RESERVATION IN PROMOTION

Author: Shefali Chitkara,

Vivekananda Institute of Professional Studies


“The reservation: one of the volatile issues in Indian democracy.”


ABSTRACT

The reservation has always been a conflicting and a volatile issue in India. On one hand, some people argue that they have faced various hardships from the beginning and deserve relief as compensation for that whereas on the other hand, people argue that India being a democratic and secular country where its Constitution suggests that everyone is equal, this will lead to discrimination when any particular group enjoys any additional benefits. But it has already been laid down in the provisions of Constitution regarding reservations of seats in different areas of life. Hence, it is still a conflicting area. Various judgments delivered by the courts related to this area have been mentioned in the article. The article focuses on the latest judgment of Mukesh Kumar’s case and many more. It also states the various provisions under this system of reservation and how they are applied by the courts.


INTRODUCTION

‘Reservation is not a fundamental right’ has been held by the Apex Court many times in various judgments. Article 16(4) and 16(4-A) act as the enabling provisions that grant the State Government discretion to consider making reservations. But it is the settled law that the State Government cannot make reservations about appointments to public posts. This further creates ambiguity as to the main purpose of Article 15(4) and 16(4). Whatsoever be the situation, the government cannot grant reservations without quantifiable data which shows inadequate representation [1].

Reservation in promotion was introduced by 77th and 85th amendments. Narasimha Rao government took the first step towards this by introducing 77th amendment via sub-clause 4A of Article 16 of the Constitution. But the Manmohan Singh government replaced the section with that which legalized the consequential promotions under 85th amendment in 2005. Under this, the text of Article 16 (4A) was amended such that “in matters of promotion to any class” became “in matters of promotion, with consequential seniority to any class.” [2]


CRITERIA FOR RESERVATIONS IN PROMOTION

The Court in the case of M. Nagaraj v. Union of India [3] laid down that the states can provide reservations in promotions by providing a proper reason for doing so. The state must show the backwardness of that community to which it is providing reservations and the reasons must include the inadequate representation and administrative efficiency. The Court has laid down certain precautions as well:

  1. Article 16(4) and 16(4A) do not confer a fundamental right of equality upon those classes for whom reservation is to be provided.

  2. These clauses are discretionary in nature.

  3. The state must take care not to extend the reservation indefinitely or to extend the 50% cap.

This judgment was upheld in the case of UP Power Corporation v. Rajesh Kumar[4]. Further it was stated that:

  1. Just because of an exploitative caste system, affirmative action is inevitable in a society like this.

  2. Reservation in promotions is required for improving representation of the lower classes [5].

ARGUMENTS AGAINST RESERVATION IN PROMOTION

Many arguments were put forward saying that promotions were simply not working for the purpose for which they were created [6]. Some of the reasons are:

  1. Getting habituated to the reservations and continuing them would defeat its very purpose and prove to be counterproductive.

  2. It would increase the gap between the general category and the SC, STs and promote discrimination.

  3. It would act as a double benefit. Firstly, reservation is given at the entry level in the jobs, and thereafter when the person is to be promoted.

  4. At the time of promotion, it would be unfair to the meritorious people and would result in dilution of administrative efficiency as well.


RESERVATION IN PROMOTIONS NOT A FUNDAMENTAL RIGHT

In the case of MR Balaji v. State of Mysore[7], it was laid down that Article 16(4) and 16(4A) contains only the enabling provision and there is no directive or constitutional duty on the state. Everyone’s interests must be balanced i.e. the interests of reserved classes and the other segments of society. Article 16(4) reads as:

“Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”[8]

While serving the backward classes, no encroachment shall be made upon the field of equality. It is equally important to attract meritorious and talented people to the services. The rules of adequate representation must be followed so as to maintain the efficiency of administration under Article 335. The court also confirmed the ruling of the Balaji’s case in MG Badappamavar v. State of Karnataka [9]. In this case, the general candidates challenged the promotion of reserved candidates beyond a certain level, to the level of Executive Engineers. The issues were related to the Article 16 and rule 4 of Karnataka Servants (Seniority) Rules, 1957. It was further held that seniority of the general candidates should be restored.


DEMAND TO MAKE RESERVATION A FUNDAMENTAL RIGHT

Many researchers feel that this solution is not practically possible because of two possible reasons. This is just an enabling provision and not a natural right, and it is not constitutionally prudent to turn it into a fundamental right. Secondly, various Constitutional law judgments and opinions of scholars point out that it is an exception and to make an exception a right will defeat the very purpose of the provision itself. It has also been suggested that reservations should be placed under the Ninth Schedule like Tamil Nadu. It would save it from judicial scrutiny but it would lead to a stage of permanent stagnancy defeating the purpose of the Indian Constitution. [10]


PRESENT DAY SITUATION- 117TH AMENDMENT BILL

The 117th Amendment Bill has been introduced by the government in the Rajya Sabha which was then cleared by it. The bill was necessary to avoid the judgment which highlighted that the proper reasons must be provided by the government before giving reservations in promotion.

The new sub-clause 4A that has been inserted says that:

“Notwithstanding anything contained elsewhere in the Constitution, the Scheduled Castes and the Scheduled Tribes notified under article 341 and article 342, respectively, shall be deemed to be backward and nothing in this article or in article 335 shall prevent the State from making any provision for reservation in matters of promotions, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes to the extent of the percentage of reservation provided to the Scheduled Castes and the Scheduled Tribes in the services of the State.”. [11]

With this new amendment bill, the grounds on which the court had rejected the claims of the government earlier to provide reservations in promotions stand nullified. It might prove to be harmful as the general category and OBCs would be marginalized causing a decline in their economic indicators.

In the case of Indira Sawney v. Union of India, on 16 November 1992, the court ruled the reservation in promotion to be illegal but allowed it to be continued for a period of 5 years as that was a special case. Then, parliament enacted three amendment acts in 1995, 2000 and 2002 to overcome the decisions of the court that disallowed reservations in promotions and consequential seniority [12].


ANALYSIS OF THE RECENT JUDGEMENT

There was a case of Dravida Munnetra Kazhagam v. Union of India and Ors. [13] in which DMK filed a petition against the Centre’s refusal to implement 50% OBC reservation in Tamil Nadu share of All India Quota seats in UG, PG and Diploma Medical and Dental courses. But the Apex Court declared that reservation is not a fundamental right, so a petition under Article 32 cannot be considered until there is a breach of fundamental right.

In the recent case of Mukesh Kumar v. State of Uttarakhand [14], in reference to the Article 16(4) and 16(4A), the Supreme Court has said that there is no fundamental right to have a reservation in appointments and promotions in public services. No individual can claim reservation as his fundamental right. The Uttarakhand High Court’s order for the state to gather data on the lack of representation of members of the SCs and STs in public services was reversed by the Supreme Court.


CONCLUSION

If the aim is real empowerment of the backward then the people should exhort the government to make good schools and world class institutions for higher education and also make conditions conducive for availing of the reservations. It can be regarded as the malfunctioning of the reservation system which has made us reach this stage where they are asking for reservations to be awarded in the private sector. There is a need for a committee by joint assistance of the States and the Central Government under judicial supervision to ensure neutrality. Though the laws have been laid down but the procedural requirements and the provisions must be scrutinized before giving reservations.







REFERENCES

  1. https://blog.ipleaders.in/reservation-not-fundamental-right-critical-analysis-2/

  2. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2275978

  3. (2006) 8 SCC 212.

  4. 2012 (2) KLT 115 (SN).

  5. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2275978

  6. Ibid.

  7. AIR (1998) 4 SCC 1.

  8. https://indiankanoon.org/doc/68038/

  9. AIR 2001 SC 260.

  10. https://blog.ipleaders.in/reservation-not-fundamental-right-critical-analysis-2/

  11. https://www.prsindia.org/sites/default/files/bill_files/Bill_Text_Const_117th_Amendment_Bill_2012.pdf

  12. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2275978

  13. https://www.latestlaws.com/latest-caselaw/2019/december/2019-latest-caselaw-1216-sc/

  14. Civil Appeal No. 1226 of 2020, February 07, 2020. (Division Bench).

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