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Wednesday, July 18, 2018

A judgment borrowed from an observation

It is about reservation of faculty posts in AIIMS,and what the Supreme Court has ruled about it

Written by Utkarsh Anand | Published: August 7, 2013 12:12:10 am

What is the AIIMS reservation controversy about?

It is about reservation of faculty posts in AIIMS,and what the Supreme Court has ruled about it. The Faculty Association of AIIMS wants faculty posts out of the purview of reservation.

How did it reach the Supreme Court?

In 1994,the faculty association filed a writ petition in the Delhi High Court. The court dismissed the petition in November 2001,saying there was no reason not to “apply the reservation rule for making regular appointments to the post of assistant professor”. Against this verdict,the association moved the Supreme Court in 2002.

Did the litigation affect appointments?

Ad-hoc appointments continued at AIIMS. In the court,a two-judge bench issued notices to the Centre and AIIMS in January 2002 and put a rider that “any appointment to be made hereafter in accordance with the reservation policy will be only tentative in nature until further orders”.

Who heard the matter?

The two-judge bench favoured a larger one. In February 2004,a three-judge bench expressed the view that the matter involved substantial questions of law and interpretation of the Constitution,which should be heard by a bench of five judges. A five-judge constitution bench headed by former CJI Altamas Kabir heard the matter starting July 2,2013.

What was the judgment?

On July 18,the bench ruled against reservation in appointment of faculty in specialty and super-specialty courses in engineering and medical colleges,including AIIMS. It emphasised that “the very concept of reservation implies mediocrity”.

How was the ruling arrived at?

The bench,in its unanimous opinion,borrowed from the ruling of a 1992 nine-judge constitutional bench in the Indra Sawhney case,popularly known as the Mandal case,and said there had to be certain cases where merit alone would count. In the Mandal case,Justice Jeevan Reddy,who wrote on behalf of four judges,had observed that merit should be the only criterion in certain positions such as “technical posts in research and development organisations/departments/ institutions,in specialties and super-specialties in medicine,engineering and other such courses in physical sciences and mathematics,in defence services and in establishments connected therewith”.

What is the opposition to it?

The Centre and AIIMS contend that the 1992 observations cannot lay down a law. What Justice Reddy said was an “observation not forming part of the judgment”,known as obiter dicta.

What happens after such an observation?

The constitution bench had endorsed the view Justice Reddy expressed,saying it would not opine otherwise. Legal experts say this endorsement by a constitution bench implies the proposition against reservation becomes a legal principle binding on courts of lower,coordinate and later jurisdiction (called ratio decidendi) through the doctrine of stare decisis,or obligation to respect precedents.

What is next for AIIMS?

The Supreme Court,which had in 2002 said all appointments made would only be tentative,has now asked the Centre and AIIMS to take steps in accordance with its final verdict. This would mean that all appointments made after 2002 following the reservation policy would have to be annulled. However,with no clear-cut directions to repudiate these appointments,the health ministry and AIIMS are seeking further legal opinion.

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