09-06-2018-Questions of promotion: Faizan Mustafa
The Hindu: June 9, 2018
The Supreme Court’s one line order that the government can go ahead with promotions in government offices — which will have bearing on Scheduled Caste/Scheduled Tribe (SC/ST) reservations in promotions — has come with the caveat “in accordance with law”. This is no victory at all as all such promotions, if made, will again be challenged due to a non-fulfilment of conditions laid down in earlier judgments (which under Article 141 of the Constitution are “law declared by the Supreme Court which is binding on all courts”). The solution could be an ordinance if the Dalit cause is dear to the government.
Barring a few exceptions, the judiciary has not been encouraging on reservation policies. In the State of Madras v. Srimathi Champakam Dorairajan (1951), which related to medical and engineering seats, the Madras High Court struck down the reservation policy. The judgment led to the first amendment to the Constitution to protect reservations. The newly introduced Clause (4) of Article 15 read: “Nothing in this Article or in Clause 2 of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”
In M.R. Balaji (1962), the Supreme Court did make some positive observations. These included: the government need not appoint a commission to determine backwardness under Article 340 prior to formulation of a reservation policy; executive orders giving reservation are valid; caste is important but not the sole determinant of backwardness; and ‘caste’ and ‘class’ are not synonymous. The court struck down the distinction between ‘backward’ and ‘more backward’ communities and termed 68% reservation as a ‘fraud’ on the constitutional power conferred on the state by Article 15(4). It also introduced a 50% upper limit in reservation. This judicial innovation is unreasonable as there is no statistical basis to argue that efficiency will be adversely affected if reservation exceeds the 50% limit or if it is extended to promotions.
In C.A. Rajendran (1967), where governmental policy of 1963 that did not provide for reservation of posts in class I and II posts was challenged, a five-judge bench upheld the policy by saying that reservation both in appointments and promotions is merely discretionary rather than the constitutional duty of the state. In T. Devadasan (1963), the “carry forward” in reservations (if reserved seats remained unfilled in a year they would be carried forward subsequently) was struck down.
In State of Kerala v. N.M. Thomas (1975), the Supreme Court did extend the benefit of reservations to promotions while upholding the rule that gave further exemption of two years to SC/ST candidates in passing the tests.
In Indra Sawhney (1992), where 27% Other Backward Classes (OBC) reservation was challenged, a nine-judge bench authoritatively laid down the law on reservation. The positive findings were: Article 16(4) is not an exception to the right to equality of opportunity provided under Article 16(1) but an illustration of the right to equality of opportunity; a caste can be and quite often is a social class in India; a classification between ‘backward’ and ‘most backward’ is constitutionally permissible, and T. Devadasan was wrongly decided. But here too the court explicitly said that in future reservation, benefits cannot extend to promotions and ‘creamy layer’ is to be excluded in reservation for OBCs. Further, reservation though not ‘anti-merit’, should not apply to some services and certain posts.
The government brought in the 77th amendment to the Constitution in order to overturn Indra Sawhney on the issue of promotions. But in Virpal Singh Chauhan (1995), and subsequently in Ajit Singh (1999), a ‘catch up rule’ was introduced under which senior general candidates who were promoted after SC/ST candidates would regain their seniority over SC/ST candidates promoted earlier. As a result, the 85th amendment had to be passed to reverse these judgments and to give consequential seniority to SC/ST candidates.
The two amendments were challenged leading to M. Nagaraj (2006) in which the court made certain unusual observations: the concept of SC/ST reservation is hedged by three constitutional requirements — backwardness of SC/STs, inadequacy of their representation in public employment, and overall efficiency of administration. A number of High Courts following Nagaraj have struck down reservation in promotions after applying these requirements.
Surprisingly, the bench in Nagaraj also went against the judgment of Indra Sawhney where the court had said that SC/STs were definitely socially backward. In 2004 a constitution bench in E.V. Chinnaiah did admit the backwardness of Dalits and said that SCs are not only backward but indeed most backward.
Moreover, since the backwardness of SCs was taken into account (Article 341), Nagaraj was erroneous in insisting on quantitative collection of data to prove their backwardness. Ironically no petitioner in Nagaraj disputed the backwardness of Dalits.
The judgment is also off the mark on the issue of exclusion of the creamy layer in promotions. When this layer is not relevant at the initial appointment, how can its exclusion be insisted upon in promotions? In fact, in Ashoka Kumar Thakur (2008), the Supreme Court clarified that the creamy layer doctrine has no relevance in SC/ST reservation.
Efficiency is demonstrated in the performance of employees. No research has so far proved that SC/ST employees are less efficient than employees recruited under the general category. And the judiciary should not pre-judge the efficiency of any category of employee prior to their appointment/promotion. Justice Chinnappa Reddy in K.C. Vasanth Kumar demolished the efficiency argument when he said: “Efficiency is very much on the lips of the privileged whenever reservation is mentioned.” He added: “The underlying assumption that those belonging to the upper castes and classes, who are appointed to the non-reserved castes will, because of their presumed merit, ‘naturally’ perform better than those who have been appointed to the reserved posts and that the clear stream of efficiency will be polluted by the infiltration of the latter into the sacred precincts is a vicious assumption, typical of the superior approach of the elitist classes.” In 2017, the Supreme Court finally referred reconsideration of Nagaraj to a Constitution bench.
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