RBE No.99/1985 Reservation – Engagement of Council

No.85-E(SCT)15/38, dated 08.04.1985

Sub: Writ Petitions filed in various High Courts and the Supreme Court challenging the reservation orders for SC/ST – engagement of counsels, etc.

Ref: Board’s letters No.78 E(SCT)15/38, dated 18.11.1978, 28.12.1980 and 30.05.1981 and D.O. letter of same number dated 13.03.1980 and No.85-E(SCT)49/2, dated 26.02.1985.

1. A reference is invited to Board’s letter dated 26.02.1985 referred to above, wherein detailed instructions have been issued to the Railways about the procedure to be adopted for implementing the ad interim ex-parte orders dated 21.12.1984 in the case of Girdhari Lai Kohli v. U.O.I. (CMP No.41996-42003/1984 in WP Nos.17386-17393/1984) which were passed by the Supreme Court on the analogy of their earlier interim order dated 24.09.1984 in the case of J.C. Malik v. U.O.I. It is understood the some of the High Courts have also issued orders similar to the orders dated 21.12.1984 referred to. Some of the Railways have sought for guidance as to how to prepare counter-affidavits to the Writ Petitions and also the stay applications in such cases.

2. In this connection, attention is invited to the Board’s letters dated 18.11.1978, 28.12.1980 and 30.05.1981 and also the D.O. letter dated 13.03.1980 referred to above wherein inter alia detailed instructions have been issued for dealing with such Court cases.

3. The instructions contained in Boards’ letter dated 18.11.1978 referred to, inter alia stipulate that your Railway may engage besides the Railway advocate, the Advocate-General of the State or any senior counsel of long standing experience from amongst the counsels available on the panel after obtaining the approval of the Board, since payment of high fee is involved. It was also emphasized on the Railways that there should not be any laxity on the part of Railways giving full briefs to the lawyers concerned explaining in full details the constitutional provisions, the existing policy of the Government in implementing the principles of reservation, roster mechanism, comparative merits and demerits of the two known systems viz. the reservation on the total number of posts in a cadre (vide Supreme Court Case – T. Devadasan v. U.O.I.) and concluding that of the two systems, the existing one has less demerits and is quite rational and constitutional. Further, it was also enjoined that the draft counter affidavits should also be got vetted by the Railway Board in such cases. In Board’s letter dated 28.12.1980; referred to, inter-alia, it was also mentioned that the precedents found in various Supreme Court judgments, particularly in the following cases should be kept in view while preparing the counter-affidavits to the Writ Petitions wherein the Government’s policies on the reservation for the SCs/STs are challenged;

Attention of the Counsels should also be invited to the above mentioned Supreme Court cases while briefing them.

4.     Under the D.O. letter No.78-E(SCT) 15/38, dated 13.03.1980 referred to above, a copy each of the two counter affidavits submitted in the case of Akhil Bhartiya Soshit Karamchari Sangh v. U.O.I. were also forwarded to the Railways pointing out that the material contained therein will provide indication as to how counter affidavits have to be prepared.

5.     In this connection, a copy of the application dated 02.02.1985 for vacation/ variation of the Supreme Court order dated 24.02.1984 is sent herewith. A counter affidavit enclosing a copy of the counter affidavit dated 23.11.1979 which was submitted in the case of the Akhil Bhartiya Soshit Karmachari Sangh v. U.O.I. has been also prepared and is being filed before the Supreme Court for vacation of their ex-parte ad interim order dated 21.12.1984 in the case of Girdhari Lai Kohli v. U.O.I. These applications/Petitions are expected to be heard by the Hon’ble Supreme Court shortly.

6.     It is desired that while preparing the counter affidavits for the vacation of the ad interim orders passed by the High Courts on the analogy of the orders of the Supreme Court dated 24.09.1984 and 21.12.1984. The Railways should also annex a copy of application dated 02.02.1985 and copies of the counter affidavits submitted by the U.O.I. forwarded to the Railways under the D.O. letter dated 13.03.1980 referred to above. A copy of the supplementary affidavit dated 19.03.1979 submitted before the Supreme Court in the Civil Appeal No.2017/78 (U.O.I v J.C. Malik) is also sent herewith for briefing the lawyers and also for enclosing a copy thereof with the counter-affidavits to be prepared by your Railway in respect of WPs wherein the policies of the Govt. on reservation for the SCs/STs have been challenged.

I hope that in the light of the above, your Railway will be in a position to prepare the necessary counter-affidavits applications for vacation or variation of the orders, etc.