RESERVATION IN PROMOTION TO SCs AND STs: A SUPREME COURT VERDICT

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INTRODUCTION

Reservation is a form of affirmative action in Indian law in which a percentage of seats in the public sector, union and state government departments, union and state civil services, and public and private educational institutions are reserved for socially and educationally backward communities, as well as Scheduled Castes and Scheduled Tribes that are underrepresented in these services and institutions.

The under-representation of identifiable groups as a consequence of the Indian caste system is the underpinning reason behind the state’s provision of reservation. Following India’s independence, the Indian Constitution designated several formerly oppressed communities as Scheduled Castes (SC) and Scheduled Tribes (ST).SCs and STs had long been oppressed and denied equal opportunity in Indian society as a consequence of caste system according to the Constitution’s authors, and hence were underrepresented in nation-building operations. Thus the system of reservation was introduced.

Even before independence, India had a reservation system in place. After independence, the Constituent Assembly, led by Dr. BR Ambedkar, devised the reservation system.It was first launched for a ten-year period. After a ten-year period, Indian legislators saw the need to keep the reservation system in place to address many years of societal and cultural prejudice against specific groups of people.

Reservations were established in India:

To correct past and historical injustices against India’s backward classes, to guarantee that individuals from all castes are represented equally in state and federal government functions, to give an equal platform for all, regardless of caste and to promote and progress the backward classes.

Several adjustments have been made to the law regarding reservations in promotions. In regards of public employment, India’s Constitution offers equal opportunity to its citizens under Article 16. This principle is stated in Article 16(1) as follows:

“In concerns of public employment, equality of opportunity- (1) in matters pertaining to employment or appointment to any position under the State, all citizens shall have equal opportunity”. With respect to reservation in promotion, Article 16 clauses 4 and 4A deal with reservation and reservation in promotional issues, respectively.

Article 16(4A) empowers the state to enact any law relating to SC/ST reservations in promotion. Article 16(4B) states that unfulfilled reserved promotion positions for SC/STs can be carried over to the next year. Article 16 (4B) further assures that the reservation quota ceiling for these carried forward empty jobs — set at 50% by Indra Sawhney — does not apply to succeeding years. These are further discussed in detail.

BACKGROUND: MAJOR MOVES AND VERDICTS THAT CHANGED THE SCENARIO

The policy of seats reservation in terms of promotion for the communities of SCs and STs communities has been followed by the central as well as the state government since 1950s, reason being the non-adequate representation of these communities at the decision making level in the public services. Relating to the same issue a landmark judgment was pronounced in case of ‘IndraSawhney v. Union of India’ by the Supreme Court of India in 1992.

1992: Indra Sawhney v. Union of India

In this landmark case also popularly known as ‘The Mandal Judgment’, the honorable Supreme Court through its nine judge bench provided that the constitution in its Article 16(4) does not provide for the reservation in promotion and is limited only to the reservation in appointment. The court through this judgment had put all the reservation in promotion to SCs and STs in public employment at risk. While taking this into account, the court gave a buffer period of five years post November 16th 1992 to continue the reservation in promotion. This buffer period was granted to them so that they can take appropriate measures to implement the order given in the IndraSawney case.

The Supreme Court in this case upheld the reservation limit of 25% as recommended by the Mandal Commission for the backward classes, while making it clear that the combined quota for the Scheduled Caste, Scheduled Tribe and beneficiaries if backward class should not exceed the limit of 50% of the population of India. Government notification of reservation of 10% in the government jobs for the people of Economically Backward Classes was also struck down by the Supreme Court in 1992 while clarifying that according to Article 16(4) backward classes can be identified not only on the economic basis but also on the basis of caste.

The court made it clear that the reservation limit shall not exceed 50% and the same should be followed every year. However an exception can be given to the people from the remote and far flung areas because of their peculiar condition. However this all should be done with extreme caution. Although the “carry forward rule is valid” but is subject to the limit of 50%.

1995: 77th Amendment Act

The facility of reservation have been enjoying by SCs and STs to some extent since 1955. However in case of IndraSawhney& Others v. Union of India & Others, Supreme Court observed that reservation under Article 16(4) has been restricted to initial appointment and cannot go to the extent of reservation in promotion which could hamper the interest of the Scheduled Caste and Scheduled Tribe because of their lack of representation in the same. Thus to protect the interest of these communities,the government continued the policy of providing reservation in promotion. However, in order to carry out this policy, Article 16 of the constitution was amended, and a new clause (4A) was added to the article.Thus the Constitution 77th Amendment Act, 1955 by adding clause (4A) to Article 16 specified that, “Nothing in this article shall prevent the state from making any provision for reservation in matters of promotion to any class or classes or posts in the services under the state in favor of SCs and STs which, in the opinion of the state, are not adequately represented in the services under the state”.

1996: Introduction of ‘Catch up Rule”

 After the constitutional recognition of reservation in promotion, a situation arose where the candidate of reserved category who were promoted over their general category counterparts, became senior to them because of getting earlier promotion. This anomaly was put forward through two judgments in case of Virpal Singh (1995) and Ajit Singh (1996) which led to the introduction of the ‘Catch up Rule’. The rule laid down that the candidates who got promoted after their SCs and STs Counterparts have the possibility to regain their seniority.

2000: 81st Amendment Act

Reserved vacancies prior to August 29, 1997 for SCs and STs which were not filled up through direct recruitment because the candidates belonged to the community were not available, were treated as “Backlog Vacancies”. These “Backlog vacancies were excluded from the 50% reservation limit and were considered a distinct group.

In IndraSawhney v. Union of India case, the Supreme Court gave a judgment that total vacancies including the number of vacancies that are to be filled in a year through reservation as well as the vacancies that were carried forward should not exceed 50% in any scenario. Because, total reservation including that for SC, ST and OBCs together had reached the forty nine and a half percent and as per the rule total vacancies could not cross the ceiling of fifty percent, it became tough to fill the ‘Backlog vacancies’ and to conduct the special recruitment drives. Hence an official Memorandum was issued dated August 29, 1997 which discontinued the special recruitment drives and applied the fifty percent limit to the current as well as to the ‘Backlog vacancies’. Because of the adverse effect of the above mentioned order of August 29, 1997, organizations like Member of Parliament put forward the request to protect the interest of Scheduled Caste and Scheduled Tribe in front of the central government.

After reviewing the position, the government decided to make an amendment in the constitution, to make the unfilled vacancies of a year that are reserved to get filled in that year according to reservation under clause (4) or clause (4A) of Article16 shall not be considered together with the vacancies of that year for the 50% ceiling limit and shall be considered as a different class of vacancies that are to be filled in any succeeding year or years. This amendment would restore the position that was in force before 29 August 1997.

Hence in Article16 of the Constitution, for clause (4A), the clause (4B) had been inserted to separate the vacancies of a particular year reserved for SC/ST for that particular year from the previous list of unfilled vacancies to reach the 50% quota of that respective year.

2000: 82nd Amendment Act

The facility of relaxation of qualifying marks and standards of evaluation has been enjoyed by the people of SC & ST community in matters related to reservation in promotion. However, the Supreme Court ruled that these relaxations in areas of reservation in promotion were unconstitutional under Article 16(4) of the Constitution and the requirement provided in Article 335 in both S. Vinod Kumar v. Union of India case and also in Indira Sawhney& Others v. Union of India & Others. Thus the Supreme Court put forward to withdraw these relaxations with effect from 22.07.1997.

But due to the adverse effect on the interest of Scheduled Caste and Scheduled Tribes due to the order dated 22.07.1997, the government had received various representation to review the position once again, considering the same the government decided to move for a constitutional amendment to restore the relaxations withdrawn earlier.

Hence through this amendment, government inserted a proviso in Article 335, that provided that nothing in Article 335 shall prevent the state from making any provisions favoring members of SC & ST community for relaxation in qualifying marks in aspect of examination/job/promotion.

2001: 85th Amendment Act

The 85th Amendment Act of 2001 was put forward to extend the reservation benefit in the favor of Scheduled Castes and Scheduled Tribes in matters related to promotions with “consequential seniority. The amendment has substituted the words of clause (4A) of Article 16 of the Constitution from the words, “in matters of promotion to any class” to the words “in matters of promotion, with consequential seniority, to any class”. It was also made necessary to apply the proposed consequential amendment made to Article 16(4A) with retrospective effect from 17th June, 1995 i.e. the date from which Article 16(4A) came into force.

2006: Nagaraj v. Union of India

The court in 2006 case of M. Nagaraj v. Union of India made it clear in its judgment to grant validation to parliament’s decision to extend the reservation for Scheduled Caste and Scheduled Tribes in matters of promotion as well. Although the court had specifically put forward few requirements to be fulfilled before granting reservation, thus making it difficult for the central and state government to take the decision of granting reservation.

In the case of M Nagaraj v. Union of India specifically the three controlling conditions were laid down by the Supreme Court which were necessary for the states to fulfill before granting reservation in promotion to any person belonging to SC and ST community.

The three conditions were:-

  • Quantifiable evidence of SC and ST backwardness

It was made necessary for the states to show the backwardness of a class by the states before granting them any reservation.

  • Proof of Inadequate representation

The state must show that ‘the class’ does not got adequately representation in the position or service for which the reservation in promotion is demanded.

  • A justification for maintaining administrative efficiency

The final requirement was to show that granting reservation is in the interest of administrative efficiency.

The Constitutional bench in this case also gave validation to all the earlier constitutional amendments made by the parliament consisting of 77th, 81th, 82nd and 85th constitutional amendments.

2018: Jarnail Singh v. LacchmiNarain Gupta

This case is popularly known as ‘Reservation in Promotion’ case. The verdict on this case was given by Supreme Court on September 26th 2018. A five judge bench of the Supreme Court having former Chief Justice of India DipakMisra, Justice RF Nariman, Justice InduMalhotra, Justice SK Kaul, Justice Kurian Joseph gave a review to the judgment of the previous case that dealt with providing reservation to the community of SC & ST in matters of promotion in public services and government jobs. This case also gave due consideration to the application of the ‘creamy layer’ aspect in terms of reservation in promotion to the SC & ST community. This ‘creamy layer’ aspect holds a great importance because it is an economic criteria in which an assumption is made that a person is no longer backward because he is doing well economically and is leading towards social advancements. Because of this progressive economic and social standard, many people consider this concept of ‘creamy layer’ as ‘caste discrimination’.

The decision made by the court in its earlier case of M Nagarj v. Union of India was challenged on different grounds by various states as well as the centre. It was said that the judgment in Nagraj case made it difficult for the centre and state to grant reservation in promotion. Hence it was demanded to refer the case to a seven judge bench. Various amendments and observations were made in this case, the constitutional validity of which was challenged and finally a petition to review the Nagaraj verdict was filed.

Issues that were raised were whether it was necessary to reconsider the Nagaraj judgment by a 7 judge bench? Is it necessary for the states to collect the quantifiable data to give a proof for the backwardness of the class? Whether the concept of creamy layer should be applied amongst the SC & ST community to limit them from getting reservation in promotion?

The Supreme Court in its judgment concluded that there is no need to refer the case of Nagaraj to a seven judge bench. It also held that the demand to prove the backwardness of SC and ST by collecting quantifiable data is in contradiction to what was held in the case of IndraSawhney v. Union of India. On one hand the court struck down the backwardness criteria while on the other hand introducing the principle of creamy layer expulsion. It was held that the expulsion of creamy layer extends to SCs &STs; hence state should refrain from granting reservation in promotion to those SCs and STs persons who come in the creamy layer category of the community.

BK Pavitra v. Union of India

This case happened because of a bunch of writ petitions that challenged the validity of the “Karnataka Extension of Consequential Seniority to Government servants promoted on the basis of reservation (To the post of civil service of the state) Act 2018”.This act was beneficial for the persons who got promotion under the policy of reservation of the state in Karnataka as it provided them with consequential seniority. Consequential seniority is a rule under which the candidates of the reserved category who got the earlier promotion as compared to their general category counterpart are allowed to retain their seniority over the candidate of general category for the subsequent promotions.The “Karnataka Determination of Seniority of Government Servants on the Basis of the Reservation (to Posts in the Civil Services of the state) Act 2002” came before the Reservation Act of 2018. BK Pavitra case also known as ‘BK Pavitra I’ case challenged the Reservation Act 2002 on the grounds of constitutional validity.A two-judge panel found that Sections 3 and 4 of the Reservation Act 2002 are in violation of Articles 14 and 16 of the Indian Constitution in this case. The Supreme Court also held the act invalid in another case of M Nagaraj v. Union of India.The legislature of the state of Karnataka, on the other hand, enacted the Reservation Act in 2018.The petitioners in this case, BK Pavitra and others v Union of India and others, commonly known as BK Pavitra II, claimed that the state legislature had essentially re-enacted the original Act without correcting the flaws. The petitioners questioned the method as well as the conclusion of the State’s search for collective measurable data in order to implement the Reservation Act 2018.Following the invalidation of the Reservation Act of 2002, the State of Karnataka established the RatnaPrabha Committee to present a quantitative assessment based on the three conditions set by the Court in the Nagraj case. And, based on the RatnaPrabha Committee’s findings, Karnataka approved the Reservation Act of 2018.The fundamental issue or question in this case was whether the Reservation Act of 2018 overruled the legislative instructions issued in the matter of BK Pavitra I. To determine whether the Reservation Act of 2018 is constitutional, the Court must determine whether it breaches Articles 14 and 16 of the Constitution. This was not, according to the Court, a legislative overruling.Another question was whether the Reservation Act of 2018 followed the Nagraj decision? In this context, the Court required to review the RatnaPrabha Committee’s reports. The Court began by examining the RatnaPrabha Committee’s findings and determining whether the parameters were adequately examined. The RatnaPrabha Committee’s technique has not been deemed unfamiliar or unusual, according to the Court.As a result, the Court noted that they were unable to determine that the Committee’s report was based on any extraneous or irrelevant information. The Act of 2018 also upheld the consequential seniority for SCs and STs.The idea of the creamy layer, according to the Court, has no bearing on the award of consequential seniority.

CURRENT SITUATION

Recently the Supreme Court gave its judgment after discuss on a series of petitions from all over the country that demanded more clarity on the modalities of providing reservation in case of promotion. The Supreme Court through its verdict denied laying down any “yardstick” to determine the inadequate representation of the members of the community of Scheduled Caste and Scheduled Tribes for reservation in promotion in case of government jobs.

Supreme Court in its ruling by a three judge bench, headed by Justice NageswaraRao mentioned the following points:-

Held ‘cadre’ as the unit for collection of data

Supreme Court in its verdict clarified that for granting promotion, it will hold ‘cadre’ as the unit for collecting quantifiable data and not class, group or the entire service. It reasoned it saying that if the data pertaining to the entire service would be taken, it would render the whole exercise of giving reservation in promotion meaningless.

Not to lay down any yardstick

The Supreme Court clarified that it will not lay down any yardstick for giving reservation in promotion to the SC and ST community or to determine their inadequacy of representation in promotion and the whole decision of whether to grant reservation or not would be left on the respective states.

Judgment in BK Pavitra case was set aside

By recognizing ‘cadre’ as the unit for collecting quantifiable data the court set aside the judgment it had given earlier in case of BK Pavitra and held that the decision of the court that approved collection of data on the basis of groups and not cadres is in contradiction of the law laid down in the earlier cases of Nagaraj and Jarnail Singh by the Supreme Court. The court also said that the judgment given by it in case of Nagaraj v. Union of India would have ‘prospective effect’.

Order of Review

The Supreme Court gave the responsibility to the union government to fix a ‘reasonable’ time for the states to conduct the review regarding the data for determining the inadequacy of reservation in promotion. Hence the court has left it on the states to determine if the representation of SCs & STs in promotional posts is inadequate or not by considering relevant factors.

VIEWS IN OPPOSITION OF RESERVATION IN PROMOTION

Effect on Efficiency: Promotions to SCs and STs throughout service and promotion appointments may make it harder to maintain administrative efficiency.

Not one of the Fundamental Rights: Reservation in promotion in public positions cannot be asserted as a fundamental right, according to the Supreme Court.

Reservation Redundancy: The SCs and STs benefit from reservation in their appointments with numerous servicers. As a result, quotas in promotions for critical positions are both unpleasant and inefficient.

 Not a necessity: The Constitution only allows the State to create reservations in areas of appointment and promotion in favor of the Scheduled Castes and Scheduled Tribes “where in the view of the State they are not properly represented in the State’s services.”

NEED FOR RESRVATION IN PROMOTIONS

  •  In a caste-based socioeconomic system, the SCs and STs have experienced centuries of discrimination and prejudice, which has created major barriers to opportunity.
  • The major reason for awarding upgrades in promotions is that there are very few SC/ST applicants in government positions at the higher levels.
  • The Constitution’s requirement for consideration of their claim to appointment would remain illusory unless specific procedures are introduced for SCs and STs in promotions as well.
  • The word “efficiency of administration” was not defined clearly in the Constitution by the founders.It is a prevalent misunderstanding that promotees selected from the SCs and STs are inefficient or that their appointment affects efficiency.

CONCLUSION

As a result, it is now established, that if a state wishes to provide reservation to members of the SCs and STs, it must first collect quantifiable data on the representation of SCs and STs in a specific cadre of a service and then form an opinion on the inadequacy of representation based on that data. Furthermore, regardless matter how difficult it may be, the state must determine the impact of reservation on administrative efficiency. The state may only justify its action of offering reservations in promotions if these requirements are met.

REFERENCES:

Author: Srishti Sachdeva, Hidayatullah National Law University

Editor: Kanishka VaishSenior Editor, LexLife India

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