Cancel the Illegal, Anti-constitutional Adequacy G.O. No. 2 of 2004

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Date: 13/03/2024

Place: Hyderabad

To,

1. The Chief Secretary, Government of Telangana, D.R. B R Ambedkar Telangana Secretariat, Hyderabad – 500063, Email – cs@telangana.gov.in

Twitter: @TelanganaCS

2. Principal Secretary, Government of Telangana, School Education Department, R. B R Ambedkar Telangana Secretariat

Hyderabad – 500063, Email: splcs-edu@telangana.gov.in

prlsecyedu@telangana.gov.in

3. The Commissioner and Director of School Education, Govt of Telangana Saifabad, Khairtabad, Hyderabad, P.I.N. – 500022, Email: dir-dsets@telangana.gov.incdse@gmail.com, Twitter: @TSEduDept

 

Copy to:

1. Hon’ble The President of India, Rashtrapati Bhavan, New Delhi-110004.

Email: us-rticr@rb.nic.inTwitter: @rashtrapatibhvn

2. Hon’ble Governor of Telangana, Raj Bhavan, Telangana, Hyderabad-500041. Email – rajbhavan-hyd@gov.in, Twitter: @TelanganaGuv
3. Hon’ble Union Minister of Social Justice and Empowerment, 201 C-wing, Shastri Bhawan, New Delhi, Email: min-sje@nic.inTwitter: @Drvirendrakum13
4. Hon’ble Chief Minister of Telangana, D.R. B R Ambedkar Telangana Secretariat Hyderabad – 500063, Email –cmo@telangana.gov.in

secy-cmo@telangana.gov.inpeshi-secy-cm@telangana.gov.in

Twitter: @TelanganaCMO

5. Hon’ble Chairman, National Commission for Scheduled Castes, 5th Floor, Lok Nayak Bhawan, Khan Market, New Delhi-110003, chairman-ncsc@nic.in , pardhi@ncsc.gov.in, Twitter: @NCSC_GoI
6. The Director National Commission for Scheduled Castes, Room No. 906, 9th Floor, CGO Towers, Kavadiguda, Hyderabad-500 080, Email – ncscst@ap.nic.in

Subject: Request to cancel the illegal, anti-constitutional Adequacy G.O. No. 2 of 2004, which has caused injustice to the Scheduled Caste and Scheduled Tribe Employees for the last 20 years, denying their promotions and amounts to Gettoisation of SC ST Employees.

Respected Sir/ Madam,

1. Articles 16 (4A) and 16 (4B) of the Constitution of India provide for reservations in promotions to the Scheduled Castes and Scheduled Tribes. It Reads below:

“16 (4A): Nothing in this article shall prevent the State from making any provision for reservation [in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State”.

“16(4B): Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. Reservation on the total number of vacancies of that year”.

2. The United States of Andhra Pradesh has issued the G.O. MS No. 2 dated 9/01/2004, and the same is being implemented in the State of Telangana as of today through which the reservations in promotions for Scheduled Castes and Scheduled Tribes are being governed.
3. The said O. MS No. 2 dated 9/01/2004is contrary to the spirit of the Constitution and against the Judgement of the Supreme Court of India.
4. Clause 4 (a) of the G.O. MS No. 2 dated 9/01/2004 reads below:

“Computation of adequacy of representation: For the purpose of computing adequacy of representation of Scheduled Castes (15%) and Scheduled Tribes (6%) in various categories, the following procedure shall be followed. (a) The persons belonging to Scheduled Castes and Scheduled Tribes who have been promoted on the basis of seniority cum merit, i.e., without applying the rule of the reservation should also be counted for judging the adequacy or otherwise of Scheduled Caste / Scheduled Tribe representation. This G.O.MS No. 2 clause 4(a) is against the constitutional spirit. It limits the S.C. and S.T. Community employees confined to the community Reservations and prevents them from opting for the general category opportunities, although they have merit and seniority.

5. The provision mentioned above is anti-constitutional and is contrary to the judgments of the Supreme Court of India in Indra Sawhney, Etc. Etc. Vs Union of India and Others, etc., on 16 November 1992, which reads below:

“In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. 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 reserved for Scheduled Castes; they will be treated as an open competition.”

6. The Adequacy provision Clause 4 (a) of the G.O. MS No. 2 dated 9/01/2004 is also contrary to the Judgement of the Supreme Court of India in K. Sabharwal And Ors vs State Of Punjab And Ors,which reads below:

“When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserve posts. On the other hand, the reserve category candidates can compete for the non-reserve posts, and in the event of their appointment to the said posts, their number cannot be added and taken into consideration for working out the percentage of reservations. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any backward class of citizen which, in the opinion of the State, is not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the backward class/classes for which the reservation is made are not adequately represented in the State Services. While doing so, the State Government may take the total population of a particular backward class and its representation in the State Services. When the State Government, after doing the necessary exercise, makes the reservation and provides the extent of the percentage of posts to be reserved for the said backward class, then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the backward class have already been appointed/promoted against the general seats. As mentioned above, the roster point which is reserved for a backward class, has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the backward class. The fact that a considerable number of members of a backward class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class, but so long as the instructions/ Rules providing a certain percentage of reservations for the backward classes are operative, the same have to be followed. Despite any number of appointments/promotees belonging to the backward classes against the general category posts, the given percentage has to be provided in addition”.

7. Clause 4 (a) of the G.O. MS No. 2 dated 9/01/2004 also against the judgment of the Supreme Court of India in Nagaraj& Others vs Union Of India & Others on 19 October 2006, which reads below:

“Reservations under Article 16(4) do not operate on communal grounds. Therefore, if a member from the reserved category gets selected in the general category, his selection will not be counted against the quota limit provided to his class. Similarly, in R.K. Sabharwal8, the Supreme Court held that while general category candidates are not entitled to fill the reserved posts, reserved category candidates are entitled to compete for the general category posts. The fact thata considerable number of members of the backward class have been appointed/promoted against general seats in the State services, which may be a relevant factor for the State Government to review the question of continuing reservation for the said class.”

8. The Adequacy Clause 4 (a) of the G.O. MS No. 2 dated 9/01/2004 is also against the judgment of the Supreme Court of India in Jarnail Singh vs Lachhmi Narain Gupta. On 28 January 2022, which reads below:

“Two points came up for consideration before this Court in the said judgment, the first being that in case more than 14 per cent of the Scheduled Caste candidates are appointed/promoted in a cadre on their own merit/seniority, then the purpose of reservation having been achieved in the said cadre, the Government instructions providing reservations would become inoperative. The second point on which arguments were heard is that the roster cannot operate once the posts earmarked for the S.C.s, STs and Backward Classes are filled. Any post falling vacant in a cadre, thereafter, is to be filled from the category – reserved or general – due to retirement, etc., of whose member the post fell vacant. The first point raised by general category candidates was rejected by this Court by holding that reserved category candidates can compete for non-reserved posts, and in the event of their appointment to the said posts, their number cannot be added and taken into consideration for working out the percentage of reservation.

The adequacy provisionClause, 4 (a) of the G.O. MS No. 2 dated 9/01/2004, is contrary to the judgments of the Supreme Court of India and is anti-constitutional. It amounts to the ghettoisation of Scheduled Caste and Scheduled Tribe Employees and denying their promotions from the last 20 years by counting the open category candidates from S.C. S.Ts into reserved category.

Therefore it is prayed that the concerned authorities, the Chief Secretary of Telangana, cancel the illegal, anti-constitutional provision of AdvquacyClause 4 (a) of the G.O. MS No. 2 dated 9/01/2004 and reissue the G.O. in line with the Judgements mentioned above of Hon’ble Supreme court of India by not counting the S.C. and S.T. employees who promoted on the grounds of merit cum seniority against the reservation and count them into the general category and provide the reservations in addition to the SC ST candidates who obtained promotion in General category in the interest of Justice and Render Justice.

Regards,

Dr. B Karthik Navayan,

Human Rights Activist and Lawyer

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