HC: Can’t challenge nature and extent of reservation on grounds of discrimination

Saurabh Malik

Tribune News Service

Chandigarh, September 13

Clarifying the legal position on quota, the Punjab and Haryana High Court has ruled that the nature and extent of reservation cannot be challenged on the grounds of discrimination with reference to other reserved categories. There could not be equality in the matters of reservation.

What the Bench said

• Reservation for ex-servicemen is a special as contemplated under Article 16(1) of the Constitution. Being horizontal, it is reservation within reservation
• Discrimination is inherent in the very concept of reservation. It permits differential treatment of unequal
• The Constitution empowers the State to identify backward classes of citizens, or other disadvantaged or weaker sections of society requiring preferential treatment for their socio-economic advancement.
• Reservation is a mechanism under the Constitution to ensure equality and not to claim privileges or benefits over and above or on a par with the other oppressed classes

Expressing anguish at the quality of pleadings in constitutional matters such as reservation, the Bench of Justice Jaswant Singh and Justice Meenakshi I Mehta added that writ petitions challenging the rules, instructions or circulars issued by the state government providing reservation were being challenged on the grounds of violation of constitutional provisions in a very casual manner.

The Bench was hearing a petition by Balwan Singh and another general category ex-serviceman, who had applied for the post of Civil Judge (Junior Division) in Haryana Civil Services (Judicial Branch) advertised by the Haryana Public Service Commission, vide advertisement dated January 13.

Among other things, the Bench was told that “by converting 5 per cent reservation for ex-servicemen in direct recruitment in group A & B category from vertical to horizontal, the state government has wrongly granted the benefit of reservation within reservation or double benefit to the reserved category employees”.

Rejecting the argument, the Bench asserted that it was not only contrary to the very nature and concept of horizontal reservation, but was also inherently fallacious. “The intent of reservation under the scheme of horizontal reservation is not to confine the served category candidates to their respective categories, but to effectively implement the vertical and horizontal reservation within the confines of 50% cap of maximum reservation mandated by the Supreme Court in Indra Sawhney (case).”

Discussing the scheme of reservation envisaged in the Constitution and the relevant case laws, the Bench in its 22-page judgment added that there was nothing arbitrary in the impugned instructions providing for sub-division of 5 per cent reservation for ex-servicemen in Group A & B posts between the reserved categories.

Dismissing the petition, the Bench added that the state government was also well within its jurisdiction to fill the posts from amongst the eligible candidates belonging to open/SC/BC category, in case suitable ESM category candidates were unavailable.