System of preference for welfare of Manual Scavengers not ‘Reservation’, Delhi HC

The Delhi High Court has ruled that affirmative action taken for the welfare and upliftment of manual scavengers is not ‘Reservation’..The Bench of Justices S Ravindra Bhat and AK Chawla was deciding a petition filed in a matter relating to a tender bidding for mechanized sewer cleaning when it ruled,.“[I]n this case is the attempt of the state, uniquely to ensure that the livelihood and lives of sewage workers performing manual scavenging tasks are meaningfully uplifted. The system of preference is not reservation, in any sense of the term.”.The petition was filed by M/S Metro Waste Handling against Delhi Jal Board (DJB) challenging the validity of the eligibility conditions and system of preference indicated by the DJB while inviting tender bids for the mechanized sewer cleaning and transportation project to be undertaken in parts of Delhi..The issues raised by the petitioner in this case were two-fold..Firstly, the DJB had capped awarding of one machine per bidder, which the petitioner claimed was unfair and arbitrary for bidders like itself and those on similar standing..Secondly, the DJB had indicated a preference list for award of tenders in the following order:.Family dependent of the deceased manual scavengersManual scavengers themselves (after due verification)SC/STs as per Article 15 (4) and 46 of the Indian ConstitutionOthers.This set of preferences, the petitioner claimed, amounted to a 100 per cent reservation. It argued that any reservation beyond 67 per cent goes against the concept of special provision authorized under Article 15(4) of the Constitution..The petitioners, represented by Advocates Manmeet Arora, Sarad K Sunny and Arjun Singh, claimed that the condition of awarding one machine per bidder and preference given in the form of “cent percent reservation” was discriminatory, unfair and arbitrary and adverse to the commercial interests of the petitioners..DJB, represented by Advocates Sumeet Pushkarana and Devanshu Lahiry, submitted that this tender was to rehabilitate those involved in manual scavenging by attempting to give them means of livelihood and to organize them into a force of small entrepreneurs..The case made by the respondents was that the decision to cap awarding of one machine to one bidder was incorporated with a view to employing individual workers involved in manual scavenging, in mechanized sewer cleaning, thereby giving livelihood to maximum number of families. Hence, a move like this cannot be opposed by the petitioner for its own commercial interests..The respondents also submitted that the essence of the tender was to empower manual scavengers to get help from the government and banks in procuring their own mechanized cleaning unit so that the risk of manual scavenging can be done away with..As regards the petitioners complaint regarding “cent percent reservation”, the respondent submitted that it was only a preference list, where preference to safai karmcharis is sought to be given to help them assimilate themselves into the mainstream..The Court, agreeing with the respondents, held that on the question of cap on awarding one machine per bidder, the respondents cannot be expected to not impose such a cap merely because they did not do so in the past. A cap of this nature was imposed for all bidders and was in no way discriminatory..On the question of preferences for bidders, the Court opined that based on the submissions made by the respondents, it appears that the tender scheme was introduced with the aim of improving the status of manual scavengers..“(The scheme) aims at improving the status and living condition of all those who have hitherto been vocationally stigmatized because of the caste roles they have been consigned into. Invisible and forgotten, those who have performed manual scavenging tasks have worked day in and day out for a society, which has studiously turned away its face from them and denied their very existence. It is this class of citizens – more than anyone else, who deserves the fulfillment of the promise of dignity and equality”, the judgement reads..The Court observed that the tender scheme was not intended to exclude general public but was aimed at giving a boost or a “step up” to the already marginalized section of manual scavengers or safai karmcharis..“The object of such preference is plainly to enable the meaningful participation of the most marginalized section, i.e. workers involved in manual scavenging, and scheduled caste/scheduled tribe communities (who are so chosen, having regard to what the Constitution framers stated as “a backward section of the Hindu community who were handicapped by the practice of untouchability”)”, reads the judgement..The Bench further delved into the interpretation of the word “reservation” as mentioned in Article 16(4) of the Constitution of India. saying that while this Article provides for special provisions (for the weaker sections) “by way of reservations”, Article 15 (3) of the Constitution of India has a much wider scope and provides for “positive action programmes in addition to reservations”..Finding no merit in the petition filed by the petitioners, the Court dismissed it. Highlighting the need and importance of a scheme of this nature, the Court stated,.“Unseen and forgotten for generations, our society has marginalized manual scavengers to its darkest corners. They are trapped in an eternal caste embrace, with no voice in the society or in any meaningful participation; their children are doomed to the same stereotypical roles assigned to them. The promise of equality, dignity and egalitarianism has eluded them altogether in the march and progress witnessed by the rest of our citizens. The present project, through the DJB’s impugned tender, promises a positive tomorrow to a significant number of these individuals”..Read the judgement below.