Domicile-Based Job Quota
Madhya Pradesh government’s decision to reserve all government jobs for “children of the state” raises questions relating to the fundamental Right to Equality.
• Article 16 of the Constitution, which guarantees equal treatment under law in matters of public employment, prohibits the state from discriminating on grounds of place of birth or residence.
• Article 16(2) states that “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 or, any employment or office under the State”.
• Article 16(3) of the Constitution provides an exception by saying that Parliament may make a law “prescribing” a requirement of residence for jobs in a particular state. This power vests solely in the Parliament, not state legislatures.
• In India, all citizens irrespective of the state in which they are born or reside enjoy the same political and civil rights of citizenship all over the country and no discrimination is made between them.
Constitution forbids reservation based on domicile:
When the Constitution came into force, India turned itself into one nation from a geographical unit of individual principalities and the idea of the universality of Indian citizenship took root.
As India has common citizenship, which gives citizens the liberty to move around freely in any part of the country, the requirement of a place of birth or residence cannot be a qualification for granting public employment in any state.
Reservations granted on other grounds
Equality enshrined in the Constitution is not mathematical equality and does not mean all citizens will be treated alike without any distinction.
To this effect, the Constitution underlines two distinct aspects which together form the essence of equality law — non-discrimination among equals, and affirmative action to equalise the unequals.
Supreme Court view on reserving jobs for locals
The Supreme Court has ruled against reservation based on place of birth or residence.
In Dr Pradeep Jain v. Union of India, 1984 the issue of legislation for “sons of the soil” was discussed.
In Sunanda Reddy v. State of Andhra Pradesh, 1995 the Supreme Court affirmed the observation in Pradeep Jain to strike down a state government policy that gave 5% extra weightage to candidates who had studied with Telugu as the medium of instruction.
In 2002, the Supreme Court invalidated appointment of government teachers in Rajasthan in which the state selection board gave preference to “applicants belonging to the district or the rural areas of the district concerned”.
In 2019, the Allahabad High Court struck down a recruitment notification by the UP Subordinate Service Selection Commission which prescribed preference for women who are “original residents” of the UP alone.
State laws that reserve jobs for locals
Exercising the powers, it has under Article 16(3), Parliament enacted the Public Employment (Requirement as to Residence) Act, 1957 aimed at abolishing all existing residence requirements in the states and enacting exceptions only in the case of the special instances of Andhra Pradesh, Manipur, Tripura and Himachal Pradesh.
Constitutionally, some states also have special protections under Article 371. Andhra Pradesh under Section 371(d) has powers to have “direct recruitment of local cadre” in specified areas.
In Uttarakhand, class III and class IV jobs are reserved for locals. A domicile certificate proving the applicant is resident of the state for at least 15 years is necessary.
Some states have gone around the mandate of Article 16(2) by using language.
Other States on domicile-based job reservation
In April, the Centre issued a notification reserving jobs for J&K domiciles expanding the definition to central government employees who had served in the erstwhile state for over 10 years.
Before the abrogation of the special status of J&K in 2019, state government jobs were reserved exclusively for state subjects as per Article 370 of the Constitution.
In Assam, a committee has submitted its report for implementation of a key provision of the 1985 Assam Accord, recommending reservation in jobs for those who can trace their ancestry in the state before 1951.
PEPPER IT WITH
Exceptions to the Right of Equality, Caste based Reservation system in India, Art. 330, 335, 93rd Constitutional Amendment Act, 2005, 103rd Constitutional Amendment Act, 2019, Public Employment (Requirement as to Residence) Act, 1957, Mandal Commission