constitutional provisions.

The new notification has the potential to dent efforts that ensure SC/ST/OBC categories in getting 15%, 7.5% and 27% jobs, respectively as per the constitutional provision. Under the earlier reservation roster, when the university was taken as unit, the SC/ST/OBC got reservations to some extent. But with the new roster, according to which the reservations will consider the department as a unit, there will be a decline in the number of SC/ST/OBCs as professors, assistant professors and so on.

Dept, not university, should be unit for quota: SC

January 23, 2019: The Times of India

The Supreme Court upheld Allahabad high court’s order that said individual departments and not universities/ colleges should be the unit for implementation of SC/ST/OBC quota in faculties.

The Centre and UGC had challenged the HC order in a move that was seen as endorsement of the complaint of SC/ST/OBC bodies the verdict could be detrimental to their adequate representation in teaching positions.

However, a bench headed by Justice U U Lalit said there was nothing wrong with the HC verdict and dismissed the petition. While adjudicating a petition challenging reservation policy for teaching staff in Banaras Hindu University, the HC had ruled on April 7, 2017, that an education institution as a whole should not be treated as a unit to grant reservation and it should be given department-wise. “The respondent university will carry out the exercise of applying reservation to the posts under advertisement treating the department/subject as a unit for all levels of teachers rather than treating the university as a unit,” the HC had said.

Challenging the verdict, the Centre and UGC moved SC saying the process of selection would get delayed as it would be difficult to ensure 15%, 7.5% and 27% reservation for SC/ST/OBC categories as the number of vacancies was small if taken departmentwise. Universities earlier used a system whereby every fourth teacher appointed was be from OBCs, every seventh from SCs and every 14th from STs.

The Centre contended that under the new scheme, each department has to make 14 appointments to fulfil the quota policy, otherwise 7.5% quota for STs would be less than one post.

The Centre and UGC had challenged Allahabad HC order in a move that was seen as endorsing the complaint of SC/ST/OBC bodies that the verdict could be detrimental to their adequate representation in teaching positions

UGC implements Allahabad HC ruling/ 2017

Ritika Chopra, UGC decision may reduce SC/ST, OBC faculty posts, October 23, 2017: The Indian Express

The UGC’s Standing Committee examined 10 court judgments on the subject and recommended that the Allahabad High Court’s verdict should be applied to all universities.

University Grants Commission, HRD ministry, Reservation in teaching posts, SC/ST faculty, Teachers Recruitment, India news, Indian Express The proposed change could result in fewer positions for SCs, STs and OBCs, according to P S Krishnan, former secretary to the central government.

The number of SC, ST and OBC faculty on university campuses could shrink if the HRD Ministry decides to accept the University Grants Commission’s (UGC) new formula for implementing reservation in teaching posts.

In a decision taken last month, the UGC resolved that the number of reserved faculty posts shall be calculated department-wise and not based on the aggregate posts in a university. The proposed change could result in fewer positions for SCs, STs and OBCs, according to P S Krishnan, former secretary to the central government and an expert on the subject.

The new formula is in response to a verdict of the Allahabad High Court in April. While hearing a case on teachers’ recruitment in Banaras Hindu University, the court held that reservation in teaching posts has to be applied department-wise by treating the department as a “unit” and not the university. Read | CBSE releases UGC NET admit card 2017 at cbsenet.nic.in, know how to download here

The court criticised UGC for applying reservation in a “blanket manner” and advised the regulator to revisit its implementation. “If the University is taken as a ‘Unit’ for every level of teaching and applying the roster, it could result in some departments/subjects having all reserved candidates and some having only unreserved candidates. Such a proposition again would be discriminatory and unreasonable. This again would be violative of Article 14 and 16 of the Constitution,” the Allahadbad High Court had observed in its verdict that cancelled the BHU recruitment and asked it to start afresh.

The UGC’s Standing Committee examined 10 court judgments on the subject and recommended that the Allahabad High Court’s verdict should be applied to all universities.

The UGC is learnt to have shared this decision with the HRD Ministry and is waiting for its “concurrence”. The change will be notified through an executive order after the government’s nod, said sources in the Commission.

As per official data, there are 17,106 teaching positions at 41 UGC-funded central universities, of which 5,997 are vacant as of April 1, 2017. This roughly works out to 35 per cent vacant teaching positions. Out of vacant faculty posts, the maximum are at the assistant professor level (2,457), followed by those of associate professor (2,217) and professor (1,098).

The higher education regulator has been writing regularly to all institutions to fill faculty positions on priority. Any change in the implementation of reservation will affect all new recruitment drives taken up by universities in future.

According to Krishnan, the number of reserved teaching posts in universities will be “much fewer” under the formula proposed by UGC.

Currently, the number of SC, ST, OBC faculty positions are calculated by treating the university as a “unit”. In other words, all posts of the same grade, such as assistant professor, across different departments in a university are grouped or clubbed together to calculate the reserved quota.

If the new UGC formula is accepted, reservation would be applied by treating each department in a university as a “unit”. This means the number of reserved posts at the level of, say, assistant professor will be determined separately for each department; calculated based on the total assistant professor posts in each department.

“Take professors, for instance. There are fewer professors in a department compared to assistant professors. If a department has only one professor, there can be no reserved posts there as reservation cannot be applied in case of a single post. But if all posts of professors across different departments are clubbed together, then naturally there is a better chance of positions being set aside for SC, ST and OBC,” said Krishnan, who has worked in the field of social justice for SCs, STs and OBCs for more than six-and-a-half decades.

“If our goal is to strengthen India by giving opportunities to persons belonging to the submerged populations, who have become qualified, then we should interpret rules or make rules to enable them to come in due numbers. If our aim is to weaken India then we can interpret rules in a manner, which defeats the goal of reservation,” he said.

‘Upper castes’

Economically backward sections of forward communities: Kerala’s Devaswom boards

Kerala govt extends reservation to forward class, November 15, 2017: The Hindu

In a significant decision, the Left-led Kerala government today decided to provide reservation to economically backward sections in forward communities in appointments to five Devaswom boards of the state.

Addressing a press conference here after a cabinet meeting that took the decision, Chief Minister Pinarayi Vijayan said that this was the first time reservation had been extended to forward communities in the country.

He said necessary amendments would be made in the Devaswom Recruitment rules to implement the new decision.

The chief minister said 10 per cent reservation would be given to the economically weak in these communities for recruitment in the Devaswom boards.

It was also resolved to increase the reservation quota for backward communities and Scheduled Castes/Scheduled Tribes in Devaswom appointments, he said.

With the latest announcement, the Ezhava community’s reservation would go up to 17 per cent from 14 per cent and that of SC/ST to 12 per cent from 10 per cent.

The reservation of backward communities other than Ezhava would be six per cent. It was three per cent earlier, Vijayan said.

The LDF’s declared policy is that reservation for backward communities and SC/ST for government jobs and in the education sector should continue along with a fixed reservation percentage for economically backward in forward classes, he said.

“But that can be implemented in the nation only through a constitutional amendment. However, there are certain sectors where reservation for economically weak can be introduced without constitutional changes,” the Left leader said.

The state government’s view was that the Devaswom Board was one such sector where it could be implemented as it did not have reservation to minority communities, he said.

Vijayan also said that the LDF and state government would continue to put pressure on the Centre to bring in constitutional amendments to provide reservation to economically backward in forward communities in other government jobs also.

The Travancore Devaswom Board, Malabar Devaswom Board, Guruvayour Devaswom, Koodalmanikam Devaswom and Cochin Devaswom Board are the five boards that manage temples in the southern state.

Hike in pension age

On other cabinet decisions, Vijayan said the pension age of government doctors and teachers in medical colleges has been increased.

The pension age of doctors under the directorate of health service have been hiked to 60 from the present 56 years.

Similarly, the superannuation age of teachers under the medical education department has been fixed at 62 years. The present age limit is 60 years.

The decision in this regard was taken in view of shortage of doctors in the government sector, the chief minister added.

See also

Caste-based reservations, India (history)

Caste-based reservations, India (the results, statistics)

The Scheduled Castes: statistics

Scheduled Castes of Kerala (list)

Scheduled Castes in Tamil Nadu

Jat community: 'reservations'/ quotas for

Patel, Patidar

Sons of the soil/ local job-seekers: 'reservations'/ quotas for