Union of India v Vivekananda Tiwari
[SLP(c) 3525/19, decided on 22/01/2019]
A bench comprising of Justice U.U. Lalit and Justice Indira Banerjee turned down Centre’s appeal against the decision regarding the reservations in teaching posts in Universities. Ministry of Human Resources Department had challenged the 2017 judgement of the Allahabad High Court in the Supreme Court.
On April 7, 2017, the Allahabad High Court had ruled that the reservation for the teaching posts in the Universities would be granted by taking the subject as a unit and not the University as one.
The High Court bench comprising of Justice Vikram Nath and Justice Daya Shankar Tripathi had struck down two clauses of the UGC guidelines. They said that the clauses No.6(c) and No.8(a)(v) were in “direct conflict and in violation of the law laid down by the Apex Court and different High Courts consistently from 1990 till date”.
The said clauses of the UGC guidelines, circulated on 25.08.2006, dealt with theprocedure of the application for the teaching posts for SC/ST/OBC. The clause 6(c) stated the manner in which the grouping of all the posts for reservations in a University had to be done.
Clause 8(a)(v) refers to the applicability of Roster to be applied to the total number of posts in the cadre as per the judgment in the case of R.K. Sabharwal vs. State of Punjab. The clause further stated that for determining the cadre, similarity of the pay-scale was the determinative factor.
To explain the rationale behind providing subject-wise reservation, the court observed:
“An Assistant Professor in subject ‘A’ cannot be an applicant for direct appointment as Associate Professor or Professor in subject ‘B’, ‘C’ or ‘D’. He can only apply for the post in the subject ‘A’. The seniority for becoming Head of the Department would be of the teachers in the same subject. There is no interse competition between the teachers in the same level of different subjects as all posts of higher level from entry level are by way of selection. There is no such provision in the teaching cadre in the Universities of promotion being granted on the basis of seniority irrespective of the department or the subject. Their competition is with candidates of their subject/department and not of different subjects”.
The High Court also chalked out the reason behind rejecting the very idea of determination of the cadre on the basis of the similarity of the pay-scale:
“Merely because Assistant Professor, Reader, Associate Professor and Professor of each subject or the department are placed in the same pay-scale but their services are neither transferable nor they are in competition with each other. It is for this reason also that clubbing of the posts for the same level treating the University as a ‘Unit’ would be completely unworkable and impractical. It would be violative of Article 14 and 16 of the Constitution”. The court further mulled over the fear that some of the subjects/departments may end up having all the reserved candidates and some having none. Such consequence may follow if the University is taken as a ‘Unit’ for every level of teaching and the roster is applied. The HC bench had also cited ten judgements which bolstered its stance that reservation has to be applied by considering subject as a ‘Unit’ and not the University as one. Dr Suresh Chandra Verma v The Chancellor Nagpur University, State of UP v Dr Dina Nath Shukla, State of UP v M.C. Chatopadhyay, State of Karnataka v K. Govindappawere the main Supreme Court cases mentioned by the High Court. The High Court also pressed for the need to go through the policies regarding the reservations in teaching posts once again while permitting the appeal, in light of the comments in Indira Sawhney and Nagaraj judgements.
The Centre had sought a review of the decision of the Supreme Court which turned down the Centre’s appeal, which was dismissed by the same bench of the apex court on February 27, 2019. To nullify the outcome of the judgement, the Parliament passed “The Central Educational Institutions (Reservation in Teachers’ Cadre) Bill, 2019” in Monsoon Session. This reverses the take of the court and considers the University as a ‘Unit’, for the reservation of teaching posts, instead of the subject/department.