Centre Brings Ordinance To Overturn SC Decision On Subject- Wise Reservation In Teaching Posts [Read Ordinance]

The Central Government yesterday promulgated "The Central Educational Institutions (Reservation in Teachers' Cadre) Ordinance, 2019" to treat University/ College as the unit of reservation roster for teaching posts instead of 'Department/ Subject'.

The Ordinance will overturn the impact of the Supreme Court decision which directed that reservation in teaching posts should be applied subject-wise.

This is done by defining "teachers cadre" mean "class of all teachers of a Central Education Institution, regardless of the branch of study or faculty, who are remunerated at the same grade of pay, excluding any allowance or bonus".

The non-obstante clause in Section 3 of the Ordinance nullifies the effect of judgments which held that quota should be based on subject/department. Section 3(2) states that for the purposes of reservation, the Central Education Institution will be treated as the 'unit'. 

The Ordinance also exempts reservation to institutions which are notified as 'Institutions of Excellence' as per its Schedule.  

On January 22, the Supreme Court had dismissed Centre's challenge against a 2017 judgment of Allahabad High Court which had held that reservations in teaching posts in Universities are to be applied by taking subject/discipline as the unit, instead of university. A bench of Justices U U Lalit and Indira Banerjee refused leave to appeal to Ministry of Human Resources Department to challenge the High Court judgment delivered in the case Vivekanand Tiwari v Union of India on April 7, 2017.

The Allahabad High Court had quashed clauses No.6(c) and 8 (a)(v) of the UGC Guidelines dated 25.08.2006, which prescribed the manner of applying reservations for SC/ST/OBC in teaching posts. As per Clause 6(c), all posts under a University had to be grouped together for the purposes of reservation. It forbid the practise of creating department-wise cadre. Clause 8(a)(v) directed the application of 40-point or 100-point roster to the total number of posts in a cadre, as per the judgment in R K Sabharwal v State of Punjab. Similarity of pay-scale was the determinative factor for determining the cadre, according to this clause.

Tracing the reason behind subject-wise quota, the bench had 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 held that sameness of pay-scale cannot be taken to consider teaching posts in various subjects as a single cadre :

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.

If the University is taken as a 'Unit' for every level of teaching and applying the roster, it could result into some departments/subjects having all reserved candidates and some having only unreserved candidates,the Court further observed.

Human Resource Development Mr Javadekar had said in the Lok Sabha on February 11 that the government can "bring an ordinance if its review petition filed in the top court is rejected".

Last week, the SC had dismissed the review petitions by Centre and University Grants Commission.

There was widespread apprehension that applying subject wise quota in lecturer posts will reduce the scope of reservation. For departments with single posts, reservation will not be applicable. Also, the time taken for the roster turn arising for reserved categories could be longer in case of subject-wise quota. If reservation is applied taking university as the unity, posts of professors across different departments were clubbed together, and there was a better chance of positions being set apart for SCs, STs, and OBCs.

A bill - Direct Recruitment in Central Educational Institutions Bill - was drafted by the Ministry to restore university-wise reservation formula, nullifying the judgments. However, the Bill was not tabled in the winter session.

(Image sourced from here) 

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