Can HC issue Writ of Mandamus for providing Reservation in Jobs? SC says NO

 

The Supreme Court in one of its recent rulings has decided on whether Courts can issue a mandamus to the State Government for providing Reservation in Jobs.

The Bench comprising of Justice MR Shah and Justice BV Nagarathna while examining the Punjab and Haryana High Court Judgement allowing the same, aggrieved by the State Govt observed that the particular Court cannot issue direction for a sports quota of 3% in Government Medical/Dental Colleges.

Brief Facts of the Case

The State of Punjab enacted the Punjab Private Health Sciences Educational Institutions (Regulation of Admission, Fixation of fee and making of Reservation) Act, 2006 for the regulation of admission, fixation of fee and making of reservation in Private Health Sciences Educational Institutions in the State of Punjab. Section 6 of the 2006 Act provides for reservation of seats in all private health sciences educational institutions in open merit category and management category, for advancement of socially and educationally backward classes of citizens or for the Scheduled Castes or Scheduled Tribes to such extent, as may be notified by the State Government in the official gazette from time to time.  As per Clause 10 of the Sports Policy of Punjab formed in 2018, 3% reservation in admissions shall prevail on all the Departments and Organizations of Government of Punjab, however, if any other department wishes to have specific policy, it will be finalised in consultation with the Department of Sports. It appears that by order dated 25.07.2019, a conscious decision was taken by the Government of Punjab to provide 1% reservation for sports persons. The said order was passed taking into consideration Clause 10 of the Sporty Policy, 2018.

For the academic year 2018-19, the State Government issued notification dated 6.2.2018 for admission in Medical/Dental Colleges. Clause 16 of the said notification provided for reservation in Government Medical/Dental Colleges and Clause 17 provided for admission to private institutes. However, it appears that though 1% seats were reserved for sports persons and the children/grand children of terrorist affected persons so far as the State quota seats in Government Institutions are concerned, similar reservation was not provided for admission to private institutes even with respect to government quota seats in the private institutes.

In view of the above bunch of writ petitions were filed directing the State to issue a notification providing for 1% reservation/quota for children/grand children of terrorist affected persons/Sikh riots affected persons in all private unaided non-minority Medical/Dental institutions in the State of Punjab which were allowed by the High Court. The court further directed that the said reservation/quota shall apply to management quota seats as well. It further directed that the fresh notification shall also provide for a sports quota of 3% in Government Medical/Dental Colleges. This judgment stands challenged before the Suprme Court.

Supreme Court Observation

The Counsel for the State vehemently submitted that no writ of mandamus can be issued by the High Court directing the State to provide for reservation for the particular class or category and it should be left to the wisdom of the State Government. It is also the case on behalf of the State that Article 15(5) of the Constitution of India is an enabling provision and it is ultimately for the State to provide for reservation for a particular class/category and no State can be compelled and/or no writ of mandamus can be issued directing the State to provide for reservation for a particular class or category. She cited a slew of judgements including SC's in

 1. Gulshan Prakash & Ors. Vs. State of Haryana & Ors., 2009 Latest Caselaw 957 SC  

2. Chairman & Managing Director Central Bank of India & Ors. Vs. Central Bank of India SC/ST Employees Welfare Association & Ors., 2015 Latest Caselaw 17 SC

3. MUKESH KUMAR vs. STATE OF UTTARAKHAND, 2020 Latest Caselaw 129 SC

The Court at the outset noted that the question of law here is whether the High Court was right in issuing directions directing the State to issue a fresh notification providing for 1% reservation/quota for children/grand children of terrorist affected persons/Sikh riot affected persons in all private unaided non-minority Medical/Dental institutions in the State of Punjab including the management quota seats has become academic.

The Court accepted the submissions of Counsel for the State and agreed all cited judgments have held that no mandamus can be issued by the Court directing the State Government to provide for reservation.

"In the case of Gulshan Prakash (supra), it was observed by this Court that there cannot be any mandamus by the Court to provide for a reservation for a particular community. In the case before this Court, the State of Haryana did not provide any reservation for SC/ST/backward community at the postgraduate level. A conscious decision was taken by the State of Haryana not to provide for reservation at the postgraduate level. The same was challenged and to that this Court has observed that there cannot be any mandamus by the Court as claimed."

"In the case of Central Bank of India SC/ST Employees Welfare Association and others (supra), while considering the issue of providing reservation in favour of SC/ST category persons in the promotion and when Articles 15 & 16 of the Constitution of India were pressed into service, this Court observed and held that though Articles 15 & 16 empower the State to take an affirmative action in favour of the SC/ST category persons by making reservations for them in the employment of the Union or the State, they are only enabling provisions which permit the State to make provision for reservation of these category of persons. It was further observed that insofar as making of provisions for reservation in matters of promotion to any class/classes of post is concerned, such a provision can be made in favour of SC/ST category employees if in the opinion of the State they are not adequately represented in services under the State. It is observed that therefore power lies with the State to make a provision but, at the same time, Courts cannot issue any mandamus to the State to necessarily make such a provision."

"In the recent decision in the case of Mukesh Kumar and another (supra), again it is reiterated by this Court that no mandamus can be issued by the Court directing the State Government to provide for reservation. It was further observed that even no writ of mandamus can be issued directing the State to collect quantifiable data to justify their action not to provide for reservation."

The Court thus noted that in view of the above the High Court has committed a grave error in issuing a writ of mandamus and directing the State Government to provide for 3% reservation/quota for sports persons, instead of 1% as provided by the State Government.

"A conscious policy decision was taken by the State Government to provide for 1% reservation/quota for sports persons. A specific order dated 25.07.2019 was also issued by the State Government. Therefore, the High Court has exceeded its jurisdiction while issuing a writ of mandamus directing the State to provide a particular percentage of reservation for sports persons, namely, in the present case, 3% reservation instead of 1% provided by the State Government, while exercising powers under Article 226 of the Constitution of India."

 The Court thus set aside the impugned common judgment and order passed by the High Court insofar as directing the State to provide for 3% reservation for sports persons and/or provide for a sports quota of 3% in the Government Medical/Dental Colleges.

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(With input from news agency language)

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