The Supreme Court Tuesday dismissed a Special Leave Petition filed by the Union Ministry of Human Resource Development against a 2017 order of Allahabad High Court ordering a change in the formula for implementing reservation in teaching jobs in universities. How is the new formula different from the one followed earlier, and what are the implications of the switch?
What did the Allahabad High Court rule?
The matter of Vivekanand Tiwari & Anr v Union of India and Ors (April 7, 2017) dealt with the recruitment of teachers in Banaras Hindu University (BHU), a central educational institution. The petitioners sought cancellation of the recruitment drive and a fresh beginning, treating each department as a unit for calculating the number of faculty posts reserved for SCs, STs and OBCs.
At that time, as mandated by the University Grants Commission (UGC), the number of SC, ST, and OBC faculty positions were calculated by treating the university as a “unit”. All posts of the same grade (such as assistant professor) across departments in a university were grouped together to calculate the quota.
The Division Bench of Justices Vikram Nath and Daya Shankar Tripathi upheld the plea and criticised the UGC for applying reservation in teaching jobs in a “blanket manner”. “If the University is taken as a ‘Unit’ for every level of teaching and applying the roster, it could result in some departments/subjects having all reserved candidates and some having only unreserved candidates. (This) would be discriminatory and unreasonable (and)… violative of Article 14 and 16,” the court said.
“…Merely because Assistant Professor, Reader, Associate Professor and Professor of each subject or the department are placed in the same pay-scale but their services are neither transferable nor they are in competition with each other. It is for this reason also that clubbing of the posts for the same level treating the University as a ‘Unit’ would be completely unworkable and impractical,” it added.
The HC quashed Clauses 6(c) and 8(a)(v) of the guidelines framed by the UGC in 2006, and the letter of the UGC dated February 19, 2008. Clause 6(c) forbade “the practice of creating department-wise cadres, which tends to create single posts or cadres with artificially reduced number of posts in order to avoid reservation”. Clause 8(a)(v) called for implementation of the roster system as per the directions of the Supreme Court in R K Sabharwal and Ors vs State of Punjab and Ors (February 10, 1995), in which a five-judge Constitution Bench had ruled that reservation rosters in government services should be with reference to posts, and not vacancies. The roster, it said, would be implemented in the form of a running account from year to year.
How did UGC change its formula?
The Allahabad HC decision was upheld by a Supreme Court Vacation Bench of Justices R K Agrawal and Sanjay Kishan Kaul in June 2017. The UGC was left with no choice. Its Standing Committee examined 10 court judgments on the subject and recommended to the HRD Ministry that the High Court’s verdict should be applied to all universities. The Ministry, after consulting the Law Ministry and the Department of Personnel and Training, communicated its go-ahead in March 2018. On March 5, 2018, UGC notified amendments to its 2006 guidelines.
Section 6(c) now reads: “In case of reservation for SC/ST, all the Universities, deemed to be Universities, Colleges and other Grant-in-Aid institutions and centres shall prepare the roster system keeping the department/ subject as a unit for all levels of teachers as applicable.” Section 8(a)(v) reads: “The roster, department wise, shall be applied to the total number of posts in each of the categories [e.g., Professor, Associate Professor, Assistant Professor] within the department/subject.”
Following widespread controversy over the UGC’s order, however, the HRD Ministry moved an SLP before the Supreme Court in April last year. This challenge to the Allahabad HC order was dismissed on January 22.
How can the new formula impact jobs for SCs, STs, OBCs?
Reservation based on department or subject as ‘unit’ means the number of reserved posts at the level of, say, assistant professor, will be determined separately for each department — based on the total assistant professor posts in each department. So, a department with only one professor cannot have reserved posts. This will drastically reduce the number of SC, ST, and OBC teachers in higher education. Under the old formula, posts of professors across different departments were clubbed together, and there was a better chance of positions being set aside for SCs, STs, and OBCs.
Also, under the new formula, departments with two or more faculty posts, but fewer than 15 in a cadre, will have only one reserved for an SC candidate at serial number 7, and for an ST candidate at serial number 14. So, if a department has only six associate professor-level posts, none will be reserved for SC and ST candidates. Reservation will only be implemented by rotation, which experts say could take years.
The current representation of SCs, STs, and OBCs among teachers in higher education is abysmal. According to a government report in 2016, only seven of every 100 teachers in colleges and universities were from the disadvantaged sections. For example, only 1.02 lakh (or 7.22%) of the 14.1 lakh teachers in 716 universities and 38,056 colleges across the country were Dalits. The tribal faculty was just 30,000, or 2.12%. Under the new formula, experts say, the representation will only worsen.
How has it worked on the ground?
A projection presented by BHU to the HRD Ministry last year showed that if the university were to use the new formula, posts reserved for SCs would be reduced by half, those for STs by almost 80%, and those for OBC teachers by 30%. (See charts). The government used this projection in the SLP, and argued that the Allahabad HC judgment “drastically reduces, and, in many departments completely wipes out, the representation of members of SC/ST community”.
According to data compiled by the Ministry of Social Justice and Empowerment on teaching posts generated across several universities since the UGC order of March 2018, of the 706 vacancies advertised by 11 central universities, only 2.5% posts were for SCs, and none for STs.