(Based on information obtained under RTI Act, 2005).
PART B/1
Service Safeguards (outlines)
There have been manifold invasions on this Constitutional right in Himachal Pradesh, viz i) inadequate provisions for representation, ii) upsurge in denial and deviation, iii) constrictive and surreptitious deliverance, iv) inept and withering monitoring system, v) precedence to EWS and the like.
As per instructions and service rules representation in public employment is provided to the SC, ST & OBC by the State of Himachal Pradesh as follows:
Category Classes of service
I & II III &IV Part time, tenure based, casual,
SC 15% 22% contract, daily wage, work charged,
ST 7.5% 5% temporary, ad-hoc etc appointments
OBC 12% 18% lasting for more than 45 days-
similar representation.
Anomalies
ü Nearly 1.5 lakh appointments have been made by way of schemes & policies over the period of time wherein, in defiance of Constitutional provision as well as own instructions of the Government (issued by GoI in 1968 and adopted by HP (reiterated by GoI in 2018 and 2023), reservation has been denied on bizarre argument. Services of such appointees have regularized by circumventing rules of rosters.
ü The committees & societies making such recruitment and providing employment are instrumentality and agencies of the “State”. Therefore, the recruitment process undertaken by them are “direct recruitment” under the service law and attract rule of reservation.
ü The result of deviation is depletion in representation to SC/ST/OBC. For example, National Commission for SC has mentioned in Annual Report 2012-13 (P 40) that representation of SCs in Education is tottering 8%. Education departments are the largest employers.
ü Shortfall and backlogs of posts in case of weaker sections run into thousands.
ü Govt of HP issued instructions on 21.11.2015, followed on 9.9.2016, 27.9.2019 to fill up shortfall and backlog of vacancies earmarked for SC, ST, OBC & PWD in time bound manner by launching special recruitment drive. But no such drive has taken place till date.
ü 85th amendment of the Constitution, read with M Nagraj, Jarnail Singh I and Jarnail Singh II, has not been implemented in HP.
ü Nearly fifty thousand posts have been filled up through outsourcing which comes under the ambit of direct recruitment. No reservation is provided in such recruitment. Such appointees continue to serve as regular employees and process of regularization of their services has started.
ü Cadre of Safai karmcharis was declared as dying cadre on 21.07.2011 and their posts are being replaced by way of outsourcing. This has led to their exploitation and misery.
ü It is settled that population is sole factor in determining percentage of reservation. Therefore, it is unjust to provide 15% reservation to SCs and 12% to OBCs in Class I & II posts as against 22% and 18% respectively in Class III & IV services. Such segregation is not done anywhere in the country because only SC, ST & OBC belonging to respective States are eligible for reservation against all classes of posts in State services. There is no such segregation in case of EWS in HP as well.
ü System created to monitor the implementation of reservation is dysfunctional and withering-denial, dilution and deviations are being interpolated.
ü The Government has been just ignoring reports and recommendations of National Commissions and Welfare Committees on reservations. Even orders of State Administrative Tribunal, as regards filling of shortfalls, have not been implemented.
ü Approach to implementation of reservation is surreptitious -deprived sections are scarcely privy to administration of this Constitutional mandate for justice.
Imperative affirmative action
l In deference to Constitutional mandate, own instructions of the Government and recommendations of Constitutional Bodies, representation to SC, ST & OBC may be provided in all forms and classes of appointments made by State or its instrumentality/agencies, including on outsource basis, which last for more than 45 days.
l As already decided by the Government, shortfall and backlogs of posts for SC, ST & OBC may be filled up by special recruitment drives in a time bound manner.
l Decision to declare cadre of safai karamcharis as dying cadre may be withdrawn and pre 21. 7. 2011 position may be restored.
l SC, ST & OBC may be provided 24%, 8% and 18% representations, respectively, in all forms and classes of services in HP. State of Punjab, Haryana, Uttar Pradesh, Utterakhand and the like are providing proportional representation in all kinds and classes of services.
l 85th amendment of the Constitution, read with M Nagraj, Jarnail Singh I and Jarnail Singh II, may be implemented.
l System created to monitor the implementation of reservation, including accountability and responsibility, may be revitalized.
l Consolidated data and returns on reservations, including rosters, may be compiled, published and put in public domain every year.
l Deprived may be made part of implementation and monitoring process of representation in services and for this purpose
ü sufficient number of SC/ST/OBC officers and men may be placed to handle this subject at all levels in the Government , Departments, PSUs and instrumentality/agencies of the State;
ü adequate representations of SC/ST/OBC may be ensured in recruitment Commissions, Boards, Agencies and Committees of Departments, PSUs, as well as Autonomous/Constitutional/Legal Bodies and instrumentality/agencies of the State; and
ü age old obligation/practice of periodical meetings of Unions of SC, ST & OBC Employees, as well as of NGOs, with the Government may be restored.
l Law may be enacted to provide and regulate representation in employment. State of Punjab, Uttar Pradesh, Utterakhand, among others, have such laws.
B/2: Details
Service Safeguards
There have been manifold invasions on this Constitutional right in Himachal Pradesh, viz i) inadequate provisions for representation, ii) upsurge in denial and deviation, iii) constrictive and surreptitious deliverance, iv) inept and withering monitoring system, v) precedence to EWS and the like.
As per instructions and service rules reservation in public employment is provided to the SC/ST/OBC by the State of Himachal Pradesh as follows:
Category Classes of service
I & II III &IV Part time, tenure based, casual,
SC 15% 22% contract, daily wage, work charged,
ST 7.5% 5% temporary, ad-hoc etc appointments
OBC 12% 18% lasting for more than 45 days-
similar reservation.
Anomalies
1. (i) Over the period of time approximately one lac fifty thousand appointments have been made under the schemes, orders, policies, guidelines etc. like volunteer teachers, vidhya upasak, primary assistant teachers, para teachers, parent teachers associations, school management committees, part time water carriers, part time cook-cum-helpers, multi task workers in Education Departments; panchayat chowkidar, panchayat sahayak, takniki sahayak, gram rojgar sewak in PR & RD Departments; anganwari workers, anganwari helpers in Social Justice and Empowerment Department, accredited social health activists (ASHA) in Health Department, part time workers with Patwaris in Revenue Department, water guards, para fitters, pump operators, multipurpose workers in Irrigation and Public Health (now Jal Shakti) Department, piecemeal workers, transport/workshop multipurpose assistants in HRTC, beldars and part time multi task workers in PWD, Van Rakshak in Forest Department and so on.
ii) A large number of appointments have been made through departmental societies/NGOs/projects like Rogi Kalyan Samiti, Hospital Management Committees, Aids Control Societies, T. B. Control Societies of Health Department, Sarv/Samagr Shiksha Abhiyan Societies of Education Department, Government of India/foreign aided projects of Forest Department, e-governance societies of various Departments and the like.
(iii) Similar appointments have been made by Universities, PSUs, autonomous bodies, local self governments, legal and Constitutional bodies.
2. The committees & societies making recruitment and providing employment are instrumentality and agencies of the “State”. Therefore, the recruitment process undertaken by them are “direct recruitment” under the service law and attract rule of reservation. But in disregard to Constitutional mandate and own instructions of Government (issued by GoI in 1968 and adopted by HP, reiterated by GoI in 2018 and 2023) reservation has been expressly denied on bizarre ground, inter alia, that this has been a temporary arrangement for fixed tenure. The services of such appointees continued uninterrupted and have been regularized from time to time. This is fraud on the Constitution.
3.There is a rider to the cap of 22%, 5% & 18% reservation as shown in tables for reservation in case of class IV & III posts. Head note of instructions issued vide No. PER(AP)-C-B(12)-1/98 dated 20.08.1998 by the government of HP prescribes ‘model roster of reservation with reference to posts for direct recruitment in respect of class III & IV posts/services where recruitment is made on a local or regional basis.’ By implication where recruitment is made on basis other than local or regional, the reservation would be 15% in case of SC, 12% in case of OBC. The departments have been making recruitment through competitive examinations, through HP Public Service Commission and HP Subordinate Staff Selection Commission in case of class III posts.
4.Following illustrations may suffice to show that the system created to monitor the implementation of reservation is inept and withering:
(i) Liaison officers and State liaison officers are dysfunctional.
(ii) Head of the departments do not carry out the annual inspections of the record of rosters.
(iii) There are standing instructions that adequate representations of SC/ST/OBC may be ensured in recruitment Commissions, Boards, Agencies and Committees of Departments, PSUs, as well as Autonomous/ Constitutional /Legal Bodies and instrumentality/agencies of the State. They are implemented only sporadically.
(iv) There are instructions and age old obligation/practice of periodical meetings of Unions of SC, ST & OBC Employees, as well as of NGOs, with the Government. This has been ignored.
(v) Many of the departments, PSUs, autonomous bodies, local self governments, legal and Constitutional authorities and the like do not maintain roster registers or maintain such registers at their convenience. Such omission/commission do not portray the actual quantum or status of reservation at particular point of time. Such aberration affect the quantum of reservation in next appointments and promotions adversely. This kind of dereliction and convenience lead the Department of Animal Husbandry to advertise 239 posts of class four (peons and chowkidars) in the year 2020 and put the recruitment process in motion without making any reservation to SC/ST.
5. There has been backlog of reserved posts in recruitment years due to various reasons like deficient computation of reserved posts vi-a-vis total posts, non availability of suitable candidates against certain specialized posts.
6. For combination of reasons mentioned in paragraphs 1 to 5 supra cumulative shortfall has been piling up. In this regard National Commission for Scheduled Castes in the Annual Report 2012-13 (P 40) has observed, inter-alia that:
"(i) The reservation in various Government / Public Sector Undertakings is not as per the Scheduled Caste population percentage of the State which is violative of the various provisions of the Constitution as also the directions of the Central Government.
(ii) Rosters are neither maintained nor checked or verified by the various functionaries.
(iii) There is no mechanism of Chief Liaison Officer or Liaison Officer in the State.
(iv) There is high backlog both in the State Government as also in its Public Sector Undertakings. The number of teachers in the Education is mere 8% which needs to be upgraded without delay.
(v) …… (vi) …..”
ü The contents of this report apply, mutatis mutandis, to ST/OBC.
Filling up of shortfall and backlog
l In the Annual Report 2012-13 the National Commission for Scheduled Castes pointed out factum of huge shortfall and backlog. This report was followed up in its Annual Report 2016-17 (para 7.3.4). It was recommended among other things that shortfall and backlog should be filled through special recruitment drives.
l The State Government vide Notification No.PER(AP)-C_b(12)-2/13, dated 01.11.2013 constituted a Committee comprising of four members under the chairmanship of Chief Secretary to hear and ascertain the views of employees associations regarding implementation of Constitution (85th Amendment) Act, 2001 in the State. This committee made recommendation to clear the backlog and shortfall of Scheduled Castes and Scheduled Tribes categories in posts in each cadre. The recommendation was accepted by the Government which led to issuance of detailed instructions vide No.PER(AP)-C-B(12)-2/2013-I dated 21.11.2015. Para 2 of these instructions reads as follows:
“After careful consideration, it has now been decided by the government to fill up the shortfall and backlog of vacancies earmarked for Scheduled Castes, Scheduled Tribes and Persons with Disabilities against the existing strength/filled in posts…”
l The Government in the Department of Personnel issued instructions vide No.PER(AP)-C-F(4)-6/2016 dated 9.09.2016 to the effect that “the shortfall and backlog of Other Backward Classes in direct recruitment against the existing strength /filled in posts in each cadre may be filled up on the analogy of SC/ST/PWD…”
l The Hon’ble State Administrative Tribunal, Himachal Pradesh vide interim order dated 12.09.2018 in the O.A. No.5155/2018-titled as Alka Chaudhary & anr Vs State of H.P. & others and O.A. No.5156/2018- titled as Asha Rani & anr Vs State of H.P. & others has issued directions that special recruitment drive for clearance of backlog and shortfall of Scheduled Castes, Scheduled Tribes, Persons with Disablement and other Backward Classes in direct recruitment be completed as expeditiously as possible, preferably within three months. As a sequel to this order the Government in the Department of Personnel issued one more reminder in the series to Administrative Secretaries and others vide No.PER(AP)-C-F(43)-6/2016-II dated 27.09.2019 on this issue. Para 3 of this reminder makes following reading:
“However, it is observed that a number of shortfall/backlog vacancies of above categories in various departments are yet to be filled up which is resulting in negation of the spirit of the decision of the Government for launching a special recruitment drive to wipe out shortfall/backlog in a time bound manner….”
But no special recruitment drive took place till date.
l Conversely, Government of HP Notified 100 posts of Ayurvedic Medical Officers in Ayush Department to HPPSC on 10.06.2022. Out of this 15 posts were reserved for ex servicemen. In addition to this, 68 backlog posts reserved for ex servicemen and allowed to be filled up from amongst the wards/dependents of ex servicemen through a special recruitment drive, were notified on 13.09.2022 and 13.10.2022. Out of 68 backlog posts 54 were for General Category (ex servicemen). Recruitment process is complete. Similarly 49 posts of Veterinary Officers were notified in Animal Husbandry Department to HPPSC on 28.04.2023. Out of this 8 posts have been reserved for ex servicemen. In addition 7 backlog posts reserved for ex servicemen and allowed to be filled up from amongst the wards/dependents of ex servicemen, have also been notified making total as 56 posts. Out of 7 backlog posts 6 are for General Category (ex servicemen).
l Picking up horizontal reservation (ex servicemen) for clearance of backlog /shortfall is mischievous and well thought of. This has been done to give unambiguous advantage to General Category.
Catalytic Retrogression
Overall representation of SC/ST/OBC in services is not more than 25%. In class I & II this is much less. Notwithstanding the availability of quantifiable data the critical issues of reservation have not been addressed which is evident from the following illustrations:
l Eighty fifth amendment of the Constitution, read with M Nagaraj, Jarnail Singh I and Jarnail Singh II, has not been implemented in HP.
l In the Annual Report 2016-17 (pages 141-142, para 7.3.4) the National Commission for SC recommended among other things that:
i) Reservation rosters should be maintained and followed strictly to ensure adequate representation of SCs in service;
ii) Backlog of vacancies should be filled through special recruitment drives;
iii) Necessary infrastructure like appointment of liaison officers, setting up grievance cells for SCs etc. should be strictly followed;
iv) As the Governments are resorting to engagement of large number of consultants, research associates, young professionals, interns and data entry operators, rules of reservation should be followed in such engagements also.
ü This has been conveniently ignored.
l In its meeting dated 19.10.2020 Welfare Committee of H.P. Legislative Assembly observed that the appointments of Multi Purpose Workers being done in Jal Shati Vibhag, Education and other Departments, is a case of direct recruitment and therefore required the State Government to adhere to rule of roster provided to SC/ST/OBC and other reserved categories. But the provisions denying reservation in schemes of Multi Purpose Workers of Jal Shakti/Education Departments and other posts in similar schemes of other Departments have not been amended and Government has been proceeding ahead with making appointments under various schemes/ guidelines without heeding to the recommendation of the Vidhan Sabha Samiti.
l Nearly fifty thousand posts have been filled through outsourcing. Notification of vacancies and recruitment process are being controlled by respective/nodal departments. The expenditure is being defrayed from Government coffers. These are nothing but direct recruitment. But reservation to SC/ST/OBC has been denied.
l Incidentally, employment by way of outsourcing is not a temporary arrangement. Services of outsourced appointees have been going on unabated. Policy regulating such services is in place. Process to regularize the services of outsourced appointees has started. Services of piecemeal workers appointed through outsourcing by HRTC have been converted to contractual in its establishment.
l Opportunities to the SC/SC/OBC have been cut to size-systematically and brazenly. Denial and dilution are being validated.
Case for adequate representation
l The spirit of Constitution of India is to provide representation to Scheduled Castes and Scheduled Tribes in Legislatures and services in proportion to their population. Reservation of seats in Parliament, State Legislatures, Panchayati Raj Institutions and Urban Local Bodies is made in proportion to population of Scheduled Castes and Scheduled Tribes in the country and respective States. Brochure on reservation of Government of India makes it amply clear that population is the sole criterion to determine the quantum of reservation.
l Based on 2001 census the Government of India, Department of Personnel and Training, vide OM No. 36017/1/2004-Estt(Res) dated 05.07.2005 revised the quantum of reservation for SCs, STs, & OBCs in case of direct recruitment to Group C and D posts normally attracting candidates from a locality or region. In case of Himachal reservation to SCs and OBCs is given as 25% & 20% respectively.
l Quantum of reservation has been revised from time to time dependant on the census figures. Para 1.7 of Chapter -1 of Brochure is reproduced as follows:
“1.7. On attainment of Independence, instructions were issued on 21-9-47 providing for reservation of 12 ½ per cent of vacancies for SCs in respect of recruitment made by open competition. In case of recruitment otherwise than by open competition this percentage was fixed at 16 & 2/3 per cent. Difference between recruitment by open competition and otherwise than by open competition has been explained in Chapter-II. After the Constitution was promulgated, MOA, in its Resolution of 13-9-50, provided 5 per cent reservation for STs apart from the percentage fixed for SCs already in force. The 1951 Census showed that the percentage of SCs in the total population was 15.05 per cent and that of ST 6.31 per cent. The percentages were not revised at the time as a comprehensive bill revising the lists of SCs and STs was under consideration. The other reason for not revising the percentage was that reservation had already been provided for SCs in posts filled otherwise than by open competition to the extent of 16.66 per cent and instructions had also been issued for following a regional and local percentage for Class III and Class IV posts attracting candidates from a locality or a region. The 1961 Census revealed that the SC and ST population in proportion to the Indian population stood at 14.64 per cent and 6.80 per cent respectively. Accordingly, the percentage of reservation for SCs and STs was increased from 12 ½ and 5 per cent to 15 per cent and 7 ½ per cent respectively on 25-3-70. The 1971 Census did not warrant any such review. The actual impact of 1981 Census figures on all India percentages could not be known because the Census of 1981 could not be carried out in the State of Assam. The Government in 1993 introduced reservation for Other Backward Classes in direct recruitment broadly at the rate of 27%. After introduction of reservation for OBCs, total reservation for SCs, STs and OBCs comes to 49.5% in case of direct recruitment on all India basis by open competition and 50% in case of otherwise than by open competition. As per various judgments of the Supreme Court, total reservation for these communities cannot exceed the limit of 50%.”
l In Indra Sawhney case the Honorable Supreme Court held that the proportion of Backward Classes to the total population would be relevant for providing quantum of reservation.
l Government of India and other States have been following criterion of population in providing reservation to the persons of Scheduled Caste and Scheduled Tribes categories. Section 4 (2) of the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006 provides that " the percentage of reservation for filling up the vacancies by direct recruitment or by transfer in Group-A , Group-B, Group-C and Group-D services shall be 25% for Scheduled Castes and 12% for Backward Classes”. This provision is close to percentage of the Scheduled Caste population in the State of Punjab. The U.P. Public Services (Reservation for Schedules Castes, Scheduled Tribe & Other Backward Classes) Act, 1994 fixes the percentage of reservation to Schedules Castes at 21 % in all categories of posts. This is slightly more than the percentage of Scheduled Caste population in the State of Utter Pradesh. Haryana provides 20% reservation for Scheduled Castes in services in all categories of posts uniformly. This is equal to the percentage of Scheduled Caste population in the State of Haryana. Uttarakhand has provided 19% which is equal to the percentage of Scheduled Caste population in that State. So far as the State of Himachal is concerned it has made segregation in terms of categories of posts and nature of recruitment process. For class/group I & II reservation for Scheduled Castes is 15%. Similarly, for all recruitment by Himachal Pradesh Public Service Commission & Himachal Pradesh Staff Selection Commission whether through written examination or by interview or by both, reservation for Scheduled Castes is 15%. In case of recruitment made by other authorities or any other appointing authorities through written competitive examination or tests, the reservation for Scheduled Castes is again 15%. In remaining cases it is 22%. It is pertinent to mention that in case of almost all class/group III posts recruitment is done through Himachal Pradesh Public Service Commission & Himachal Pradesh Staff Selection Commission or by other authorities or any other appointing authorities through written competitive examination or tests. Therefore, stray posts of district cadre and of class IV are left out of ambit of competitive examination for recruitment. It is also submitted that population of Scheduled Castes in the State of Himachal Pradesh has been close to one fourth of the total population.
l Only Scheduled Castes, Scheduled Tribes and OBC of Himachal Pradesh are eligible for the posts reserved for Scheduled Castes. Para 1.5 of Brochure on reservation of Government of India reads as follows:
“1.5 It may be noted that the Constitution imposes inter-state area restrictions so that the people belonging to the specific community residing in a specific area, which has been assessed to qualify for the Scheduled Castes or Scheduled Tribes status, only benefit from the facilities provided for them. Similar restrictions are applicable to the OBCs also. Since the people belonging to the same caste but living in different States / Union Territories may not necessarily suffer from the same disabilities, it is possible that two persons belonging to the same caste but residing in different States/ UTs may not both be treated to belong to SC/ST/OBC. Thus the residence of a person in a particular locality assumes a special significance. This residence has not to be understood in the literal or ordinary sense of the word. On the other hand it connotes the permanent residence of a person on the date of the notification of the Presidential Order scheduling his caste/tribe in relation to that locality.”
l Similarly, vide H.P Government, Department of Personnel letter No.2-11/72-DP(A-II) dated 17.08.1981 decision of H.P Government was conveyed which further is incorporated in clause 20.17.20 in HP Handbok on Personnel matters vol.II, which provide that “while filling up the posts reserved for SC/ST, the SC/ST candidates of H.P should only be considered eligible for applying for the reserved posts under H.P Government”.
l For the purpose of reservation to Economically Weaker Sections of Himachal Pradesh no segregation is made in the classes /groups of posts and there is uniform reservation of 10% in class/group I to IV posts.
Service Conditions of Safai Karmcharis
Cadre of safai karamcharis was declared as dying cadre vide letter No Fin-F-(F)-11/2004-I dated 21.07.2011 and posts of sweepers are being replaced by way of outsourcing in Departments/PSUs, Urban Local Bodies and Boards and Corporations etc. This has led to the following ramifications:
1. The safai karamcharis employed by way of outsourcing are placed in minimum wages segment and with the exception of sporadic incremental enhancements, remain in the same bracket all through their employment periods.
2. They remain only seasonal and casual workers with job insecurity and uncertainty. There is sea of difference in earnings and service conditions of regular employment on the one hand and seasonal and casual jobs on the other.
3. The safai karamcharis perform odd jobs to make living conditions better for others. The system of employment on the basis of outsourcing sustains on the maxim of profit for the employers sans beneficia operarius. It is hire and fire diktat. These conditions lead to various forms of exploitation. In turn this is State sponsored unfairness on the socially and economically depressed class.
4. There is scheme to appoint legal heirs of the safai karamcharis who die while in services. But no such appointments have been made after 2006. This is violation of policy of the State and grave injustice to the families left in harness.
5. The safai karamcharis cannot support their families with the income derived from outsourced employment. Therefore, most of the sweepers are forced to put in extra working hours in other jobs at the peril of their health and safety.
6. In the outsourced system of employment there is no social security for the safai karamcharis who become disabled during the course of employment. Also there is no ex-gratia on retirement or death.
FINAL ON EMPLOYMENT
Debate on diagnosis and remedy
· Improvement in implementation within the ambit of laid down quantum and norms of concessions?
· Our MODEL based on Constitutional mandate, quantifiable data and prevailing circumstances determining such model?