The Hypocrisy in Removing Teaching Post Quotas From 'Institutions of Excellence'

1/24/2021 The Hypocrisy in Removing Teaching Post Quotas From 'Institutions of Excellence'
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The Hypocrisy in Removing

Teaching Post Quotas From
'Institutions of Excellence'
By not extending reservation in teaching posts to all institutions, the
Act suggests that persons belonging to reserved categories are less
ef cient and thus less likely to ordinarily serve in the 'excellent'
institutions.
https://thewire.in/caste/faculty-caste-teachers-reservations
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Under the garb of a 'bold' step in favour of the deprived sections of the society, the Act actually reflects the dominant ideology of
Brahmanical superiority and is anti-reservation. Photo: Barry Pousman/Flickr (CC BY 2.0)
Kailash Jeenger
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C A S T E E D U C AT I O N G O V E R N M E N T R I G H T S 24/FEB/2020
Last month, 20 Indian Institutes of Management (IIMs) wrote

a letter to the Ministry of Human Resource and Development,
requesting it to recognise them as ‘Institutions of Excellence‘
in the Schedule to the Central Educational Institutions
(Reservation in the Teachers’ Cadre) Act, 2019.
According to the Act, if their request is accepted, they will no

longer have to provide for reservation in faculty positions.
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This move by the IIMs highlights some fundamental defectsPowered By
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in the Act and exposes the present government’s position on

reservation.
It also reveals the discriminatory nature of this seemingly

emancipatory piece of legislation.
First, let’s have a quick look at the events in the backdrop. In

2017, the Allahabad high court in Vivekanand Tiwari and Anr.
v. Union of India and Ors. declared that for the purpose of
direct recruitment against teaching posts in higher educational
institutions, a department of a university shall be considered
as a ‘unit’ instead of a university itself.
Hearing an appeal, the Supreme Court upheld the high court’s

verdict in January 2019. The effect of the judgment would
have been that the number of seats for reserved categories
would be cut by 30% for OBCs, 50% for SCs and 80% for
STs, according to data submitted in the above case.
Also read: Supreme Court Says Reservations For Jobs,

Promotions Not A Fundamental Right
In many departments, the representation of the reserved

categories might even be completely wiped out under the new
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formula. Therefore, the decision led to huge protests acrossPowered By
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the country.
The Central government seized the opportunity to appease the

disadvantaged sections and passed an ordinance, namely the
Central Educational Institutions (Reservation in the Teachers’
Cadre) Ordinance, 2019, immediately before the 2019 general
elections to undo the impact of the judgment. After being re-
elected, the government replaced the Ordinance with an Act
under the same title.
At a close look, the Act clearly shows the intention of the

present government to dilute the constitutionally sanctified
policy of reservation. The Act is a half-hearted attempt to
restore the pre-judgment position in respect of faculty quota.
Section 3 of the Act provides for considering a university as a

‘unit’ for recruitment of teachers only in central educational
institutions.
Under this Act, the term ‘Central Educational Institutions’

broadly covers central universities, deemed universities and
institutions of national importance, which are respectively 50,
126 and 95 in number, whereas the number of institutions to
which the Act does not apply go up to 409 state universities,
349 state private universities and thousands of government
and private colleges.
It is clear that the number of state educational institutions to

which the Act does not apply is many times higher.
Consequently, the representation of reserved classes in

teaching staff, which is already very low according to a
government report, will further go down. Despite this, why
did the government not extend the Act to state educational
institutions as well? Does the constitution impose any
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restrictions on the legislative competence of the parliament?
Let’s understand this first.
Article 16(4) empowers both parliament and state legislatures

to provide for reservations in posts.
There is no constitutional bar on the law-making powers of

the parliament to apply the provision contained in Section 3 of
the Act to state educational institutions as well. Under the
Schedule VII to the Indian constitution, which contains entries
to legislate upon, there is no Entry specifically relating to
reservation.
Also read: An Odd-Even Caste System?
However, Article 248 gives the parliament the residuary

powers to legislate in respect of matters not enumerated in the
Concurrent List or State List of Schedule VII.
Alternatively, the word “employment” appearing in Entry 23

of the Concurrent List could be arguably invoked by the
parliament. Thus, despite no limitation, the parliament did not
extend the Act to state educational institutions. Similarly,
given the federal structure of the country, state legislatures
have also not passed any such law to restore the previous
position with respect to reservation in state educational
institutions.
Thus, the deliberate exclusion of state educational

institutions from the scope of the Act clearly shows that
the government actually intended to dilute the policy of
reservation.
At once, it aimed to heal the wound superficially and gaining

public confidence. It has created an illusion by using the
emancipatory language in the Act to conceal the hidden
motive.
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And this is not the first attempt of the present government to

weaken the reservation policy or destroy its basic idea. Such
actions include lateral entry in the Indian Civil Services,
reservation for EWS, privatisation of public sector units, etc.
Also read: Bureaucrats More Wary of ‘How’ Than ‘Why’

of Lateral Entry Into Civil Services
Another setback to the members of disadvantaged classes is

the provision contained in Section 4(1)(a) of the Act. It lays
down that the scheme of reservation shall not be applicable to
the institutions of excellence, research institutions, institutions
of national and strategic importance specified in the Schedule
to this Act.
Thus, these institutions have been completely exempted from

providing for reservation in faculty recruitment. It is
noteworthy that despite reservation, representation of SCs and
STs in faculty posts is only 7.22% and 2.12% respectively,
according to a 2016 government report. Furthermore, the
Schedule containing the list of exempted institutions may be
amended by a notification by the Central government
according to Section 4(2).
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It is under the subsection 2 that the IIMs have approached
Notificationsthe
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government, whereby they seek amendment of the Schedule to

include IIMs therein. The provision excluding certain
institutions from providing for faculty quota raises some
serious concerns and opens up the Brahmanical mindset of the
government in respect to the candidates belonging to the
reserved categories.
By not extending reservation to the institutions listed in

the Schedule, the Act suggests that persons belonging to
reserved categories are less efficient to render services in
the ‘excellent’ institutions.
It acts, in fact, as the official branding of those candidates as

‘less competent’. Indirectly, Section 4(1)(a) promotes the
logic of “upper-caste superiority” and wants us to believe that
only upper caste and therefore, automatically efficient
candidates deserve to serve in those institutions. It not just
supports but solidifies the caste hierarchy.
It is not out of context to say that the idea of upper caste

superiority has already gained much fillip under the present
regime. The casteist remarks as to Brahmin superiority made
by the Lok Sabha Speaker Om Birla and Gujarat Assembly
Speaker Rajendra Trivedi are some of the recent examples.
Also read: Exclusive: Eye on Caste Vote Bank,

Documents Show How Modi Rushed 10% EWS Quota
Law
Besides this, Section 4(1)(a) is violative of Article 14 of the

Indian constitution. It does not pass the twin test of the rule of
“reasonable classification” under the Article. The first test is
that the classification must be based on intelligible differentia.
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Here, putting some educational institutions in a different box
itself seems to be arbitrary for various reasons.
First, education is a common thread among all these

institutions and an effort to improve quality of education
(if any) must be made equally in all institutions.
Second, the very use of different labels for some

educational institutions under the section, in fact, is
meant to discriminate, or at least to facilitate
discrimination.
Third, the use of vague terms like ‘institutions of

excellence’ and ‘research institutions’ which remain
undefined in the Act makes the provision feeble and
prone to abuse.
The second test of the rule of “reasonable classification” is

that the differentia must have rational nexus with the object of
the provision. Section 4(1)(a) abruptly fails to clear the test
because it supports the logic of “merit”. It believes that having
higher qualifying marks in academic degrees and scoring
higher marks in screening or interviews automatically
guarantees one’s ability to impart quality education and
excellent services.
Going by the logic of merit, private educational institutions

would be in trouble because they often compromise with the
minimum qualifying marks even in professional courses, like
medical, engineering, etc. If they operate on the logic that one
may become skilful by training as well, why cannot the same
idea work in case of candidates belonging to reserved
categories also? Thus, exempting certain educational
institutions from providing for reservation has no rational
nexus with the object of the provision, if any.
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Besides Article 14, Section 4(1)(a) also violates Article 16(2)
of the Indian constitution which prohibits discrimination on

the basis of caste in the matters of public employment. Thus,
the provision is arbitrary and discriminatory, and hence
unconstitutional.
However, it must be borne in mind that irrespective of the

constitutionality of such provisions, the disadvantaged
sections have been continuously struggling for the realisation
of their rights and interests, and their fight is likely to
continue.
Thus, the idea of excluding certain educational institutions

from applying reservation is ill-conceived and flawed. It
discriminates not only against the members of the reserved
categories, but also against educational institutions and the
students. Here, it is apt to recall what the ruling party
promised in its manifesto in 2019 general elections:
“We are committed to ensure benefits of constitutional

provisions of the Scheduled Castes, Scheduled Tribes and
backward classes. We will ensure that proper
representation and opportunities are available for these
sections.
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Quite in contrast to its promises, though not shockingly, thePowered By
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ruling party has passed the Act which is limited in scope and
discriminatory.
Under the garb of a ‘bold’ step in favour of the deprived

sections of the society, the Act actually reflects the dominant
ideology of Brahmanical superiority and is deeply anti-
reservation. It is a calculated move to further caste-based
hierarchy, to let upper-caste people monopolise certain
prominent educational institutions, to dilute the policy of
reservation, and to stigmatise the reserved classes as less
competent.
(I would like to thank Anumeha Mishra, Haris Jamil and

Sujith K. for their comments and suggestions.)
Kailash Jeenger is assistant professor, Campus Law Centre,

Faculty of Law, University of Delhi.
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1/24/2021 The Hypocrisy in Removing Teaching Post Quotas From 'Institutions of Excellence'

POLITICS ECONOMY EXTERNAL AFFAIRS SECURITY LAW SCIENCE SOCIETY CULTURE

The Hypocrisy in Removing

Support Investigative Journalism

Support In-Depth Reporting

Support Daily Reporting

Support The Wire

Last month, 20 Indian Institutes of Management (IIMs) wrote

According to the Act, if their request is accepted, they will no

in the Act and exposes the present government’s position on

It also reveals the discriminatory nature of this seemingly

First, let’s have a quick look at the events in the backdrop. In

Hearing an appeal, the Supreme Court upheld the high court’s

Also read: Supreme Court Says Reservations For Jobs,

In many departments, the representation of the reserved

The Central government seized the opportunity to appease the

At a close look, the Act clearly shows the intention of the

Section 3 of the Act provides for considering a university as a

Under this Act, the term ‘Central Educational Institutions’

It is clear that the number of state educational institutions to

Consequently, the representation of reserved classes in

Let’s understand this first.

Article 16(4) empowers both parliament and state legislatures

There is no constitutional bar on the law-making powers of

Also read: An Odd-Even Caste System?

However, Article 248 gives the parliament the residuary

Alternatively, the word “employment” appearing in Entry 23

Thus, the deliberate exclusion of state educational

At once, it aimed to heal the wound superficially and gaining

And this is not the first attempt of the present government to

Also read: Bureaucrats More Wary of ‘How’ Than ‘Why’

Another setback to the members of disadvantaged classes is

Thus, these institutions have been completely exempted from

government, whereby they seek amendment of the Schedule to

By not extending reservation to the institutions listed in

It acts, in fact, as the official branding of those candidates as

It is not out of context to say that the idea of upper caste

Also read: Exclusive: Eye on Caste Vote Bank,

Besides this, Section 4(1)(a) is violative of Article 14 of the

itself seems to be arbitrary for various reasons.

First, education is a common thread among all these

Second, the very use of different labels for some

Third, the use of vague terms like ‘institutions of

The second test of the rule of “reasonable classification” is

Going by the logic of merit, private educational institutions

of the Indian constitution which prohibits discrimination on

However, it must be borne in mind that irrespective of the

Thus, the idea of excluding certain educational institutions

“We are committed to ensure benefits of constitutional

Under the garb of a ‘bold’ step in favour of the deprived

(I would like to thank Anumeha Mishra, Haris Jamil and

Kailash Jeenger is assistant professor, Campus Law Centre,

Are Panchayat Elections in Maharashtra a Festival of Democracy or a Maratha Festival?

TERMS & CONDITIONS PRIVACY POLICY REFUND POLICY

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The Hypocrisy in Removing Teaching Post Quotas From 'Institutions of Excellence'

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