Whenever the fundamental rights and rules are twisted by any government, the judiciary comes to the rescue, recently the Madras HC gave the example of this
The Madras HC strikes down the promotion based on seniority. The points below are to understand what the whole conundrum is all about.
• What is the 200-roster point system, vertical and horizontal reservation system?
• Take of SC.
• The current order of Madras HC.
THE RESERVATION SYSTEM IN TAMIL NADU
The state of Tamil Nadu follows a 200-roster point system, leading to compulsory 69% of reservation on communal footing along with horizontal internal reservation which is clearly above the 50% reservation bar held by SC.
WHAT IS THE 200 ROSTER POINT SYSTEM, VERTICAL, AND HORIZONTAL RESERVATION SYSTEM:
Staff Selection Commission or Union Public Service Commission is the body made by the government for organising the posts with eligibility criteria.
The organisation of posts in civil services is quite different from university management, it’s a lot complex.
As per the formula Constitution served posts, it is only after 13.33 positions (14 in the round figure) are filled that every reserved category gets at least one post which means every 14 positions is held compulsory for a reserved class. The expression “13-point roster” vacancy.
Similarly the 200 roster point system regulates, once the 200 seats are filled in the reserved class can view is that each department is taken as a unit, the problem lies in when a department has fewer vacancies mentioned in the roster system, therefore to eliminate that a whole university is taken as a unit and therefore the 200 roster point system is in practice.
The 200-point system of executing reservations was adopted by all central universities by 2014. In April 2017, Allahabad High Court struck down the 200-point roster, saying “If the University is taken as a ‘Unit’ for every level of teaching and applying the roster system, it could result in some departments/subjects having all reserved candidates and some having only unreserved candidates.”
The HORIZONTAL RESERVATION: This includes reservation based on caste, Scheduled Caste and Scheduled Tribes, OBC. It comes under article 16(4).
The VERTICAL RESERVATION: This includes reservations for specially abled people and comes under article 16(1).
TAKE OF SUPREME COURT
The Supreme Court upheld this decision that June, and on March 5, 2018, the UGC notified changes to its guidelines, directing universities to treat the department, rather than the university or college, as the ‘unit’, thus bringing back the 13-point system.
“The Apex Court has held that the outer limit of 50% for a reservation shall not be breached. It is accordingly breached, through the 200-point roster by providing 69% reservation along with horizontal and internal reservation,” the bench of Justices MM Sundresh and RMT Teekaa Raman declared while expunging of a batch of petitions.
A fixed roster is also taken for the fixation of seniority as per the TN Rules. In N. Santhosh Kumar & Ors. v. Tamil Nadu Public Service Commission, rep., by its Secretary, Government, Chennai-2 & Ors., 2015 (4) MLJ 281, a person selected under the roster will get his seniority determined accordingly as against merit in a single nomination process. This system was earlier struck down by a division bench of the high court.
But the Tamil Nadu government supplanted the SC order by bringing in the Tamil Nadu government servants act, 2016.
CURRENT ORDER OF MADRAS HIGH COURT
The Madras HC strikes down TN rules on fixation of seniority based on the reservation of promotion and directed to refurbish the rule in state appointment and affirmed that promotion based on seniority unconstitutional.
“The fundamental principle relating to the draw of seniority list was that it should be based on the merit list of selection and that the list drawn based on roster point can have no application for the purpose of the seniority list.”
The bench considered that Article 16(4) had sufficient resources to take care of the situation warranting reservation in promotion, which would include seniority.
The court got on to discern that the reservation scheme equipped by the State to grant reservation in promotions was not backed by any empirical data and in such circumstances, it beheld, “reservation is not automatic but can only be on promotion.
“There is no fundamental right involved for reservation, it has to be backed up with empirical data and material. More such extent of quantifiable data is required for a special reservation, viz., horizontal and internal. It is trite that horizontal and internal reservation cannot be compared with a vertical one. Therefore, the extent of the material required for such reservations is much more. Hence, when a reservation is sought to be made without adequate material, leading to satisfaction on the part of the State with respect to the need, the same cannot be sustained in the eye of law is an affront to Article 16 of the Constitution of India as a whole. As Article 16(4) of the Constitution of India is designed to ameliorate social inequality, it cannot be used to enhance it,” it elaborated.
The promotion based on seniority is even be observed in the promotion in the judicial ranking, but it is a solely different expression, the promotion is based on the principle of seniority cum merit, and even entirely on merit called an accelerated promotion. Thus, we can conclude that merit always comes first and seniority can be a part of it, it cannot wholly be a ground for reservation in itself.