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SC: State has power of positive discrimination

The Supreme Court (SC) has ruled that a state has the power to adopt “positive discrimination” between a censured employee and a colleague with a clean record.

delhi Updated: Oct 17, 2011 01:07 IST
Bhadra Sinha

The Supreme Court (SC) has ruled that a state has the power to adopt “positive discrimination” between a censured employee and a colleague with a clean record.

“This appears to be an absolutely reasonable and perfect classification as otherwise every employee who has a clean image and another employee, who has earned censure, would be treated at par,” said a bench of Justice Dalveer Bhandari and Justice Deepak Verma.

Upholding Rajasthan Government’s policy to defer grant of selection scale to its censured employees by a year, the court held that denial of such benefits cannot be construed as discriminatory. It further said the practice does not violate the equality clause provided in the Constitution.

The bench reversed the Rajasthan High Court’s verdict, prohibiting the government from following the policy. The SC, however, restrained the state from recovering dues from censured employees who got the selection scale subsequent to the HC order.

The SC held the provision of “Equality before Law” in the Constitution could be uniformly administered among similarly placed persons. “But this has a caveat. The state still has the power to differentiate amongst different classes of people. That is to say, it can positively discriminate on the basis of reasonable classification and distinction but this must be based upon on intelligible differentia, which inherently separates such persons from the others,” the bench said.

It added that employees who had untainted, unblemished, clean and unpolluted record in service would be treated on a higher pedestal than those with tainted record.

This, it held, was a reasonable classification under the law of equality (Article 14) enshrined in the Constitution.

In the case before the SC, Rajasthan government had issued an office memo on January 25, 1992, providing for selection grade to employees on completion of nine, 18 or 27 years of service. A subsequent clarification was issued on July 24, 1995, stating grant of selection grade would be deferred by a year to those had a “censure” in their Annual Confidential Records.

On a petition by several affected employees, Rajasthan HC said the selection grade could not be deferred or withheld on account of “censure.” The government challenged the verdict before the SC that termed the state’s classification as “absolutely reasonable and perfect.”

“This is not permissible in the service jurisprudence and also violates Article 14 (Equality before Law) of the Constitution. It is a settled principle of law that ‘like should be treated alike.’ This is the mandate and command of Article 14 of the Constitution which we are required to follow. In any case, those who have earned censure cannot be treated at par with those who have had a clean service record,” SC said.