The Supreme Court has ruled that states are not bound to provide reservation in appointments and promotions and that there is no fundamental right to reservation in promotions.
A bench of Justices L Nageswara Rao and Hemant Gupta, which referred to earlier decisons of the court in this regard, said last week, “… Article 16 (4) and 16 (4-A) are in the nature of enabling provisions, vesting a discretion on the state government to consider providing reservation, if the circumstances so warrant. It is a settled law that the state government cannot be directed to provide reservation for appointment in public posts. Similarly, the state is not bound to make reservation for Scheduled Castes and Scheduled Tribes in matters of promotions.”
“However, if they (state) wish to exercise their discretion and make such provision, the state has to collect quantifiable data showing inadequacy of representation…” the bench said.
It added that “if the decision of the state to provide reservations in promotion is challenged, the state concerned shall have to place before the court the requisite quantifiable data and satisfy the court that such reservations became necessary on account of inadequacy of representation of Scheduled Castes and Scheduled Tribes in a particular class or classes of posts without affecting general efficiency of administration…”.
The Supreme Court was deciding a group of appeals pertaining to reservations to SCs and STs in promotions in the posts of Assistant Engineer (Civil) in PWD, Uttarakhand.
The court said that “Article 16 (4) and 16 (4-A) empower the State to make reservation in matters of appointment and promotion in favour of the Scheduled Castes and Scheduled Tribes ‘if in the opinion of the State they are not adequately represented in the services of the State’.”
What the law says about reservation
Article 16(4) empowers the state to make any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the state, is not adequately represented in the services under the state. By way of the 77th Amendment Act. A new clause (4A) was introduced to Article 16, empowering the state to make provisions for reservation in matters of promotion to SC/ST employees if the state feels they are not adequately represented in services. The Supreme Court had upheld the amendment as constitutional.
The judgment added that it is for the state government to decide whether this was necessary.
“The state can form its own opinion on the basis of the material it has in its possession already or it may gather such material through a Commiss-ion/Committee, person or authority. All that is required is that there must be some material on the basis of which the opinion is formed. The court should show due deference to the opinion of the state,” the court said, adding that that such opinion is not beyond judicial scrutiny.
On the requirement for data collection, the court said this is only to justify reservation to be made in the matter of appointment or promotion to public posts, according to Article 16 (4) and 16 (4-A) of the Constitution.
“As such, collection of data regarding the inadequate representation of members of the Scheduled Castes and Schedules Tribes, as noted above, is a prerequisite for providing reservations, and is not required when the state government decided not to provide reservations,” the bench said.
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