Delhi HC seeks Jamia's stand on plea against religion-based reservation

The Delhi High Court has sought the stand of Jamia Millia Islamia (JMI) on a petition challenging its decision to approve religion-based reservation for appointments to teaching and non-teaching posts while abolishing the quota under the scheduled caste and scheduled tribe categories.

Petitioners Ram Niwas Singh and Sanjay Kumar Meena, who belong to SC and ST communities, respectively, have moved the high court after JMI advertised 241 non-teaching posts, and contended that the exclusion of SC/ST category candidates from reservation policy was a "wrong" committed against the constitutional mandate.

A vacation bench of Justice Vikas Mahajan observed the matter required consideration and asked the varsity as well as the Centre to file their response to the petition within three weeks.

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While clarifying that it is not staying the recruitment process, the court directed one post each be kept vacant for the petitioners under the categories they have applied for pursuant to the advertisement.

"It appears that the matter requires consideration. Issue notice. Let counter affidavit be filed within three weeks. In the meanwhile, the Respondent University is directed to keep one post vacant for the petitioners in each category [i.e. –(i) Assistant Registrar, (ii) Section Officer and (iii) LDC (lower division clerk)], under which they have applied," said the court in an order passed last week.

"It is clarified that the recruitment process, as such, has not been stayed," the court said.

Senior advocate Arun Bhardwaj, appearing for the petitioners, argued that the advertisement for 241 non-teaching posts, issued in April, was contrary to the constitutional scheme of reservation as well as the Jamia Milia Islamia Act which mandates the university shall be open to all classes, castes and creed.

He argued the Act says it shall not be lawful for the university to adopt or impose on any person any test whatsoever of religious belief or profession to entitle him to be admitted therein as a student or staff.

The petition, filed through lawyer Ritu Bhardwaj, has sought directions for quashing the resolution dated June 23, 2014 adopted by the Executive Council of JMI approving only religion-based reservation for having been passed without following the due process of law.

JMI standing counsel Pritish Sabharwal earlier defended the existing framework and said being a minority institution, the university was not bound by the reservation policy for SC/ST.

The petition has said JMI arbitrarily abrogated the quotas for SC and ST categories in appointment and promotion of non-teaching staff.

The petition has submitted the JMI was a central university, and the resolution for abrogating the SC and ST reservation has never received assent of the Visitor- the President of India. It has also not been published in the official gazette or been laid before the two houses of Parliament.

"In pursuance of the order dated 22.02.2011 passed by the National Commission for Minority Educational Institutions (which declared the Respondent University as a Minority University), the Executive Council vide its Resolution...dated 23.06.2014 approved the religion based reservation in teaching and non-teaching recruitment/ promotion and consequently abolished the SC and ST reservation in teaching and non-teaching recruitment and promotions," the petition said.

"Impugned resolution of Executive Council abrogating SC and ST reservation in teaching and non-teaching staff and in the matter of promotions must be declared null and void. The abrogation of the reservation extended to the Scheduled Castes and Scheduled Tribes in non-teaching posts and in promotions as well, and the religion based reservation provided in respect of Muslim candidates is not only without jurisdiction but also in direct violation of Article 29 (2) of the Constitution of India," the petition has said.

The reservation extended on the basis of religious considerations is in violation of the principles of secularism and the order of the minority commission declaring JMI to be a minority institution also cannot be sustained, added the plea.

The petition has emphasised that the Ministry of Personnel, Public Grievances and Pensions had in October last year prescribed suitable action to provide for reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes in the services of the autonomous bodies/institutions including universities which are receiving grants-in-aid from the Government of India.

The petitioners had earlier told the court that JMI has now begun the recruitment process for the advertised posts and they would suffer grave prejudice and irreparable hardship if the process is concluded.

The matter will be heard next on July 7.