Reservation and Direct Appointments to “Andolankaris” of Uttarakhand Movement: Judges of HC Division Bench Deliver Split Verdict

Judges of a Division Bench of Uttarakhand High Court have delivered differing opinions on the vires of the two Government orders and Rules which provide direct appointment and reservations to “andolankaris” in Government service.The State of Uttarakhand was created by the Uttar Pradesh Reorganization Act, 2000. The new State had, after its formation, acknowledged the contribution of the “andolankaris” and granted certain benefits to them, such as free bus pass, easier entry in Vidhan Sabha, etc. In addition, the State, in 2004, provided them with direct appointments to class III and class IV posts, in government service, subject to their qualifications for the posts. These appointments were to be made without any selection process. The GO had defined an “andolankari” as one who was either “injured” or remained in jail for seven days or more, during the Uttarakhand movement.Another GO had provided 10% horizontal reservation to an “andolankari”, in all Government Service, i.e. from Class I to Class IV posts. Here, an “andolankari” had been defined as one who had remained in jail during the Uttarakhand movement for less than seven days.Subsequently, the State framed the Uttarakhand Rajya Andolan Ke Ghayal/Jail Gaye Andolankariyon Ki Sewayojan Niyamawali, 2010, providing for reservation in Government service to “andolankaris”.The question now posed before the Court was whether such appointments can be made on the sole criteria of being an “andolankari”, and whether reservation for “andolankaris” in public service is permissible under the law.Opinion of Justice Sudhanshu Dhulia Justice Dhulia ruled that the classification of “andolankaris” into a separate class for the purposes of reservation in public employment is violative of both Article 14 and 16 of the Constitution of India.He noted that even though women were at the forefront of the Uttarakhand movement, only very few of them have made their way to the list of marked andolankaris, which, he opined, proved that “the list which has been prepared for “andolankaris” is either arbitrary or is not based on reasonable criteria.”Justice Dhulia further observed that the classification of “andolankaris” is not based on any reasonable criteria as neither can they be treated at par with a freedom fighter, nor can they be held to be at par with the dependants of defence personnel. He opined that “andolankaris” cannot be called a “weaker section” of the society, as less than 7 days of imprisonment cannot place them in such a category.He thereafter ruled, “I find no justification for the grant of reservation to “andolankaris” in Government service. What political compulsions the Government of the day had in making such reservation is something that is outside our purview of enquiry, but I must record that this was totally an arbitrary exercise of power. The classification of “andolankaris” as a separate class for the purposes of reservation in Government service does not satisfy any objective or social criteria.”Opinion of Justice U.C. Dhyani While agreeing with Justice Dhulia on the issue of maintainability of the Petitions, and the State’s power to make reservations through executive orders, Justice Dhyani refused to set aside the benefit of horizontal reservation to “andolankaris”. He observed that the classification made by the State cannot be termed as unreasonable, as it groups together such “andolankaris” and distinguishes them from the others.“Special reservations are de hors the social reservations. It is for the legislature / executive to evolve appropriate methodology to give effect to the reservations and, ordinarily, the courts do not interfere unless the action is per se illegal or unconstitutional. Article 14 condemns discrimination, but permits classification founded on intelligible differentia having a rationale with the object sought to be achieved. The government is legitimately empowered to frame rules of classification for securing the requisite standard and the classification need not scientifically be perfect or logically complete,” he observed. Justice Dhyani further opined that it should be left to the State to decide whether such reservation should continue.Read the Judgments here

Reservation and Direct Appointments to “Andolankaris” of Uttarakhand Movement: Judges of HC Division Bench Deliver Split Verdict

Apoorva Mandhani

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