Need to effectively defend Centre’s teachers’ reservation ordinance against PIL in Supreme Court

Classroom

In a letter to Prakash Javadekar, Union human resource development minister, PS Krishnan, former secretary, ministry of welfare, Government of India, has insisted on the need to effectively defend the Central Educational Institutions (Reservation in Teachers’ Cadre) Ordinance, 2019 against the Public Interest Litigation filed on March 8, 2018 in the Supreme Court, even as offering points to be incorporated in the government’s counter-affidavit and arguments. Text of the letter:

It is welcome that, on the proposal of your esteemed Ministry and the Cabinet’s approval, the Central Educational Institutions (Reservation in Teachers’ Cadre) Ordinance, 2019 dated the 7th March 2019 has been issued, and your Ministry has issued on the same day the reservation notification for the SCs, STs and Socially and Educationally Backward Classes (SEdBCs) in terms of the Ordinance, treating the Central Educational Institution as the unit for the purpose of reservation.

This has corrected the drastic reduction in the number of reserved posts, which arose from the Allahabad High Court’s judgment in 2017 in the Vivekanand Tiwari case.

While this is welcome and you and the Government deserve appreciation for this, it would have been better if

(a)  your esteemed Ministry and the UGC had fully and properly placed the rationale behind the policy then existing, its basis in the Constitutional mandate for Equality, which includes Equality for SCs, STs and SEdBCs in faculty positions at every level compared to the Socially Advanced Castes (SACs), the present abysmal level of representation of SCs, STs and SEdBCs in the faculties and the severely damaging consequences of treating each Department as the unit, contrary to the Constitutional mandate;

(b)  you had heeded my advice at repeated occasions from 24. 10. 2017

(c)   the Ordinance had been issued immediately after the Supreme Court’s dismissal of your esteemed Ministry’s SLP/Appeal, without losing time on the Review Petition

(d)   you had heeded my advice that the Review Petition is futile and will not yield any result, and will only cost time.

If action had been taken effectively in respect of the issues at (a) and (d) above and in accordance with my advice, your esteemed Ministry  and the Government would have got full credit.

I am now writing this to request you to kindly take prompt action to effectively defend the Ordinance against the PIL filed in the Supreme Court by two persons named  Prathvi Raj Chavan and Ms Priya Sharma on 8.3.2019, supported by full justification of the Ordinance and the correctness of the procedure restored by it, and their base in the values and mandates of the Constitution and the basic feature and the basic structure of the Constitution, which mandates and provides for real Equality. It is also necessary to preclude any stay order by taking anticipatory measures like filing a caveat.

I enclose herewith some of the points (click HERE) which need to be covered in the Government’s counter-affidavit and in arguments on behalf of the Government in the Supreme Court.

It has to be ensured that the AG and other Counsels appearing on behalf of the Government are fully briefed and instructed to raise these points in their arguments, and in addition to oral arguments, to submit to the court written arguments fully covering these points.

It would also be advisable and it would also help to correct the partly negative impression created by the avoidable points (a) to (d), if a draft of the Government’s counter-affidavit is placed in the public domain.  This will help everybody to see how seriously and sincerely the Government takes the first step in effectively defending the Ordinance against the PIL.   It will also help in enabling any Constitution-spirited person to suggest any additional points for inclusion in the counter-affidavit, which the Government may consider.

I shall be happy to provide any assistance in strengthening the Government’s defence of the Ordinance.  In 2006, when on the initiative of  one of your esteemed predecessors, late Arjun Singh, the Constitution (Ninety-third Amendment) Act was enacted to correct the consequence of the Inamdar judgment of 2005, and on the basis of the new clause (5) inserted in Article 15, the Central Educational Institutions (Reservation in Admissions) Act 2006 was enacted, he and the Secretary, late Sudip Banerjee, who was devoted to Social Justice, sought my help, as Advisor, in preparing the Government’s counter-affidavit and looking after the defence of the Act and new Clause (5) of Article 15, which help I readily provided on the condition that no remuneration shall be paid to me.

My role as above and in providing the full socio-historical background of the matter to ex-Solicitor General late Vahanvati, Additional Solicitor General Gopal Subramanium and Special Counsel K Parasaran and also to the counsels  of State Governments and NGOs, who also appeared as co-respondents, and thus orchestratring and symphonizing the defence powerfully, helped in getting a unanimous judgment upholding the validity of the Central Educational Institutions (Reservation in Admissions) Act 2006 and the Constitution (Ninety-third Amendment) Act 2005.

I trust you will kindly consider the above and ensure that there is no laxity in defending the Ordinance and that the sincere efforts of the Government in this regard are publicly visible so as to remove scope for any misgivings and criticism.

It is good that the 200-point roster has been restored.  But the existing 200-point roster itself is a dilution of the roster that was introduced in 1993.  The 200-roster of 1997 reduced the position of SCs and STs by a misinterpretation of the Supreme Court’s Sabharwal judgment in 2005. I shall write to you separately about this and further improvement in the sequencing of points in the 200-point roster, so as to facilitate filling up the backlog as quickly as possible and faster fulfillment of the reservation goal in respect of SCs, STs and SEdBCs.


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