New Delhi, Jan. 16: A five-judge Constitution bench of the Supreme Court today told the government it should be “bold” enough to decide on reservations in super-speciality posts, virtually daring it to amend the statute if it was so concerned about the socially disadvantaged.
The bench refused to entertain the Centre’s plea for a review of an earlier judgment by another five-judge bench that had ruled there could be no compulsory reservation in higher faculty posts.
“For anything and everything, you want the court to say. Be bold to say in super-speciality posts we do not want to give reservations,” Justice H.L. Dattu told additional solicitor-general L. Nageswara Rao.
The observation means the onus is now back on the government, which has to decide on the tricky matter without the cushion of a court order, whichever way that might have gone.
The Centre’s review petition had challenged last year’s order that had said it was not “advisable” to reserve certain posts in elite institutions as that could compromise with “merit”.
The July 18 order, by a five-judge bench headed by then Chief Justice Altamas Kabir, came on a petition filed by the AIIMS faculty association that had challenged the Centre’s bid to reserve seats for Scheduled Castes, Scheduled Tribes and OBCs in 2002.
Today, the bench headed by Justice Dattu said it was true that in the 1992 Indra Sawhney case, a nine-judge Constitution bench had ruled that it was not advisable for the government to reserve super-speciality posts.
The nine-judge bench had asked the Centre to keep in mind Article 335, which says the government has to “maintain efficiency” of administration by giving priority to merit.
The article says the “claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a state”.
The nine-judge bench had cited examples, such as “technical posts in research and development”, “specialities and super-specialities in medicine (and) engineering” and in “defence services” where it said it “may not be advisable to provide for reservations”.
The bench headed by Dattu pointed out that the 1992 judgment was a “passing observation”.
“Yes, yes, it was only a passing observation. Yes, it was an advice and you are requested to follow the advice.
“Even now the ball is in your court. Whether there should be reservation or not is in your court. It (the judgment) was an advice,” Justice Dattu told Nageswara Rao.
Rao said that since the judgment was in the form of an advisory, the court should clarify that it was not binding on the government.
“We have not added a word (to the judgment). It has not been set aside…” the bench, which also included Justices S.S. Nijjar, Ranjan Gogoi, M.Y. Eqbal and Vikramjit Sen, said.
“In super-speciality posts, is reservation impermissible or not, the government may take a view. We are not adding anything to the judgment.
“At the most, we can add a sentence. It is for the central government to amend or not the constitutional provisions (to provide reservation),” the bench told Rao, who continued to plead for a fresh order that reservation was valid even for higher faculty posts.
The bench refused to entertain the plea. “We clarify it is for the central government to take a decision as to whether or not there should be reservation in the super-speciality courses,” the bench said. “With this observation we dispose of the review petition.”