Thursday, 19 March 2015

Health Director Post Permanently Reserved For Caste

Health Director Post Permanently Reserved For Caste Candidates? Merit No Bar?

How Many Times Can Communal Reservation Be Sought For Government Promotions?

How many times can a doctor seek communal reservation for departmental promotions in the Kerala Health Services Department which is supposed to be a department of specialists? No one in Kerala seems to know. Even those who know, fear about speaking aloud, for fear of angering extremely rich communal elements and alienating powerful politicians who enslave themselves to communal zealots for a few hundred thousand community votes. This issue of only communal candidates becoming Director of Health Services has been fuming in this department for more than a quarter century and qualified doctors in this department fear it would continue to be so the next century also. An Assistant Surgeon has to pass through the posts of Civil Surgeon, Deputy Director of Health Services and Additional Director of Health Services, to become a Director of Health Services. It is justifiable for a doctor to avail the benefit of communal reservation for once, for recruitment to the entry post of Assistant Surgeon or for one promotion. But availing the benefit of communal reservation for all levels is unbelievable among specialists in the world. If it happens regularly in each recruiting year, there will soon be a host of Additional Directors in the department within 15 years, all having enjoyed the benefit of reservation multiple times, ascending to the post of the super doctor, bypassing everyone not eligible to enjoy communal reservation. Every other qualified and brilliant doctor in the department, even after thirty years, will not have a chance. How they can become a Director is a Chinese mathematical puzzle which even the Abacus cannot solve. 

It was due to imbalance in the strength of several minority communities in the government due to long neglect by authorities and lack of resources for a good education, that the reservations bill was introduced in India which guaranteed recruitment of backward castes and communities into government posts, subject to a maximum of 50 percent of vacancies, the rest earmarked for merit. Later, orders from the highest law office in the country held that this reservation could be used only once in the entire service; if used for recruitment, it shall not be allowed for promotions; if was not sought for recruitment, it could be sought for promotion once. Recruitment to the post of the Director of Health Services is the finest example in Kerala of how a specialists’ department can allow merit to be overruled by communal factors, skillfully manipulate reservation to cent percent and bring down the efficacy and competency expected of the post. 

For the past three decades, Kerala Health Services has been helpless but to reserve this post for community and caste candidates. Seniority, service merit and academic qualifications are no consideration for recruitment to this post- the bare minimum is sufficient. The only question is, ‘do you have a reservation?’ The unusually brilliant in this department are tired. They are facing the dilemma of quitting joining private service or succumbing to communal powers and suffering the shame of working far below the incompetent. The main reason for brilliant doctors leaving this department and young ones not joining is this, and the unnecessary and illogical ban on home practice. Drive away the brilliant ones and make health service a haunt of inferior opportunists- that is what the government has only been able to achieve so far. 

One former Director of Health Services was recruited as Assistant Surgeon through special communal recruitment. While still under probation, was suspended for the death of a child and mother but still she managed to get promoted as Civil Surgeon Grade II through Special Recruitment. While other doctors became Civil Surgeons Grade II in 13 years, she made it in 5 years. The same way she became Civil Surgeon Grade I. Then the posts of Deputy Director of Health Services and Additional Director of Health Services also were secured the same way and eventually the final one: five promotions using communal reservation! We will wonder who is there to acquiesce to demands for all these promotions and grant them too: it is those who already are there in government on the same communal and caste basis. Now, we know that the senior-most among the Additional Directors of Health Services only would be posted as the DHS. While a non-communal, doctor would take at least 30 years to become an Additional Director of Health Services, she could make it within 15 years. When she reached the final level, there was little competition there because these posts are limited in number and could be filled up only when a retirement vacancy arises. She naturally had to compete only against other reservation beneficiaries. And the seniority among them counted. So, now, we have a bunch of Additional Directors in the health services department- all recruited and promoted on the basis of community and caste, competing against each other for the post of the DHS. Our doctor anyway became the DHS, even though she had to retire without full charge of the DHS due to court’s intervention. 

During the past 25 years, the post of DHS has been reserved this way. And it is expected that it would be the same for the next 50 years also. Who will work at a place where caste and creed overrule brilliance and qualification? So our question arises, for Kerala government to answer: How many times can communal reservation be sought for promotions in the health department?

What the law states about availing reservation benefits multiple times:

The Supreme Court of India held that reservation of appointments or posts under Article 16(4) included promotions (in Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India 1981, 1 SCC 246), which was later overruled and held that Reservations cannot be applied in promotions (in Indira Sawhney & Others v. Union of India. AIR 1993 SC 477).

77th Constitution amendment Art 16 (4 A) & 16 (4B) were introduced to make judgement as invalid but subsequent judgement in M. Nagraj & Others v. Union of India AIR 2007 SC 71 held the amendments constitutional. Those constitutional amendments do not alter structure of Art. 16(4). 

Roster-point promotees getting the benefit of accelerated promotion would not get consequential seniority and the seniority between the reserved category candidates and general candidates in promoted category shall be governed by their panel position. This was overruled and held that the date of continuous officiation has to be taken into account and if so, the roster- point promotees were entitled to the benefit of continuous officiation (Jagdish Lal and Others v. State of Haryana and Others (1997) 6 SCC 538) which was overruled again and held that held that roster promotions were meant only for the limited purpose of due representation of backward classes at various levels of service and therefore, such roster promotions did not confer consequential seniority to the roster point promotee (Ajitsingh Januja & Others v. State of Punjab AIR 1999 SC 3471; Jagdish Lal M G Badappanvar v. State of Karnataka 2001(2) SCC 666 : AIR 2001 SC 260) 

Relaxation of qualifying marks and standard of evaluation in matters of reservation in promotion was not permissible (S. Vinod Kumar v. Union of India 1996 6 SCC 580).

If the state wants to frame rules with regard to reservation in promotions and consequential seniority, it has to satisfy itself with quantifiable data that is there is backwardness, inadequacy of representation in public employment and overall administrative inefficiency, and unless such an exercise was undertaken by the state government, the rules in promotions and consequential seniority cannot be introduced. (Suraj Bhan Meena v. State of Rajasthan; M. Nagraj & Others v. Union of India AIR 2007 SC 71) Reservation in promotion is dependent on the inadequacy of representation of members of SC, ST and backward classes and subject to the condition of ascertaining whether such reservation was at all required, as no exercise was undertaken to acquire quantifiable data regarding in adequacy of representation. The Rajasthan High Court rightly quashed the notifications providing for consequential seniority and promotion to the members of SC and ST communities and held the same does not call for any interference. 

General observations and directives made by law courts are the following:

Backwardness and inadequacy of representation are the controlling/compelling reasons for the state to provide reservations, keeping in mind the overall efficiency of state administration. Government has to apply cadre strength as a unit in the operation of the roaster in order to ascertain whether a given class/group is adequately represented in the service. Roaster has to be post-specific with inbuilt concept of replacement and not vacancy based. If any authority thinks that for ensuring adequate representation of backward class or category it is necessary to provide for direct recruitment therein, it shall be open to do so. Backlog vacancies are to be treated as a distinct group and excluded from the ceiling limit of 50%. If a member from reserved category gets selected in general category, his selection will not be counted against the quota limit provided to his class and reserved category candidates are entitled to compete for the general category post. The reserved candidates are entitled to compete with the general candidates for promotion to the general post in their own right. On their selection, they are to be adjusted in the general post as per the roster and the reserved candidates should be adjusted in the points earmarked in the roster to the reserved candidates. Each post gets marked for the particular category of candidate to be appointed against it and any subsequent vacancy has to be filled by that category alone (replacement theory). (R K Sabharwal v. State of Punjab AIR 1995 SC 1371: (1995) 2 SCC 745). The operation of a roster, for filling the cadre-strength, by itself ensures that the reservation remains within the 50% limit.

First reported on 9 April 2014

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