High Courts Cannot Issue Mandamus providing reservation: Supreme Court

This observation came from the Apex Court while it quashed the directions issued by the Punjab and Haryana High Court bench asking the State for providing a sports quota of 3% in Government Medical/Dental Colleges in Punjab.

"So far as the second direction issued by the High Court directing to provide for a sports quota of 3% in Government Medical/Dental Colleges in the State of Punjab is concerned, the same is hereby quashed and set aside by observing that no writ of mandamus could have been issued by the High Court," noted the bench comprising of Justices MR Shah and BV Nagarathna.

Back in 2019, the HC had directed the State of Punjab to issue fresh notification providing for 1% reservation/quota for children/grand children of terrorist affected persons/ Sikh riots affected persons in all private unaided non-minority Medical/Dental institutions in Punjab. Further, the State had also been directed to apply the same reservation to the management quota seats and to issue a fresh notification providing for a sports quota of 3% in Government Medical/Dental Colleges.

Following the Sports Policy framed by Punjab Government back in 2018, the Government had decided in 2019 to provide 1% reservation for sports persons. In fact, through the order dated 06.02.2018, the Government had reserved 1% seats for sports persons and the children/grand children of terrorist affected persons. However, similar reservations were not provided in the private institutes.

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Challenging this, several pleas had been filed before the High Court and in its order dated 23.08.2018, the HC in its order opined that the reservation should be extended to private institutes as well. However, when the order of the HC was challenged before the Apex Court, the bench while dismissing the plea noted that order passed by HC shall not be treated as a precedent.

Consequently, for the academic year 2019-2020, the State issued a notification and provided ; 1% reservation for children/grand children of terrorist affected persons and 1% reservation for children/grand children of Sikh riot affected persons in the State quota seats in government institutions.

Another 1% for Sports persons children/grand children of terrorist affected persons, children/grand children of Sikh riot affected persons and 1% for wards of defence personnel was provided for the State quota seats in private institutes. However, no such reservation had been provided for management quota seats.

Again the matter came to be challenged before the High Court and the bench clarified that the reservation should be extended to management quota seats as well. HC in its order provided 1% reservation for children/grand children of terrorist affected people/Sikh riot affected people in private institutes and 3% Sports quota reservation in Government medical and dental colleges.

Being aggrieved by these HC directions, the State approached the Supreme Court and the State vehemently argued that no writ of mandamus can be issued by the HC directing the State to provide for reservation for any particular class or category and it should be left to the wisdom of the State Government.

Referring to the Article 15(5) of the Constitution, the State further contended that it is ultimately for the State to provide for reservation for a particular class/category and no State can be compelled and/or no writ of mandamus can be issued directing the State to provide for reservation for a particular class or category.

Reliance was placed by the State on several decisions of the Supreme Court in the matter of Gulshan Prakash (Dr.) and others v. State of Haryana and others, Chairman and Managing Director, Central Bank of India and others v. Central Bank of India SC/ST Employees Welfare Association and others, Suresh Chand Gautam v. State of Uttar Pradesh and others, Mukesh Kumar and another v. State of Uttarakhand and others etc.

On the other hand, the counsel appearing for those who had initially moved to the High Court submitted that the notification had been challenged on the basis of the interim order passed by the Supreme Court.

The counsel further submitted that issuing a fresh notification for the academic year 2021-2022, the State has provided reservation for sports persons, children/grand children of terrorist affected persons and Sikh riot affected persons to an extent of 1% each with respect to the private institutes also.

It was thus submitted by the counsel that the issue in the present case has become academic. Therefore, the counsel prayed for the dismissal of the appeals by keeping the question of the law open.

Regarding the 3% reservation for sports persons, the counsel contended that similar reservation had been provided by the State back in 2018 and there was no reason for the State to deviate from the same.

After listening to the arguments, the top court bench noted that, "the State has now already provided the reservation/quota for sports persons, children/grand children of terrorist affected persons/Sikh riot affected persons even with respect to admissions in the private institutes for the academic year 2021-22. Therefore, the first issue, whether the High Court was right in issuing directions directing the State to issue a fresh notification providing for 1% reservation/quota for children/grand children of terrorist affected persons/Sikh riot affected persons in all private unaided non-minority Medical/Dental institutions in the State of Punjab including the management quota seats has become academic and therefore we dispose of the present appeals keeping the question of law open."

"As the admissions are given for the academic year 2019-20 pursuant to the interim order passed by this Court, we direct that the said admission shall not be disturbed/affected. However, it is observed that we have not entered into and/or considered any other dispute including whether the admissions are made on the basis of merit or not. If anybody has any individual grievance, in that case, it will be open for the aggrieved person to take recourse to law," further clarified the Court.

Finally, while considering the issue regarding 3% reservation for Sports persons, the bench noted, "Now so far as the directions issued by the High Court directing the State to provide for 3% reservation/quota for sports persons, instead of 1% provided by the State is concerned, it appears from the impugned judgment and order passed by the High Court that it has issued the said direction considering the Sports Policy, 2018. It is true that as per clause 8.11(v), 3% reservation for sports persons has been provided. However, it is to be noted that clause 10 permits/allows any other department to have specific policy providing for reservation for sports persons other than 3%. As observed hereinabove, thereafter the State Government has issued an order dated 25.07.2019 providing for 1% reservation/quota for sports persons. The said order has been issued and 1% reservation/quota for sports persons is provided after taking into consideration the Sports Policy, 2018. Therefore, a conscious policy decision has been taken by the State Government to provide for only 1% reservation/quota for sports persons."

Therefore, noting the question that needed consideration of the court was whether the State's policy decision for prescribing a particular percentage of reservation/quota for a particular category of persons, can be interfered with any mandamus, the Court referred to Supreme Court judgment in the case of Gulshan Prakash (supra), wherein the top court had held that there cannot be any mandamus by the Court to provide for a reservation for a particular community.

Reference was made also to the SC judgment in the case of Central Bank of India SC/ST Employees Welfare Association and others (supra), wherein the top court while considering the issue of providing reservation in favour of SC/ST category persons in the promotion, had observed that power lies with the State for making a provision and Courts cannot issue any mandamus to the State for making any such provision.

Referring to several other judgments, finally, the top court bench noted,

"Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has committed a grave error in issuing a writ of mandamus and directing the State Government to provide for 3% reservation/quota for sports persons, instead of 1% as provided by the State Government. A conscious policy decision was taken by the State Government to provide for 1% reservation/quota for sports persons. A specific order dated 25.07.2019 was also issued by the State Government. Therefore, the High Court has exceeded its jurisdiction while issuing a writ of mandamus directing the State to provide a particular percentage of reservation for sports persons, namely, in the present case, 3% reservation instead of 1% provided by the State Government, while exercising powers under Article 226 of the Constitution of India."

"Therefore, the impugned common judgment and order passed by the High Court insofar as directing the State to provide for 3% reservation for sports persons and/or provide for a sports quota of 3% in the Government Medical/Dental Colleges is unsustainable and the same deserves to be quashed and set aside," further noted the court.

Regarding the 1% reservation for children of affected people, the bench noted,

"In view of the above and for the reasons stated above, the first direction issued by the High Court directing the State to issue a fresh notification providing for 1% reservation/quota for children/grand children of terrorist affected persons/Sikh riot affected persons in all private unaided non-minority Medical/Dental institutions in the State of Punjab is concerned, the present appeals are disposed of as the said issue has become academic for the reasons stated hereinabove, However, the question of law, whether such a direction/writ of mandamus could have been issued is kept open."

To read the court order, click on the link below.