Reservations in Promotions

*This article was written in September 2012

(This article focuses on the issue of Reservation in Promotions in India, brought to the fore again by the introduction of the 117th Constitutional Amendment Bill in the Rajya Sabha in the monsoon session. The sources of information, used in the article, are cited at the end.) The issue under consideration has been a constant bone of contention between the Parliament and the Supreme Court of India. Therefore, to develop a fair opinion about the debate, one must possess a brief knowledge about this tussle. Background Art. 16(4) of the Constitution of India empowers the State to make special provision for the reservation of appointments or posts in favor of any backward class of citizens which in the opinion of State are not adequately represented in the services under the State.1 The determination of the backward classes of citizens has to be done by the State. Using this clause, the Union and State Governments have implemented various reservation quotas in employment in the services under the State. It must be noted here that the phrase not adequately represented can be interpreted in terms of numerical inadequacy as well as in terms of qualitative inadequacy. It has been argued that since majority of the members of the Scheduled Castes, Scheduled Tribes and Other Backward Castes join the services under State at a higher age (due to social and educational backwardness), as compared to members of the General castes; they are never able to reach the upper echelons of the services and hence, are very inadequately represented in the decision-making rungs. To compensate for this qualitative inadequacy of representation, the Governments of some states have implemented reservations in promotions as well, using the help of the Art. 16(4). The Supreme Court, in the landmark Indra Sawhney vs. Union of India case, ruled that reservations were restricted to initial employment alone and did not extend to promotions. 2 The argument given was that reservations in initial employment are an enabling provision, to bring the historically disadvantaged classes of citizens at par with others. It should not be viewed as promoting inequality of opportunity as the two classes are at very different stages of development, and gauging both on the same balance will definitely go against the backward classes. The enabling provision however should not be extended to promotions as by ensuring reservations in initial employment, all the recruited candidates have been brought to a level playing field, and the promotions, thereafter, must be on merit. The Parliament, to meet this situation, enacted the 77th Constitutional Amendment Act, which added a new sub-clause to Art. 16(4).3 The Art. 16(4)(A) provided that in matters of promotion in services under the State in any category or categories, the State can make reservations for the Scheduled Castes and Scheduled Tribes. The constitutionality of this Act was upheld by the Supreme Court in the M. Nagaraj vs. Union of India case.4 However, it further ruled that in every such case where the State would want to provide reservations, it must demonstrate backwardness, inadequacy of representation and maintenance of efficiency. It must be noted that Art. 355 states that the claims of

Scheduled Castes and Scheduled Tribes are to be taken into consideration while making appointments to public services without sacrificing the efficiency of administration. The efficiency criterion in the Nagaraj case emanates from the Art. 355. Recently, in the UP Power Corporation vs. Rajesh Kumar case, Supreme Court struck down the reservation in promotions, provided by the Government of Uttar Pradesh, for not meeting the criteria set forth in the Nagaraj case.5 The 117th Constitutional Amendment Bill, introduced in Rajya Sabbha, seeks to nullify the criteria set forth by the Supreme Court in the Nagaraj case. It seeks to substitute the Art. 16(4)(A) by a clause which does away with the concerns of efficiency by stating that nothing in Art. 355 can prevent the State from making any provision for reservation in matters of promotions. Further, it clearly states that the Scheduled Castes and Scheduled Tribes shall be deemed backward out rightly. In the Statement of Objects and Reasons in the text of the Bill, it further says that, It has been observed that there is difficulty in collection of quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment. Moreover, there is uncertainty on the methodology of this exercise. Hence, effectively, all the criteria set forth by the Supreme Court would no more be required to be proven for providing reservations in promotions. 6 Conclusion The above history of the contest between the Legislature and the Judiciary on the issue of reservations in promotions clearly highlights the lack of consensus between the two. It is clear that no political party would have any serious objection to this Bill, since any opposition to it could prove costly in the elections (the Samajwadi Party is objecting only due to the non-inclusion of OBCs in the Bill for the reservations in promotions). If it gets passed by the Parliament and is then challenged in the courts, it would be interesting to see if it would pass the test of judicial scrutiny. A brilliant article by Mr. Anup Surendranath shows how the contested issue essentially revolves around the argument that reservations in promotions inadvertently leads to loss of efficiency. 7 He points that it has been held such reservations lead to a loss of efficiency in the system, but there is no reason behind such argument. Also the very idea of efficiency in terms of a ticket inspector, an IAS officer or a nuclear scientist is very different, and this idea of efficiency requires a very thorough discussion. The Judiciary and the Legislature must together form a consensus on all such contentious points and must reach an understanding. Further, the government must also provide hard facts regarding the representation of SCs and STs in its services at all levels, to gain legitimacy in the eyes of the people. The concept of reservations is undoubtedly a very important provision for enabling the disadvantaged. The positive discrimination brought in by reservations reinforces the concept of equality of opportunity, by providing encouragement and support to the historically wronged and disadvantaged sections of the society. On a similar line of thought, reservations in promotions seek to further this encouragement and support. However, such reservations must be brought in after proper deliberation on the question of its necessity and proper determination of the needy sections. The current tit-for-tat game between the Judiciary and the Legislature is far from such an approach.

-----------------1. Kashyap, Subhash C., Our Constitution, p. 112 2. http://www.indiankanoon.org/doc/1363234/ 3. http://indiacode.nic.in/coiweb/amend/amend77.htm 4. http://indiankanoon.org/doc/102852/ 5. http://www.indiankanoon.org/doc/112875558/ 6. http://www.prsindia.org/uploads/media/117%20Amendment/Bill%20Text%20Const%20117th%20 Amendment%20Bill%202012.pdf 7. http://www.thehindu.com/opinion/lead/article3863068.ece