Reservation Can’t be Allowed to be Made Effective with Retrospective Effect, Which is Against the Mandate of the Constitution: Jharkhand HC

Reservation can’t be allowed to be made effective with retrospective effect, which is against the mandate of the Constitution: Jharkhand HC

The Jharkhand High Court set aside a 2019 advertisement circulated by the Jharkhand Public Service Commission giving retrospective application to the 10% Economically Weaker Section reservation by way of merging the earlier vacancies of the year 2013 and 2015 with those arising after the implementation of the said reservation in 2019.

Brief facts

The petitioners have preferred this writ petition for quashing an Advertisement, so far as it relates to the appointments to be made on the post of Assistant Engineer (Civil), limited to the extent of retrospective applicability of 10% reservation for Economically Weaker Section (for the sake of brevity herein after to be referred to as “EWS”) reservation. The prayer is also made for quashing of the decision to conduct single selection process on the vacancies of the year 2013 and 2015 respectively. The further prayer is made for conducting selection process on the vacancies arrived in the year 2013, 2015 & 2019 separately and independently.

The petitioners submitted that the Government of India vide office memorandum dated 31.01.2019 published its decision for introducing 10% reservation for EWS category in civil posts and Government services. Therefore, in furtherance of this, the State of Jharkhand came out with a resolution dated 15.02.2019 providing for EWS reservation which was made effective from 15.01.2019. Amendments were also made to the State rules of 2001 by increasing the percentage of reservation ceiling to 60%.

The petitioners being aggrieved of the said  advertisement, claimed that according to the Government of India notification, it can be clarified that the effect of its applicability will be post facto and not retrospective and therefore, the JPSC had superseded its earlier advertisements of 2013 and 2015 as there was no EWS reservation applicable at that point.

Moreover, it was Contented that as per the 103rd Constitutional Amendment Act, 2019, Art. 15 (6) and Art. 16 (5) were inserted to give effect to the official gazette dated 14th January 2019 providing for special provisions for any economically weaker sections of citizens. Therefore, the decision of the State Government for enhancing the reservation limit from 50% to 60% by giving retrospective applicability to 103rd Amendment Act, 2019 was against the Constitutional mandate.

Issue before the Court

The only question requires to be answered by the Court as to whether EWS reservation can be given effect retrospectively or not.

Observation of the Court

The Court said that, before judicially scrutinizing the retrospective effect of the said applicability, it would be proper to make reference of the judgment rendered by the Hon’ble Supreme Court in the case of M. R. Balaji & Ors. v. The State of Mysore & Ors., reported in AIR 1963 SC 649, the Constitution Bench of the Hon’ble Supreme Court has been pleased to reject the argument that in the absence of a limitation contained in Article 15(4), no limitation can be prescribed by the Court on the extent of reservation. It has also been observed that a provision under Article 15(4) being a special provision must be within reasonable limits.

The Hon’ble Supreme Court has been pleased to take strict view in the case of State of Kerala & anr. v. N. M. Thomas & Ors., reported in (1976) 2 SCC 310, wherein, it has been held that as to what would be a suitable reservation within permissible limits will depend upon the facts and circumstances of each case and no hard and fast rule can be laid down, nor can this matter be reduced to a mathematical formula so as to be adhered to in all cases and decided cases of this Court have no doubt laid down that the percentage of reservation should not exceed 50%. The said issue came up for consideration before the Constitution Bench of the Hon’ble Supreme Court in the case of Indra Sawhney v. Union of India & Ors., 1992 Supp (3) SCC 217,

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wherein, the Constitution Bench of the Hon’ble Supreme Court by its majority view has been pleased to approve the view taken in the case of M. R. Balaji (supra) and disapproved the view taken by the Hon’ble Supreme Court in the case of N. M. Thomas (supra) by providing proposition that the extent of reservation shall not exceed to 50% of the appointment of post except in certain extraordinary situation taking together with reservation in favor of Scheduled Caste and Scheduled Tribe category candidates.

The Government of Jharkhand by way of resolution dated 15.02.2019 has also adopted the said amendment. In view of Clause 11 of the resolution dated 15.02.2019, it is clear that the reservation will be effective w.e.f. 15.01.2019 in subsequent advertisement. Thus, that reservation cannot be allowed to be made effective with retrospective effect, which is against the mandate of the Constitution of India. The Constitution of India is fountain of all the Statutes. At the time of advertisement of 2013 and 2015, 10% reservation for EWS was not there and by way of clubbing the vacancies, 10% reservation for EWS has been provided in the vacancy of 2013 and 2015, which is against the mandate of the Constitution of India. The merger of earlier advertisements, which has been made effective retrospectively, is against the constitutional scheme, ruled the Court.

“In view of the above discussions, the writ petition succeeds. The impugned Advertisement No. 05 of 2019, contained in Annexure-4 of the writ petition is set aside and this Court declares that the retrospective application of 10% EWS quota is against Articles 14 and 16 of the Constitution of India. Consequently, the State Government is directed to modify the Advertisement no. 05 of 2019, contained in Annexure-4 of the writ petition to the extent that 10% quota for EWS shall not be made effective retrospectively for the vacancy of the year 2013 and 2015. Consequently, ongoing appointment process are not based on constitutional mandate and are held to be illegal”, the Court held.

The court held that, the respondent-State has already come out with advertisement of the year 2013 and 2015 respectively, which was cancelled subsequently. This appointment was required to be completed adhering the extent of reservation up to 50%. Thus, the said vacancies are required to be filled up in terms of Rule of that time. Accordingly, the State shall advertise those posts separately within eight weeks from today.

The advertisement of 2019 shall carry out after modifying the said advertisement afresh in light of 103rd Amendment of Constitution, which was made effective w.e.f. 14.01.2019 by way of incorporating Article 16(6) in the Constitution of India, the Court added.

Case Name: Ranjeet Kumar Sah & Anr. v. State of Jharkhand & Ors.

Citation: W.P. (S) No. 53 of 2020

Coram: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

Reservation can’t be allowed to be made effective with retrospective effect, which is against the mandate of the Constitution: Jharkhand HC

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