Quota in promotion remains entangled

The Supreme Court recently allowed the Union government to go ahead with reservation in promotion for the SC/ST communities “in accordance with the law”, but it left the issue of ‘what is the law’ an open-ended proposition. After incidents of atrocities against Dalits and a Supreme Court ruling on the Atrocities Act that was seen to be diluting it, the Centre has been under immense pressure to assuage the feelings in these communities and win a battle of perception in politics.

The issue of reservation in promotion came to the fore recently after a series of judgements by the high courts of Delhi, Bombay and Punjab and Haryana. Following the landmark judgement in the Indira Sawhney (Mandal Commission) case in 1992, which permitted reservation for SC/STs in promotion o continue for a period of five years from November 16, 1992, the Constitution was amended by the Constitution (Seventy Seventh Amendment) Act, 1995. Article 16(4A) was incorporated into the Constitution. The Article allowed the State to provide for reservation, in matters of promotion, for SC/STs, if the State is of the opinion that they are not adequately represented in the government services.

In August 1997, the central government’s Department of Personnel and Training (DOPT) issued an office memorandum stating that in accordance with Article 16(4A), the reservation in promotion for SC/STs in service posts would continue beyond November 15, 1997. The arrangement was to go on till the representation of the two categories reached the prescribed percentage of reservation.

Subsequently, Article 16 (4A) of the Constitution was amended by the 85th Amendment Act, 2001. This replaced the words “in matters of promotion to any class”, contained in the sub-Article, with the words “in matters of promotion, with consequential seniority to any class”.

Those amendments came to be challenged in the Supreme Court, which in M Nagaraj Vs Union of India in 2006 upheld their validity but laid down the tests of “backwardness”, “inadequacy of representation” and “overall efficiency”.

Since then, a slew of decisions have been passed by the Supreme Court as well as various other judicial for a to the effect that the government could not blindly provide for reservation in promotions unless the requisite exercise was undertaken to acquire quantifiable data regarding inadequacy of representation of SCs and STs in public services.

In UP Power Corporation vs Rajesh Kumar(2012), the top court said, the “exercise of power” by the State with an enabling provision may be arbitrary, particularly if the State fails to identify and measure the backwardness and inadequacy keeping in mind the efficiency of service as
required under Article 335”. It also emphasised that Article 16(4) that protects the interests of certain sections of society has to be balanced against Article 16(1) which protects the interests of every citizen of the society.

Applying the principle in Nagarajand other cases, the Supreme Court invalidated a Karnataka law on reservation in promotions on February 9 last in the B K Pavitra case. It is at present examining if all consequential actions, including promotion and reversion, as mandated under the judgement was duly undertaken by the state government.

On August 23 last year, the Delhi High Court quashed and set aside the DoPT’s notification issued in 1997 and restrained the central government from granting any reservation in promotion for SC/STs without carrying out the necessary preliminary exercise of acquiring quantifiable data indicating inadequacy of representation and evaluating the situation by taking into consideration the said data, along with the other considerations of backwardness and overall efficiency in administration, and arriving at an empirical decision.

In Jarnail Singh vs Lachhmi Narain Gupta, the Supreme Court on May 17, 2018, said the Union government can take steps for promotion from ‘reserved to reserved’ and ‘unreserved to unreserved’ and also in the matter of promotion on merit, till the final decision in the case arising out of the Punjab and Haryana High Court.

In other states, similar issues have arisen, prompting the apex court to refer to a Constitution bench to decide if the M Nagarajjudgement is to be reconsidered. Amid the clamour for revisiting that verdict, questions have also been raised about the application of the principle of ‘creamy layer’ among SC/STs notified by the President under Articles 341 and 342 of the Constitution.

As the validity of decisions from different high courts pertaining to reservation in promotions to the SC/STs were challenged, the court allowed the government to move forward but did not stay those judgements, putting it in a quandary. The issue, as on date, remains entangled in legal battles.

The dwindling number of officers from the SC/ST community, on the other hand, has left the government worried. It has recently asked the DoPT to issues directions to all ministries and departments to ensure quota rule in appointments to staff hired for contractual or outsourced works as salaries to such posts are paid from its own exchequer.