“At the time of advertisement of 2013 and 2015, 10% reservation for EWS was not there and by way of clubbing the vacancies, 10% reservation for EWS has been provided in the vacancy of 2013 and 2015, which is against the mandate of the Constitution of India.” The Jharkhand High Court presided over by J.S.K. Dwivedi laid down this ratio in the case of Ranjeet Kumar Shah & Anr. Vs. State of Jharkhand & Ors., [W.P. (S) No. 53 of 2020].
The brief facts of this case are that the Petitioner approached the Court for quashing an advertisement of Jharkhand Public Service Commission 2019, for the appointment of post of Assistant Civil Engineer which provided retrospective applicability of 10% reservation to the EWS category. The advertisement merged vacancies for the unreserved category and conduct a single selection process for earlier advertisements of the year 2013 and 2015 along with vacancies notified for the year 2019. It was the case of the Petitioners that the Central Government published an official memorandum dated 31.01.2019, which introduced 10% reservation of EWS category in Civil posts and Government services. The State of Jharkhand similarly passed a resolution dated 15.01.2019, making provisions for EWS reservation. Amendments were also made to the State rules of 2001 by increasing the percentage of reservation ceiling to 60%. The Petitioner aggrieved by this advertisement submitted that as per the GOI notification, it can be clarified that the effect of its applicability will be post facto and not retrospective and therefore, the JPSC had superseded its earlier advertisements of 2013 and 2015 as there was no EWS reservation applicable at that point.
The Petitioners submitted that the advertisement violated their right on earlier vacancies which were later merged with the 10% EWS reservation by giving it a retrospective application. Further, the decision of the government to enhance the reservation limit from 50% to 60% by giving retrospective applicability to the 103rd Amendment Act, 2019 is against the Constitutional Mandate.
The Court analyzed the submissions and was of the opinion that “Thus, that reservation cannot be allowed to be made effective with retrospective effect, which is against the mandate of the Constitution of India. The Constitution of India is a fountain of all the Statutes. At the time of advertisement of 2013 and 2015, 10% reservation for EWS was not there and by way of clubbing the vacancies, 10% reservation for EWS has been provided in the vacancy of 2013 and 2015, which is against the mandate of the Constitution of India. The merger of earlier advertisements, which has been made effective retrospectively is against the constitutional scheme.”
The Court with respect to the advertisement was of the opinion that The advertisement of 2019 shall carry out after modifying the said advertisement afresh in light of 103rd Amendment of Constitution, which was made effective w.e.f. 14.01.2019 by way of incorporating Article 16(6) in the Constitution of India