Issue of SC/ST Reservation in Promotions

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By admin May 15, 2019 13:02

Reservation in India

Indian Constitution makers were aware of the past realities of caste-based discrimination in the jobs and society that occurred due to social structure of India. Thus, to provide all sections of society with the equal opportunities to improve their social, economic and political status, they inserted provisions for reservation to Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCs) in the constitution.

It is important to note that reservation to OBCs was provided in 1990, on the basis of report of Mandal Commission. This reservation in public services of central government was extended in 2006 to central higher educational institutions as well.

Aims of reservation

  • Providing them (SC, ST & OBCs) opportunities in the public employment.
  • Empowering them and ensuring their participation in the decision-making process of the State.

Justice B.P. Jeevan Reddy, while delivering the majority judgment in the matter of Indra Sawhney & Ors Vs. UOI & Ors, observed that public employment gives a certain status and power, besides the means of livelihood.

Constitutional provisions providing reservation

  • Article 16 (1): There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
  • Article 335: The claims of the member of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently, with the maintenance of efficiency of administration in the making of appointments to services and posts in connection with the affairs of the Union or of a State.
  • Article 341 and 342: These articles define as to who would be Scheduled Castes and Scheduled Tribes with respect to any State or Union Territory.

Impacts of reservations

  • As per available information, representation of SCs in Groups A, B, C and D as on 1.1.1965 was 1.64%, 2.82%, 8.88% and 17.75% respectively which has increased to 12.5%, 14.9%, 15.7% and 19.6% respectively as on 1.1.2008.
  • Likewise while representation of STs as on 1.1.1965 in Group A, B, C and D was 0.27%, 0.34%, 1.14% & 3.39% respectively, it has increased to 4.9%, 5.7%, 7.0% and 6.9% respectively as on 1.1.2008.
  • Total representation of SCs and STs as on 1.1.1965 was 13.17% and 2.25% respectively, which has increased to 17.51% and 6.82% respectively on 1.1.2008.

Issue of Reservation in case of promotions

Reservation in promotions has been a sphere of intense disagreement between Parliament and the Supreme Court. The first case in this row was Indra Sawhney case.

This case was filed after the decision of the government to act on the report of Mandal commission and reserve 27% seats for the Socially & Backward classes.

Indra Sawhney case

  • In this case, Supreme Court upheld reservations for Other Backward Classes (OBCs).
  • It also observed that reservation under Article 16(4) — which allows the state to make provisions for “reservation of appointments or posts in favor of any backward class of citizens” — did not apply to promotions.
  • The judgment also capped the total reservation that can be provided at 50%.
  • Backward class of citizen in Article 16(4) can be identified on the basis of the caste system & not only on an economic basis.

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Constitutional 77th and 81st amendment acts

  • In order to nullify the effects of Indra Sawney judgment, Parliament enacted Constitution (77th Amendment) Act, 1995.

Amendment inserted clause (4A) after clause 4 of Article 16 of the Constitution of India.  Clause (4A) provides for giving the benefit of promotion in service to the Scheduled Castes and the Scheduled Tribes.

  • Constitutional 81st amendment act inserted Article 16(4B) in the constitution.

Article 16(4B) provides that reserved promotion posts for SCs and STs that remain unfilled can be carried forward to the subsequent year. It ensured that the ceiling on the reservation quota – capped at 50% by Indra Sawhney – for these carried forward unfilled posts, does not apply to subsequent years.

  • Constitution 82nd amendment act inserted in article 335

“Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State”.

  • The constitutional 85th amendment changed the words ”in matters of promotion to any class” to the words ”in matters of promotion, with consequential seniority, to any class”.

Nagaraj case

In this case, the Supreme Court upheld the constitutional validity of the 77th, 81st, 82nd, and 85th Amendments, However certain riders were also laid down.

Supreme Court laid down three conditions in Nagaraj case for granting quota in promotions to employees from Scheduled Caste and Scheduled Tribe communities:

  • It required the state to demonstrate the backwardness of the beneficiaries.
  • Reservation must show that the reservations are in the interest of administrative efficiency.
  • Reservation must show that the class is inadequately represented in the position/service.

Criticisms of Nagaraj judgement

This judgment was criticized on the various grounds:

  • By requiring the proofs of backwardness the judgment goes against Indira Sawhney judgment as it amounts to the ‘creamy layer’ test for SCs/STs.
  • SC and ST communities are presumed to be backward and considering their stigma of caste, they should be given reservation even in job promotions.

2018 judgment

2018 case of the case of Jarnail Singh vs Lachhmi Narain Gupta allowed Union government to go ahead with reservation in promotion for employees belonging to the SC and ST category in “accordance with law”.

Bench held that Nagaraj’s insistence on collection of quantifiable data on backwardness in relation to the SCs and STs was contrary to Indra Sawhney. Thus, it nullified the first condition.

But bench approved Nagaraj’s insistence on

  • proof for inadequate representation of classes for whom promotional posts are reserved, and
  • Submission of additional proof that efficiency would not be impacted by such reservation.

In this case bench also held that creamy layer principle is an essential aspect of the equality code, and therefore, exclusion of creamy layer while applying the principle of reservation is justified, even in the case of SCs and STs.

Case of Karnataka

In 2002, the Karnataka assembly passed an act providing for consequential seniority to roster-point promotees based on the length of service in a cadre.

In 2017, a two-judge bench of the Supreme Court had declared a 2002 legislation passed by Karnataka assembly invalid (B.K. Pavitra vs Union of India-I) on the ground that Karnataka had not collected quantifiable data on the three parameters laid down in Nagaraja case.

Following that Karnataka government set up the Ratna Prabha Committee to collect the data of backwardness and inadequacy of representation of SCs and STs in the state civil services and the impact of reservation on overall administrative efficiency in the state.

The report was submitted by assembly in 2017, on the basis of which Karnataka state assembly passed the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation Bill, 2017.

The bill gives a one-time promotion to SC/ST employees, and is referred to as a “catch-up” clause. It received the assent of president in 2018.

B.K. Pavitra II judgment

The above mentioned law again was challenged in Supreme Court in B.K. Pavitra v Union of India case, but this time Supreme Court upheld the law.

It stated that a “meritorious” candidate is not merely one who is “talented” or “successful” but also one whose appointment fulfills the constitutional goals of uplifting the members of the SCs and STs and ensuring a diverse and representative administration.”

On the question of deciding “efficiency” as per the requirement of Article 335 Bench ruled that special measures need to be adopted for considering the claims of SCs and STs in order to bring them to a level playing field.

Article 335 of the Constitution states that the “claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State”.

On the matter of the requirement of evaluating “Creamy layer criterion” as per the Jarnail Singh case, SC bench ruled that the reason why the creamy layer doctrine is not supposed to apply to SCs/STs is that – historically – they have been oppressed by virtue of their group identity. The concept of the creamy layer makes sense if we assume that it is possible to escape one’s group identity.

The bench held that adequacy of representation would be left, at the first instance, to the subjective satisfaction of the State.

Significance of the judgment

  • The judgment puts emphasize on the historical and social justification for according reservation.
  • It rejects the argument that quotas, by themselves, affect administrative “efficiency”. It says merit lies not only in performance but also in achieving goals such as the promotion of equality,
  • The judgment suggests that India’s transformative Constitution envisages not just formal equality of opportunity but the achievement of substantive equality.
  • It accepts the right of the state government of subjective satisfaction in deciding the adequacy of representation, subject to the norm that there should be relevant material before it.

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By admin May 15, 2019 13:02