BK Pavitra and Others v. Union of India 2019

Reservation in promotion concerns to reservations that are permitted to Scheduled Castes and Scheduled Tribes (SCs/STs) for the public employment promotion. It is a bitterly contested issue between the Supreme Court and Parliament. In the year 1992 the Court, in judgment Indra Sawhney, found that Article 16(4) does not allow for reservation in promotion. Then, between 1995 and 2000, Parliament enacted a series of Constitutional Amendments that legalized reservation in promotion. In the year 2006, the Court responded with its judgment Nagaraj, in which strict conditions were placed on when the State could grant an SC/ST reservation in promotion.

Name of the Case- BK Pavitra and others v. Union of India

Citation- (2017) 4 SCC 620

Year of the Case- 10^th May2019

Appellant- BK Pavitra and others

Respondent- Union of India and Others

Bench/Judges- Hon’ble JusticeDr. Dhananjaya Y Chandrachud

Acts Involved- Constitution of India and Reservation Act 2018

Important Sections- Article 14of the Constitution, Article 16(4A) of the Constitution, Section 3 of Reservation Act 2018, Section 4 of Reservation Act 2018

Consequential Seniority in Karnataka: BK Pavitra v. Union of India – II

On 10 May 2019, the Supreme Court upheld the validity of the Reservation Act 2018 which introduced consequential seniority for SC/STs Public Employment in Karnataka.

Consequential Seniority allows reserved category candidates to retain seniority over general category peers. If a reserved category candidate is promoted before a general category candidate due to the reservation in promotion, then for subsequent promotion the reserved candidate retains seniority. In effect, consequential seniority undoes the ‘catch-up-rule’ that allowed general category candidates to catch-up to reserved category candidates.

Introduction

In case law B.K. Pavitra II, the Supreme Court bench of Justices U.U. Lalit and D.Y. Chandrachud endured 10^th May that the state legislature, by enacting the 2018 Act, took care to remedy that the underlying cause which led to a declaration of invalidity of the 2002 Act. Curative legislation is permissible constitutionally and is not an encroachment on judicial power, the bench held. Such a law is valid because it removes the grounds of the Supreme Court’s decision.

To rehabilitate the defect, it is necessary to understand the rationale underlying the declaration of invalidity of the earlier Act. The reasons establish the basis of the declaration. The legislature cannot simply override the declaration of invalidity without remedying the basis on which the law was held to be ultra vires, the bench clarified.

Background of the Case

In the judgment of Indra Sawhney vs Union of India, the Supreme Court of India had held that reservations made under Article 16(4) can only be provided at the time of entry into government service but not in matters of promotion.
In the year 1995, Parliament, acting in its constituent capacity, adopted the 77^th amendment by which clause (4A) was inserted into Article 16 to enable reservation to be made in promotion for SCs and STs.
The validity of the 77^th and 85^th amendments to the Constitution and of the legislation enacted in the implementation of these amendments was challenged before the Supreme Court in the case of Nagaraj. The Supreme Court upheld the constitutional validity of these amendments and ruled that:

If the state “wished to exercise their discretion and make provision (for reservation in promotions for SCs/STs), the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation and compliance to Article 335”.
- It will have to see that its reservation provision does not breach the ceiling-limit of 50%.

The Karnataka Determination of Seniority of the Government Servants Promoted on the grounds of the Reservation Act 2002 which was held to be unconstitutional [in BK Pavitra CASE]on the ground that an exercise for determining ‘inadequacy of representation’, ‘backwardness’ and therefore the impact on ‘overall efficiency’ had not preceded the enactment of the law.

Facts of the Case

Reservation in promotions under the Karnataka Act was upheld.
Karnataka in 2002, enacted a law that stated consequential seniority would be applicable while dealing with promotions of the SC/ST employees in government offices.
This implied that a reserved category employee could be promoted before a senior employee belonging to a general category.
In 2007 the Supreme Court held that the law passed by the Karnataka Government did not comply with the guidelines under the Nagraj case and was thus unconstitutional.
Subsequently, the Karnataka Government set up a Committee to demonstrate the criteria laid down in the Nagraj Case has been fulfilled-

1. current backwardness of SC/ST

2. inadequate representation and

3. impact on administrative efficiency and thereafter re-enacted the earlier law.

Issues of the Case

1. Is the Reservation Act 2018 a legislative overruling of BK Pavitra I? BK Pavitra I struck down consequential seniority, yet the Reservation Act 2018 re-introduces it.

2. Is the Reservation Act 2018 in conformity with the Constitution Bench judgments in Nagaraj and Jarnail Singh?

Related Provisions

Section 3 of the 2018 Reservation Act– provides for reservation in promotion

Section 4 of the 2018 Reservation Act– validates consequential seniority, backdated to 24th April 1978.

Article 16(4B) of the Indian Constitution- provides that reserved promotion posts for SCs and STs that remain unfilled can be carried forward to the next year. It also ensures that the ceiling on the reservation quota – capped at 50% by Indra Sawhney for these carried forward unfilled posts doesn’t apply to subsequent years.

Article 16 (1) of the Indian Constitution- there shall be equality of opportunity for all citizens in matters regarding employment or appointment to any office under the State.

Article 335 of the Indian Constitution- The claims of the member of the Scheduled Castes and therefore the Scheduled Tribes shall be taken into consideration, consistently, with the maintenance of efficiency of administration within the making of appointments to services and posts in reference with the affairs to the Union or a State.

Article 341 and 342 of the Indian Constitution- These articles define who would be Scheduled Castes and Scheduled Tribes concerning any State or Union Territory

Related Case Law

1. The Constitution Bench in the judgment of Jarnail Singh had been called upon to reconsider a previous decision in M. Nagaraj v. Union Of India.[1] It was asserted by the government’s attorney general before the Supreme Court in Jarnail Singh case that the exclusion of the creamy layer of SC/STs in promotions, as propounded in Nagaraj, is a clear misinterpretation of another judgment in 1992 in Indra Sawhney v. Union Of India.[2] Within the year 1992 judgment haddealt only with the constitutionality of 27% reservation granted to the Other Backward Classes (OBCs) and exclusion of creamy layer from the OBCs.

2. Specifically examining the 1992 Indra Sawhney judgment, the Jarnail Singh judgment of 2018 made two contradictory observations. On one hand, it noted that the discussion on the creamy layer concept is restricted to backward classes in the judgment of Indra Sawhney, which had said clearly that“this discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes”. But, on the other hand, the judgment of Jarnail Singh made the mistake of treating the Indra Sawhney judgmentto be “a facet of the larger equality principle” (covering both OBCs as well as SC/STs). Both positions are mutually exclusive.

Ratio Decidendi

A decision was given by Hon’ble Justice Dr. Dhananjaya Y Chandrachud

On the first question, the Court held that the Reservation Act 2018 isn’t a legislative overruling of BK Pavitra I. Justice Chandrachud stated the 2018 Act changed the premise of BK Pavitra I by providing data. He held that corrective legislation is constitutionally possible.

On the second question, the Court analyzed the data provided by the State demonstrating backwardness, inadequate representation, and administrative efficiency. Justice Chandrachud clarified that the Court’s power of judicial review was limited, observing that the need for reservation lies within the domain of the executive and legislature. He emphasized that the Court would only strike down the legislation if it found that the Ratna Prabha Committee relied on extraneous or arbitrary considerations.

Backwardness / Creamy Layer

The Court did not look at the data on backwardness because Jarnail Singh had removed that requirement.

However, Jarnail Singh did introduce the creamy layer exclusion principle. The Committee had not collected creamy layer data, given that the judgment came out after the report. Nevertheless, the Court upheld the Reservation Act 2018.

Justice Chandrachud reasoned that Jarnail Singh introduced the creamy layer principle for reservation in promotion and not for consequential seniority. Specifically, he held that consequential seniority is a consequence of reservation in promotion and not an additional benefit. Hence, he held that the creamy layer test could only be applied at the stage of reservation in promotion and not subsequently for consequential seniority.

Inadequate Representation

The Court accepted the claim of inadequate representation. The Committee found that SC/ST employees constitute 10.65% and 2.92% respectively across 31 State Government departments. Further, it found the cadre wise representation to be:

SCs: 12% (Grade A), 9.79% (Grade B), 12.74% (Grade C), 16.91% (Grade D)
STs: 2.70% (Grade A), 2.34% (Grade B), 0.04% (Grade C), 2.34% (Grade D)

The Report concluded that there is an inadequate representation of SC/STs in State Government services in Grade A, B, and C while adequate representation in Grade D.

The Court clarified that reservation in promotion via the Reservation Act 2018 will be allowed until SC/ST representation reaches 15% and 3% respectively.

Efficiency

Next, the Court looked at administrative efficiency. Justice Chandrachud accepted the Committee’s claim that Karnataka continues to show high performance in various sectors despite reservation in public jobs. While the Report did not go into specifics, it concluded that no inference can be drawn that reservation in favor of SC/ST has negatively impacted efficiency.

Further, it was introduced as an inclusive definition of administrative efficiency. It was examined that the definition of efficiency under Article 335 of the Constitution of India observed that it ‘does not define what the framers meant by the phrase “efficiency of administration”.’ It was then proceeded to define efficiency in terms of equal representation.

Justice Chandrachud criticized the predominant merit-based approach to maintaining administrative efficiency. He observed that the seemingly neutral system of standardized tests masks existing inequalities in society, which appear to favor already privileged candidates. Referring to scholar Marc Galanter, he said that standardized exam results are based on economic resources, social and cultural resources, and individual hard work. He observed that the first two are structural conditions beyond the control of the individual. He held that the conditions must be controlled.

Then a representative definition of efficiency was introduced. Citing Amartya Sen, it was held that merit should be measured as an action that leads to societal good.

It was concluded that the representative notion of efficiency is congruent with the policy of consequential seniority.

Significance of the Judgement

The judgment emphasizes the historical and social justification for according reservation.

It rejects the argument that quotas, by themselves, affect administrative “efficiency”. It says merit lies not only in performance but also in achieving goals such as the promotion of equality.

The judgment suggests that India’s transformative Constitution envisages not just formal equality of opportunity but the achievement of substantive equality.

It accepts the correct of the authorities of subjective satisfaction in deciding the adequacy of representation, subject to the norm that there should be relevant material before it.

Related Concept

Consequential Seniority Rule

Consequential Seniority allows the reserve category candidates to retain seniority over general category peers. If a category candidate is promoted before a general category candidate due to reservation in promotion, then for subsequent promotion the reserved candidate retains seniority.

In effect, consequential seniority undoes ‘catch-up-rule’ that allowed general category candidates to catch-up to reserved category candidates.

For Instance-

A belongs to the General Category, currently holds Level 3 of a government post.
B is appointed under the Scheduled Caste quota, and B is junior to A in Level 3.
When promotion to Level 4 was being decided, let us assume further, that because of reservation in promotion of B has to be promoted to Level 4 before A because there are no Schedule Caste candidates at seniority similar to that of A.
The question that arose was whether A would regain seniority over B when she is promoted to Level 4 in due course.
“Consequential Seniority” means that A won’t regain her seniority and B will now be considered senior to A within Level 4.

References

[1] (2006) 8 SCC 212
[2] (1992) supp. (3) SCC 217 (2)