Reconsider 1% reservation for orphans: HC to Maha govt

Mumbai: The Bombay high court (HC) has asked the state government to reconsider its policy to provide 1% horizontal reservation for orphans in educational institutes and public employment, as the policy is not backed by legal provisions.

The division bench of chief justice Dipankar Datta and justice Madhav Jamdar said that although the reservation appeared to be for the benefit of a particular class of candidates, the parties before the bench were unable to show the bench any legal provision that enabled “reservation for the category of orphans in terms of the Constitution.”

“Since each aspirant for public employment is entitled to be equally treated, reservation for orphans in an appropriate case could be vulnerable should a challenge be thrown,” the bench said on October 19. “It would, therefore, be appropriate for the GoM (Government of Maharashtra) to reconsider whether such reservation should at all be continued or not unless, of course, there is legal support behind such reservation,” it stated.

On August 23, 2021 the Women and Child development department issued a Government Resolution (GR) providing 1% reservation for orphans in education and public employment primarily in view of the fact that they have to face several difficulties in life because of lack of parental support.

On July 7, 2022, the state government came out with another GR granting two years and two opportunities to candidates who are orphans to secure requisite qualifications for the posts they are applying for.

The Bombay HC was hearing a petition filed by the Maharashtra Public Service Commission (MPSC), challenging a July 22 order passed by the Maharashtra Administrative Tribunal (MAT) directing the commission to allow Arjun Tarke, a resident of Kiwla in Nanded district, to take up the post of a clerk-typist under the reserved category of orphans. It directed MPSC to open an online link and accept Tarke’s application for the main examination.

In December 2021, the MPSC had issued an advertisement to fill up 900 vacant posts in Group C services of the state government. The recruitment process had preliminary and main examinations.

While Tarke cleared the preliminary examination, he did not possess any typewriting skill – an essential requirement for the job. Based on the July 7 GR, Tarke applied to take the main examination but the commission refused to accept his application, compelling him to move the MAT.

MPSC moved the HC challenging the MAT order and contended that the July 7 GR could not be relied upon as the first advertisement to fill up the 900 vacant posts was posted before the GR was released.

The HC however, upheld the MAT order stating that reservation for orphans was a horizontal one — which could be applied across a range of existing reservation categories — and MPSC had in terms declared that the reservation would be given as per the instructions issued by the state government from time to time. Thus, the commission could not take exception to his candidature based on the provision made in the July 7 GR.

“A Government Resolution which seeks to carve out a benefit for a particular class of persons by creating a reservation in their favour, in case of any ambiguity, has to be read and interpreted in a manner that advances the cause of the class of persons for whom such resolution has been taken and not in a constricted manner so as to deprive them of the benefit that is sought to be granted,” the bench said and dismissed petition filed by MPSC.