SHILLONG: With aberrations in the state reservation policy related to recruitment in the Prisons Department, the High Court of Meghalaya on Wednesday reminded the government that the Constitution of India does not desire more than 50 percent reservation and a nationalistic view should be taken so that no class or citizen is deprived of his or her rights.
After hearing four petitions filed by deserving job applicants from the general category for various posts in the Prisons Department, the Single Bench of the court headed by Judge SR Sen in its order on Wednesday said the state reservation policy should be strictly adhered to and the state cannot divert the seats or posts from one category to another.
The case in point is that the deserving candidates from the general category were denied jobs and in their place, the Khasi-Jaintia and Garo candidates were selected.
The posts varied from cooks, male warders and armed branch naiks in the Prisons Department.
During the hearing of the case, the views of the petitioners represented by their counsel K. Paul were that in 2015, advertisements were published by the Chairman, Prisons Recruitment Board, inviting applications from eligible candidates for recruitment of various posts.
After clearing the physical tests, the petitioners appeared for personal interview and secured maximum marks. However, their names did not find a place on the merit list whereas candidates belonging to schedule tribes (Khasi, Jaintia and Garo) were on the list.
There was no list for open category candidates and the advertisements as well as the recruitment rules notified nowhere discloses the number of reserved posts to be filled up annually, therefore leading to the inevitable inference that all the posts were advertised as general category posts.
The petitioners questioned the selection of ST candidates against the vacancies by stating that they are absolutely illegal, perverse and unconstitutional which also encouraged cent percent reservation.
After hearing the counsels for the petitioners and the government and after analysing the state reservation policy and several court judgments, the Judge said, “It appears to me that all the posts are filled up by SC/STs and other backward classes and none of the general candidates found their place in the open category results, which is unwanted as it clearly shows that the reservation followed is cent percent, though reservation policy of the government states 40 percent for Khasi and Jaintia, 40 percent for Garo, 5 percent for other backward classes and 15 percent for general category.”
The court made it clear that a candidate of one category cannot enter the other category even if he/she has obtained better marks and the government should follow the present reservation policy proportionately and equally, otherwise “the dream and intention of our Constitution to bring all citizens at one level is bound to collapse, because forward classes will come down and backward classes will go up, which is not the intention of the makers of the Constitution of India”.
According to the Judge, the present appointment followed by the government to bring a candidate from one category to the other is illegal, unconstitutional and in violation of Articles 14 and 16 of the Constitution.
Hence, the Judge directed the government to follow the appointment policy strictly and added, “I leave to the State Government and the Central Government to review the reservation policy, but it should not be at any cost against the principle of Articles 14 and 16 of the Constitution of India.”
Further, the Judge said another question came to his mind as he had stated earlier that a person is backward only when he is economically unsound.
“Now the question which arises is that those who are economically sound and whose parents are holding higher posts, whether their children are entitled for further reservation? That I leave it to the State Government and the Central Government to consider and this question remains open.”
The Judge further said while revisiting the reservation policy, “the government should keep in mind that the Constitution of India does not desire more than 50 percent reservation and a nationalistic view should be taken so that no class or citizen is deprived of his/her rights guaranteed by the Constitution of India.”
The court asked the Registrar General to send a copy of the judgment to the chief secretary immediately, who in turn will circulate this judgment and order all government offices, including schools and colleges where reservation is applied, for strict compliance.
The court further directed that the chief secretary will forward a copy of the order to the secretaries to the Prime Minister, the Union Law Minister, the Governor of Meghalaya and the Chief Minister to place before these dignitaries.
The chief secretary has been further directed to submit a compliance report before the court within three days.
The Judge in the order had earlier said after carefully reading the judgments and observations made by the Supreme Court and the Gauhati High Court, he is of the considered view that 50 percent reservation is a mandate.
However, it can be increased or decreased taking into consideration the local scenario and backwardness of the population of that particular area, but in no way can the reservation be cent percent.
“The main purpose of reservation is to push the backward class and to bring them on an equal footing to the forward class so that no discrimination should remain. The Constitution of India did not empower any government or any authority to uplift backward class at the cost of general class,” the order said.
According to the Judge, reservation should be provided only to those sections of persons who are economically backward, because when a person is economically backward, he can be termed or called as a ‘socially backward’ person.
“It will be totally wrong to say that backwardness depends upon the caste and title of a person. We often observed that a person belonging to a higher caste is so poor that he is not in a position to give proper education to his children. Similarly, at the same time, we also observe that people belonging to a backward caste are financially well off that they can send their children to foreign countries for their higher studies, etc. It is also not possible to determine the intelligence on the basis of caste, creed and religion,” the order said.
