Bhim army Chief Chandrasekar Aazadhas sought review of the Supreme Court decision in Mukund Kumar vs. State of Uttarkand in which the court held that reservation in promotions is not a fundamental right and is purely subject to the satisfaction of the state. The impugned judgment is related to the notification of the State of Uttarkhand that called for filling up of vacancies in the public services without providing for reservation to scheduled caste and scheduled tribes.
Brief facts:
On 05/09/2012 the state government of Uttarkand issued a notification to fill all the posts in public service without providing any reservation to the candidates belonging to scheduled castes and scheduled tribes. Challenging the above notification Gyan Chand, working as an assistant commissioner in state tax (civil) belonging to the scheduled caste filed a writ petition seeking to quash the impugned notification. The High court on 01/04/2019 struck down the said notification holding that the same is against the law as declared in Indra Sawhney v. Union of India &Ors. and Jarnail Singh &Ors. v. Lachhmi Narain Gupta &Ors. The court further held that it is not mandatory on the part of the state to collect quantified data regarding the representation of Scheduled castes, scheduled tribes and backward classes to provide for reservation.
Meanwhile Vinod Kumar and the other members belonging to the scheduled caste filed a writ petition before the High Court seeking to direct the state government to prepare a separate list of eligible candidates and a separate list for each category. Further also sought to direct the state to hold departmental promotion committee for promotion to the post of Assistant engineers after providing reservation to scheduled castes and scheduled tribes. The High Court on 15/07/2019 passed an order directing the state to promote only the members of the Scheduled caste and Scheduled tribes in future vacancies in order to maintain the quota reserved for them.
Aggrieved by the order passed by the High Court on 01/04/2019, the State of Uttarkhand filed a review petition in which the High Court held that Article 16(4) of the Indian Constitution is an enabling provision and hence cannot be claimed as fundamental right. The court further held that the court had committed an error in holding that no quantifiable data to be collected while providing reservation in public posts. The court directed the State government to collect the data regarding the representation of Scheduled castes, scheduled tribes and backward class within a period of 4 months and further directed the state to decide whether to provide reservation or not only after considering the collected data.
Aggrieved by the above order, appeal has been filed before the Supreme Court and similar such appeals regarding the Uttarkhand Public services were also filed. The Supreme Court considered all the appeal arising out of the similar issue as a batch and passed its judgment on 7th February, 2020. The Supreme Court considered two main issues in its judgment. They are a) Whether the state is bound to provide for reservation in public post and b) Whether the state must collect the quantifiable data regarding the adequacy of representation of scheduled castes and scheduled tribes while providing reservation.
The court in its impugned judgment held that Article 16(4) of the Indian Constitution is an enabling provision and not a fundamental right. The court held that providing reservation is the discretion of the state and hence the state cannot be compelled to provide the same. The court further opined that the state shall provide for reservation, if the state is of the opinion that they are not adequately represented and the courts should refrain from interfering in the policy decisions of the state. With regard to the collection of data the court held that the state need not justify its decision not to provide for reservation stating that they are adequately represented by collecting the quantified data. However while providing reservation, collection of quantified data is a pre-requisite. The court also ruled that, the holding that the future vacancies to be filled only by the members of scheduled castes and scheduled tribes are unjustifiable. Aggrieved by the above order Bhim Army chief Chandrasekhar Azaad and Naqvi filed a review petition before the Supreme Court.
Key features:
1. The petition contends that the said order of the Supreme Court is against the settled principles of law held in Indra Sawhney v. Union of India
2. The petition further contends that it dilutes the constitutional principles stated in Article 16(4) of the Indian Constitution.
3. The petition remarked that the said order is detrimental to the interest of the weaker sections and would cause higher level of inequality.
4. The petition further remarked that the questions considered in the impugned judgement must have been referred to the constitutional bench.
Contending that the court has overlooked the provisions of Article 335, Article 46 and amendments made to the Article 15 and 16 of Indian Constitution, the Amberkarite and lawyer Chandrashekar Aazad and General Secretary of Shia organisation Anjuman-e-Haideri Bahadoor Abbas Naqvi sought review of the decision of Supreme Court.
Edited by J. Madonna Jephi
Approved & Published – Sakshi Raje
Reference:
1. Mukesh Kumar vs The State Of Uttarakhand, Supreme Court of India, order dated 7 February, 2020https://indiankanoon.org/doc/191551270/, (last visited on 12thfeb, 2020)
2. Bar and Bench, Bhim Army Chief Chandra Shekhar Aazad seeks review of Supreme Court’s decision on reservation in promotions, https://www.barandbench.com/news/litigation/bhim-army-chief-chandra-shekhar-azad-seeks-review-of-supreme-courts-decision-on-reservation-in-promotions, (last visited on 12thfeb, 2020)
