Civil servant offers arguments for govt’s counter-affidavit, defending their ordinance on 13 point roster

Written by SabrangIndia | Published on: March 12, 2019

A Former Secretary to Government of India, Ministry of Welfare and retired IAS officer P.S Krishnan, expressed serious concerns on the non-seriousness of the HRD and UGC in the efforts to make the system more egalitarian.

Following countrywide protests and a Bharat Bandh called for by Bahujan communities on March 5, the much-criticised 13-point roster system for Indian universities was overturned and the original 200-point roster system was restored. The Central Educational Institutions (Reservation in Teachers’ Cadre) Ordinance, 2019 not only paves the way to overturn an Allahabad High Court order that made it mandatory to calculate quota in faculty positions by treating each department as a unit, but also corrects a decade-old anomaly in reservation of teaching jobs for Other Backward Classes (OBCs).
The 27 per cent OBC reservation for teachers in higher education now also applies to posts at the level of associate professor and professor in case of “direct recruitment”. Earlier OBC quota was only applicable at the entry-level — assistant professor.
The ordinance’s larger purpose, however, is to facilitate reservation for SC, ST and OBC candidates based on the 200-point roster, or, in other words, the total posts in a university or college.
Within hours of the ordinance being promulgated, University Grants Commission (UGC) ordered all central, state and deemed universities to immediately resume teachers’ recruitment. It had been on hold since July 2018 after a directive was issued by the higher education regulator. There are 17,106 teaching positions at 41 central universities, of which 5,997 were vacant as of April 1, 2017.
The 13 Point point roster drew a lot of protests from SCs, STs and OBCs questioning the entrenched Brahmanical exclusion in our structures.
A Former Secretary to Government of India, Ministry of Welfare and retired IAS officer P.S Krishnan, expressed serious concerns on the non-seriousness of the HRD and UGC in the efforts to make the system more egalitarian. He stressed on the need to effectively defend the Central Educational Institutions (Reservation in Teachers’ Cadre) Ordinance, 2019, against the PIL filed on March 8 in the Supreme Court and offered some suggestions for the government’s counter-affidavit and arguments.
He wrote to Union Minister Prakash Javadekar and said that “It is good that the 200-point roster has been restored. But the existing 200-point roster itself is a dilution of the roster that was introduced in 1993. The 200-roster of 1997 reduced the position of SCs and STs by a misinterpretation of the Supreme Court’s Sabharwal judgment in 2005.”
He also demanded they take prompt action to effectively defend the Ordinance against the PIL filed in the Supreme Court by two persons named Prathvi Raj Chavan and Priya Sharma on March 8, 2019. He said it was also necessary to preclude any stay order by taking anticipatory measures like filing a caveat.
“I enclose herewith some of the points which need to be covered in the Government’s counter-affidavit and in arguments on behalf of the Government in the Supreme Court. It has to be ensured that the AG and other Counsels appearing on behalf of the Government are fully briefed and instructed to raise these points in their arguments, and in addition to oral arguments, to submit to the court written arguments fully covering these points. This will help everybody to see how seriously and sincerely the Government takes the first step in effectively defending the Ordinance against the PIL,” he wrote.
He pointed out that the allegation in the PIL that the Central Government passed the Ordinance only because of the pressure by alliance partners and was worried by the prospects of antagonizing “vote bank” ahead of elections, was not correct.
“The Government went through all available judicial remedies such as filing SLP/WP in the Supreme Court and the Review Petition.  When both these failed to yield the results required by the Constitutional mandate, the Government had no alternative but to take the legislative route and, since there was no session of the Parliament till the Lok Sabha elections, issue of the Ordinance became inevitable.  As pointed out above, the Ordinance has full justification independently of pressure and electoral consideration,” he wrote as a suggestion for the govt’s counter-affidavit.
“The presence of SCs and STs is disproportionately very low in all fields. As one goes up the ladder, their poor presence becomes increasingly worse. Thus, in the education sector, their presence is the worst in the higher education sector. In the higher education sector, as one proceeds upwards from the level of Lecturer/Assistant Professor to Reader/Associate Professor to Professor, their meagre presence gets further reduced,” he wrote.
In his suggestions, he wrote that “by reverting to the pre-1997 and pre-2006 procedure of each Department being taken as a unit, a large number of posts will go out of the purview of reservation, thus reducing the quantum of reserved posts available to the SCs, STs and SEdBCs. The problem will be more acute at the level of Professor and, next to that, at the level of Associate Professor/Reader. This virtually amounts to telling the SCs, STs and SEdBCs that their aspiration should be limited to being Assistant Professors/Lecturers and they should not cast their eyes on higher posts, especially the post of Professors. In some instances, it also amounts to blocking their appointment as Assistant Professors/Lecturers. This is contrary to the national policy and flouts the Constitutional mandate of Equality which means that SCs, STs and SEdBCs should be enabled and facilitated to reach the level of Socially Advanced Castes (SACs), i.e., the non-SC, non-ST, non-SEdBC castes (NSCTBCs) in every parameter of development, welfare and life at every level.”
“Equality of Status refers to Social Equality, which, in the Indian context, includes elimination of birth-based inter-generational, multi-dimensional, inequalities to which SCs, STs and SEdBCs have been subjected over the centuries till today, with ramifications extending to all aspects of life, including access to education,” he said before adding his suggestions.

What is the 13- and 200-point roster?
As per the formula for determining reserved posts, it is only after 13.33 positions (14 in the round figure) are filled that every reserved category gets at least one post. The expression “13-point roster” reflects the fact that 13.33 (or 14) vacancies are required to complete one cycle of reservations.
Based on this, every 4th, 7th, 8th, 12th, and 14th vacancies are reserved for OBCs, SCs, OBCs, OBCs, STs respectively in the 13-point roster. Which means (i) there is no reservation for the first three positions and, (ii) even in the full cycle of 14 positions, only five posts — or 35.7% — go to the reserved categories, which is well short of the constitutionally mandated ceiling of 49.5% (27% + 15% + 7.5%), Anish Gupta, who teaches Economics at Delhi University explained in The India Express.
The new 10% quota for the economically weaker sections (EWS) has widened this gap further. This is because every 10th post (100/10 = 10) is now reserved for EWS — which means six reserved seats in every cycle of 14, or 42.8% reservation when the ceiling is 59.5% (49.5% + 10%), the report said.
In order to provide the constitutionally mandated 49.5% reservation, the University Grants Commission (UGC) started to treat the university/college as a ‘unit’ (rather than individual departments), and adopted what is called the ‘200-point roster’, which was already being used by the Department of Personnel and Training for appointments in all central government services.
It is called ‘200-point’ since all reserved categories can get their constitutionally mandated quantum of reservation once 200 seats are filled. And since no single department in an institution can have 200 seats, it made sense to treat the whole institution/university (rather than the department) as the ‘unit’ to calculate the quota.
The proportion of reservation in the 13-point roster, irrespective of the number of posts filled, falls far short of the constitutionally mandated quota, in effect violating the Constitution itself, the report said.
A glimpse of the future effect of the 13-point roster is visible in the advertisements for faculty positions after the UGC’s March 5, 2018 notification. The Central University of Haryana advertised 80 seats, but none for SCs, STs, and OBCs. IGNTU (Amarkantak) advertised one reserved post out of 52, and the Central University of Tamil Nadu advertised 2 reserved posts out of 65.
According to the report, the best solution, without affecting the interests of unreserved categories, would be to make the roster (either 13-point or 200-point) for reserved positions by taking all reserved categories together (49.5%). In this way, every second post (100/49.5 = ~ 2) will be reserved, which can then be distributed among all reserved categories as per their respective quotas (OBC 27%, SC 15%, ST 7.5%).
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