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Published : October 11, 2012 | Author : Akash Shah
Category : Constitutional Law | Total Views : 35916 | Rating :

  
Akash Shah
Akash Shah
 

Critical Analysis on Reservation Policy in India

Introduction & Research Methodology
The provisions available in the Constitution of India, based on which orders relating to reservations in services for Scheduled Castes (SCs), Scheduled Tribes (STs) and other Backward Classes (OBCs) have been issued by Department of Personnel & Training and Ministries of Social Justice of Government of India. The provisions made in the Articles 16, 335, 338, 340, 341 & 342 of the Constitution relate to reservation, protection and safeguards, in public employment in respect of the persons belonging to the SCs/STs and other backward classes.

Article 16 enables the ‘State’ to make provisions for reservation of appointments or posts in favour of SCs, STs and OBCs. However, the detailed provisions regarding the quantum and the applicability of reservation in appointment or posts are governed by the orders issued from time to time by the Department of Personnel &Training, Ministry of Personnel, Public Grievances and Pension, Government of India. The applicability of reservation orders is dependent on the method of recruitment. Not only the percentage of reservation but also the procedure of the application of reservation will depend and vary according to the method of recruitment

However the job reservation policy has three important flaws. First, it has a "discriminatory bias against Muslims who do not benefit from such policies". Second, it emphasises caste or tribe rather then income or wealth:

The goal of reservation in India has been to bring about an improvement in the welfare who, historically, have been economically and socially depressed. But, in arriving at this judgement about who should be eligible for reservation, the criterion has been a person’s caste rather than his income or wealth. Consequently, groups belonging to what Article 115 of the Indian Constitution calls “socially and educationally backward classes” have benefited from reservation even though, in practice, many of these groups could not be regarded as “backward”. This has meant that many of the benefits of reservation have been captured by well-off groups from the depressed classes (for example, chamars from the SC) while poorer groups from the depressed (for example, bhangis from the SC) have failed to benefit.

Statement of Problem / Research Question
However the job reservation policy has three important flaws. First, it has a "discriminatory bias against Muslims who do not benefit from such policies". Second, it emphasises caste or tribe rather then income or wealth:

The goal of reservation in India has been to bring about an improvement in the welfare who, historically, have been economically and socially depressed. But, in arriving at this judgement about who should be eligible for reservation, the criterion has been a person’s caste rather than his income or wealth. Consequently, groups belonging to what Article 115 of the Indian Constitution calls “socially and educationally backward classes” have benefited from reservation even though, in practice, many of these groups could not be regarded as “backward”. This has meant that many of the benefits of reservation have been captured by well-off groups from the depressed classes (for example, chamars from the SC) while poorer groups from the depressed (for example, bhangis from the SC) have failed to benefit.

Objective
The objective of this project is:
Ø To study the implementation of reservation policy.
Ø To find out the actual need of the reservation policy.

Hypothesis
The researcher has made certain assumption in the beginning of the research project which are going to be tested during the project, they are the following.
Ø The reservation policy for jobs for SC & ST should be changed. As there is vast change in today’s condition.
Ø The reservation policy should be based on the economical basis not on the class or caste basis. If it caste based then we are only creating discrimination with them.

Scope Of The Study
The research is a doctrinal research. The researcher here would like to study only the judicial viewpoints in the appointment of SC & ST in various jobs in public and private sector. The researcher has tried to analysis the topic by studying various authors, experts, cases of The Indian Apex Court and High courts, articles, etc. The researcher has strictly followed the boundary and has studied only with reference to Indian authors, experts, cases, etc.

Welfare Schemes
Information is also collected in respect of benefits accruing under different central/state sponsored schemes to Scheduled Tribe Workers and their families. The concepts of sub-plan approach for tribal development are being formulated and implemented in the state since the beginning of the 5th plan. The blocks having 50 per cent tribal concentration are brought under the umbrella of the tribal Sub-Plans. The tribal Sub-Plan envisages the integrated development of the Tribal area in which all programmes irrespective of their source of funding operate in unison to achieve a common goal or bringing the area at par with the rest of the state and to improve the quality of life of Tribals. Integrated Tribal Development Agencies were formed to co-ordinate implementation of various Schemes.

There are some other social welfare schemes in vogue in the state viz. Old Age Pension/WP, National Old Age Pension Scheme, Gujarat Disability Pension Scheme, National Family Benefit Scheme, Personal Accident Insurance Social Security Scheme, Supply of Special Aids and Appliances to Handicapped persons and scholarships to disabled students. It has been reported that Scheduled Tribe families were benefited by these schemes in Schedule Tribe belt area. Gujarat Scheduled Castes and Scheduled Tribe Development Finance Corporation was providing economic assistance to SC/ST families living below the poverty line by way of arranging institutional credit under the Margin Money Loan Programme (MMLP) for various income generating schemes. Apart from the above schemes, Scheduled Tribe students were given scholarships, books, boarding and lodging facilities to the eligible students in order to promote literacy and education amongst Scheduled Tribes.

Two types of schemes were run by the Labour Welfare Organization in Gujarat, one for the direct benefit for workers and the other for managements. The schemes for direct benefit of Schedule Tribe workers pertain to health, housing and education. Under health sector there are schemes for the benefits of T.B. patients, Leprosy patients, Mental Patients, schemes for supply of free spectacles, scheme for Cancer patients, schemes for reimbursement of expenditure as financial assistance to S. T Workers suffering form heart disease, kidney transplantation etc and fatal and serious accidents benefits scheme. Under these schemes different type of benefits like free treatment, medicines, subsistence allowance, traveling allowance, diet charges, reimbursement of expenditure, financial aid etc. are given to the Scheduled Tribe workers. Under housing sector assistance upto Rs.40,000/- is provided to Scheduled Tribes to construct a new house or repair of the old house with some conditions. In additions to the above welfare schemes, the following schemes run by the office of Vigilance Officer for the Tribal development for the development of the Scheduled Tribe are in four parts (1) Education (2) Economic development (3) Health and housing (4) Administration, Directions etc.

Education Scheme
Examination Fee: The students in SSC and equivalent standard appearing in the SSC board examination are provided with examination fee ranging from Rs 170/- to Rs. 200/- Scholarship: Students with 38 per cent results in Govt. Schools, Govt. recognized schools and with 45 per cent result in Private Schools were given yearly scholarship of Rs.125/- to Rs.200/- per year. Tuition fee of Rs.250/- p.m. paid to the students whose parents/guardian income was less than Rs.24000 p.a. Scholarship were also sanctioned to girl students whose family income exceeds between Rs.50,920 p.a. Engineering medical & B. Sc(Agri) Diploma courses are given Rs.510 to Rs.740/- for Residential hostel, while for the day scholars it is Rs.330/ p.m. In addition to the above narrated schemes the following schemes are also in vogue (i) free uniform (ii) food assistance scheme (iii) free Bicycle scheme (iv) financial assistance to medical and engineering students to purchase educational equipments upto Rs 1000/- (v) cash payment scheme to S. T. college students and (vi) Balwadi scheme in which 90 per cent to 100 per cent Grant-in-aid was provided. Under the housing sector, assistance upto Rs.40,000 is provided to Scheduled Tribes to construct or purchase a new house or repair of the old house.

Some of the other welfare schemes are also functioning like Social education camps are arranged to educate the S.T people to take out from backwardness and to give information about these schemes and for these camp Rs.5000/- has been sanctioned. The Public cell Scheduled Tribe Atrocities Assistance also provides atrocity assistance. Kunwar bair Noo Mameroo assistance and Saat Phere Samooh Lagna scheme were also in vogue and Rs.1000 to Rs.5000 are given.

Reservation In Service For Sc & ST
In this Unit we shall discuss the provisions available in the Constitution of India, based on which orders relating to reservations in services for Scheduled Castes (SCs), Scheduled Tribes (STs) and other Backward Classes (OBCs) have been issued by Department of Personnel & Training and Ministries of Social Justice of Government of India. The provisions made in the Articles 16, 335, 338, 340, 341 & 342 of the Constitution relate to reservation, protection and safeguards, in public employment in respect of the persons belonging to the SCs/STs and other backward classes.

3.1 Constitutional Provisions
Every Constitution has philosophy of its own. The Preamble of our Constitution proclaims the resolution of PEOPLE OF INDIA to constitute India into a SOVEREIGN, SOCIALIST, SECULAR AND DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and opportunity; and to promote among them all ; FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation. The ward 'social justice' in the Preamble implies recognition of greater good to a larger number without deprivation of legal rights of anybody.

The concept of equality, enshrined in the Preamble has also found expression as a fundamental right in Article 14 to 16, which we shall discuss in the next section.

3.1.1 Right To Equality-Article 14
The Article 14 of the Constitution is one of the fundamental rights of the Constitution of India. Let us now know about this Article. Article 14 of the Constitution reads: “The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India" What do the two phrases in this Article namely “equality before the law” and “equal protection of law” mean? On the face of it the two phrases may seem to be identical, but in fact, they mean different things.

While “Equality before the law” is negative concept; “equal protection of laws” is a positive one. The former declares that everyone is equal before law, that no one can claim privileges and that all classes are equally subject to the ordinary law of the land. “Equal protection of Law”, on the other hand means, that among equals, the law should be equal and equally administered. That like should be treated as like. Or in other words, persons differently circumstanced need not be treated in the same manner. For example ‘Equal protection of Law’ does not mean that every persons shall be taxed equally, but that persons under the same category should be taxed by the same standard. The guarantee of “equal protection” thus is a guarantee of equal treatment of persons in “equal circumstances” permitting differentiation in different circumstances. If there were a reasonable basis for classification, the legislature would be entitled to make different treatment. Thus, the legislature may (i) exempt certain classes of property from taxation at all, such as charities, libraries etc; (ii) impose different specific taxes upon different trades and profession.

Illustration of reasonable classification: Yusuf V. State of Bombay, AIR.1954 S.C.321

3.1.2 Safeguards for public employment(Art-16)
In the previous section we learnt about Article 14 and the doctrine of equality”. In this Unit we will learn in detail about Article 16, which is regarding equality of opportunity in the matter of employment under State Article 16 of the constitution provides for equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state. Article 16 reads as under:

Clause(1):There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

Clause(2):No citizen shall on grounds only of religion, race, caste sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of any employment of office under the State.

Clause (3): Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of or any local or other authority within, a State or Union Territory, any requirement as to residence within that State or Union Territory prior to such employment or appointment.

Clause (4)- Nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State, is not adequately represented in the services under the state".

Clause (4-A): Nothing in this article shall prevent the State from making provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes, which in the opinion of the State are not adequately represented in the service of the State.

Clause (4-B): Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or Clause (4-A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent reservation on total number of vacancies of that year (Constitution 81stAmendment Act, 2000).

3.1.3 Limitations of the Safeguard-Article 335
Article 335 of the Constitution originally read as under:- “ The claim of the members of the Scheduled castes and the Scheduled Tribes shall be taken in to consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of the State.”

The Hon’ble Supreme Court has held in a number of cases, that Article 335 operates as a limitation to the provision contained in Article 16(4) though Article 16(4) does not specifically refer to Article 335 or raise any question of maintenance of efficiency of the administration. Thus, reservation for the backward class will be struck down as violative of Article 14 and 16(1), if it is unreasonably excessive. While forming an opinion for making reservations the State shall also take cognisance of the limitation set out in Art.335 i.e. whether making reservation is consistent with the maintenance of efficiency of administration. 82nd Amendment Act, 2000, amended the Article 335. The background for the amendment was that the Hon’ble Supreme Court in the case of S.Vinod Kumar Vs. U.O.I had held that the various instructions of Government providing for lower qualifying marks/lesser standard of evaluation in matter of promotion for candidates belonging to SC/ST are not permissible in view of the provisions contained in Article 335. In view of this decision the various orders regarding lower qualifying marks/standard of evaluation for SC/ST in the matter of promotion were withdrawn by the Government w.e.f. 22.7.97. However, the Parliament decided to once again restore the relaxations and concession in promotion and the following proviso to Art.335 were added:- “Provided that nothing in this Article shall prevent in making of any provisions in favour of the members of the Scheduled Castes and Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in maters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State”

3.2 Percentage of reservation
The percentage of reservation for each category viz. SC, ST and OBC in Promotion and Direct Recruitment as these are the only two methods of recruitment to which the orders on reservation are applicable. In general of SC it is 15%, for ST it is 7.5% & for OBC it is 27%

3.3 Reservation In Direct Recruitment
In the previous Unit, we learnt about the three categories of direct recruitment viz. (i) All India basis by open competition (ii) All India basis otherwise than open competition and (iii) recruitment to Group ‘C’ and ‘D’ posts normally attracting candidates from a locality or region. Until September 1993, in the method of ‘Direct recruitment’, reservations of posts were only for SCs and STs. From September 1993 reservation for OBCs has also been provided in the case of direct recruitment. The percentage of reservation for SC, ST and OBC is different in each of the three types of direct recruitment and is shown in

the table-1 below: -

Sr. No.

 

Category

Share of Entitlement

SC

ST

OBC

 

1

Direct recruitment on all-India

basis by open competition

15

7.5

27

2

Direct recruitment on all-India

basis otherwise than by open

competition

16 2/3

7.5

25.84

3

Direct Recruitment to Group

‘C’ & ‘D’ posts which normally

attract candidates from a

locality or region

Generally in proportion to the population of

SCs, STs and OBCs in the respective

States/Union Territory.

Table 1

%age in Recruitment made through Staff Selection Commission (SSC) by Open Competition In the previous section we learnt about the percentage of reservation in the three types of direct recruitment. So far as recruitment by Staff Selection commission is concerned, the percentage of reservation is further governed by the OPT’s O.M.No .36011/9/82-Estt.(SCT) dated 8.2.83.

The examination conducted by SSC involves a mixture of following two kinds of nomination: -

1. On the basis of a single common All India list and;
2. On the basis of zone-wise lists
(the whole country having been divided into a number of zones where each zone corresponds more or less to a State/U.T) drawn up in accordance with the centre-linked-zonal scheme under which candidates are eligible to be considered for appointment to posts in offices located in the Zone in which the centre of examination opted by the candidates falls, though the examination is common . where they have taken the examination. In view of this the percentage of reservation applicable in case the recruitment is through SSC can be put in tabular form as under:-

Recruitment Made Through SSC

RECRUITMENT MADE THROUGH SSC

 

Sr. No.

 

Method

Share of Entitlement

SC

ST

OBC

1

 

Organisations, which receive candidates from a single common

All India, list.

15

7.5

27

2

 

 

Organisations which receive candidates from the list prepared

by SSC on the basis of Centrelinked zonal basis

 

Proportion to the population of

SC/ST/OBC of State.

3

Organisations spreading into

more than one State/Union Territory

Roster to be drawn up in consultation

with DOPT taking into consideration

the population of SC/ST/OBC in such

areas

The percentage of reservation for SC, ST and OBC in respect of each State and Union Territory has been prescribed by the Department of Personnel & Training and is available in the ‘Brochure on Reservation in Service’ (8th Edition) at P.P 494-502)

For example the percentages of the following States are Andhra Pradesh - 15 SC/ 06 ST/ 27OBC Karnataka - 15 SC/ 05 ST/ 27 OBC Tamil Nadu - 19 SC/ 01 ST/ 27 OBC

Manipur - 01 SC/ 27 ST/ 22 OBC Sikkim - 06 SC/ 23 ST/ 21 OBC West Bengal - 22 SC/ 06 ST/ 22 OBC

3.4 Percentage of reservation in promotion
In the previous section we learnt that the percentage of reservation in the case of direct recruitment varied according to the various types of direct recruitment. However, the percentage of reservation in promotion is uniform i.e. 15% for SC and 7.5% for ST, irrespective of the mode of promotion.

We had seen in the case of direct recruitment that reservation is applicable to all level of posts. Is the position same in the case of promotion also? The answer is ‘NO’.

In seniority-cum-fitness mode, reservation in promotion is applicable to all level of posts i.e. in Groups C & D, Group C to Group B, within Group B, from Group B to Group A and within Group A. But in selection mode, reservation is NOT applicable in promotion within Group ‘A’. Promotion “Within Group A “ means, that the lower post (feeder post) and the higher post to which promotion is taking place, both belong to Group ‘A’.

The applicability of reservation in various modes of promotion can be indicated in the table-3 below: -

Mode of promotion

 

Reservation applicable:

YES

NO

Limited Departmental Competitive

Examination (LDCE):

 Groups B,C & D.

Yes

 

 

 

Seniority-cum-fitness:

In all groups (Groups A, B, C & D.)

Yes

 

 

 

 

 

selection

Groups C & D, Group C to Group B,

within Group B, from Group B to

lowest rung of Group A.

Yes

 

 

 

Lowest rung of Group A to higher

group A posts.

 

No

In the table-3 you can see that reservation in “Selection” mode is applicable upto the lowest rung of Group ‘A’. The lowest rung of Group A can either be the scale of Rs.8000-13500 (pre-revised 2200-4000) or could be 10000-15200 (pre-revised 3000-4500) , depending on whether the promotion in the particular service takes place from group ‘B’ to 8000- 13500 or directly to 10000-15200 For example in the Central Secretariat Service, Section Officers (Rs.6500- 10500, Gp.’B’) with 8 years of service are eligible for promotion to the post of Under Secretary ( Rs.10000-15200, Gp.’A’) and there is no intermediate scale of pay of Rs.8000-13500. Thus in the CSS, the lowest rung of group A will be 10000-15200 and reservation is applicable in the promotion from Section Officer to Under Secretary8.

3.4.1 Concession In Promotion
In the previous section we have learnt that in promotion reservation is not applicable in only one situation i.e. if the mode of promotion is by selection and promotion is taking place within group ‘A’. Although there is no reservation in such cases and, therefore, no posts are reserved for SC or ST but a ‘concession’ is available to SC/ST employees. In the next paragraph we will learn what is this ‘concession’. But it is important to understand that the ‘concession’ is available only in promotion by selection within group ‘A’ which carry an ultimate salary of Rs.5700 (pre-revised scale) or less p.m.

The concession available to the SC/ST Officers is, that those SC and ST Officers who are senior enough in the Z.O.C so as to be within the number of vacancies for which the select list has to be drawn, would be included in that list provided they are not considered unfit for promotion.

Critical View on Reservation policy and Conclusion
Now we have seen that government had kept various welfare schemes for the SC and ST in india. If we take few examples than reservations in educational systems, land allotments for residents( free of cost), agricultural land allotted free of cost for farming etc.

I believe that there should be reservation in the educational system of india. Due to which they can also get good and higher education, but at the time of the jobs/ public service there should be n reservation. A person has got almost 22 to 25 years benefit of reservation policy and had completed his studies. Now he should stand on his own feets and should face the competition in the market. They have got all the things which a person born in other cast has got by now.

If government still wants to keep reservation policy then now it should not be based on caste or class, it should be based on the annual income of the person. If the person is earning less than he requires more money for his family and children and this thing he can get only by a job or in public service.By this means only such persons can provide good education to their children.

Judiciary has played great role in the reservation policy. The great example of this N Nagrajan’s case, Ashok Kumar Thakor, and Indira Shawnay’s case. In this cases , supreme court has given passing reference to the reservation on the SC & ST in jobs. But Supreme court has said that reservation should not increase then 50% in any condition but in most of North Eastern state this reservation is increased to 85% and still they have started a move to increase it to the 95% and court is not taking any steps against it. By this way we can see that judiciary is also palying a role in increase of reservation for SC & ST.

Now days politicians are playing a major role in reservation policy.The reservation policy was only for 10 years afer the independence, for upiftment of SC and ST but till now it is continue and no one has taken any step to amend it or revise it or to change it. The reason behind this is the population of SC and ST in country. Nearly 33% voting is done by SC and ST so now if they make any change in the reservation policy against the SC and ST then they have to suffer a lot for the same. So they are not taking any steps against the reservation policy.

Now if you consider the theory of john rawles of justice then he has clearly said that “starting line should be / must be the same for all the Persons.” By providing reservation in the educational systems we are giving the same line to all the persons. He further also said that by providing equality in education they are providing equal chance to start to all the persons and further there is no need of reservation in service also.

I am totally agreed with the viewpoint of john rawles on reservation. Policy and there is clear need of revising the present reservation policy.

Bibliography
Books
# J.N.Pandey, The Constitutional Law of India, 46th Ed. Reprint 2009
# Raju .C.B, Social Justice & The Constitution of India (with reference to sc’s and st’s)
# Ram Ahuja, Social Problems in India
# Social Problems in India,Author – Ram Ahuja
# SE_GUJARAT 06-07_CHAPTER IX
# Pandey, J.N., the constitutional law of India
# Raju.C.B., Social Justice & The Constitution of India (with reference to sc’s and st’s)
# Sandeep Mukherjee, Institute of Secretariat Training & Management

Authors contact info - articles The  author can be reached at: akashshah@legalserviceindia.com




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Article Comments

Posted by A K MISTRY on April 02, 2016
All india depressed classes employees (govt.& private sector)actually nothing facility sector wise different ,it is one umbrala one rules policy adopt govt.of india. i request you ,

Posted by R.P.SINHA on February 03, 2016
a very good article

Posted by R.P.SINHA on December 19, 2015
A very good article

Posted by Saison on May 24, 2015
I have a query. Delhi HC passed a general Ad Interim direction in September in a Civil Writ, based on natural principles of justice, without going into the merits of the submissions. Action is taken by the Deptt in October based on the opinion of some officials (in contravention to the order of the court) without permission of or information to the Court. The order is reiterated by the Court in December after about 2 months. The petitioner withdraws the petition in March next year.
Is the action taken in October during the operative period of the Order which is in contravention to the direction of the Court, i.e. before withdrawal of the case can be termed as defiance of the Court order. How is the Court expected to look at this action by the Deptt. Please advise.

Posted by suman prakash gurram on June 24, 2013
i was married to SC woman in 2006 and i have 2 kids. now they have
started their schooling. we mutually liked to have my wife's caste (SC)
to our kids. can you provide assistance to how to provide this right to
our kids.

Posted by Bhara on October 19, 2012
Respected Sir/Madam,

I just want to know, if all the Group A officers come under OBC Creamy
Layer. Because, in the order, it is mentioned only employees of All
India Central and State Services.

I just have one query, my dad is Class I Officer in NFC, Department of
Atomic Energy. Do I come under creamy layer of OBC or not?

Some one also told, that All India Central and State Services means the
beuracrats not all employees.

Please advice.

Thanks,

Bharat

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