Chennai: In a major setback to the Tamil Nadu government, the Madras high court has declared as ultra vires and unconst ice) Act, 2016, which fixed seniority through roster point (reservation) in the state government services.
A division bench comprising Justices M.M.Sundresh and RMT. Teekaa Raman declared sections 1 (2), 40 and 70 of the Tamil Nadu Government Servants (Conditions of Service) Act as ultra vires and unconstitutional. The bench passed the order on a batch of petitions and appeal from the aggrieved government servants. The bench said a roster point system qua seniority deprecated by the court brought back with anterior date, tracing the power in Article 16 (4) of the Constitution of India and thus, removing the basis was under challenge before it.
The Roster Point System in Tamil Nadu has its own distinctiveness involving its unique characteristics. The 200 point roster was being followed at present leading to mandatory 69 percent vertical reservation on communal basis. Reservation includes Horizontal and Internal while adopting 69 percent reservation.
Vertical Reservation was with respect to adequate representation on the basis of community, while Horizontal Reservation would include sub-sects and special categories, such as, women, destitute widows, ex-serviceman, physically handicapped and persons studied in Tamil Medium etc. Incidentally, the state does not choose to follow the mandate of the Apex Court in eschewing creamy layer, the bench added.
The bench said there was yet another facet in the roster point system. A roster fixed was also taken for the fixation of seniority. A person selected under the roster will get his seniority determined accordingly as against merit in a single selection process. This was put to challenge in the earlier round of litigation.
A division bench of the court in Santhosh Kumar case has held that the selected candidates were to be conferred seniority based upon merit and not the roster point. This was taken on appeal by way of SLP, which were also dismissed. To remove the basis of the judgment of the division bench as confirmed by the Apex Court, Section 1 (2), 40 (1) and 70 and 71 of the TNGS (Conditions of Service) Act, 2016 were introduced, the bench added.
The bench said a meritorious reserved category candidate accommodated against ‘general turn’ should not be made to suffer despite being more meritorious. Rule 35 (a) cannot be read as resorted to by the government overthrowing merit as against roster point qua seniority. The 200 point roster was nothing but a mechanism to fill up vacancies in the respective quota and therefore, cannot be elevated to that of merit when it comes to seniority, the bench added.
The bench said in the case on hand, the state government took umbrage under Article 16 (4) of the Constitution of India to get over the dictum of the Court.
“We may note that the Constitutional bench of the Apex court has already held and which was taken note of by other decisions, that Article 16 (4) does not authorise such an action unless there is an express provision like the one introduced by way of 77th and 85th amendments in Article 16 (4A) of the Constitution.
As it is an express statement of law, we are constrained to hold that the state of Tamil Nadu does not have the power, authority or cachet to introduce the impugned provisions tracing Article 16 (1) and 16 (4) of the Constitution as their source of power, we are constrained to note that we are dealing with a case involving all sort of reservations at the level of seniority when there is no material available nor produced before the court”, the bench added.
The bench said, “We hold that the impugned provisions do not have the legal sanctity under Article 16 of the Constitution of India. Even assuming that the same is in existence, the adequacy and the need for reservation have not been supported by requisite materials. Therefore, on both these grounds, the provisions are to be declared as ultra vires and unconstitutional”....