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Citation: (2019) 5 CTC 737
Date: 21/05/2019
Court: High Court of Uttarakhand
Introduction:
Article 16 of the Indian Constitution guarantees equality of opportunity for employment in offices of the state. This right is an addition to the underlying principle in Article 14 as it aims at establishing equality within a particular class. Article 16(4) vests the state with the power to make reservations in favour of Scheduled Castes, Scheduled Tribes & Other Backward Classes. Nonetheless, the Article by itself makes no specific mention as to the power to create additional reservations for other general classes under clause 1.
The State of Uttarakhand (for short State) issued an Order on the 6th of October, 2006 that expressed the Governor’s willingness to sanction 4% reservations in public offices for sports personnel with laurels to their name.
On the 27th of February, 2009, the State issued another notification clarifying that the said 4% horizontal notification could be availed only by those who were permanently domiciled within the state. In 2012, a writ petition was filed by 3 sportsmen, not domiciled in Uttarakhand, contesting that they had been considered eligible for employment even before the passing of the 2009 notification. The single-judge bench ruled in their favour whereas the State filed an appeal against the said order.
In the appeal, a Division Bench of this High Court declared that the scope for reservation under Article 16 was exhaustive and no additional reservations could be provided if they did not fall within the exceptions under Article 16 (4), 16(4A) & 16 (4B). The division bench order dated 14/08/2013 (for short, Order of 2013) held that reservation for sports category could not be availed by the petitioners as no right flowed from Article 16(1) and was thus non-est.
On 07/07/2015, another bench of the Uttarakhand High Court acknowledged that the State had withdrawn its 2006 notification as it had been struck down by the Order of 2013. Nonetheless, the Court unsubscribed from the view in the Order of 2013 as it held the power to make reservations could be traced from Article 16(1). Thereafter, it directed that the matter be referred to a full bench for hearing.
The present case was in addition to the 2015 proceedings and had been clubbed with another writ petition that involved similar issues to consider the following issues.
Issues:
Arguments advanced:
The counsel for the petitioners submitted that the 2013 judgement had erred in its opinion of Article 16 as the same was not exhaustive. Articles 16(4-4B) were contested to be merely in favour of Scheduled Castes, Scheduled Tribes & Other Backward Classes whereas Article 16(1) conferred generic power.
The respondents admitted that Article 16 provided for the creation of reservations but the same was a discretionary power and the State had no obligation to fulfil the same. Moreover, the 2006 Notification had been struck down by the 2013 Order and no claim could have been made on that ground.
Judgement:
It is pertinent to note that the present petition was not in the continuation of the proceedings in 2013 and had been expressly disassociated from the same. The notification was also “law” according to Article 13(3)(a) that had been formulated by a State. Reference was made to a plethora of Supreme Court decisions as the Court arrived at its conclusion in an issue-wise manner.
The learned judges emphasized upon Article 14 as it laid the foundation for protecting individuals from discrimination. However, Article 14 permitted classification as long as there was a rational nexus between the classification and the purpose of a particular Statute. [1]
Article 16 was held to be incidental to the application of Article 14 as it gave effect to equality in matters of employment while permitting reasonable classification of employees for that purpose. Equality of opportunity under article 16 would thus only be available to individuals within a particular class and not in an overarching symmetrical manner.
The two major precedents that were applied to understand the inter-relation between Articles 14 and 16 were that of State of Kerala v. N.M. Thomas, (1976) 2 SCC 310 & Indira Sawhney v. Union of India, 1992 Supp (3) SCC 217. These decisions upheld that Article 16(1) permitted reservation of posts for particular classed and the power to do the same rested with the state.
Articles 16(4) & 16(4A)’s significance was traced from the 9 judge bench’s view in Indira Sawhney that viewed them neither to be fundamental rights nor constitutional duties rather merely enabling provisions. Article 16(4) was exhaustive for reservations for backward classes. However, the power to make reservations, in general, would fall under the gamut of Article 16(1).
States were vested with the power to make reservations under Article 16 as long as they satisfied the twin tests under Articles 14 & 16. The Division Bench reiterated that any reservation in the favour of one class had to be justified by the State. On these lines, the learned judges of the Uttarakhand High Court declared the Order of 2013 to be incuriam as it failed to incorporate the decisions in N.M. Thomas & Indira Sawhney. The Order of 2013 ran contrary to well-established principles and thus stood overruled.
The next question that arose was whether the quashing of a decision that in turn struck down the 2006 notification would result in the comeback of that notification. This was answered on the principle of principles and their binding value. The only binding facet in a decision is its underlying principle that will possess precedential value. [2]
The Court strongly held the validity of such a principle could only be overturned through an appeal or review petition of that same case. The validity of a decision even if erroneous could not be questioned in subsequent proceedings as the principle is said to have attained its finality upon closing the case. Such a decision becomes binding between the two parties and they are not entitled to raise it again before the same court or another forum. [3] The learned judges relied on the case of State of Haryana v. State of Punjab, 2004(12) SCC 673 to hold that issues concluded between parties could not be raised again in proceedings inter-parties.
The Order of 2013 had attained finality as no appeal or review was sough against the same and thus, the 2006 notification stood unenforceable. The only recourse available would be if the State issued a fresh notification or policy, as its revival was unattainable.
It was observed that the writ of mandamus could be issued for reservations only if the person was denied equality within his class by the state. The nature of the writ is such that it comes into effect only if the State or legislative action violates Articles 14 & 16.
Granting of reservation was categorized to be a power solely with the Executive and the Legislature. A petitioner through a writ of mandamus could not seek the imposition of the reservation before a court if there was no policy or notification in place. A power vested with a certain body would remain under the control of that body alone, in this case, it would be an exercise of either legislative/executive power.
Courts were thus held not to have the power to issue a mandamus directing the creation of a law. The power vested with the courts was that of striking down laws in case of lack of conformity. By virtue of Article 226, the High Court would not possess the power to direct an executive to create or form legislation. [4]
The Division Bench thus answered the 3rd issue in the negative as it could not direct the State of Uttarakhand to bring about a policy for reservation. The Order of 2013 had attained finality and the petitioners thus had no recourse or relief as the petition stood dismissed.
Conclusion:
The learned Judges of the High Court reiterated the inter-relationship between Articles 14 and 16 while emphasizing that the power to make reservations under Article 16(1) was not exhaustive. A state can indeed make a reservation for the sports quota as long as it can justify the same through the twin tests under Article 14 and 16 while additionally satisfying the need for the same.
The law of precedents is such that it is the ratio that holds the most value. A decision passed by a court achieves finality if no review or appeal has been preferred against the same. By striking down a particular judgement in subsequent proceedings, courts quash merely the principle and not the order passed in that verdict.
Nonetheless, no citizen can seek the creation of new legislation under the writ of mandamus as courts lack authority to direct the same. Any individual who seeks for reservation for a particular class has to address the same before the Government and not the court.
[1] Budhan Chaudhary v. State of Bihar, AIR 1995 SC 191.
[2] Girnar Traders v. State of Maharashtra, (2007) 7 SCC 555.
[3] Supreme Court Employees Welfare Association v. Union of India, AIR 1990 SC 334.
[4] Indian Soaps & Toiletries Makers Association v. Ozair Husain & Ors., (2013) 3 SCC 641.
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