A two-judge Bench of the Supreme Court last week pronounced a historic judgment on reservation in promotions in favour of Scheduled Castes and Scheduled Tribes. The court was dealing with a 2018 Karnataka law that provided for reservation with consequential seniority — a person promoted would also get seniority as a consequence.
In B K Pavitra (2017), a similar law was struck down by a Bench of Justice A K Goel and Justice U U Lalit, who in March 2018 diluted some provisions of the SC/ST Act, 1989. The central government brought a law to overturn the judgment; the court is yet to pronounce its judgment on the review petition. In the latest case, Justice D Y Chandrachud authored the judgment and Justice Lalit concurred.
History of quota in promotions
In general, courts have opposed reservation in promotions, and favoured reservation at initial appointment. In 1963, the government notified that there shall be no reservation in promotions to Class I and Class II positions; a five-judge Bench headed by then CJI K N Wanchoo upheld this policy in C A Rajendran (1968). In State of Kerala vs N M Thomas (1975), the Supreme Court extended the benefit of reservation to promotions, while upholding a rule giving a two-year extension to pass a special test for promotion of SC/ST employees. Justice H R Khanna, however, authored a minority judgment holding such exemption as violative of “efficiency in administration”.
In Indra Sawhney (1992), a nine-judge Bench held that in future there should be no reservation in promotions.
Reservation in promotions for SCs/STs was introduced in Karnataka on April 27, 1978 in Class I. In the 1992 case, the court saved promotions already made and allowed continuance of promotions for another five years from the date of judgment. Parliament responded with the 77th Amendment in 1995 to overturn the judgment. The amendment came into effect on June 17, 1995.
Catch-up, consequential seniority
Many general candidates who were recruited along with SC/ST candidates, or were senior to them, were frustrated when their SC/ST colleagues became senior to them due to reservation in promotion. To address this, the Supreme Court in Virpal Chauhan (1995) held that once a general candidate is promoted, he would become senior to an already promoted SC/ST candidate if he/she had been senior in the lower cadre. This was termed the “catch-up” rule. In Ajit Singh (1996), the court said seniority of the lower cadre will remain intact to avoid “reverse discrimination”.
On February 3, 1999, Karnataka enacted the law laying down that reservation in promotion would continue until representation of SCs and STs reached 15% and 3% respectively. In Ajit Singh II (1999), the Supreme Court clarified the seniority rule — a general employee will regain seniority over an earlier promoted SC/ST employee if the former is promoted prior to the latter to the next higher cadre.
Parliament intervened again in 2001, with the 85th Constitutional Amendment that retrospectively came into effect from June 17, 1995, simultaneously with the 77th Amendment. In 2002, Karnataka too made its law effective from June 17, 1995, incorporating consequential seniority for SCs/STs promoted under reservation in promotions.
The two Amendments were challenged in M Nagraj (2006) but the Supreme Court held both to be valid. It rejected the argument that replacement of “catch-up rule” with “consequential seniority rule” violates the basic structure of the Constitution. It said Article 16(4A) is just an enabling provision, and the state is not bound to provide for reservation in promotion — but if it wants to do so, it must meet the requirement of collection of quantifiable data on three aspects: backwardness of the class, inadequacy of representation, and that general efficiency of services not be affected.
In fact, the backwardness of SCs needs no quantitative proof; the fact that certain castes are notified as SCs is the ultimate proof. Inadequacy of representation needs no proof either, as the country has not yet filled 22.5% positions reserved for SCs and STs.
The Karnataka law
In B K Pavitra, the Supreme Court had struck down the Karnataka law as it did not comply with the above three conditions. The state constituted the Ratna Prabha Committee, which submitted its report on May 5, 2017. From data of 1984-2016 across 31 departments, the committee found that SC and STs constituted just 10.65% and 2.92% respectively of filled posts. Based on the report, the 2018 law was enacted. The Presidential assent came on June 5, 2018.
In Jarnail Singh (2018), the Supreme Court was requested to reconsider and refer Nagraj to a seven-judge Bench. A five-judge Bench headed by then CJI Dipak Misra rejected the request, but diluted Nagraj. It observed that there is no longer need to collect quantifiable data on the backwardness of SCs and STs.
In the latest case, Justice Chandrachud said B K Pavitra in no way stopped the government from providing reservation in promotion after complying with the Nagraj conditions, and held that the Karnataka law is not a brazen overruling of the Pavitra judgment. He also observed that adequacy of representation is part of subjective satisfaction of the government.
Interpretation of efficiency
Justice Chandrachud demolished the whole argument of “efficiency” under Article 335. The Article not only protects reservation in promotion, but also allows for lowering the standards of evaluation. This recognises the need for creating a level playing field; thus, in the name of efficiency, fetters are not to be put in the path of correcting historical wrongs and injustices, he ruled.
“Efficiency of administration in the affairs of the Union or a State”, Justice Chandrachud said, “must be defined in an inclusive sense, where diverse segments of society find representation as a true aspiration of governance by and for the people… inclusion together with the recognition of plurality and diversity of the nation constitutes a valid constitutional basis for defining efficiency”.
Reservation is not necessarily anti-merit; a system that produces or continues with inequalities is anti-merit. A system that promotes substantive equality really promotes merit. Inclusion and reflection of social diversity in the state’s institutions furthers, and does not diminish, the cause of merit. This is the innovative meaning of merit as given by the judge.
The court has settled the law on “efficiency” and “merit”. Nobody’s efficiency can be ascertained prior to appointment. Moreover, no scientific research has ever proved that SC/ST employees are less efficient in the performance of duties than general category employees.
In K C Vasanth Kumar (1985), Justice Chinnappa Reddy had already demolished the “efficiency” argument. In observations quoted by Justice Chandrachud, Justice Reddy had stated: “Efficiency is very much on the lip service of the privileged whenever reservation is mentioned. Efficiency, it seems, will be impaired if reservation exceeds 50%; efficiency, it seems, will suffer if carry forward rule is adopted; efficiency, it seems, will be injured, if the rule of reservation is extended to promotional posts.” He went on to say that “the underlying assumption that those belonging of upper castes and classes, who are appointed to non-reserved posts, because of their ‘presumed merit’, naturally perform better than those who have been appointed to reserved posts and the clear stream of efficiency would be polluted by the infiltration of latter into the sacred precincts is a vicious assumption, typical of superior approach of elitists classes.”
(The author is a well-known expert of constitutional law)
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