Reservation in Promotions: A boon or a bane

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Throughout the last seven decades of constitutional law on reservations, the Supreme Court of India has repeatedly resorted to the concepts of “efficiency” and “merit” in determining the legality of various reservation systems.

Article 16 (4a) of the Indian Constitution states that “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State”

In several judgments — Indra Sawhney v Union of India 1993; M Nagaraj v Union of India 2006 — the Court has held that reservation policies enacted under Article 16(4) of the Constitution would be limited by Article 335, which provides for “maintenance of administrative efficiency” while considering the claims of the Scheduled Castes (SCs) and Scheduled Tribes (STs) in the appointment of officials.

Judgments expressing the role of states

Supreme Court on April 17, 2020 {Pravakar Mallick & Anr. v. The State of Orissa & Ors} believed that Article 16 (4A) has been expressed in language that will allow states to determine appropriate representation rights based on the promotional positions involved in Jarnail Singh & Ors. v. Lachhmi Narain Gupta and Ors.

SC Bench consisted of Judges R. Subhash Reddy and Judge Mohan M. Shantanagoudar said in this case, it should be noted that in the 2001 Constitution (85th) Amendment, Article 16 (4A) of the Constitution was amended. The Constitution allows the state to expand the benefits of promotion by reviewing the representation of officials public and vassal tribe members in the state public administration. Orissa has not passed laws or administrative agencies establishing provisions to extend these benefits in Class I services.

Advocate for the state believed to clearly recognize that no executive order has been issued and no legislation has been passed. It is believed that the government resolution of March 20, 2002 was issued solely in accordance with instructions issued by the Indian government and did not review the suitability of the representatives for the position.

The Supreme Court ruled that the governmental resolution of March 20, 2002 could not be called a law to exercise state powers under Article 16 (4A), nor could it comply with the parameters specified in the Supreme Court decisions. The resolution has no legal basis. In addition, the resolution allows the state to grant benefits through the application of mandatory requirements under article 16(4A), and even through administrative orders, but the resolution of March 20, 2002 only approved instructions regarding the Union of India without reviewing the need of promotion for reserved posts.

Pursuant to the aforementioned resolution, while withdrawing the above instructions, the state government determined the promotion qualifications of subsidiary caste / tribe (SC / ST) civil servants in accordance with the retention rules. The state government issued an instruction, which reads: “Catch up principle” previously adopted in Resolution No. 39374 of the Department of General Administration on November 2, 2000 will not be applicable further.

In the case of Virpal Singh , the Supreme Court developed the “catch-up principle” which assumes that candidates reserved for promotion are not entitled to qualifications for the promoted position. If the general category of candidates reaches the position, he has the right to be promoted to retain the vacancy.

The Supreme Court deviated from this position in its subsequent ruling (Jagdish Lal case), in which the court provided the qualifications of the candidates in the promotion category and held that the qualifications should be based on the promotion and not the time of the first appointment. Fortunately, this position was later overthrown and the previous method of catching up with the rules (Ajit Singh case) was restored.

The Amendment Act further complicates this position, leading the judiciary to require new tests to determine the validity of promotions reservations. In the Nagaraj case, the Constitutional Committee of the Supreme Court established a mandatory requirement while maintaining the constitutional validity of article 16, paragraph 4, of the Constitution.

According to Nagaraj’s judgment, if the state collects quantifiable data showing that the class is backward and public employment is underrepresented, it can freely enact promotion and reservation laws. This mandatory requirement was seen as a follower of the constitutional power of the state government and was criticized. The SC corrected this position based on its decision in the Jarnail Singh case, in which the SC found that the requirement violated the principles established in the Indra Sawhney case.

It is also ordered that the public servants belonging to SC / ST maintain their qualifications in accordance with the retention rules when they are promoted. In the aforementioned government order, it is also clarified that according to the retention rules, public servants of the general category / OBC promoted later they will be inferior to the public servants of the SC / ST promoted before.

In this case, the High Court approved the writ request and abolished the Gradation list dated March 3, 2008. The main basis is that, unless the state government enacts a law that grants it the corresponding for the benefit of promotion, SC/ST candidates do not have the right to demand that candidates in the promotion category outperform candidates in the general category. The Supreme Court confirmed the previous sentence. The Supreme Court rejected the appeal, but held that the appeal was unfounded, so as not to interfere with the reasonable judgment of the High Court.

Recent Happenings

On September 14, 2021, the Supreme Court stated that it would not reconsider its judgement on giving reservation in promotions to Scheduled Castes (SCs) and Scheduled Tribes (STs) since it was up to the states to decide how to implement it.

“We are making it very clear that we are not going to reopen Nagraj or Jarnail Singh (cases) because the idea was only to decide these cases in accordance with the law laid down by the court,” said the bench, comprising Justices Sanjiv Khannna and B R Gavai.

“As a result, we find that the Nagaraj decision does not need remand to a seven-judge panel. “However, the finding in Nagaraj that the state must gather quantifiable evidence demonstrating the backwardness of the Scheduled Castes and Scheduled Tribes, which is opposed to the nine-judge bench in Indra Sawhney case, is found to be invalid to this extent,” the bench said.

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