Reservation In Promotion
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Reservation In Promotion
Why in News?
The Supreme Court has recently ruled that the states are not bound to provide reservation in appointments and promotions and that there is no fundamental right to reservation in promotions.
What has the court said?
Reservation in promotion in public posts cannot be claimed as a fundamental right.
Articles 16 (4) and 16 (4-A) of the Constitution does not confer individuals with a fundamental right to claim reservation in promotion. It only empowers the State to make a reservation in matters of appointment and promotion in favor of the Scheduled Castes and the Scheduled Tribes, only if in the opinion of the State they are not adequately represented in the services of the State.
State governments are not bound to make a reservation and have discretion in providing reservations.
The judgment also noted that even the courts could not issue a mandamus directing the States to provide reservation.
Constitutional basis for reservations - Article 335
Article 335 recognizes that special measures need to be adopted for considering the claims of SCs and STs to bring them to a level playing field.
Need for reservation
Centuries of discrimination and prejudice suffered by the SCs and STs in a feudal, caste-oriented societal structure pose real barriers to access to opportunity. The proviso contains a realistic recognition that unless special measures are adopted for the SCs and STs, the mandate of the Constitution for the consideration of their claim to appointment will remain illusory.
The proviso is the aid of fostering the real and substantive right to equality to the SCs and STs.
It protects the authority of the Union and the States to adopt any of these special measures, to effectuate a realistic (as opposed to a formal) consideration of their claims to an appointment in services and posts under the Union and the states.
It also emphasizes that the need to maintain the efficiency of administration cannot be construed as a fetter on adopting these special measures designed to uplift and protect the welfare of the SCs and STs.
Indra Sawhney vs Union of India and M Nagraj case
In its landmark 1992 decision in Indra Sawhney vs Union of India, the Supreme Court had held that reservations under Article 16(4) could only be provided at the time of entry into government service but not in matters of promotion.
It added that the principle would operate only prospectively and not affect promotions already made and that reservation already provided in promotions shall continue in operation for a period of five years from the date of the judgment. It also ruled that the creamy layer can be and must be excluded.
On June 17, 1995, Parliament, acting in its constituent capacity, adopted the seventy-seventh amendment by which clause (4A) was inserted into Article 16 to enable reservation to be made in promotion for SCs and STs. The validity of the seventy-seventh and eighty-fifth amendments to the Constitution and of the legislation enacted in pursuance of those amendments was challenged before the Supreme Court in the Nagaraj case.
Upholding the validity of Article 16 (4A), the court then said that it is an enabling provision. “The State is not bound to make reservations for the SCs and STs in promotions. But, if it seeks to do so, it must collect quantifiable data on three facets — the backwardness of the class; the inadequacy of the representation of that class in public employment; and the general efficiency of service as mandated by Article 335 would not be affected”.
The court ruled that constitutional amendments do not abrogate the fundamentals of equality.
The Karnataka government case
The Supreme Court upheld ‘The Karnataka Extension of Consequential Seniority to Government Servants Promoted based on Reservation (To the Posts in the Civil Services of the State) Act, 2018’, granting a quota in promotions for state government employees from the Scheduled Caste and Scheduled Tribe communities.
The reservation was introduced in the Constitution of India, through Article 16(4), to give protection to deprived sections of society, who have been facing discrimination for ages.
The debate over whether it should be limited to initial appointments or extended to promotions has been a bone of contention. Reservation in promotion rests on the principle of consequential seniority.
Consequential Seniority means elevation to a senior position consequential to circumstances, and not through normal rules.
Illustrating it, suppose there are 100 sanctioned posts in a department, out of which 30 are occupied by unreserved candidates, 15 are occupied by reserved candidates and 55 remain ‘vacant’. The reservation is 30%, which implies that 30 posts must be manned by reserved category employees. So, if a reserved category employee is junior to a general category employee, but there is a vacancy for the reserved category at a senior position, so reserved category employee will be considered senior and promoted above the general category employee.
In 2002, Karnataka had brought a similar law but was struck down by the Supreme Court in 2006 in M. Nagaraj vs. Union of India Case. The Supreme Court validated the state’s decision to extend reservation in promotion for SCs and STs but gave the direction that the state should provide proof on the following three parameters to it
Empirical Data on Backwardness- of the class benefitting from the reservation.
Empirical Data on Inadequate Representation- in the position/service for which reservation in promotion is to be granted.
Impact on efficiency- how reservations in promotions would further administrative efficiency.
Many stakeholders and petitioners were not satisfied with these criteria and various review petitions were filed on this judgment.
It was again taken up in the Jarnail Singh Case which upheld the 2nd and 3rd criteria of the Nagaraj Case. But observed that there is no longer a need to collect quantifiable data on the backwardness of SCs and STs.
Although it stated that the exclusion of the creamy layer while applying the principle of the reservation is justified, even in the case of SCs and STs.
Last year, the Supreme Court had permitted the Central government for reservation in promotion to SC/ST employees working in the public sector in “accordance with law”.
The Karnataka government set up the Ratna Prabha Committee to submit a report on the three criteria and based on its report had come up with the revised bill. This time, the court has upheld it constitutionally.
Arguments in favor of reservation in promotions
For equality of opportunity- Along with the Constitution the Supreme Court has also, time and again, upheld any affirmative action seeks to provide a level playing field to the oppressed classes with the overall objective to achieve equality of opportunity.
Skewed SC/ST representation at senior levels- The representation of SCs/STs, though, has gone up at various levels, representation in senior levels is highly skewed against SCs/STs due to prejudices. Over the years Institutions have failed to promote equality and internal democracy within them. There were only 4 SC/ST officers at the secretary rank in the government in 2017.
Case of Efficiency and Merito Overall efficiency in government is sometimes hard to quantify, and the reporting of output by officers is not free from social bias. Forex. In Maharashtra, a public servant was denied a promotion because his ‘character and integrity were not good’.
The administrative efficiency is an outcome of the actions taken by officials after they have been appointed or promoted and is not tied to the selection method itself.
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.
A system that promotes substantive equality promotes merit.
Further, under the Karnataka Civil Services General Recruitment Rules 1977, the candidate on promotion has to serve a statutory period of officiation before being confirmed; this ensures that the efficiency of administration is, in any event, not adversely affected, the bench concluded.
Arguments against the reservation in promotions
Not a fundamental right- Provisions under articles 16(4), 16 (4A), and 16 (4B) of the Constitution are only enabling provisions and not a fundamental right. Neither was it ever envisaged by the constitutional makers, as can be made out from the debates and statements during the drafting of the constitution.
Gaining employment and position does not ensure the end of social discrimination and, hence, should not be used as a single yardstick for calculating backwardness.
The reservation in promotion may affect the efficiency of administration.
Caste is not a matter of identity or right when it comes to administrative policy. At different levels, studies and empirical data should be collected to decide the level of promotions needed.
The Constitution envisages not just formal equality of opportunity but also the achievement of substantive equality. Currently, the promotion process is ambiguous. Thus, there is a need for a new, comprehensive law to be enacted.