THE EVOLUTION OF RESERVATION IN PROMOTION
~ Srikar Bommanagari
Reservation in Promotion, it provides a special benefit to the people who are of Scheduled Tribe and Scheduled Caste and are working in government offices compared to others. While drafting the reservations Dr. B.R. Ambedkar stated the term ‘reservations’ as compensatory benefits which will help in uplifting the backward classes and establishing a welfare state, reservations also bring equality of status among people. Reservation in promotion came into existence during the enactment of constitution in 1950 by the members of the drafting committee. It was introduced to encourage people of backward classes to emerge out of poverty and illiteracy.
In the case, Indra Sawhney v. Union of India (AIR 1993 SC 477), the Supreme Court held that the policy was unconstitutional and void. Article 16(4) stated that the reservation is valid only for appointments and not for promotions. It also stated that the policy will be functioning for a period of five years after which it will be eradicated from the constitution. But, the Parliament of India enacted the Constitution (Seventy Seventh Amendment) Act, 1995 which overruled the judgment given by the Supreme Court in the Indra Sawhney case. The Constitution (Seventy Seventh Amendment) Act, 1995 has inserted Article 16(4A) to the constitution. Article 16(4A) states that the states have a right to provide reservation in promotion to the backward classes if they are not adequately represented in the services under the state.
In the year 2001, the Eighty Fifth Constitutional Amendment Act, 2001 inserted the word ‘Consequential seniority’ to the Article 16(4A). Consequential seniority means that the seniority in public services would be given as an automatic consequence of promotion to scheduled tribe and scheduled caste persons given by the way of reservations. In Nagaraj v. Union of India (2006 (8) SCC 212), the constitutional validity of 77th and 85th Constitutional Amendment were challenged. The Supreme Court in its judgment upheld the validity of Article 16(4A). However the Supreme Court has inserted a few conditions if they are satisfied the state has the power to implement reservation in promotions. The following are the conditions inserted by the Supreme Court:
§ There should be quantifiable data regarding backward classes;
§ There should be inadequacy of representation in public services;
§ There should not be any impact on the overall efficiency of administration by way of such reservation.
In 2012 the Uttarakhand government issued a Public Work Department (PWD) notification in which it discussed about promotion. But in that promotion notification the clause ‘reservation in promotion’ was not inserted due to which litigation was filed in the state High Court against the Uttarakhand government. The High court’s judgment stated the government has to insert ‘reservation in promotion’ in its notification. The Uttarakhand government filed a petition in the Supreme Court. In its judgment the Supreme Court stated that reservation in promotion in public post cannot be considered as a fundamental right. The State governments are of no right to make reservations and also the courts cannot issue mandamus instructing States to provide reservations. The Articles empower the State to make reservation in matters of appointment and promotion in favor of the Scheduled Caste and Scheduled Tribe only “if in the opinion of the State they are not adequately represented in the services of the State”. The inadequacy of representation is a matter within the subjective satisfaction of the State, the judgment said. Thus, the State government has discretion “to consider providing reservations, if the circumstances so warrant”.
However, if the state considers to provide reservation in promotion, it has to first collect quantifiable information stating the inadequacy of representation of a particular class or community in the state and also confirm that it will not affect the administration of the state. If the decision of the State government is challenged, it would have to place necessary proof before the court stating that the reservation was necessary.