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Thursday, December 03, 2009

Govt cannot be forced to give quotas: Supreme Court


The Supreme Court on Wednesday held that citizens belonging to backward classes, including scheduled castes (SC) and scheduled tribes (ST), could not move courts to force the government to provide them reservation.

A three-judge bench comprising Chief Justice K.G. Balakrishnan, Justice P. Sathasivam and Justice J.M. Panchal noted that the government was the best judge to take a decision on reservation and it could not be claimed as a matter of fundamental right.

Dismissing petitions seeking a direction to the Haryana government to provide reservation to SCs and STs in post-graduate medical courses, the bench pointed out that it was for the state governments to decide whether to provide reservation or not.

"In our view, every state can take its own decision with regard to reservation depending on various factors," the bench observed. "Article 15(4) (of the Constitution) does not make any mandatory provision for reservation and the power to make reservation under Article 15(4) is discretionary and no writcan be issued to effect reservation," the bench held.

The bench accepted the contention of the state government that Article 15(4) - whichprovided for reservation in educational institu-tions - was merely an "enabling provision"which entitled the government to provide forreservation. Though the judgment pertained to reserva-tion in educational institutions, Article 16(4)which provided for reservation in public employment was also couched in a simi-lar language.

The bench specifically recorded in its judg-ment that "sub-clause (4) in both Articles 15and 16 is only an enabling provision for the stategovernment to bring forward legislation or passan executive order for the benefit of socially andeducationally backward classes of citizens andfor the Scheduled Castes andScheduled Tribes".

Thus, a policy decision to pro-vide reservation, unless unreason-able, would be protected by arti-cles 15(4) and 16(4) from beingassailed before courts but a peti-tion could not be filed to force thegovernment to provide reservaprovide for mandatory reservation.

Holding that Article 15( 4) did not make a mandatory provision for reservation, the bench pointed out that the principle behind the provision was that " preferential treatment can be given validly when the socially and educationally backward classes need it". It further accepted the contention that the state government was the competent authority to decide the reservation in the state.

The petitioners, who had challenged the decision of the state government not to provide reservation in post- graduate medical courses, had pointed out that several states had provided reservation to SCs and STs at the postgraduate level. They pointed out that the All India Institute of Medical Sciences also provided reservation to SCs and STs in post- graduate medical courses.

The bench rejected an argument that the state government was bound to follow the policy of the central government which had provided for reservation in postgraduate medical courses. Rejecting the argument, the court said " the same ( policy) automatically cannot be applied in other selections where state governments have the power to regulate." Article 15( 4) states that the government could not be prevented from " making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes". Though it gives the state ( government) the right to provide reservation for the backward classes, it does not give the latter a corresponding right to claim reservation as a right.

Opposing the petition, the state government had argued that it had taken a conscious decision of not providing reservation to SC/ ST categories in admission at the post- graduate level and " such a decision of the government suffers no infirmity". The state government said the matter regarding reservation of seats in the PG courses had been considered by it from time to time and the decision had been taken keeping in view the recommendations of the Medical Council of India and decisions in some other states.

" Since the government of Haryana has decided to grant reservation for SC/ ST categories/ backward class candidates for admission at MBBS level i. e.

undergraduate level then it does not mean that it is bound to grant reservation at the postgraduate level also," Justice Sathasivam, who wrote the judgment for the bench, said.

Though the court dismissed the petitions, it said Haryana government would, however, be free to reconsider its decision. " However, we make it clear that irrespective of above conclusion, the state of Haryana is free to reconsider its earlier decision, if it so desires, and circumstances warrant in the future years," the bench clarified.

The word of law
Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex, birth place 15( 4) Nothing in this Article... shall prevent the state from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the SCs and the STs.

Article 16: Equality of opportunity in public employment 16( 4) Nothing in this Article shall prevent the state from making provisions for the reservations in favour of any backward class of citizens, which the state feels are not adequately represented in the services under the state.

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