Communal Reservation In University Appointments: High Court Upholds Amendments To Kerala University Act

The Kerala High Court on Monday set aside a Single Judge's verdict quashing a notification issued by the University of Kerala on the appointment of 58 teachers treating all the posts in the categories of professors/associate professors/assistant professors in various teaching departments of the university as one category for the purposes of community reservation.

A Division Bench comprising Justice A.K Jayasankaran Nambiar and Justice Mohammed Nias C.P passed the order while allowing appeals filed by the University of Kerala and the State Government against the single judge's ruling that had also quashed an amendment brought to the university statutes in this regard.

The significant question before the Court was whether for the purposes of applying the rules of communal reservation, the grouping of teaching posts carrying similar pay scales, duties and responsibilities, albeit in different subjects, can be seen as arbitrary and therefore illegal and unconstitutional.

The Court noted that the Centre had recognised the principle of treating the university/college/institution as a single unit for the purposes of reservation of posts in direct recruitment in the teachers' cadre.

Similarly, the University Grants Commission (UGC) had also issued instructions to all Central and State universities and deemed universities coming under its purview to adopt the said practice in the respective educational institutions falling under their jurisdiction.

The aforesaid facts fortify the contentions of the appellant State and university that the amendments brought about in the university statute could not be seen as unreasonable or arbitrary, the court observed.

Accordingly, the Court observed that it did not find that the impugned amendments to the Kerala University Act to be vitiated on any ground that would render them unconstitutional.

Consequently, the action taken by the University based on the said amendments including those taken pursuant to the University Order dated 25.10.2017 and the Notification dated 27.11.2017 were upheld.

As such, the appeals were allowed.

Facts:

Based on the statutory provisions as they stood prior to 2014, the Universities in the State had been categorising the teaching and non-teaching posts department/subject wise while applying the reservation principles enumerated in the Kerala State and Subordinate Service Rules, 1958 (KS&SSR)

The amendment clubbed of posts of Assistant Professors, Associate Professors and Professors of all departments to create separate cadres in relation to each of the above categories of posts, to apply the rules of communal rotation.

The Single Judge had earlier disapproved of an amendment effected to the various University Statutes in Kerala to change the pattern of rotation while implementing the communal reservation in the services under the University, from department wise to category wise, by treating all departments as one unit.

The petitioners challenged the amendments contending that the clubbing of posts of assistant professors, associate professors and professors of all departments to create separate cadres in relation to each of these posts and applying the rules of communal rotation to those cadres would be tantamount to providing 100% reservation in single post cadres.

They alleged that this was legally and constitutionally impermissible.

The said writ petitions were allowed by the Single Judge by initially setting aside the recruitment notification issued by the Kerala University that indicated that communal reservation was being applied by treating all the said posts in the various teaching departments of the University as one category for the purposes of reservation.

Thereafter, through a corrigendum, the judge set aside the notification of the State Government publishing the University Laws (Second Amendment) Act, as well as the University Order of the Kerala University implementing the amended provisions in the University. 

Contentions:

The appellants raised the following arguments:

The earlier method subject wise categorisation of posts had resulted in a large number of posts being categorised as a single cadre, and thereby excluded from communal reservation;

The amendment restructures the cadres in such a way that there was a plurality of posts in each cadre;

Cadre structuring and re-structuring, so long as it based on criteria that bear rational nexus, cannot be interfered with by the court in judicial review;

At their respective levels, professors, irrespective of the subject they teach, carry the same duties, responsibilities and scale of pay and, after the adoption of the UGC Regulations, the eligibility requirements for recruitment to the posts are also the same in the respective levels.

The respondents raised the following arguments: 

The purported object of providing greater reservation cannot justify the inclusion of dissimilar posts in a cadre while implementing the reservation principles enumerated under the KS&SSR;

While examining whether teaching posts included in a cadre are similar and interchangeable, the subject/discipline concerned is a relevant feature that must inform the inclusion of a post in a cadre.

Findings:

The Court noted that Section 31(11) of the Cochin University of Science & Technology Act, 1986 provided that 'communal rotation shall be followed category wise treating all the departments as one unit'. 

Similarly, the amendments effected to the various University Acts virtually did nothing more than to provide statutory backing to the scheme of a grouping of posts that was approved in the context of the Cochin University of Science & Technology Act, 1986 read with the Kerala State and Subordinate Service Rules, 1958 (KS&SSR).

The amendments effected in 2014 only enabled the Universities to apply the principles of communal reservation under the KS&SSR, by grouping all the posts of Professors, Associate Professors and Assistant Professors, in the various departments of the University, as separate cadres/categories for the said purpose. For this reason, the Court failed to see how the said amended provisions can be viewed as unconstitutional.

In the light of the clear statutory provisions obtaining under the amended Kerala University Act read with Rules 14 to 17A of the KS&SSR where the principles of reservation are to be applied to any "service, class or category" and not to 'posts', the Court reiterated: 

"We do not see those decisions as laying down a general rule, divorced of statutory context, that teaching posts in different subjects or disciplines cannot be included in a single cadre for the purposes of applying the principles of communal reservation."

As per the notification, a single vacancy of Professor in Aquatic Biology & Fisheries was reserved for Ezhava/Billva/Thiyya candidate and a single vacancy of Professor in Zoology was reserved for a Muslim candidate. This was challenged as unconstitutional for granting 100% reservation in a post.

"We also take note of the fact that after the introduction of the UGC Regulations governing various aspects of eligibility for recruitment and promotion to teaching posts, which regulations have been adopted in the State of Kerala, there is a commonality in the matter of recruitment and promotion to the different teaching posts such as Associate Professors, Assistant Professors and Professors irrespective of the discipline in which the posts are instituted."

Finding that the impugned amendments to the Kerala University Act were not vitiated on any ground that would render them unconstitutional, the Bench allowed the appeals. 

Case Title: State of Kerala v. Dr. G. Radhakrishna Pillai and connected matters

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