UP decision to scrap quota to SCs, STs, SEBCs in pvt medical colleges against 93rd amendment of Constitution

Letter to Uttar Pradesh chief minister Yogi Adityanath by PS Krishnan, IAS (Retd), Former Secretary to Government of India , Ministry of Welfare; Member, National Monitoring Committee for Education of SCs, STs and Persons with Disabilities, Government of India:

As a person working country-wide for the legitimate rights of scheduled castes, STs and SEBCs during my entire service in the IAS from 1956 to 1990 and before that and after that, spanning nearly seven decades, I request you to consider taking the following measures: 

(i) Reverse your Government’s recent decision to implement the order passed by the previous Akhilesh Yadav Government to scrap reservation for Scheduled Castes (SCs), Scheduled Tribes (STs) and Socially and Educationally Backward Classes (SEBCs) in the post-graduate courses at private medical and dental colleges in the State.

This decision goes against the letter and spirit of the Constitution (Ninety-third Amendment) Act 2005, inserting new Clause (5) in Article 15, the validity of which has been upheld by the Supreme Court in Ashoka Kumar Thakur case judgement of 2008 in respect of Central and Aided  Educational Institutions, and in its judgment of 12 May 2011 in Indian Medical Association vs Union of India and Ors case  and of 6 May 2014 in Pramati Educational Cultural Trust and Ors vs Union of India & Ors in respect of private unaided educational institutions.   

This decision is also against Shri Narendra Modi ji’s repeated statements emphasising the need for the advancement of SCs, STs and SEdBCs and your own statement immediately after you took charge as Chief Minster that the welfare of SCs and SEdBCs will be given special attention.

The previous Government’s decision was taken in its closing days and it was against the interest of the SCs, STs and SEdBCs. Probably, after your Government assumed power, enough time was not available to you and the decision of the previous Government in its closing days was mechanically implemented by the Government machinery. Now kindly look into this and reverse this decision.

 (ii) Reverse the previous Government’s demotion of large numbers of SC and ST promotees in the State Departments following the Supreme Court judgment of 2012 which set aside section 3(7) of Uttar Pradesh Public Services (Reservation for Scheduled Castes/Scheduled Tribes and Other Backward Classes) Act, 1994 and the consequential seniority under Rule-8 of Uttar Pradesh Government Public Servants Rules

It was possible through legal means to retain status quo ante in respect of the SC and ST officers who were already promoted under reservation before the Supreme Court judgement if the Supreme Court had been moved appropriately in this regard. Suitable legally sustainable ways can now be devised to reverse this mass demotion. Once you taken an in-principle decision to do this, if the State machinery has any doubt about how to achieve this purpose in a legally sustainable manner, I shall be available for advice and suggestions.    

(iii) Revive the provision for reservation in promotion for SCs and STs in the State Services, gathering and recording up-to-date data along the lines required by the Supreme Court in the N. Nagaraj case in 2006

 The Supreme Court has not invalidated the provision of reservation in promotion for SCs and STs. Reservation for SCs and STs has been safeguarded in Clause (4A) of Article 16 by the Constitution (Seventy-seventh Amendment) Act 1995. The Constitutional validity of this Amendment and three other Amendments (there three Amendments were got passed by the Parliament by the Vajpayee Government) relating to reservation for SCs and STs were upheld by the Supreme Court in its Nagaraj case judgment of 2006. 

In the UP case the Supreme Court struck down Section 3(7) of Uttar Pradesh Public Services (Reservation for Scheduled Castes/Scheduled Tribes and Other Backward Classes) Act, 1994 and the consequential seniority under Rule-8 of Uttar Pradesh Government Public Servants Rules only because certain up-to-date data were not furnished by the then Government as required by the Supreme Court, on the basis of its Nagaraj case judgment. This can be and need to be revived now without the earlier lacunae.

 (iv) Reverse the passing of the UP Revenue Code (Amendment) Bill 2016 during the time of the previous Government which allows Dalits of the State to sell their land to non-Dalits in the State without approval of the administration even if their remaining holding is less than 3.5 acres

The removal of this long-standing protection will result in erosion of the disproportionately low land-ownership of SCs.  The need for Dalits to sell their land is caused by economic crisis and distress.  This can be on account of expenses for education and health.

Education-related distress can be prevented by strengthening and properly implementing programmes for educational development of SC children such as

·   timely release of scholarships,

·   stepping up of scholarships to adequate levels,

·   establishment of high-quality residential schools for them (in which 25% of seats may be for other communities).

Health-related crisis and distress can be prevented by making health and medical services properly and fully available to them and by providing medical insurance.

In spite of these, if there are extra-ordinary situations on account of which any Dalit is forced to sell his/her land, such land can be purchased by Land Banks, which should be established by the State Government, and thereafter that land may be given to other deserving rural Dalit agricultural labour families.