Retrospective Application Of 10% EWS Quota Is Against Articles 14 & 16 Of Constitution : Jharkhand High Court

The Jharkhand High Court on Thursday set aside a 2019 advertisement published by the Jharkhand Public Service Commission giving retrospective application to the 10% Economically Weaker Section (EWS) reservation by way of merging the earlier vacancies of the year 2013 and 2015 with those arising after the implementation of the said reservation in 2019. A single bench of Justice Sanjay Kumar Dwivedi held that "At the time of advertisement of 2013 and 2015, 10% reservation for EWS was not there and by way of clubbing the vacancies, 10% reservation for EWS has been provided in the vacancy of 2013 and 2015, which is against the mandate of the Constitution of India." The Court also directed the State of Jharkhand to modify the advertisement in the light of 103rd Constitutional Amendment Act, 2019 to ensure that the earlier vacancies could be filled within the constitutional mandate. "This Court declares that the retrospective application of 10% EWS quota is against Articles 14 and 16 of the Constitution of India", the bench held. BACKGROUND OF THE PETITION The petitioners approached the High Court for quashing an advertisement issued by the Jharkhand Public Service Commission (JPSC) in 2019 for the appointment on the post of Assistant Engineer (Civil) which provided for the retrospective applicability of 10% reservation to the EWS category. According to the said advertisement, merged vacancies for unreserved category were notified for conducting a single selection process for the earlier advertisements of the year 2013 and 2015 along with the vacancies notified for the year 2019. It was the case of the petitioners that the Government of India vide office memorandum dated 31.01.2019 published its decision for introducing 10% reservation for EWS category in civil posts and Government services. Therefore, in furtherance of this, the State of Jharkhand came out with a resolution dated 15.02.2019 providing for EWS reservation which was made effective from 15.01.2019. Amendments were also made to the State rules of 2001 by increasing the percentage of reservation ceiling to 60%. The petitioners being aggrieved of the said 2019 advertisement, claimed that as per the GOI notification, it can be clarified that the effect of its applicability will be post facto and not retrospective and therefore, the JPSC had superseded its earlier advertisements of 2013 and 2015 as there was no EWS reservation applicable at that point. Adv. Saurabh Shekhar appearing on behalf of the petitioners argued that as the petitioners did not belong to the EWS category, the advertisement violated their right on earlier vacancies which were later merged with the 10% EWS reservation by giving it a retrospective application. Furthermore, it was argued that as per the 103rd Constitutional Amendment Act, 2019, Art. 15 (6) and Art. 16 (5) were inserted to give effect to the official gazette dated 14th January 2019 providing for special provisions for any economically weaker sections of citizens. Therefore, the decision of the State Government for enhancing the reservation limit from 50% to 60% by giving retrospective applicability to 103rd Amendment Act, 2019 was against the Constitutional mandate. Therefore, the question of adjudication before the High Court was "Whether EWS reservation can be given effect retrospectively or not?" OBSERVATION OF THE BENCH The Court began by observing that the EWS reservation was brought into effect by the State Government from 15.01.2019 which was clearly stipulated from Clause 11 of the resolution dated 15.02.2019. Therefore, the 10% reservation to EWS was required to be made effective from 15.01.2019 by State of Jharkhand. To understand the uniqueness of the question of law involved, the bench relied on a plethora of judgments decided by the Constitution Benches of the Apex Court. Reliance was made on M. R. Balaji & Ors. v. The State of Mysore & Ors. (1976) wherein the Court rejected the argument that in the absence of a limitation contained in Article 15(4), no limitation can be prescribed by the Court on the extent of reservation. The bench also relied on the judgment of Indra Sawhney v. Union of India & Ors (1992) wherein the Court by its majority view, accepted the view of M.R. Balaji case and held that the extent of reservation shall not exceed to 50% of the appointment of post except in certain extraordinary situation taking together with reservation in favor of Scheduled Caste and Scheduled Tribe category candidates. While analyzing the judgments on the subject, observed the question of law involved in the matter and opined that: "Thus, that reservation cannot be allowed to be made effective with retrospective effect, which is against the mandate of the Constitution of India. The Constitution of India is fountain of all the Statutes. At the time of advertisement of 2013 and 2015, 10% reservation for EWS was not there and by way of clubbing the vacancies, 10% reservation for EWS has been...

Retrospective Application Of 10% EWS Quota Is Against Articles 14 & 16 Of Constitution : Jharkhand High Court

Nupur Thapliyal

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