“The force of his own merit makes his way.”

William Shakespeare, Henry VIII , Act I, scene 1, line 64

Introduction

If there is one thing that time has taught us is that a man’s worth is a summation of his merit. Nothing else has and can further him on earth than his skills, values and his work. It is the reason for his survival in the world as well.

The concept of reservation in areas of employment, education etc is an antithesis to the merit based working of society mentioned above. Reservation, according to Cambridge Dictionary, can be defined as ,’ an arrangement to have something kept for a person or for a special purpose’. The following article seeks to bring out the ‘special purpose ‘ that are served through the existence of reservation in promotions of  individuals for SCs/STs in India.

Statutory Backing

Article 16 (4A)^[1],added to the Constitution of India by the Seventy Seventh Amendment Act, 1995 enables the State to make laws in relation to providing reservation in promotions with consequential seniority in favour of the Scheduled Castes and the Scheduled Tribes. The subsequent clause 4B gives the state the levy to count out the unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) from the ceiling of fifty per cent reservation on total number of vacancies of that year thus the ceiling on the reservation quota — capped at 50% by Indra Sawhney — for these carried forward unfilled posts does not apply to subsequent years.

To reduce the effect of the aforementioned case’s judgement , the following Constitutional amendments were made in succession;

1. The Constitution (Seventy Seventh Amendment) Act, 1995 which inserted Article 16(4A);
2. The Constitution (Eighty First Amendment) Act, 2000 which added Article 16(4B);
3. The Constitution (Eighty Second Amendment) Act, 2000 which inserted a proviso to Article 335;
4. The Constitution (Eighty Fifth Amendment) Act, 2001 which added “consequential seniority” for SC/STs under 16(4B).

Case Law

1.   Recognition of Reservation by the Legal Fraternity

A 9 Judge Bench in Indra v. Union of India^[2] opined that the words ’employment or appointments are extensive so as to include the subject of promotion with the inclusion of promotion to selection posts in them. These  provisions of reservation , however ,under Article 16(4) were  not extended to promotions to the extent  that they impair the efficiency of the administration.

The echoes of the above mentioned constitutional amendments  were reheard  in the case of  Comptroller and Auditor General v. K.S. Jagannathan^[3] where it was held that , ‘It is now well settled by decisions of this Court that the reservation in favour of backward classes of citizens including the members of the Scheduled Castes and the Scheduled Tribes, as contemplated by Article 16(4) can be made not merely in respect of initial recruitment but also in respect of posts to which promotions are to be made.’

In the case of C.A. Rajendran v. Union of India^[4],it was further explained that the reservation can be made under Art. 16(4) is intended merely to give adequate representation to backward communities. It cannot be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other employees.

Furthermore in cases of Union of India vs. Jayaram ^[5] the mere presence seniority of the individual in the gradation list was held to be insufficient as it was said to  not give any right to be promoted to as selection grade or post where promotion is to be made on the basis of merit and seniority would count  only if the merits of the officer are equal.

2.   The Indra Sawhney Case: Important Decisions

This was a landmark judgement which provided a firm backing for streamlining and controlling the reservation policies prevalent in various fields of the state policies.The Hon’ble Supreme Court opined the following:

1. Reservation in public services either by legislative or executive action was taken to be neither a matter of policy nor a political issue.
2. Reservation in promotion was held to be constitutionally impermissible as, once the advantaged and disadvantaged are made equal and are brought in one class or group then any further benefit extended for promotion on the inequality existing prior to being brought in the group would be treated equally unequally. It would not be eradicating the effects of past discrimination but perpetuating it.
3. Economic backwardness was taken to be a factor to provide jurisdiction to the state to reserve provided it can find out mechanisms to ascertain inadequacy of representation of such class. But such a group or collectivity does not fall under Article 16(1).
4. Exclusion of the Creamy layer amongst backward class of citizens  by fixation of proper income, property or status criteria was to be done.
5. It was held that Article 16(4) being part of the scheme of equality doctrine is exhaustive of reservation; therefore, no reservation can be made under Article 16(1).
6. The higher courts in the country were held to be constitutionally obliged to exercise the power of judicial review in every matter which is constitutional in nature or has potential of constitutional repercussions.
7. It extended the Constitutional bar under Article 16(2) against state for not discriminating on race, religion or caste to Article 16(4) as to Article 16(1) as well, considering them to be a  part of the same scheme and serving the  same constitutional purpose of ensuring equality. Identification of backward class by caste is against the Constitution.
8. Identification of a group or collectively by any criteria other than caste, such as, occupation cum social cum educational cum economic criteria ending in caste was held to not be invalid.
9. Reservation under Article 16(4) being for any class of citizens and citizen having been defined in Chapter II of the Constitution was held to  include not only Hindus but Muslims, Christians, Sikhs, Buddhists Jains etc. 
10. Reservation being an extreme form of protective measure or affirmative action was required to be confined to a minority of seats.
11. With the constitutional philosophy being against proportional equality the principle of balancing equality ordains reservation, of any manner, was held to not exceed 50%.

As mentioned in the preceding headings , attempts to dilute the effect of this judgement were made via constitutional amendments and new judgements, with benches opening differently to this decision.

3.   The Nagraj^[6] Case Judgement: Important Decisions

Nariman J. observed “the whole object of reservation is to see that backward classes of citizens move forward so that they march hand in hand with other citizens of India on an equal basis. This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were.”

1. We reiterate that the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.
2. State will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation.
3. The State is not bound to make reservation for SC/ST in matter of promotions,if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335
4. The State will have to see that it’s reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.

Analysis

1.   Legal Scale

Clause 1 of Article 16 talks of Equality in the matter of appointment to any office under the state, this refers to ‘equality’ in terms of appointing any individual to any post  relating to the occupancy of any office available in the state , reservations which provide individuals with advantages in terms of assuming  offices and getting  promotions with respect to their god fortune of being born into a class of past history of backwardness  proved to be in direct contravention of the aforementioned clause.

Contravention of Article 15(4) and Article 335^[7] in The Constitution Of India 1949 as this provision of reservation fails to contribute to the advancement of the socially and educationally backward classes of citizens and to the maintenance of efficiency of administration.

2.   Societal Scale

The societies at large don’t benefit from such provisions and they handicap the individual instead of providing him/her with the tools to better their existing conditions. In the place of efficiency all the individual learns is dependency.

Such advantages given to the SCs and STs are inroads to the prevalence of equality in the state as this crutch needs to be present with the individual getting promoted due to the reservation provision throughout his/her professional life. This would further mean opening doors for the creation of a permanent separate category apart from the ordinary professionals with the members of reserved categories not needing to compete with others but only among themselves.

This provision would force the country into becoming one which functions on inefficient organisations and companies with low productivity and poorly motivated employees. 

This type of hand holding would not survive the real world. It would seek to crumble the morale of the meritorious and be a motivation for future handicapping legislation.As was held in Janaki Prasad Parimoo^[8], “it is implicit in the idea of reservation that a less meritorious person be preferred to another who is more meritorious.”

Frequently Asked Questions (FAQs)

1. Are these promotion reservations mandatory?

No they aren’t mandatory, as it was held in Mukesh Kumar & Anr vs The State of Uttarakhand & Ors^[9] that states are not bound to make reservations as reservation in promotions is not  a fundamental right.

2. Is Uttarakhand exercising the option of giving promotion reservation?

No Uttarakhand following the Supreme Court’s Directive has decided to ban Promotion reservation in the state.

3. Are there any provisions for states to follow to implement this reservation?

Yes, the states are required to show in the existence of the undeniable grounds for the introduction of reservation for certain classes of people .They are required to present data in terms of the backwardness, inadequacy of representation of the class of individuals and overall administrative efficiency before making provision for reservation.

4. What is the total percentage of reservation currently for OBCs, SCs and STs?

After introduction of reservation for OBCs, total reservation for SCs, STs and OBCs comes to 49.5% in case of direct recruitment on all India basis by open competition and 50% in case of otherwise than by open competition.^[10]

^[1] Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.

^[2] Indra Sawhney and Ors. vs. Union of India (UOI) and Ors. (16.11.1992 – SC) : MANU/SC/0104/1993

^[3] MANU/SC/0066/1986 : [1986]2SCR17

^[4] C. A. Rajendran vs Union Of India & Ors ,1968 AIR 507, 1968 SCR

^[5] AIR 1970 SC 2029

^[6] M. Nagraj & Others v. Union of India and Others (AIR 2007 SC 71)

^[7] Claims of Scheduled Castes and Scheduled Tribes to services and posts The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State

^[8] Janki Prasad Parimoo & Ors. Etc. … vs State Of Jammu & Kashmir & Ors 1973 AIR 930

^[9] in Mukesh Kumar & Anr vs The State of Uttarakhand & Ors ,Civil Appeal No. 1227 of 2020

^[10] Brochure on Reservation for SCs STs,OBCs,and https://dpe.gov.in/sites/default/files/Reservation_Brochure-2.pdf

https://indiankanoon.org/doc/1011960/