Former IAS bureaucrat PS Krishnan* has prepared a note the Order of Allahabad High Court in Vivekanand Tiwari case on 7.4.2017, regarding implementation of reservation in faculty-level recruitments in Universities/Colleges/Other Educational Institutions faculty, even as writing to the HRD minister to come up with a bill in the winter session of Parliament to ensure that justice is done.
Excerpts from the note and the letter:
The procedure of taking the whole University/College/Educational Institution as the unit for implementing reservation was based on the Guidelines issued by the UGC on 25.8.2006. The UGC’s Guidelines of 25.8.2006 was in turn based on the O.M. dated 2.7.1997 of DoPT, which is the nodal Ministry for reservation.
The DoPT adopted this procedure, taking note of the fact that in a number of cases, there are only single posts in Government Departments/PSUs/Institutions to which application of reservation is not permissible constitutionally as it amounts to 100% reservation. Such Departments/Institutions have single posts which have the same status and pay-scale and similar prescribed qualifications.
Grouping together such single posts as a cadre or unit for purposes of application of reservation quota made it possible to get over this problem. This facilitated the speeding up of fulfillment of the goal of reservation and reaching the level prescribed for SCs, STs and SEdBCs, in accordance with the Constitutional mandate of Equality and Justice, which includes Social Equality and Social Justice.
This was adopted by the MHRD and UGC for educational institutions and all posts in a University/college/education institution with similar qualification prescribed (say PhD, though the subject may vary) and which have the same pay-scale and status (say Professor or Associate Professor/Reader or Assistant Professor/Lecturer) were clubbed together and reservation quota applied.
The Allahabad High Court in Vivekanand Tiwari case ordered that each Department of an Educational Institution be taken as the Unit for Reservation on the ostensible ground of need to secure the presence of SCs, STs and SEdBCs in all Departments.
Following the Order of the Allahabad High Court the UGC issued an Order on 5.3.2018 reverting back to the pre-2006 procedure of taking the whole University/College/Educational Institution as the unit for applying reservation. This was done with the approval of the Ministry of HRD.
As soon as I came to know that the UGC’s Standing Committee was going into the matter with a view to reverting to the pre-2006 procedure of treating the Department as the unit, I wrote to the Minister for HRD on 24.10.2017 requesting him not to accept the proposal for detailed reasons which I furnished. I wrote to him again when I came to know that the UGC had sent its proposal to the Ministry’s approval. I followed it up with a letter to the Minister and Secretary, Higher Education when I came to know that the MHRD had issued its approval to the proposal of the UGC’s Standing Committee.
The deleterious consequences, contrary to the Constitutional mandate of Equality and Justice, including Social Equality and Social Justice, of reverting back to the pre-2006 procedure of treating each Department as the unit for reservation is obvious from the following examples, which I furnished to the Minister and Secretary, HRD:
Post-UGC order of 5.3.2018, the Indira Gandhi Tribal University, Amarkantak, Madhya Pradesh issued an advertisement for 52 posts of Professors, Associate Professors and Assistant Professors. If the whole university had been taken as the unit, at least 20 posts would have been reserved for SCs, STs and SEdBCs. But the advertisement issued after the UGC’s order provided only for one post of reservation. Even that one post is not for tribals, though this is the only tribal university in the country and it is the only Central university which has the country’s only Vice-Chancellor belonging to STs.
Another instance is the BHU’s projection of reserved quotas if the Department as the unit is taken, which shows that reserved posts will be reduced by half in the case of SCs, by about 80% in the case of STs and by 30% in the case of SEdBCs. The advertisements issued by the Harcourt Butler Technical University, Kanpur and North Orissa University also show such severe damage to reservation for SCs, STs and SEdBCs, contrary to the Constitutional mandate.
After my letters to Minister for HRD and Secretary, HRD with copies to the Minister for Social Justice & Empowerment, and also after the UGC’s order evoked wide legitimate resentment among SCs, STs and SEdBCs, the Minister for Social Justice and Empowerment also wrote to the HRD Minister to withdraw the UGC’s order of 5.3.2018.
As a result, within a few days, the MHRD, understanding the grave import of the reversion to the pre-2006 system, retraced its step and filed an SLP in the Supreme Court against the judgment of the Allahabad High Court in Vivekanand Tiwari and Anr vs Union of India and 5 Ors dated 07.04.2017, which is the genesis of the UGC’s ill-conceived order of 5.3.2018.
The MHRD’s SLP is still pending in the Supreme Court.
The judgment of the Allahabad High Court in Vivekanand Tiwari dated 07.04.2017 was the outcome of the apparent failure of the counsels of the MHRD and the UGC to present before the Court the Constitution-based rationale for the impugned procedure of treating the University/college/educational institution as the unit. They seem to have only mechanically placed the communications of the Ministry of Personnel and consequential orders of the MHRD and UGC. They did not explain the
(a) very poor presence of SCs and STs in teaching posts at different levels in the universities and poor presence of SEdBCs
(b) reason why the policy of bunching together similar posts was introduced,
(c) real reason why the SCs and STs are not present in every department,
(d) the consequences, that could not have been the intention of the Hon’ble High Court, of treating the Department as the unit, which, contrary to the stated intention of spreading the presence of SCs, STs and SEdBCs in all Departments, was elimination of even their very limited presence in the faculty position in Universities/Colleges/Educational Institutions.
I understand that the proposal of the UGC’s Standing Committee was not even placed before the full UGC. There seems to have been an unseemly rush on the part of certain persons in the UGC to handicap reservation. Apparently, such persons are not aware that handicapping the process of reservation and decelerating the progress towards achievement of the reservation-equivalent proportion of presence of SCs, STs and SEdBCs in Universities/Colleges/Educational Institutions, is not only against the Constitution and harmful to the legitimate constitutional rights of the SCs, STs and SEdBCs but also harmful to the Indian society and nation as a whole.
It is a matter for satisfaction that after I wrote to the Minister and Secretary suggesting the course of action to rectify this anti-Constitutional situation, they have filed an SLP. I have also advised the Government to entrust the case to the Attorney General and brief him fully about all socio-historical facts.
Realizing the danger of drastic reduction of reserved posts available for SCs, STs and SEdBCs, which really defeats the Constitutional goal of bringing about Equality for SCs, STs and SEdBCs through Reservation, the Ministry of HRD issued instructions to the UGC and thereupon the UGC on 9.7.2018 issued a communication to all Universities/Colleges and other Educational Institutions to put on hold their faculty recruitments on the basis of Department as the unit for reservation until the SLP filed by the UGC in the Supreme Court is decided.
Now the pitch has been queered by the Allahabad High Court by its order of 30.11.2018 quashing the UGC’s above communication of 9.7.2018 to all universities/colleges/other educational institutions on which the MHRD has sought AG’s legal advice.
The order of Allahabad High Court of 30.11.2018 has resulted in an impasse. The only remedy now available for the Government to overcome the present stalemate is to enact a legislation in the Winter Session of the Parliament, which has just begun. I have written to the Minister and Secretary, HRD Ministry suggesting this course of action.
Letter to Minister Prakash Javadekar
I understand that the Allahabad High Court has on 30 November 2018 stayed the UGC’s communication of July 9, 2018 to all universities, issued on your advice, asking them to put on hold their teacher recruitments till the Special Leave Petition (SLP) filed by the HRD Ministry is decided by the Supreme Court, and directed the universities to proceed with recruitments.
This will cause the damage that you, though belatedly, tried to prevent. But the measures taken by you were not adequate and the required relief on the SLP has not been forthcoming, and the SLP, which has already been pending since long, is not likely to reach finality in the foreseeable future. Realizing this and the inadequacy of the measures so far taken by you, I understand that you had moved for an Ordinance, but that seems to have got stuck in the Law Ministry.
There is no alternative, but to undo the damage through legislation. Since it is urgently necessary to prevent the damage before that, I suggest that you may kindly consider reviving your proposal to issue an Ordinance, providing that the unit for Reservation in faculty recruitments shall be the whole University/College/Educational Institution, which can then be replaced by legislation in the next session of the Parliament.
This will need to be taken personally at the Minister’s level with the Hon’ble Minister for Law. If the Ordinance turns out to be impossible, in spite of your efforts, please move for legislation at the beginning of the ensuing Winter Session. Inter alia, the legislation may provide for stopping of recruitments on advertisements issued hitherto, annulment of all recruitments made after UGC’s communication of July 9, 2018, and creation of additional posts in Universities/colleges to make up for lost posts of reservation in recruitments made on the basis of Department as the unit after the Order of the Government and UGC in 1997/2006 laying down the University/College/Educational Institution to be taken as the Unit for the purpose of reservation.
*Former Secretary to Government of India, Ministry of Welfare