Promotion battle enters last leg

The Supreme Court's decision to let a Constitution bench examine the need for taking a re-look on a 2006 judgement in M Nagaraj vs the Union of India is set to open a fresh debate on reservation to those from the Scheduled Castes and Scheduled Tribes (SCs and STs) in public employment. The issue was raised before the court in a different batch of matters arising from Maharashtra and Tripura, making a demand for reviewing the Constitution (Eighty-Fifth Amendment) Act, 2001, and others brought in by the then NDA government, inserting Article 16(4A) of the Constitution, retrospectively, from June 17, 1995, and providing reservation in promotion with consequential seniority.

On November 14, a two-judge bench of Justices Kurian Joseph and R Banumathi first felt the need for a Constitution bench of five judges to consider "the question of further and finer interpretation on the application of Article 16(4A)". It was contended before the court that the test of backwardness cannot be applied in the case of SCs/STs. The plea for revisiting the Nagaraj verdict was vehemently opposed in view of the plethora of subsequent verdicts. In contrast, it was submitted that the "creamy layer" principle should be applied in "situations of competing claims within the same races, communities, groups or parts thereof of SC/ST notified by the President under Articles 341 and 342 of the Constitution".

A day later, a different batch of matters from Maharashtra, raising similar questions, came up before a three-judge bench of Chief Justice Dipak Misra and Justices A K Sikri and Ashok Bhushan. The court was told of a two-judge bench order to refer the matter to the Constitution bench for reviewing the Nagaraj verdict. As there was a cacophony of claims and counter-claims on the issue, the court preferred to put the matter before the Constitution bench to decide if the 2006 verdict can or should be reconsidered.

Notably, the Nagaraj judgement by a five-judge bench had then upheld the validity of the constitutional amendments saying those do not obliterate any of the constitutional requirements, namely, ceiling-limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between the Other Backward Classes on the one hand and SCs and STs on the other as held in 1992 Indra Sawhney (Mandal case). However, it was then held that the state has to undertake the exercise of gathering quantifiable data and consider factors like overall efficiency, backwardness and inadequacy of representation if it wanted to grant reservations in promotion to SCs and STs.

Consequential seniority

Arising out of the same Nagaraj judgement was a case titled "B K Pavitra and others vs the Union of India". It involved the question of the validity of the Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of Reservation (To posts in the Civil Services of the State) Act, 2002 (the impugned Act). The Act, among others, provided for the grant of consequential seniority to government servants from SC and ST communities promoted under the reservation policy. It also protected consequential seniority already accorded from April 27, 1978, onwards in Karnataka.

However, the apex court's two-judge bench on February 9 declared the Karnataka law as "ultra vires" of right to equality and right to equality in matters of public employment under the Constitution for doing away with the "catch up" rule and providing for consequential seniority to persons belonging to SC and ST communities on promotion against roster points.

The top court held that the state undertook no exercise or gathered quantifiable data for determining "inadequacy of representation, backwardness and overall efficiency", which is a must for granting reservation in promotion under Article 16(4A). "Mere fact that there is no proportionate representation in promotional posts for the population of SCs and STs is not by itself enough to grant consequential seniority to promotees who are otherwise junior and thereby denying seniority to those who are given promotion later on account of reservation policy," the court held. The court also found that the state failed to place material on record that there was a compelling necessity for exercising such power and that overall efficiency was not compromised.

Fearing a major repercussion, the state government filed a review petition. Those who had to suffer adversely also moved the court.

In the meantime, the Assembly unanimously passed the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (To posts in the Civil Services of the State) Bill, 2017, apparently to outwit the apex court's ruling. This would again be brought before the court. Certainly, the development in the days to come would be keenly watched for its far-reaching implications.