SC Upholds Allahabad HC Direction To Apply Subject-Wise Reservation In Teaching Posts In Universities
January 23, 2019
The Supreme Court yesterday rejected Centre's challenge against a 2017 judgment of Allahabad High Court which had held that reservations in teaching posts in Universities are to be applied by taking subject/discipline as the unit, instead of university.
A bench of Justices U U Lalit and Indira Banerjee refused leave to appeal to Ministry of Human Resources Department to challenge the High Court judgment delivered in the case Vivekanand Tiwari v Union of India on April 7, 2017.
The Allahabad High Court had quashed clauses No.6(c) and 8 (a)(v) of the UGC Guidelines dated 25.08.2006, which prescribed the manner of applying reservations for SC/ST/OBC in teaching posts. As per Clause 6(c), all posts under a University had to be grouped together for the purposes of reservation. It forbid the practise of creating department-wise cadre. Clause 8(a)(v) directed the application of 40-point or 100-point roster to the total number of posts in a cadre, as per the judgment in R K Sabharwal v State of Punjab. Similarity of pay-scale was the determinative factor for determining the cadre, according to this clause.
These clauses were quashed by the HC bench of Justices Vikram Nath and Daya Shankar Tripathi, holding that they were in "direct conflict and in violation of the law laid down by the Apex Court and different High Courts consistently from 1990 till date". The bench referred to ten judgments of Supreme Court and other High Courts which held that reservation is to be applied department-wise or subject-wise treating it as a 'Unit' and not the University as a 'Unit'. The SC precedents Dr. Suresh Chandra Verma Vs. The Chancellor Nagpur University, , State of U.P. Vs. M. C. Chatopadhyay, State of Karnataka Vs. K. Govindappa, were mainly referred by the High Court.
Tracing the reason behind subject-wise quota, the bench observed :
An Assistant Professor in subject 'A' cannot be an applicant for direct appointment as Associate Professor or Professor in subject 'B', 'C' or 'D'. He can only apply for the post in the subject 'A'. The seniority for becoming Head of the Department would be of the teachers in the same subject. There is no interse competition between the teachers in the same level of different subjects as all posts of higher level from entry level are by way of selection. There is no such provision in the teaching cadre in the Universities of promotion being granted on the basis of seniority irrespective of the department or the subject. Their competition is with candidates of their subject/department and not of different subjects.
The High Court also held that sameness of pay-scale cannot be taken to consider teaching posts in various subjects as a single cadre :
Merely because Assistant Professor, Reader, Associate Professor and Professor of each subject or the department are placed in the same pay-scale but their services are neither transferable nor they are in competition with each other. It is for this reason also that clubbing of the posts for the same level treating the University as a 'Unit' would be completely unworkable and impractical. It would be violative of Article 14 and 16 of the Constitution.
If the University is taken as a 'Unit' for every level of teaching and applying the roster, it could result into some departments/subjects having all reserved candidates and some having only unreserved candidates,the Court further observed.
While allowing the petition, the High Court also made certain observations on the need to revisit the policy of applying reservations in teaching posts, based on the remarks in Indira Sawhney and Nagaraj judgments.
Last October, a five judges' bench of the Allahabad High Court upheld the correctness of the judgment in Dr.Vishwajeet Singh v State of UP, which held that reservation and roster for lecturer post had to be applied subject wise treating the college to be a 'unit'.
A bill – Direct Recruitment in Central Educational Institutions Bill – was drafted by the Ministry to restore university-wise reservation formula, nullifying the judgments. However, the Bill was not tabled in the winter session.
Read the judgment of Allahabad HC:
First published in Live Law.
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