CHENNAI: THE Centre’s move to reserve medical seats in open category for candidates from upper castes is unconstitutional and will not stand legal scrutiny, say experts.
Retired high court judges and veteran legal practitioners said courts have, in the past, categorically stated that general quota seats cannot be reserved, and by doing this, the Centre was violating its reservation policy.
Even during early independence, protests had erupted in Tamil Nadu against Madras HC’s order in 1950 quashing communal reservation in medical admissions in the Shenbagam Durairajan case. After this, Clause 4, allowing States to make special provisions for the advancement of socially and educationally backward classes, was inserted in Article 15 of the Constitution.
At present, admission into professional courses in the State is based on the Tamil Nadu Regulation of Admissions in Professional Educational Institutions Act, 2006. “This act doesn’t permit reservation of seats in open category, and the Centre can’t have reservations beyond that. Also, the move is certainly a violation of Clause 4,” said former additional solicitor general P Wilson.
By not allotting seats under Other Caste on merit-basis, irrespective of community, the Centre is setting apart a portion for them and asking them to fight among themselves, he alleged.
Wilson recalled the Tamil Nadu government’s decision to allot five per cent seats to Christian students in higher education in 2006. Prior to this, they secured seven to eight per cent seats on an average in the open category. However, after introducing separate quota, many meritorious Christian candidates lost opportunity, and the State dropped it after stiff-opposition from Christian associations.
Retired Madras HC judge Justice D Hariparanthaman referred to four important SC judgements on reserving seats for ‘unreserved’ — Mandal Commission case (1992), Bimlesh Tanwar case (2003), Bihari Lal Rada case (2009) and Jitendra Kumar Singh case (2010). “From these, it’s clear that reserved persons are also entitled to come under general category, and meritorious candidates belonging to reserved community should be treated as OC candidates for general quota seats, not as reserved candidates.”
Former Madras HC judge AK Rajan said that 50.5 per cent seats in OC is meant to be a ‘non-reserved’ category, charging the Centre of segregating SC, ST, OBC and other communities.
There were a few instances where High Courts have pointed out violations in the rota-quota rule (roaster system based quota), but in many cases, deliberate attempts to fit reserved candidates (eligible under OC) only in their quota seats have gone unnoticed, alleged others.
SC Case study
Mandal Commission case (1992)
Centre not permitted to reserve seats in unreserved category, even from economically backward communities, as the Constitution clearly states that reservation can be made only under social and educational backward conditions. “It may well happen that some members belonging to say, scheduled castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserves for Scheduled Castes; they will be treated as open competition candidates,” read para 811 in the judgement.
Jitendra Kumar Singh case (2010)
“…if a reserved category student gets selected on the basis of merit, he can't be treated as a reserved candidate... the ratio of the aforesaid judgement indeed permits indeed reserved candidates to be included in general category candidate on the basis of merit.”