In the history of reservations in India, Parliament has sometimes had to resort to even constitutional amendments to overturn some court rulings that have the effect of protecting the interests of ‘general candidates’. The 77th constitutional amendment of 1995, which was recently extended to Kashmir, restored reservation in promotions as a nine-judge bench of the Supreme Court in Indra Sawhney (1992) while upholding Other Backward Classes reservation based on Mandal Commission recommendations had prohibited Scheduled Caste/Scheduled Tribe (SC/ST) reservation in promotions.
Ordinance and after
The 81st constitutional amendment was made to overturn the Supreme Court’s decision against the ‘carrying forward’ rule, which permitted the filling of unfilled reserved seats in subsequent years. Similarly, the 85th constitutional amendment was passed in 2001 to restore consequential seniority to promotee SC/ST employees as a ‘catch-up’ rule introduced by the court in Ajit Singh (1999) was causing hardship to SC/ST employees. Last week, the Narendra Modi government promulgated an ordinance to undo the Allahabad High Court’s judgment in Vivekanand Tiwari (2017) which had relied on a number of other High Courts and a few apex court judgments such as Suresh Chandra Verma (1990), Dina Nath Shukla (1997) and K. Govindappa (2009) that had made ‘department’ rather than ‘university’ as the unit of reservation in universities.
In Vivekanand Tiwari , an advertisement of the Banaras Hindu University (BHU) for teaching positions was challenged. The BHU, like other Central universities, was following the University Grants Commission policy of treating ‘university’ as the unit for the purposes of reservation. Due to judicial discipline, Justice Vikram Nath, who authored the judgment, did not have much of choice. But then Justice Nath himself did not seem to be a votary of reservations. In the beginning, he has said, “It is not a mandate but liberty given to the state. It is an enabling provision.” Thus, according to him, the government may not provide for reservation.
The importance of ‘shall’
Technically speaking, he is right. But then we cannot ignore that Article 335 categorically says that “claims” of SC/STs to posts in Centre and the States ‘shall’ be taken into consideration. As opposed to ‘may’ or ‘will’, the use of the word ‘shall’, in law, means mandatory. While the judgment ended at page 29, Justice Nath devoted several additional pages to make out a case for the re-examination of the reservation policy by the government though there were no pleadings on this issue. He asked it to examine whether reservation at all is needed in university teaching posts.
Our courts have used the differences between ‘cadre’, ‘service’ and ‘post’ to arrive at the conclusion that ‘department’ should be unit of reservation. So though lecturers, readers and professors in a university have the same scale and allowances in their respective cadres, they cannot be clubbed together. Since there is no scope for interchangeability of posts in different disciplines, each single post in a particular discipline is be counted as a separate post. On the face of it this seems to be perfectly logical. But the reality of the working of our universities is different. Every university spends lot of time in deciding reservation and tries to balance the completive interests and needs of various departments.
Even with the ‘university’ as the unit, in over 40 Central universities we have huge under-representation of SCs and STs especially at the level of professor and associate professor. If ‘department’ was allowed to be taken as a unit, these numbers would have been far less.
In its review petition, the government did share with the Supreme Court the BHU’s example of the adverse effect of using ‘department’ as the unit. For example, there were 1,930 faculty posts on May 12, 2017. If the BHU were to implement reservation based on using ‘university’ as the unit of reservation, 289 posts would have had to be reserved for SCs, 143 for STs and 310 for OBCs. Under the new formula of using ‘department’ as the unit, the number of reserved positions would go down to 119 for SCs, 29 for STs and 220 for OBCs.
Beginning of an end
Implementation of the department-wise reservation policy would have had a disastrous effect on other universities as well.
A study of 20 Central universities by the Central government has shown that reserved posts will come down from 2,662 to 1,241 in a year. The number of posts of professor would have reduced from 134 to just 4 for SCs; from 59 to zero for STs, and from 11 to zero for OBCs. But number of unreserved or general posts would have drastically increased, from 732 to 932. At the level of associate professor, for SCs it will have reduced from 264 to 48, for STs from 131 to 6, and for OBCS from 29 to 14. But here again the number of general posts would have increased from 732 to 932. In the case of assistant professor, the number of reserved posts would have reduced from 650 to 275 in STs, from 323 to 72 for SCs, and from 1,167 to 876 for OBCs. But the number of unreserved or general posts would have gone up from 2,316 to 3,233. Thus department-wise reservation was a sophisticated beginning of an end of reservation. If SC/ST candidates do not become professors, they cannot become vice-chancellors as only a professor with 10-year experience is eligible for this. In 2018, out of some 496 vice-chancellors of Central and State universities, there were just six SC, six ST and 48 OBC vice-chancellors.
The government deserves appreciation for the ordinance, though brought in belatedly on the eve of the elections to garner Dalit votes. But we need to do more to improve diversity on our campuses with more SCs, STs, OBCs, Muslims, persons with disabilities and sexual minorities being recruited as faculty as our campuses do not reflect social diversity despite the university being a unit for reservation. Let the score on the diversity index be a major criterion in giving grants to universities.
Faizan Mustafa is Vice-Chancellor, NALSAR University of Law, Hyderabad. The views expressed are personal
